THE CURATIVE EFFECT OF INSCRIPTION AND THE FUNCTION OF ARTICLE 103/II OF THE TURKISH CIVIL CODE WITH REGARDS TO LEGAL ENTITY OF FOUNDATIONS

Abstract

As per Article 103/II of the Turkish Civil Code, inscription of foundation has a curative effect since it prescribes that a request for annulment can be raised against a foundation of which deed is void. Thus the general regime of invalidity cannot be applied even mutandis mutatis to the foundation deed after inscription. Once the inscription has been made, any of reason of invalidity - except illegality or immorality of purpose-affecting the foundation deed does not make the legal entity of foundation and its deed void whereas the previous Turkish Civil Code and the reference Swiss Code do not contain any concrete provision granting a curative effect. This effect, however, is not absolute. Following the completion of foundation inscription, any reason of invalidity affecting the foundation deed transforms into a basis for cancellation of foundation. The request for cancellation is a foundational lawsuit which triggers the liquidation and extinction of the respondent foundation. Any matter such as the title of claimant or peremptory time limit must be determined as per the reason of cancellation.