Emi̇n Sifatiyla Zi̇lyedi̇n Taşiniri Bağişlamasinin Hükmü

Abstract

Person who is in possession of a property by the will of the previous possessor or owner is called entrusted possessor. In Article 988 of the Turkish Civil Code “A person who takes possession of a chattel in good faith in order to become its owner or to acquire a limited right in rem is protected therein even if the chattel was entrusted to the transferor without any authority to effect the transfer.” provision is included. In other words, the legislator, protected the real rights of third parties in good faith, even though the entrusted possessor did not have the power of disposition. At this point, the cases in which the entrusted possessor donates the chattel must be especially evaluated. Because, according to Article 285 of the Turkish Code of Obligations, in which the donation contract is defined, one of the necessary conditions for donation is that the donation is realized from the donor's assets. In other words, the donor cannot donate a property that is not in his/her possession. In cases where the entrusted possessor donates the movable, it is clear that this condition is not fulfilled and therefore invalidity will occur. However, it is debatable in the doctrine whether this invalidation will affect the transaction of disposal or the contract. Likewise, this possibility should be evaluated specifically in terms of a gift from hand to hand. In addition, despite the invalidity of the donation, it is also a controversial issue whether the bona fide third parties to whom the movables are donated will be protected within the scope of Article 988 of the Turkish Civil Code. Because while one opinion accepts that donation is not within the scope of Article 988 of the Turkish Civil Code, another opinion argues that donation is included in the scope of application of the relevant provision and that the bona fide third parties will be protected. In the study, the views put forward for the solution of the problem in the Turkish-Swiss doctrine will be evaluated and it will be determined who should own the movable in case the entrusted possessor donates the movable. In addition, possible legal claims of the previous possessor or owner against the entrusted possessor and bona fide third party will also be tried to be determined within this scope.