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NEWSLETTER 2011
228
The “Simulation” Concept in the New Code of Obligations
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Att. Özgür Kocabaşoğlu
The simulation is stipulated in article 19 of the new Turkish Code of
Obligations (“NTCOO”) numbered 6098 which shall come into force on
01.07.2012. The stipulation in the NTCOO mentioned below is similar
to the provision in article 18 of the Turkish Code of Obligations (TCOO)
numbered 818.
“
D. Interpretation of contracts, simulation
In deciding the type or terms of a contract, the true intention and
mutual assent of the parties should be taken into consideration,
disregarding any expression which may have been used either by
mistake or so as to disguise true intention of the parties.
A person who is bound by the terms and conditions of a contract
and obligations stated therein, cannot assert simulation as a
defence against a third party who relies his claim on such an
acknowledgement.”
The article 19 of NTCOO stipulates the interpretation principle of the
contracts and the case where the simulation or collision cannot be plead
as a defence. The heading of the article is different than the article 18 of
TCOOwhere the new heading is mentioning transactions with simulation.
Simulation is an exceptionally discussed issue both in the Turkish Law
doctrine and practice whereas no other provision exists in the laws other
than article 18 of TCOO.
Simulated Transactions
Two kinds of simulated transactions are accepted under Turkish
Law doctrine; “absolute simulation” and “relative simulation”. Absolute
simulation means, an agreement made between the contracting parties
in order to deceive third persons to gain any benefit as if there was a
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Article of September 2011