ntroduction: İnançlı İşlem (Fiduciary Transaction)
The concept of İnançlı İşlem (Fiduciary Transaction) represents a unique feature of Turkish law. It occurs when a party transfers ownership of an asset or a right to another party, not for permanent transfer, but with trust that the transferee will return it or use it in line with a fiduciary agreement. Although not explicitly regulated under the Turkish Code of Obligations, the doctrine of İnançlı İşlem has been recognized and developed through Court of Cassation (Yargıtay) precedents.
In daily life, İnançlı İşlem (Fiduciary Transaction) plays a significant role in business transactions, family arrangements, and financial practices. Understanding its legal framework and risks is crucial for both lawyers and clients.
Legal Framework of İnançlı İşlem
- No Explicit Codification:
The Turkish Code of Obligations (TCO) does not specifically regulate fiduciary transactions. Instead, they are recognized under the principle of freedom of contract (TCO Article 26). - Judicial Recognition:
The Yargıtay has consistently accepted that fiduciary transactions are valid as long as they do not conflict with mandatory provisions, morality, or public order. - Main Elements:
- Transfer of Right or Property to another party.
- Trust (İnanç) that the transferee will hold or use it for a specific purpose.
- Obligation to Return the right/property when the purpose ends.
- Types of Fiduciary Transactions:
- Transfer of movable or immovable property to secure a debt.
- Registration of a company share in another person’s name temporarily.
- Holding assets for family protection purposes.
Daily Life Practice of İnançlı İşlem
Although theoretical in nature, fiduciary transactions arise in everyday practice:
- Debt Security:
A debtor transfers ownership of property to a creditor as security. Once the debt is repaid, the creditor must re-transfer the property. - Company Structures:
A business partner temporarily registers shares under a trusted person’s name due to legal restrictions, with an agreement to return them later. - Family Arrangements:
Parents register real estate in a child’s name with the understanding that the property will later be shared with siblings. - Property Protection:
Assets are transferred to a third party to avoid risks of enforcement against the true owner, with a fiduciary agreement to return them later.
Court Practice and Evidence
Yargıtay decisions highlight that:
- Fiduciary transactions are valid, but they must be proven with written evidence.
- Oral promises are insufficient when property rights are in question.
- Courts examine whether the transaction is a genuine fiduciary act or a disguised fraudulent transfer (muris muvazaası, creditor fraud).
- If proven, the transferee is obliged to return the asset according to the fiduciary agreement.
Risks and Controversies
- Abuse of Trust: The transferee may refuse to return the property, leading to lawsuits.
- Fraudulent Intent: Sometimes fiduciary transactions are used to defraud creditors, making them legally problematic.
- Tax and Registration Issues: Fiduciary transfers of real estate must still comply with notarial and land registry formalities.
Remedies in Disputes
If a transferee refuses to honor a fiduciary agreement:
- The transferor may file a lawsuit for cancellation of title (tapu iptali davası) and re-registration.
- Damages may be claimed if losses arise.
- Courts may also apply sanctions for fraudulent use of fiduciary transactions.
Importance of İnançlı İşlem
The İnançlı İşlem (Fiduciary Transaction) remains an indispensable mechanism in Turkish legal practice. It provides flexibility in commercial and family dealings, allowing parties to build trust-based arrangements outside the rigid boundaries of statutory law. However, because of its reliance on good faith and trust, it is also one of the riskiest transaction types if not supported by proper documentation.
Conclusion: İnançlı İşlem (Fiduciary Transaction) in Modern Practice
In summary, İnançlı İşlem (Fiduciary Transaction) is a judge-made doctrine deeply rooted in Turkish legal practice. While not codified, it reflects the principle of contractual freedom and has been consistently upheld by Yargıtay. In daily life, fiduciary transactions are used for debt security, company structuring, and family property arrangements.
Yet, they must always be documented clearly to avoid disputes. Proper legal drafting and professional advice are essential. Ultimately, İnançlı İşlem (Fiduciary Transaction) remains both a flexible and risky instrument, protecting parties when built on genuine trust but vulnerable when misused.
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