Terms, Form, Proof and Results of the Belief Contract
(HGK-K.2021/635)
As it is known, there is no legal regulation directly regulating religious transactions in Turkish Law. However, in practice and doctrine, the contracts of belief are regulated by Article 26 of the Turkish Code of Obligations No. 6098. article (abrogated 19 of the Code of Obligations No. 818. it is accepted that it can be regulated and made valid within the scope of the principle of “freedom of contract” within the scope of article).
In faith transactions, the believer and the believing party agree that the ownership over the subject of the faith contract will first pass to the believer and then return to the believer again. Dated 17.05.2000 and 2000/2-888 E of the General Assembly of Law., 2000/885 K . as stated in the numbered decision, an escrow transaction is a transaction in which a person transfers certain rights to another person in order to protect his interest or to provide collateral, but the parties have decided that the person who owns the right cannot use some of the powers arising from them at all, and that he is obliged to use some of them only as the person who previously owned the right and still owns the interest shows.
As can be seen, the escrow transaction is a legal transaction based on trust. The parties transfer the ownership of a good to the other party to the contract as a result of the trust they have for each other and believe that this good will be returned to them later. As a matter of fact, a believer is defined as a person who trusts that the goods will return to him.
A faith contract is a mandatory transaction between a believer and a believer that Decrees their rights and obligations, the reasons for the termination of the faith transaction, and the conditions for the believer to return the transferred right to the believer. This agreement is an independent agreement that covers the rights and obligations of the parties and forms the legal basis for the transfer of receivables and goods.
The parties of the escrow transaction are believers and believers. A person who transfers a right or object to a trusted person is called a “believer”. A person who uses the transferred right or object directly or indirectly for his own benefit as a right belonging to him is called a “believer”. The right or object that a believer gives to a believer is characterized as ”what is believed”. In an escrow transaction, the parties to the beneficial transaction are the same as the parties to the contract that leads to a debt.
In the escrow process, the believer must comply with the agreed conditions when exercising his right and transfer the right or object back to the believer (or a third party indicated by him) when the purpose is realized or the time expires. An escrow transaction is a contract that gives the person who made the transfer, that is, the believer, the right to request that the transfer be returned when certain conditions are met. If this obligation is not fulfilled, it may be requested to be fulfilled by decree through a lawsuit.
With such a contract and related transaction, the parties usually apply to faithfully acquire something or a right included in the assets to serve as collateral and be returned to the believer, creating a stronger legal situation than ordinary legal actions pursuing the same purpose. In other words, with this transaction, instead of pawning his property to his creditor, that is, giving only a limited right in kind, the debtor transfers ownership of his property and recognizes a stronger and more advanced right than the right of pledge.
Paid paid Due to the above-mentioned features of the contract and the related assignment, the person who sells the immovable property with the faith contract has the right to claim the immovable property only by returning the borrowed money, while the person who buys the immovable property with the faith contract is only obliged not to sell the immovable property to someone else until the debt is paid and to return the debt when it is paid.
In other words, the ownership of the immovable property has passed to the believer (creditor). Just as the creditor (debtor) does not have any ownership rights over the immovable property, the buyer has not established a pledge right over this ownership right. Faith contracts are valid contracts that impose mutual debts on them and give them the right to receive, since they are in accordance with the mutual wills of the parties.
(Art. 6098 of the Turkish Code of Obligations. 97) In these contracts, the parties determine the rights and obligations imposed on them by the contract, while determining the reasons for the termination of the belief transaction; they can also determine the conditions and, of course, the duration of the return of the transferred right from the believer to the believer. They can also put sanctions for breach of contract into their contracts. The provisions of this agreement are considered valid as long as they do not contradict Articles 26 and 27 of the Turkish Code of Obligations numbered 6098 (Articles 19 and 20 of the Code of Obligations numbered 818).
However, in Turkish law, savings related to immovable property can be made officially at the land registry offices. For this reason, it is not possible to transfer the immovable property through a faithful transfer at the land registry directorate. This situation causes the faithful transfer process to be confused with muwazaa and brings with it many disadvantages. Although the rights holders want to transfer their real estate through faith, since the land registry offices cannot do this transaction, the parties usually perform the transaction in the form of a sales contract at the land registry office, and since the faith contract, which reflects their true will and appears to be a confidential transaction, does not carry the form requirement, it is not possible to transfer real estate with a faith contract.
For this reason, it is important what kind of legal consequences will arise from faith contracts or official contracts related to real estate and whether it will constitute the reason for the transfer of real estate if the conditions stipulated in the contract are fulfilled. In the decision of the Court of Cassation Case Law Unification Decision dated 05.02.1947 and numbered 20/6, it was discussed whether claims of collusion and fictitious names, which are possible and valid according to the old law, can be put forward about real estate after the Civil Code enters into force.
In the aforementioned decision, it is possible for various reasons and purposes to show another name instead of the real owner in the real estate registration, a third party instead of one of the contractors in the contract; in such cases, as in the savings made by the lawyer on his own behalf and on behalf of his client, it may be necessary to hide the truth from third parties for a legal situation or for any purpose; except for “malicious and unfair concealments”, the case to be opened according to the listed possibilities will either be in the nature of changing hands based on an existing right or protecting the right;
This situation is a matter accepted as the principle of succession in property in the representation and proxy relationship, and even if it is accepted that the ownership of the property belongs to the proxy first to correct the succession, it cannot be decided to maintain and maintain it, since it is contrary to the representation provisions, because the Law of Obligations “When the client fulfills various debts against the proxy, the proxy’s receivables in the third party on his own behalf and on behalf of his client become your client” confirms this idea.
On the other hand, whether it relates to movable or immovable property, in other cases of fias, since the subject cannot be considered as an allocation and ownership claim, neither the official deed nor the form issue can be mentioned, in accordance with the purpose of the law, the matter is subject to agreement in contracts and names 18 of the Code of Obligations regulating the subject matter. it is stated that it should be evaluated within the scope of the article. The issue is subject to Article 18 of the Code of Obligations regulating contractual and registered collusion cases. it was stated that it would be appropriate for the purpose of the law to be evaluated within the scope of the article, and it was concluded that registered collusion cases could be seen and proved with written evidence.
It is indisputable that the consolidation of case law decisions is limited to their subjects, guiding with their justifications and binding with their consequences. As stated in the Case Law Consolidation Decision mentioned above, faith contracts are binding for the parties in terms of creating the obligation to transfer ownership on the one hand, and on the other hand, contracts containing savings transactions in terms of creating the reason for the transfer of ownership. In this case, it should be accepted that the conditions, if any, are of a nature to ensure the transfer of the immovable property.
In addition, in the final section of the Merger Decision, it was deemed sufficient that the document referred to as the faith contract contained the signatures of the parties to the contract, it was not discussed anywhere that the written document on which the faith transaction was based should have been issued on the date of the transaction or no later than an earlier date, not even the slightest explanation was made on this issue. Since an acceptance other than this would mean an expansion of the scope of the Merger Decision, this situation cannot be accepted by the legal order.
For this reason, it is a natural consequence of the Merger Decision that claims based on the belief agreement can be proved by a written document that does not depend on the form and bears the signature of the parties, and the fact that the document subject to the belief transaction was issued before or after the date of the agreement does not affect the result. The justification of the said decision did not include a statement or provision that the written document should have been issued before or after the contract; in other words, it has been stated that the document bearing the date after the contract cannot be valid, and in the conclusion section, only the provision “it is permissible to prove the cases of the aam-i exceptional with valid and written evidence” is included.
It is not possible to take into account the fact that the document that is not included in the scope of the Merger Decision must have been issued before the contract date, even if it is by interpretation, within the scope of the decision.
As a matter of fact, the General Assembly of Law dated 14.07.2010 and 2010/14-394 E., 2010/395 K. the same issues were emphasized in the numbered decision. As can be seen, in the transfer of real estate with title deeds by escrow, the escrow transaction must be made in writing and it is sufficient, in accordance with the Decision to Combine Case Law No. 20/6 dated 05.02.1947, where the written form is a requirement for proof. However, the existence of the belief contract, which constitutes the written evidence of the belief transaction, by the party requesting restitution, compensation or termination of the contract due to the belief transaction, is subject to Article 6 of the Turkish Civil Code No. 4721 (TCC). with the general provisions of Article 190/1 of the Civil Procedure Code (CCP) numbered 6100. it must be proved in accordance with the article.
In practice, even if there is no written evidence of the nature described, it is not considered sufficient to prove the entire dispute between the parties, and if there is a document that is the beginning of evidence to prove its existence on the other hand, it is accepted that the contract of belief can be proved with all kinds of evidence, including “witness” (General Assembly of Civil Dec. 28.12.2005 and 2005/14-677 E., 2005/774 K .; 14.11.2019 date and 2017/1-1254 E., 2019/1197 K. numbered decisions). If there is no written or preliminary evidence, persuasion of the belief contract (HMK m. 188) and the oath (HMK m. 225 et seq.) it is also possible to prove with conclusive evidence such as.
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