245 / 469
LAW OF OBLIGATIONS
231
• The concealed agreement in relative simulation is valid provided
that the required conditions for the validity of such an agreement
are satisfied;
• The simulation cannot be alleged in case of existence of a civil
service institution-government agency- as one of the parties to the
transaction. Indeed, it is assumed that a civil servant won’t take a
part in a simulated transaction.
Proof of the Simulated Transaction
As indicated above, both parties of the simulated transaction and the
third persons with good faith who have been confronted to the simulated
transaction may allege the existence of such a dodgy agreement before
the tribunal and claim the compensation for their damages. However, the
parties are obliged to prove their allegation.
The standard for proof varies depending on the allocation of burden
of proof among the parties. As a matter of fact, in case that the allegation
is made by one of the parties to the simulated transaction, the party must
present and exhibit written evidence to prove the simulation. This was
also underlined by the Court of Appeal in various decisions
5
.
On the other hand, it is also clearly stated in the decisions of the Court
of Appeal
6
that if allegation is made by third persons, the simulation may
be evidenced by all satisfactory of proofs.
As a consequence it can be clearly observed that without providing
any new stipulations in regard of the simulation in the NTCOO, the
lawmaker seems to intend keeping the vision of TCOO where this subject
is mostly developed through the practice and Court of Appeal decisions.
5
Decision of the 4
th
Civil Chamber of the Court of Appeal dated 05.07.1991 and numbered
E. 1990/4988; K. 1991/7141; Decision of the Assembly of Civil Chambers of the Court of
Appeal dated 27.01.1999 and numbered E. 1999/1-20; K. 1999/17; Decision of the Assembly
of Civil Chambers dated 10.11.2004 and numbered E. 2004/14-464; K. 2004/588 – www.
kazanci.com.6
Decision of the 6
th
Civil Chamber of the Court of Appeal dated 21.03.2005 and numbered E.
2005/955; K. 2005/2510; Decision of the Assembly of Civil Chambers of the Court of Appeal
dated 02.10.2002 and numbered E. 2002/6-618; K. 2002/659; Decision of the Assembly of
Civil Chambers of the Court of Appeal dated 11.10.2000 and numbered E. 2000/6-1193; K.
2000/1247 –
www.kazanci.com.