Statute of Limitations in Actions for the Cancellation of Dispositions
In actions for the cancellation of dispositions, it is not a matter of limitation, but rather prescription.
According to Articles 278 et seq. of the Turkish Code of Obligations (TCO), the cancellation of dispositions made by the debtor “without consideration” or “in a state of insolvency” covers the dispositions made by the debtor during the period from the debtor’s bankruptcy or the commencement of bankruptcy proceedings until the bankruptcy or the disposition leading to bankruptcy. However, this period cannot exceed two years.
According to Article 280 of the TCC, the statute of limitations for a lawsuit against transactions made by the debtor with the intent to harm the creditor is five years from the date the creditor learned of the transaction or from the date there was a clear indication that the creditor should have learned of it.
After the expiration of the five-year statute of limitations from the date of the transaction whose cancellation is sought, the action for cancellation of the transaction filed pursuant to Articles 277 et seq. of the Turkish Code of Obligations must be dismissed…
(17th Civil Chamber, 11.04.2017, B. 11746/3952)
…In lawsuits filed for the cancellation of a fraudulent transaction pursuant to Article 19 of the Turkish Code of Obligations, the plaintiff is not required to initiate enforcement proceedings, and since the five-year statute of limitations has expired, the lawsuit cannot be dismissed pursuant to Article 284 of the Turkish Enforcement and Bankruptcy Code. If the plaintiff proves their claim, it should be ruled that the claim does not relate to the immovable property itself but to the collection of the debt and that, therefore, pursuant to Articles 283/1 and 2 of the Turkish Enforcement and Bankruptcy Code, by analogy, the plaintiff may request the seizure and sale of the immovable property “without the need for annulment and registration”… (17th Civil Chamber, 11.09.2018, T. 2876/7629)
Competent Court in Actions for Cancellation of Disposition
Actions for cancellation of disposition are heard by the Civil Courts of First Instance, which are the courts of general jurisdiction pursuant to Article 281 of the EBC. A common misconception is that if the transaction in question is based on a commercial relationship, the case must be filed in the Commercial Court of First Instance. However, regardless of the legal nature of the transaction in question, the competent court is the Civil Court of First Instance.
It is particularly emphasized that in cases of annulment of transactions or, as in the present case, in cases filed pursuant to Article 19 of the Turkish Code of Obligations and cases where the Turkish Code of Civil Procedure (İİK) is requested to be applied mutatis mutandis, commercial purchase and sale agreements or commercial or general credit agreements between the creditor and debtor that constitute the bank claim are not taken into account in determining jurisdiction. A lawsuit for the cancellation of a transaction filed pursuant to Article 19 of the Turkish Code of Obligations and a lawsuit for fraudulent concealment in which the analogous application of Article 283 of the Turkish Code of Civil Procedure is requested also fall outside the scope of jurisdiction. Therefore, pursuant to Article 2 of the Code of Civil Procedure No. 6100, the jurisdiction lies with the Civil Court of First Instance (YHGK-K.2016/129).