In practice, creditors who are unable to file a lawsuit for annulment of disposal regulated under Articles 277-284 of Enforcement and Bankruptcy Law No. 2004 (“EBL”) due to various reasons such as the inability to initiate execution proceedings during the enforcement phase of foreign arbitral awards and court judgments, time-consuming enforcement procedures, or the prescriptive period for this lawsuit, may file an annulment lawsuit based on collusion, which is defined in the Turkish Code of Obligations Law No. 6098 (“TCO”). In the light of the precedents set by the Court of Cassation, the provisions regarding the annulment of disposal regulated under the EBL, which contain many advantageous provisions for the collection of the creditor's receivables, can be applied by analogy in annulment lawsuits based on collusion. This study evaluates the differences between ordinary collusion lawsuits and annulment lawsuits based on collusion and the benefits of the Court of Cassation's practices in terms of the creditors' rights.
I. The Concept of Collusion in Turkish Law
Collusion is regulated under Article 19 of the Turkish Code of Obligations No. 6098, which stipulates that the nature and content of a contract shall be construed based on the mutual and authentic intent of the parties rather than relying on the words in the document if parties use these words to hide their actual intentions.
As per the legal regulations and the opinions in the doctrine, collusion can be defined as transactions made by parties that conceal their actual mutual intention for a deceitful purpose.
The Court of Cassation has set forth the following conditions that must exist in the case of a collusive transaction: i) a wilful conflict between the wills and statements of the parties, ii) an act with intent to deceive third parties, and iii) an agreement hidden from third parties to collude.
Collusion is classified into absolute collusion and relative collusion. Absolute collusion is a type of collusion in which the parties agree that an apparent transaction does not have any consequences in the real world through a collusion agreement. Relative collusion, on the other hand, is a type of collusion in which the parties hide the transaction they intend behind a second transaction that is agreed not to have any effect in the real world.
In absolute collusion, although there is an apparent transaction between the parties, it is not validated by the agreement between the parties. In relative collusion, although there is an actual transaction between the parties, it is disguised as another transaction that has not become valid.
In the case of relative collusion, after the apparent transaction is deemed null and void, it is necessary to examine the validity conditions of the transaction in which the original will of the parties matches. If the subsequent transaction is subject to a formal requirement, but the formal requirement cannot be complied with to ensure the hidden nature of the transaction, the hidden transaction will be invalid accordingly.
II. Ordinary Collusion Lawsuit
Although collusion claims are most commonly seen in disputes related to a deceased’s estate or trustful transaction (refers to a transaction in which one person transfers certain rights to another person for the purpose of protecting or securing his/her interest, but the parties agree that the holder of the rights will not exercise some of the powers arising therefrom at all, and will be obliged to exercise others only in the way specified by the former holder of the rights and the current holder of the interest), this claim is also often asserted in relation to business transactions, as explained below. In principle, a collusion lawsuit is a type of lawsuit that allows persons with legal interests to prove that a transaction is collusive, to determine that the concerned transaction is null and void, and to eliminate the consequences that have arisen on a legal base.
A collusion lawsuit allows individuals with legal interests to prove that a transaction is collusive, establish that the transaction is null and void, and eliminate any legal consequences arising from it. In an ordinary collusion lawsuit, if the sale of a property is deemed null and void due to collusion, the immovable property subject to the collusive transaction will be returned to the assets of the seller.
The burden of proof falls on the party claiming collusion in the lawsuit, and the means of proof vary depending on the title of the plaintiff in relation to the collusive transaction. As is often seen in the practice of trustful transaction lawsuits, if one party to the collusive transaction claims collusion, they must provide conclusive (documentary) evidence to support their claim.
However, if the claim of collusion is made by a third party with a legal interest in the transaction's nullification, discretionary evidence may be used to prove the collusion claim. We believe that this practice is equitable since it is not reasonable to expect a person who is not a party to the collusive transaction to obtain written evidence concerning the transaction. Even the parties involved in the collusive transaction face significant challenges when attempting to prove collusion with written evidence.
III. Comparison of the Annulment Lawsuit Based on Collusion and the Lawsuit for Annulment of Disposal
If a money creditor proves that the execution proceedings against the debtor have been unsuccessful with a final or provisional certificate of insolvency, if the conditions regulated between Articles 277-284 of the EBL are present, by filing a lawsuit for annulment of disposal, the creditor may obtain a seizure right on the property limited to the amount of the receivable or if the property has been transferred to a fourth party in good faith, the right to claim compensation based on the value of the property on the date of transfer. However, to file a lawsuit for the annulment of disposal; (i) an execution proceeding must have been initiated and finalized against the debtor prior to filing this lawsuit, (ii) a certificate of insolvency (final or provisional) must have been obtained after this proceeding, and (iii) the lawsuit must be filed within the five-year prescriptive period from the date of a targeted transaction.
However, in practice, creditors sometimes fail to meet one or more of these conditions for various reasons. The most encountered reason is that during the enforcement of foreign arbitral awards or court judgments, execution proceedings cannot be initiated before the enforcement judgment is finalized, and the prescriptive period of five years expires in the meantime. In the presence of such reasons, the creditor may file an annulment lawsuit as a bypass based on collusion pursuant to Article 19 of the TCO, with the request for the application of Articles 283/1 and 283/2 et seq. of the EBL by analogy. As it is frequently emphasized in the recent Judgments of the Court of Cassation, since this right will have personal, not in rem, consequences, if the plaintiff proves his/her claim, the court should apply Article 283/1 of the EBL by analogy and rule that the plaintiff may request the seizure and sale of the subject matter of the lawsuit to ensure that the plaintiff can collect his/her receivables without the need for annulment and registration . In other words, if the lawsuit is accepted by the court, it should be considered a lawsuit for annulment of disposal, but instead of returning the asset subject to the collusive transaction to the assets of the transferor, the creditor should be authorized for requesting seizure and sale of the asset .
Although there are some opinions in the doctrine that an annulment lawsuit cannot be filed based on collusion, the recent precedents of the Court of Cassation have clarified that the provisions of the EBL will be applied by analogy in such cases if the creditor is able to prove the claim of collusion. It is important to note that filing a lawsuit for annulment of disposal pursuant to the provisions of the EBL will not prevent the filing of an annulment lawsuit based on collusion.
IV. The Elements of the Annulment Lawsuit Based on Collusion
To initiate an annulment lawsuit based on collusion, the plaintiff must have a legal interest in filing the lawsuit, which means that the plaintiff must be a creditor of the respondent who made the collusive disposition.
Unlike annulment lawsuits filed for disposals based on the provisions of the EBL, annulment lawsuits based on collusion are not subject to any prescriptive period or statute of limitations. However, if the original right/receivable has a statute of limitations or prescriptive period, it must not have expired since the lawsuit in question is for the collection of the receivable.
An annulment lawsuit based on collusion is not an absolute or relative commercial lawsuit; therefore, the competent court is the civil court of first instance, as stated in the Court of Cassation judgments.
The party alleging collusion in an annulment lawsuit based on collusion must prove the existence of collusion. Typically, the parties to the collusive transaction must provide written evidence to prove the existence of collusion, while third parties may prove the existence of collusion using any evidence, including witness evidence.
Unlike the annulment lawsuit for disposal, in annulment lawsuits based on collusion, it is not necessary for the plaintiff to have a previous execution proceeding against the respondent or to submit proof of insolvency to the court. 
Moreover, there is a debate in the doctrine about whether Article 283/2 of the EBL can be applied in annulment lawsuits based on collusion. The Court of Cassation has precedents which it referred to the first and second paragraph of Article 283 of the EBL and stated that both paragraphs can be applied by analogy, and render a judgment that in the event of the determination of collusion, third parties will also be held liable for compensation. In this regard, in the event that the subject matter of the lawsuit is disposed of by a third party and received by another person in good faith, compensation may be ruled against the third party who disposed of the subject matter of the lawsuit. However, recent Court of Cassation judgments have also interpreted that third parties cannot be held liable for compensation, even if Article 283/2 of the EBL is referred to.
In summary, the special preconditions required for the annulment lawsuit for disposal regulated in the EBL are not required in the annulment lawsuit based on collusion.
As per the current opinion of the Court of Cassation, as a result of an annulment lawsuit based on collusion, it will be possible to collect the receivable through the seizure of the asset subject to the collusive transaction. Moreover, it will also be possible to request a provisional attachment limited to the value of the asset before or during the proceedings. However, in this case, it will be necessary to deposit collateral, the value of the lawsuit, determined by the judge. With the provisional attachment decision, a seizure may be exercised on the property subject to the collusive transaction before or during the proceedings, and therefore, other attachments or pledges exercised during the proceedings may not prevail over the seizure to be exercised at the end of the proceedings.
In conclusion, while annulment lawsuits based on collusion and lawsuits for the annulment of disposals share the goal of collecting creditors' receivables, they have distinct differences. However, based on the current precedents of the Court of Cassation, in cases where there is a legal interest and the plaintiff can prove their claim, the annulment of disposal provisions regulated in Articles 283/1 and 283/2 of the EBL should be applied by analogy. As a result, the court should render a judgment that allows the plaintiff to request the seizure and sale of properties without the need for annulment and registration.
 Judgment of General Assembly of Civil Chambers of the Court of Cassation dated 23.02.2021, with file number 2017/2249 and decision number 2021/146.
 Judgment of General Assembly of Civil Chambers of the Court of Cassation dated 25.02.2020, with file number 2017/1505 and decision number 2020/204.
Judgment of 17th Civil Chamber of the Court of Cassation dated 14.10.2020, with file number 2019/937 and decision number 2020/5567.
 Judgment of 17th Civil Chamber of the Court of Cassation dated 13.05.2019, with file number 2016/19667 and decision number 2019/5989.
 Judgment of General Assembly of Civil Chambers of the Court of Cassation dated 10.02.2016, with file number 2014/2389 and decision number 2016/129.
 Judgment of 17th Civil Chamber of the Court of Cassation dated 25.12.2019, with file number 2018/3373 with file number 2019/12468.
 Judgment of 17th Civil Chamber of the Court of Cassation dated 02.04.2013, with file number 2012/7306 with file number 2013/4613.
 Judgment of 17th Civil Chamber of the Court of Cassation dated 29.06.2020, with file number 2019/2086 with file number 2020/4056.
Judgment of 17th Civil Chamber of the Court of Cassation dated 25.12.2019, with file number 2018/3373 with file number 2019/12468.