Pure fiduciary transactions in Turkish law

There are no provisions in Turkish positive law that govern the legal implications of fiduciary transactions or that prohibit their use. Conducting such tranasctions is justified on the grounds of the freedom of contract enshrined under Article 26 of the Turkish Code of Obligations (TCO) to the extent that they adhere to the limits drawn by Article 27 of the TCO. There is no consensus in the legal doctrine as to how fiduciary transactions, which has been the subject of numerous decisions of the High Court of Appeals, should be defined. The common aspect of various different definitions suggested in the legal doctrine is that fiduciary transactions comprise of a pactum fiduciae (fiduciary agreement) and a fiduciary transfer. The same framework for fiduciary transactions is also accepted in this doctoral thesis. Per the classification based on the criterion of 'purpose', which is the most commonly accepted type of classification in the legal doctrine, fiduciary transactions may emerge in two forms; pure fiduciary transactions and mixed fiduciary transactions. This thesis, which adopts the foregoing classification, aims to provide solutions to the problems associated with the definition of pure fiduciary transactions, identify the relevant provisions to be applied to such transactions and determine the way in which this application should take place. In the first section of this thesis, fiduciary transactions will be examined in general and these transactions will be compared to other similar legal institutions. In the second section, which is reserved to pure fiduciary transactions that are conducted for the purpose of protecting the interests of the trustor/fiduziant, fiduciary agreement and a fiduciary transfer in pure fiduciary transactions will be examined. This section will address issues concerning the rights and obligations of the parties and the protection of the trustor/fiduziant vis-à-vis the third parties. This section will further examine the practical applications of pure fiduciary transactions and deal with the question as to whether legal institutions that are based on the principle of "fiduciary ownership" according to the Capital Markets Act constiute fiduciary transactions.