Acquisition of Rights in Rem by a Bona Fide Third Party From a Transferee in Cases Where the Transferor’s Will Has Been Impaired
In terms of rights in rem established on movable property by an unauthorised person in favour of a bona fide third party, whether good faith will be protected at the time of the transaction, and if so, under what conditions, is a legal problem that must be resolved through legislation. The solution...
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| Format: | Article |
| Language: | English |
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Istanbul University Press
2025-05-01
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| Series: | İstanbul Hukuk Mecmuası |
| Subjects: | |
| Online Access: | https://cdn.istanbul.edu.tr/file/JTA6CLJ8T5/9060AD682F8B4230A50801F4E0642F34 |
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| Summary: | In terms of rights in rem established on movable property by an unauthorised person in favour of a bona fide third party, whether good faith will be protected at the time of the transaction, and if so, under what conditions, is a legal problem that must be resolved through legislation. The solution to this problem is directly related to the interests of “security of rights” and “security of transactions”. German, Swiss and Turkish legislators did not favour one of these interests at the expense of the other; they envisaged a balancing system. This system is based on how a misleading legal appearance on a movable is created. According to this system, only in cases in which a misleading legal appearance can be attributed to the owner, the good faith of the third party is protected at the time of the transaction. In this respect, a distinction is made between entrusted and involuntarily disposed movables, and it is regulated that good faith shall only be protected in cases where the movable is entrusted. However, whether certain situations fall within the scope of the notion of “entrustment”, which is by nature ambiguous, has been a subject of debate in all three legal systems mentioned above. One of the most controversial issues is whether a movable is considered entrusted in cases in which the will ofthe transferor is impaired. This study explains the opinions and court decisions on this issue and provides a comprehensive examination of how the problem should be resolved. |
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| ISSN: | 2667-6974 |