TÜRK HUKUKUNDA YERİNE GETİRİLMİŞ BAĞIŞLAMANIN GERİ ALINMASI VE BGB. 313. ÇERÇEVESİNDE ALMAN FEDERAL YÜKSEK MAHKEME KARARININ DÜŞÜNDÜRDÜKLERİ

Abstract

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.

Keywords

• donation
• principle of transaction connection
• withdrawal of donation
• collapse of transaction connection