LIFELONG SUPPORT CONTRACTS

Lifelong support contracts are contracts concluded by persons who have no one to take care of them despite their financial means and who are in need of someone's care during their old age or illness, with those who will take care of them. The application area of this contract, which is widely practiced in our society, is expanding with the increase in the number of institutions that undertake the function of care and supervision.[1]

This contract, which is regulated under Article 611 of the Turkish Code of Obligations, is a contract in which the care debtor shows the necessary care and attention to the care beneficiary during his/her lifetime as the primary performance, and the care beneficiary undertakes to transfer an asset or some asset values to the care debtor depending on the type of the contract as the primary performance, or makes a death-dependent disposition in the material sense regarding the care debtor.[2] The fact that the care beneficiary does not have an act that constitutes the cause and equivalent of the act undertaken by the care debtor makes this contract a donation contract.

While some scholars[3] are of the opinion that the contract of maintenance until death is a contract that imposes obligations on both parties, some scholars[4] make a distinction between the two types of the contract of maintenance until death and argue that the contract of maintenance until death under the law of obligations is a contract that imposes obligations on both parties, while the contract of maintenance until death under the law of inheritance is not a contract that imposes obligations on both parties. In the lifelong support contract based on inheritance law, it is only the maintenance debtor who undertakes the obligation, as the support beneficiary has fulfilled his/her obligation with the conclusion of the contract. Nevertheless, in terms of both types of contracts, the first opinion is more accurate since the performance of each party constitutes the equivalent of the primary performance of the other party.

The lifelong support contract until death is an inter vivos transaction and its termination is contingent on chance, since the time of the death of the maintenance creditor is not known in advance, and therefore it is a contract that is continuous and changeable in scope.

FORM OF THE LIFELONG SUPPORT CONTRACT

It is possible for the support beneficiary to be appointed as an heir, in which case the provisions regarding the inheritance contract shall apply to this contract. Regardless of whether an heir is appointed or not, in order for the lifelong support contract to be valid, it must be made in official form as a rule in accordance with TCO 612/1. Exceptionally, pursuant to the second paragraph of the same article, if the care debtor is a care institution appointed by the state and the contract is made in accordance with the conditions determined by the competent authorities, the ordinary written form is deemed sufficient as the form of validity.

TYPES OF LIFELONG SUPPORT CONTRACT

Depending on the performance to be performed by the care beneficiary, the contract is divided into two in the doctrine as a lifelong support contract qualified under the law of obligations or a lifelong support contract qualified under the law of inheritance. As a matter of fact, the care beneficiary may fulfill his/her obligation to the other party of the contract while he/she is still in his/her health, or he/she may fulfill his/her obligation with a death-dependent acquisition by appointing him/her as an heir.

LAW OF OBLIGATIONS QUALIFIED LIFELONG SUPPORT CONTRACT

According to the law of obligations, which is an inter vivos legal transaction, the care beneficiary undertakes to fulfill his/her obligations in his/her lifetime and transfers all or part of his/her assets to the care debtor in return for his/her care during his/her lifetime.[5] Pursuant to Article 612/1 of the TCO, this contract must be made in the formal form that is subject to the inheritance contract. According to the second paragraph of the same article, if a care institution is the care debtor, exceptionally, the form is the ordinary written form subject to the provisions of the TCO. Nevertheless, even if the care debtor is a state-recognized care institution, the inheritance law qualified lifelong support contracts must be made in the form of an inheritance contract.[6] In addition, in order for the care beneficiary to transfer the ownership of each asset value transferred by the care beneficiary to the care debtor, the savings transactions required by the nature of each asset value must also be made.[7] Thus, while the care beneficiary loses his rights over his own assets, he has only a right of claim against the care debtor in terms of care and supervision. In order to strengthen the legal position of the maintenance creditor in the Law of Obligations qualified survivorship contracts, the legislator has granted the maintenance debtor a legal mortgage right on the immovables transferred to the care debtor, such as a seller. However, this is only the case if the transferred asset is immovable property; in the transfer of assets other than immovable property, contractual guarantees should be introduced in order to guarantee the maintenance creditor's right of receivable.

LIFELONG SUPPORT CONTRACT WITH INHERITANCE LAW QUALIFICATIONS

The care beneficiary fulfills his/her counter-obligation not through an inter vivos legal transaction, but through a testamentary disposition. Accordingly, the care creditor appoints the care debtor as the heir and in order for this appointment to be valid, it must be made in the formal manner that the inheritance contract is subject to according to TCO 612/1.

PARTIES TO THE LIFELONG SUPPORT CONTRACT

The parties to this contract are the care beneficiary and the care debtor.

1. CARE BENEFICIARY

Due to the nature of the lifelong support contract, the care beneficiary can only be a natural person. Although it is not common for young people to be in the position of care beneficiary in the lifelong support contract, there is no legal obstacle to this, and minors and restricted persons who have the power of discernment can make a lifelong support contract qualified by the law of obligations with the consent of their legal representatives.[8] In order for the care debtor to make a lifelong support contract until death qualified by the law of inheritance, he/she must meet the conditions required to make an inheritance contract.[9] These conditions are the conditions of full capacity according to TCC 508.

2. CARE OWNER

The care debtor may be a natural person or a legal entity. The consent of the legal representative of the minor and restricted person who has the power of discernment is required for the validity of the law of obligations qualified lifelong support contract and the inheritance law qualified lifelong support contract.

OBLIGATIONS OF THE CARE CREDITOR

Pursuant to TCO 611/1, the care beneficiary is obliged to transfer to the care debtor all, some or only one of his/her assets.

OBLIGATIONS OF THE CARE DEBTOR

1. CARE AND WATCHFULNESS

According to TCO 611/1, the primary obligation of the care debtor is to take care of and supervise the care beneficiary. The parties are free to specifically determine the scope of this obligation in the contract, but if there is no such determination, the provision of TCO 614 is applicable. Accordingly, the beneficiary is obliged to provide the things required by equity according to the value of the goods owed and the social status of the beneficiary, especially proper food and clothing, to take care of him/her with the necessary care in case of illness and to bring a physician.[10]

Even if a lifelong support contract is made as an apparent transaction, this may be considered as decendent simulation. Inheritance evasion (decendent simulation) is the unrealistic representation of the gratuitous gains made by the heir to one of the heirs or to a third party as a sales contract in order to deprive other heirs of their inheritance share. It is not required that the care debtor who fulfills the duty of care and supervision is a close relative, but according to the established jurisprudence of the Court of Cassation, the transfer of property to the child taking care of the sick parents is not considered as decendent simulation.

2. OBLIGATION TO ACCEPT THE CARE DEBTOR INTO THE FAMILY COMMUNITY

It is regulated in TCO 614/1. Accordingly, the care creditor has the right to live with the care debtor in his/her family upon the conclusion of the contract, but cannot request a separate residence for himself/herself.

TERMINATION OF THE CONTRACT

1. SIGNIFICANT DISPROPORTION BETWEEN OBLIGATIONS

According to Article 616 of the TCO, the contract may be terminated at any time by the party who has received less, provided that he/she gives six months' notice, but the contract may not be terminated by the other party if the party who has received more can prove that this excess is for the purpose of donation.

2. THE CONTINUATION OF THE CONTRACT BECOMES IMPOSSIBLE OR EXTREMELY DIFFICULT DUE TO BREACH OF OBLIGATION OR OTHER IMPORTANT REASONS

Pursuant to Article 617/1 of the TCO, either party may terminate the contract at any time if the continuation of the contract becomes unbearable in the event of a breach of a contractual obligation, or if the continuation of the contract becomes impossible or excessively difficult due to other important reasons. In addition to this, if there is an asset value transferred by the care beneficiary within the scope of the performance obligation of the care beneficiary and there is a breach of this agreement, although the term termination is mentioned in the provision, there is a case law developed by the Court of Cassation in accordance with the rule of honesty that the assets subject to the transfer can be requested back.

LEGAL NATURE OF THE RIGHT TO TERMINATE THE CONTRACT: REVOKE

If at least one of the primary obligations in a contract requires continuous performance, that debt relationship is called a continuous debt relationship. Therefore, since one of the mutual obligations in a lifelong support contract is the duty of maintenance, this contract is a continuous debt relationship.

The fact that the contract has immediate performance or continuous performance is important in terms of the termination of the contract, accordingly, while contracts with immediate performance are terminated retroactively by revocation, contracts with continuous performance are terminated prospectively by termination.

Although the lifelong support contract is a continuous debt relationship as a matter of equity, it has been accepted by the legislator that this contract can be revoked.[11] Otherwise, if the care beneficiary could not recover the counter-performance transferred to the care debtor, the interest of the care beneficiary, who is often in the last stages of his/her life, would be severely damaged.[12]

On the other hand, the contrary view characterizes this as an extraordinary termination, not a revocation. However, the provision explicitly refers to the return of the performances and stipulates that the termination is retroactive. The obligations of the care debtor must be determined in monetary terms. If monetary determination is difficult, according to Article 617/2, the judge may, instead of revocation, upon the request of one of the parties or automatically, terminate their living in the family community and grant a lifelong income to the care receivable with prospective effect.

3. DEATH OF THE CARE BENEFICIARY

If the care debtor dies, the care creditor can terminate the contract within one year, whereas in the event of the death of the care creditor, the contract terminates automatically.

REFERENCE

1.  Akartepe, Alpaslan, Borçlar Hukuku, s. 25,26,47,48.

2. Aydın, Gülşah Sinem, Ölünceye Kadar Bakma Sözleşmesinin Türk Borçlar Kanunu’ nun 617. Maddesine Dayalı Olarak Sona Ermesi, Makale, Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi, 2018.

3. Eren, Fikret, Borçlar Özel, s. 813, 826.

4. Kayacan, Dr. Öğr. Gör. Simge Aksu, Ölünceye Kadar Bakma Sözleşmesinde Bakım Alacaklısının Güvence Sağlamaya Yönelik Hakları, Makale, 15.

5. Tunçomağ, Kenan, Borçlar, s.1172, 1182, 1197.

[1] Dr. Öğr. Gör. Simge Aksu Kayacan, Ölünceye Kadar Bakma Sözleşmesinde Bakım Alacaklısının Güvence Sağlamaya Yönelik Hakları, Makale.

[2] Dr. Öğr. Gör. Simge Aksu Kayacan, Ölünceye Kadar Bakma Sözleşmesinde Bakım Alacaklısının Güvence Sağlamaya Yönelik Hakları, Makale,5.

[3] Fikret Eren, Özel Hükümler, s. 813.

[4] Kenan Tunçomağ, Borçlar, s.1172.

[5] Alpaslan Akartepe, Borçlar Hukuku, s. 25,26.

[6] Kenan Tunçomağ, Borçlar, s. 1197.

[7] Kenan Tunçomağ, Borçlar, s. 1182.

[8] Dr. Öğr. Gör. Simge Aksu Kayacan, Ölünceye Kadar Bakma Sözleşmesinde Bakım Alacaklısının Güvence Sağlamaya Yönelik Hakları, Makale,15.

[9] Alpaslan Akartepe, Borçlar Hukuku, s. 47,48.

[10] Yargıtay 13 HD.,  11.10.1982 T., E:5166, K:5821.

[11] Fikret Eren, Borçlar Özel, s. 826.

[12] Gülşah Sinem Aydın, Ölünceye Kadar Bakma Sözleşmesinin Türk Borçlar Kanunu’ nun 617. Maddesine Dayalı Olarak Sona Ermesi, Makale, Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi, 2018.

Atty. Emre DÖNMEZ & Int. Atty. Aysel YILDIZ