NEWSLETTER-2020-metin

422 NEWSLETTER 2020 (and this is called “qualified simulation ” ). The effect of a simulated transaction may be examined differently, depending on whether the simulation is simple or qualified. In a simple simulation, the apparent transaction is fraudulent; the parties do not intend to make the transaction, and it has no legal con- sequences. Its invalidity is ex officio taken into account and it can be claimed by anyone, and has no time limit. In a qualified simulation, the outcome of the apparent transaction is the same as in a simple simulation. For the concealed transaction, it is examined: If the concealed transaction fulfils the validity conditions of that transaction, the transaction is valid; otherwise, a conclusion is made according to the missing validity condition. For instance, if the concealed transaction is subject to compliance with any particular form, it may be invalid due to the absence of the formal requirement. 2 A typical example, in practice, in this regard is concealing the donation of an immovable property through a simulated sales trans- action. In this case, the apparent sales agreement is void because it is simulated, and the concealed donation agreement is also void due to the breach of formal requirement, since it has not been made in compliance with the official form. The Concept of Simulated Transaction of Legator A simulated transaction of legator, in fact, is not a different con- cept from qualified simulation. The reason it is called this distinctively is that legators quite often resort to simulation to bereave property from its heirs. In general, this simulation occurs as a legator, who would like to deprive his heirs of their inheritance by donating a property in his estate under a sales contract. In this case, as explained, above, the sales contract is void due to simulation and, for the concealed transaction, the validity conditions are examined. For instance, if the concealed transaction is the donation of immovable property, it will be void due to the breach of formal requirement. In the Court of Cassation prac- tices, although it may be argued, in our oppinion that the intention to 2 Tercier, Pierre / Pichonnaz, Pascal / Develioğlu, H. Murat: Borçlar Hukuku, Genel Hükümler, Istanbul 2016, p. 182, N. 589.