ANA METIN ingilizce.17

According to another opinion, in the transfer agreement, the trans-

fer of liabilities may be agreed by the parties either explicitly or

implicitly

. Unless otherwise explicitly indicated in the agreement, the

transferee shall also bear the liabilities of the business while transfer-

ring it. However, for such a conclusion, the business shall be trans-

ferred entirely with its assets and liabilities

The most important argument of the established opinion, which

considers art. 179 of the TCO as mandatory provision and restricts the

transfer of entire assets of a business without the liabilities, is that the

transfer of the assets of an enterprise without the liabilities will harm

the enterprise, the creditors or other person who has legal benefits or

even, such a transfer can only be made for such purpose.

On the other hand, the contrary opinion stressed that if sufficient

value is paid in accordance with the market conditions, the transaction

for transferring the assets of the business shall be considered as valid.

Because the market value of business assets transferred along with the

liabilities shall not be equal to the market value of business assets

transferred without the liabilities.

As per Article 280 of the Execution and Bankruptcy Code

(“EBC”), all transactions realized by a legal entity, whose equity is not

sufficient to cover its liabilities, with the intention of not compensating

its creditors, are deemed null and void, provided that the other parties

of the transactions in question are aware of the economic situation of

the transferring legal entity and its intention of defeating its creditors,

or if there is explicit evidence which would require such third parties

to be aware thereof. Moreover, pursuant to the third paragraph of the

same article, in case an enterprise (as a whole) or significant part of its

assets are transferred, the transferee is automatically deemed to be

aware of the economic situation of the transferor and transferor’s inten-

tion of defeating its creditors. In order to enforce this provision under

the aforementioned Article 280 of EBC, the transferor legal entity must

have been subject to an attachment or bankruptcy which is initiated

NEWSLETTER 2012

Abuzer Kendigelen

, Hukuki Mütaalalar IV, p. 12.

Arıcı

. 75 Claus-Wilhelm Canaris, Hendelsrect, 24., vollstandig neu bearbeitete Auflage,

München, C.H. Beck’sche Verlagsbuchhandlung, 2006, 8, II, N. 11.