This is the English version of a Turkish article. The original, with further detail and linked petition templates, is at Tasarrufun İptali Davası: Mal Kaçıranın Peşinden Gitmek.
An action to set aside a disposition makes transfers by which a debtor puts assets beyond the reach of creditors ineffective as against that creditor (Articles 277 and following of the Enforcement and Bankruptcy Act). The property stays with the transferee — but the creditor may attach and sell it. The action must be brought within five years of the disposition.
Just before enforcement began, the debtor transferred the house to a sibling and the car to a spouse. On paper there are no assets left.
The Act's answer is the action to set aside a disposition. This article explains who may bring it, on what conditions, and within what period.
What Does the Action Achieve?
Articles 277 and following target dispositions made by a debtor in order to put assets beyond the reach of creditors.
An important conceptual point: the action does not make the disposition wholly void. Ownership remains with the third party; what the creditor gains is the power to enforce against that property as though it were still in the debtor's estate.
So the house transferred to the sibling stays in the sibling's name — but the creditor can have it attached and sold.
The action is brought against the debtor and the third party together. Where the third party has since disposed of the property, it may also be brought against a fourth party who took in bad faith.
What Are the Preconditions?
- A genuine claim. The claim must exist and must have arisen before the disposition.
- Enforcement proceedings that have become final against the debtor.
- Insolvency. Under Article 277 the action may be brought by creditors holding a provisional or final certificate of insolvency, and by a bankruptcy administration.
A certificate of insolvency records that the debtor has no attachable assets. In practice it is issued at the end of the attachment process.
Where the certificate has not yet been obtained the action can still be brought, but it will be called for during the proceedings. Completing the attachment stage in the enforcement file therefore matters.
Which Dispositions Can Be Set Aside?
1. Gratuitous dispositions (Article 278). Gifts and transactions treated as gifts are void. The Act targets those made within two years before the attachment, before insolvency established through the absence of attachable assets, or before bankruptcy.
Treated as gifts are, among others: the creation by the debtor of a life annuity or usufruct in their own or a third party's favour, and contracts made for a grossly disproportionate price compared with the value of what the debtor gave.
Dispositions for value made by the debtor with relatives by blood or marriage up to and including the third degree, with a spouse and with adopted children are likewise treated as gifts.
2. Dispositions made while insolvent (Article 279). Certain transactions made while the debtor was unable to pay: a pledge given to secure an existing debt, payments made otherwise than in money or the usual means of payment, and payments on debts not yet due. Such dispositions are void where made within one year before the attachment, the insolvency or the bankruptcy.
3. Intent to harm creditors (Article 280). All transactions by a debtor whose assets do not cover their debts, made with intent to harm creditors, may be set aside where the other party knew of the debtor's financial position and that intent, or where there were clear indications requiring them to know. Here the period is five years.
| Ground | Scope | Basis |
|---|---|---|
| Gratuitous dispositions | Gifts and transactions treated as gifts; the two years before attachment or bankruptcy | EBA Art. 278 |
| Dispositions while insolvent | Defined transactions made while unable to pay; the last year | EBA Art. 279 |
| Intent to harm creditors | Any transaction where the other party knew or should have known | EBA Art. 280 |
| Transfers to close relatives | Treated as gifts even if made for value | EBA Art. 278 |
| Time limit | 5 years from the date of the disposition, in every case | EBA Art. 284 |
The five-year period is a forfeiture period and the court applies it of its own motion.
The Five-Year Period
Whichever ground is relied on, the action must be brought within five years of the date of the disposition (Article 284). The period is a forfeiture period: it cannot be interrupted and the court applies it of its own motion.
Time runs from the disposition, not from the date the creditor learned of it — which is why enquiries into the debtor's land registry and vehicle records should be made early in the enforcement file.
What Helps in Practice
These cases turn on showing that the transferee knew. What assists:
- The closeness of the relationship. Transfers to relatives within the third degree, a spouse or an adopted child are treated as gifts even if made for value.
- Timing. A transfer shortly before or shortly after enforcement began is a strong indication.
- The price. A figure well below market value, or one the transferee could not have afforded.
- How the money moved. Where no bank record shows the price being paid, the transaction looks like a gift.
- Continued use. The debtor still living in the house or driving the car after the transfer.
An interim injunction should also be sought when the action is filed, with an annotation on the land register: otherwise the property may be transferred on again while the case runs.
The action does not stop the property being sold on. Request an interim injunction and an annotation on the land register with the claim, or the transferee may pass it to a further buyer — and you will then have to prove that buyer's bad faith as well.