Roma Hukukundan günümüze muvazaa kavramı

Abstract

Simulation can be defined as the aggrement of the parties for making the hidden transaction and this transaction to be valid instead of simulated transaction (relative simulation) or making no transaction except simulated transaction and this transaction to be invalid (absolute simulation) in two-sided judicial transaction.In Classic Period of Roman Law, there was no general and certain rule for simulation. So every event was evaluationed in own condition. ?Really wanted transaction is valid not simulated transaction? is a basic principle which was bring up by Diocletianus and he supposed that simulated transaction is invalid. As to Iustinianus Law, will theory is accepted and transaction which is really wanted is superior to simulated transaction. In modern laws, it is a generally accepted fact that the simulated transaction, which is not wanted by parties and is made in sight to deceive 3rd people is invalid. But if the hidden transaction which is really wanted by parties, is suitable to legal rules and forms will be valid.Simulation theory is come out in Roman Law and is developed by the Middle Ages Law Theory especially Italian Commentators. But it is not too developed in Humanist School Practice. 17. and 18. century Natural Law Theory has added protect reliance to simulation theory.In Turkish Law of Obligations, there are two kinds of simulation in Turkish Law of Obligations. In absolute simulation, in spite of their wills, the parties make a transaction in sight to deceive 3rd people. Relative simulation is the agreement of the parties for the hidden transaction to be valid instead of the simulated transaction. The conditions of simulation are simulated transaction, contract of simulation, theintention of deceiving 3rd people and hidden transaction which is for only relative simulation.