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within two years as of the transaction by a specific creditor claiming
annulment of the above mentioned transaction within five years statute
of limitations following the date of such transaction. As is seen, in
order to claim that a transaction null and void according to EBC, the
transfer of assets without the liabilities is not indicated as a matter,
however, it is necessary that occurrence of an adverse economic situa-
tion which requires certain conditions and intention of damage during
the execution of the transaction are required.
This provision of EBC is in supportive nature to the contrary opin-
ion which claims that art. 179 of TCO is not mandatory for the trans-
fer of assets along with liabilities.
The ultimate goal of the parties is the decisive factor in determining
whether a transfer is only an “asset transfer” or a “business transfer”.
When reviewing the provisions of the new Turkish Code of
Obligations numbered 6098 (“NTCO”), which will enter into force on
1 July 2012, art. 202 relevant to the transfer of business, it is possible
to say that the provision is repetitive when compared with art. 179 of
TCO. On the other hand, since the NTCO embrace a more simplistic
language, it is easier to claim that in order to transfer the business; the
law does not make it mandatory to transfer assets along with the lia-
bilities. As per art. 202 of NTCO, a transferee who acquires a business
will bear the liabilities if he transfers the business assets along with the
liabilities. In other words, in light of the provision of NTCO, it will be
possible to claim that the transferee will only transfer the assets but not
the liabilities.
The common practice for transfer of enterprise/business is to enter
into a framework “asset/business transfer agreement”. However, as per
the provisions of TCO and the TCC which are still in effect, at the clos-
ing stage each asset constituting the acquired business must be trans-
ferred through a different procedure e.g. in case of a conveyance of an
immovable, such conveyance must be conducted before the land reg-
istry office, or in case of transfer of vehicles, such transfers shall made
before a notary public and shall be registered before the traffic registry
branches or offices of the police departments whereas title to moveable
assets are conveyed through invoicing.
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