Promise Of Sale Of Immovable Property By A Bankrupt
Even though the goods and rights that enter the bankruptcy estate, which are automatically formed in accordance with the provision of the law upon the issuance of the bankruptcy decision and the opening of the bankruptcy, belong to the bankrupt, the power of disposition of the bankrupt over them will cease.
All kinds of disposals of the bankrupt on the goods and rights included in the table are invalid against the bankruptcy creditors. In the decision of the 10th Criminal Chamber of the Court of Cassation dated 25.10.1999, it was revealed that the checks issued by the bankrupt, who was tried for the crime of violation of the check law, could not be deemed as valid, since he would no longer have the capacity to save after the bankruptcy decision, and therefore the crime would not occur.
This issue is regulated in the first paragraph of Article 191 of the Execution and Bankruptcy Law with the provision “All kinds of savings of the debtor on the assets belonging to the table after the bankruptcy is opened are null and void against the creditors.” According to this provision, in order for a dispositive transaction to be deemed invalid only against the table, it is necessary and sufficient that the dispositive transaction is made by the bankrupt and its subject matter is the goods or rights included in the table.
It should be noted that only dispositive transactions are prohibited, not all transactions. The legislator, with the idea of protecting the bankruptcy creditors, even if the bankrupt puts himself under an obligation through an obligatory transaction, this obligation will only be an obligation to fulfill an obligation imposed on the bankrupt. Such a transaction shall not be of a nature to cause a decrease in the assets of the table.
The bankrupt may sell a property that enters the table. However, the bankrupt will not be able to fulfill his/her obligation arising from the sales contract (the obligation to deliver the goods and transfer the ownership), in other words, he/she will not be able to perform a disposition transaction. This does not mean that the sales contract made by the bankrupt is not valid. There is a valid sales contract. Only the bankrupt will not be able to fulfill the transfer/delivery obligation arising from it. When the bankruptcy is lifted, the buyer will be able to ask the debtor (the former bankrupt) to deliver the goods and transfer the ownership to him/her based on this contract.
IF WE EVALUATE THE SALE OF AN IMMOVABLE PROPERTY;
If the bankrupt subjects a real estate registered in the table assets to a real estate sales promise agreement, there is no obstacle in doing so. Because it is the authority to make savings that is restricted, otherwise, there is no obstacle for the bankrupt to make an obligatory transaction. This is because the interests of the creditors to be satisfied from the estate are affected by the fulfillment of the debt arising from those transactions, not by the debtor’s indebting transactions.
The promise of sale does not constitute a dispositive transaction; it only creates an obligation to conclude a sales contract and to request registration for the transfer of ownership.
If the “person in favor of whom the promise of sale was made”, with whom the bankrupt has made a contract of sale, files a lawsuit for the transfer of the immovable property to him/her based on the right arising from the promise of sale, this lawsuit will be dismissed since the disposition of the bankrupt on the assets of the table will be invalid against the bankruptcy creditors.
If an immovable sale promise agreement was made after the bankruptcy was filed but before the bankruptcy was lifted, and a lawsuit was filed after the bankruptcy was lifted for the fulfillment of this agreement; according to the decision of the 14th Civil Chamber of the Court of Cassation, the sale promise agreement can only be valid with the consent of the bankruptcy administration or the defendant debtor whose bankruptcy was lifted during the bankruptcy period, otherwise the lawsuit should be dismissed.
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