285 / 516
the simulated transaction. However, in the example scenario, the pro-
tected person is not the bona fides third party and it is the party of the
simulated transaction. Logically thinking and with extensive interpre-
tation of this article it is inadmissible to accept that the legislator aims
to protect the interest of parties to a simulated transaction.
Besides, in case of a simulated transaction, the simulation may be
also pleaded by the debtor of the assigned receivable
1
. However, if the
misinterpretation of the relevant article as explained within this article
persists, the possibility to plead the simulation shall no more exist.
The Turkish doctrine also explains in which case these articles
may be exercised:
“The situation stipulated within art. 18/2 of CO is as follows:
B issues a debt bond to A to increase its credibility. However A,
assigns the receivable to C as a result of misappropriation. In case C,
who has not been informed about the fact that the relation between A
and B is simulated, claims the receivable from B, B may not plead sim-
ulation as a defense against bona fides C pursuant to art 18/2 of the
CO.”
2
“For instance, A and B concluded a simulated sale agreement
between themselves. B has issued a bond certifying its so called debt
to A and A has assigned this invalid receivable to U, B may not plead
simulation against U who became creditor in reliance on the bond
issued by B.”
3
Conclusion
As seen above, a legal provision, which seem to be simple may
become intricate in its application and explication to the relevant situ-
ation and may be stretched to cover its obvious meaning, which is
LAW OF OBLIGATIONS
271
1
Von TUHR, Andreas
; Borçlar Hukukunun Umumi Kısmı, Yargıtay Yayınları No.15, Ankara
1983, sf. 274.
2
Esener, Turhan
; Borçlar Hukuku – I, Akitlerin Kuruluşu ve Geçerliliği, Ankara Üniversitesi
Hukuk Fakültesi Yayınları No. 246, Ankara 1969, sf. 104-105.
3
Oğuzman, Kemal / Öz, Turgut
, Borçlar Hukuku Genel Hükümler, İstanbul 2011, sf. 139.