The contract of belief is a binding contract that is based on mutual trust, gives rise to the transfer of ownership of the right or thing, determines the mutual rights and obligations between the believer and the believed party, and the terms of the termination of the contract. It includes the terms of returning the transferred right to the believer at the end of the contract.The belief contract includes the belief agreement and the transfer process.
Fiduciary contracts made for the management of assets subject to faith are called pure belief contracts. Fiduciary transactions carried out in the form of transferring to the believed party for the purpose of guarantee are called mixed belief transactions.The believed party is given a right or thing included in their assets to constitute a guarantee and to be returned in the future, through a belief transaction by the parties.
The believer brings the property to a stronger position by transferring the property instead of pledging the right or thing to the believed.
Nowadays, it is seen that immovable transfers are frequently encountered by fiduciary transactions in order to increase the bank credit limits of the merchants and to get loans from the bank.
When a person who transfers her/his immovable property with a contract of belief returns the money she/he has borrowed in return for the transfer, she/he has the right to claim her/his property to be returned to her/his. The believed party is under an obligation not to sell the immovable to someone else until the debt is paid, and to return the ownership of the immovable if the debt is paid.
Written evidence, which is not dependent on form in terms of proof of the fiduciary transaction, must include the signatures of the parties.
The party who does not have a written evidence including the signatures of both parties and who is obliged to prove, in this case can be based on bank receipts, letters and similar evidence that can be considered as the commencement of written evidence.
However, in this case, proof of the relevance of the commencement of written evidence to the concrete event will be required.
The last remedy for the party of burden of proof, which does not have evidence that can be considered as the commencement of written evidence, is to offer an oath to the other party.
In cases where it cannot be proved with other evidence, an oath is used.
Due to the economic problems of the inheritor the defendant transferred the place in the title deed to the defendant D., and the loan debt from the bank was paid by the inheritor and at the end of the debt, the title deed filed with the claim that the defendant did not approach the return and sold to the other defendant M. in the registration case;First of all, readable submissions of the loan payment must be provided by the court. The fact that the receipts are in the possession of the plaintiff should also be considered and it should be evaluated whether they are the commencement of evidence. If it is concluded that the immovable subject to dispute has been transferred to the defendant within the scope of the fiduciary transaction, it should be focused on who paid the loan debt. In this way, a decision should be made according to the result, taking into account the regulation in Article 97 of the TCO numbered 6098.COURT OF CASSATION 1ST CIVIL CHAMBER 2019/1663, 2019/3078 K 16.05.2019
As for the concrete case; It is understood that the documents titled "Immovable Sales Contract" dated 31.05.2012 and "Immovable Sales Agreement Annex" again dated 31.05.2012, on which the plaintiff relies as written evidence, have been signed between the plaintiff and the non-litigated Gayrimenkul Pazarlama Danışmanlık Hizmetleri Ltd Sti. These documents do not contain the signature of the defendant.
"Considering that the allegation based on the believing transaction cannot be proved with written evidence as stated within the scope of decision of joint chambers the aforementioned case-law, it is necessary to decide to dismiss the case, but it is not correct to establish a provision because it is written with a false evaluation."COURT OF CASSATION 1.CIVIL CHAMBER 2016/16778 E, 2020/409 / K 23/01/2020
In the concrete case, the first request of the plaintiffs is the cancellation and registration of the title deed, and it is undoubted that the assignment made to the defendant with the document titled "belief contract" whose signature is not denied by the defendant who is in the first hand is based on the fiduciary transaction.
In this case, it is undisputed that if the second-hand defendant company is in good faith, its performance will be preserved.
"However, the common witness of the parties stated that U was a real estate agent, that they went to look at the immovables before the sale with the representative of the defendant company, that the plaintiff transferred the immovables to the defendant E, who entrusted them, and tried to show the document he had. The person who was heard as the plaintiff's witness and stated that he worked in the patisserie operated on the immovables subject to the case, stated that when the defendant company official and the real estate agent came to examine the immovables, the plaintiff objected to the sale of the immovables by stating that the immovables belonged to him and showing the document he had.
In this case, it is understood that the defendant company is aware of the situation between the plaintiffs and the defendant, in other words, that the immovables belong to the plaintiffs and that they have transferred their immovables to the defendant with the belief contract concluded.In this case, it is clear that the defendant cannot benefit from the protection of Article 1023 of the TCO.In this case, it is necessary to decide on the acceptance of the deed cancellation and registration request, but it is not correct to make a written provision with a wrong evaluation."COURT OF CASSATION 1. CIVIL CHAMBER 2016/13311 E, 2019/6560 K 16/12/2019
"On the other hand, in order for the plaintiff to request the registration of the immovable property by cancellation of the title deeds based on the belief agreement that includes mutual acts, it is obligatory to fulfill its own actions in accordance with Article 81 of the CO No.818 (TCO numbered 6098, 97.m).
However, in the concrete case, it has not been clarified whether the plaintiff has a debt or not in accordance with the document titled "Undertaking" signed between the plaintiff and the defendant, dated 25.06.2007.The expert reports in the file are contradictory.It is seen that the joint works of the plaintiff and the defendant are carried out.Some of the invoices issued about the wheat prices sent to Elektrik Ltd.Şti were not taken into account in the expert report.700.000 TL sent to the account of LTD STİ by the Ministry of National Defense due to joint tenders was also not taken into account.The result was reached before the conflict between the expert reports was resolved.As such, it is necessary to eliminate the conflict between the expert reports and to clarify whether the plaintiff has a debt in accordance with the document dated 25/06/2007.
if the plaintiff has a debt; In the event that the amount to be determined in accordance with the provisions of Article 97 of the Turkish Code of Obligations numbered 6098 is deposited at the court cash desk and when deposited, the case must be accepted but it is not correct to make a written decision with a false evaluation.With the acceptance of the appeal objections of the plaintiff, it was decided to reverse the provision in accordance with Article 428 of the HUMK numbered 1086.it was unanimously decided on 12/11/2019 to return the advance fee collected to the appellant.COURT OF CASSATION 1. CIVIL CHAMBER E 2016/4718 E, 2019/5786 K"