Statute of Limitations in Actions for the Cancellation of Dispositions
In actions for the cancellation of dispositions, there is a statute of limitations, not a period of prescription.
According to Article 278 et seq. of the Turkish Code of Obligations (İİK), the nullification of dispositions made by the debtor “without consideration” or “in a state of insolvency” covers dispositions made within the period from the debtor’s insolvency or the commencement of bankruptcy proceedings back to the disposition that caused the insolvency or bankruptcy. However, this period cannot exceed two years.
Pursuant to Article 280 of the EBC, the statute of limitations for filing a lawsuit against transactions made by the debtor with the intent to harm the creditor is five years from the date the creditor became aware of the transaction or when there were clear indications that the creditor should have been aware of it.
After the five-year limitation period has expired from the date of the transaction sought to be annulled, the action for annulment of the transaction filed pursuant to Article 277 et seq. of the EBC must be dismissed… (17th Civil Chamber, 11.04.2017, No. 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 pursue enforcement proceedings, and since the five-year statute of limitations has expired, the lawsuit cannot be dismissed pursuant to Article 284 of the Turkish Code of Enforcement and Bankruptcy. If the plaintiff proves their claim, considering that the claim does not relate to the immovable property itself, but rather to the collection of the debt, and therefore, by analogy with EBC Art. 283/1, 2, a ruling should be made that the plaintiff may request the seizure and sale of the immovable property “without the need for cancellation and registration”… (17th HD. 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 under Article 281 of the EBC. A common misconception is that if the disposition in question is based on a commercial relationship, the case should be filed in the Commercial Court of First Instance. However, regardless of the legal nature of the disposition in question, the competent court is the Civil Court of First Instance.
As specifically emphasized, in cases of cancellation of disposition or, as in the specific case, in cases filed pursuant to Article 19 of the Turkish Code of Obligations (TBK) and the requested analogous application of the Turkish Code of Civil Procedure (İİK), commercial purchase and sale agreements or commercial or general credit agreements forming the bank claim between the creditor and debtor parties shall not be taken into account in determining jurisdiction. Neither the action for rescission of a transaction nor the action for fraudulently concealed transactions, filed pursuant to Article 19 of the Turkish Code of Obligations and the analogous application of Article 283 of the Turkish Code of Civil Procedure, Therefore, pursuant to Article 2 of the Code of Civil Procedure No. 6100, they fall within the jurisdiction of the General Civil Court of First Instance (YHGK-K.2016/129).
