Maintenance Contract And Its Legal Nature
The maintenance contract until death is regulated under Article 611 of the Turkish Code of Obligations. It is as follows
“A maintenance contract is a contract in which the maintenance debtor undertakes to take care of the maintenance creditor until his/her death and the maintenance creditor undertakes the obligation to transfer an asset or some asset values to him/her.”
This contract is a type of contract that enables elderly people, people in need of care, people who are lonely and in need of someone’s care and supervision to live comfortably by making a death-dependent disposition with their assets. The contract of care until death is not valid unless it is made in the form of an inheritance contract. As a condition of form in the contract, it is obliged to be made officially. This contract must be drawn up in the presence of a notary public or before a Justice of the Peace. For this reason, contracts made in ordinary written form between the parties will not be effective.
The contract of maintenance until death is a contract that imposes a bilateral obligation on the parties to the contract (with consideration). With this contract, the maintenance creditor undertakes to transfer the ownership of the property subject to the contract to the maintenance debtor, and the maintenance debtor undertakes to care and supervise the maintenance creditor until death as specified in Article 611 of the Code of Obligations.
Here, it is also possible for the care recipient to transfer the value of his/her assets to another person with such a contract in order to be comfortable in the future while he/she is healthy. The fact that the care recipient dies shortly after the contract does not affect the validity of the contract.
Collusion is encountered in cases where the parties to the contract organize a maintenance contract between themselves with a secret agreement that does not correspond to their real will in order to deceive third parties. In this case, the parties usually try to deprive a person whom they want to deprive of the inheritance or to receive a smaller share of the inheritance, even if their real will is to donate, by issuing a contract of maintenance until death between themselves.
At this point, in its decision dated 01.04.1974 and numbered ½, the Grand General Assembly of the Court of Cassation Unification of Jurisprudence, in accordance with the Unification of Beliefs Decision, has listed certain criteria in order to determine whether the transfer made by the heir (care creditor) in return for the care and supervision until death is collusive or not. These are:
The age, physical and general health condition, family conditions and relations of the heir (the legator, the care creditor) at the date of the agreement,
The ratio of the assets subject to the contract to the total assets.
On the other hand, the dispute regarding the maintenance contract until death may arise from the claim of breach of contract arising from the failure of the parties to fulfill their obligations. In the event that the maintenance debtor does not fulfill the maintenance obligation to the maintenance creditor in accordance with the contract, the maintenance creditor may also request the termination of the contract and the cancellation and registration of the title deed. (Court of Cassation 1st Civil Chamber 2007/10133 E., 2007/11890 K., 06.12.2007)