Since the donation contract is a contract that burdens only
the donating party with debt, the provisions aiming to protect the donator
(i.e., the donating party) and his/her assets were set forth in Turkish Code of
Obligations Nr. 6098. With this contract burdening a single party with debt, it
is aimed to richen the donee, who is provided with value. In this study,
besides making suggestions, it is also aimed to explain to which legal bodies
one might apply in order to withdraw the donation by mentioning the philosophy
of “principle of transaction connection”, which is regulated in German Civil
Law (Bürgerliches Gesetzbuch [BGB]), besides the reasons specific to donation
and the donation itself. According to the settled case law of German Federal
Court of Justice “Bundesgerichtshof” (BGH), a marriage-related donation occurs
when an asset is donated because of the marriage and in order to construct,
maintain or secure a spousal partnership and with the idea of continuing the
marriage community and benefiting from the asset and its revenues during the
marriage. The connection of donation depends on this principle. However, if the
spouses have made a donation because of the marriage and within the scope of
marital property (different from the regime of separation of estates), then, it
is an exception to perform the retrocession in accordance with BGB. Art. 313.
According to the Federal Court, the acquisition equalization is performed and
then a retrocession transaction according to BGB Art. 313 may be considered only
if the equalization yields an unsuitable situation.
Donation Principle of Transaction Connection Withdrawal of Donation Collapse of Transaction Connection
Bağışlama Bağışlamanın Geri Alınması İşlem Münasebeti Esası İşlem Temelinin Çökmesi
Birincil Dil | Türkçe |
---|---|
Konular | Hukuk |
Bölüm | Makaleler |
Yazarlar | |
Yayımlanma Tarihi | 31 Aralık 2019 |
Gönderilme Tarihi | 16 Ekim 2019 |
Kabul Tarihi | 16 Aralık 2019 |
Yayımlandığı Sayı | Yıl 2019 Cilt: 10 Sayı: 2 |
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