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Even prior to introducing this provision under the TCO, academics
accepted that the transfer of an agreement was possible within the scope
of liberty of contract, which would constitute a
sui generis
agreement.
Especially prior to the entry into force of this specific provision, there
was an academic debate as to whether a party assigning all its receivables
and transferring all its obligations arising under an agreement to another
party would be deemed to have transferred the agreement or not. However,
pursuant to the prevailing opinion (theory of unity) the transfer of an
agreement differs from the joint assignment of receivables and transfer
of obligations, as it results in the synchronized transfer of the titles of
creditor and obligor and all innovative rights arising under the agreement
(such as termination, renunciation from contract, elective rights, notice of
default etc.) conferred to such party. On the other hand, the assignment
of receivables and the transfer of obligations result respectively in the
transfer of the actives and passives of a contractual relationship (thus the
title of creditor and obligor of the agreement), however the party to the
agreement remains as the transferor of the receivables and obligations
3
.
Transfer Agreement
The TCO foresees the transfer agreement as a trilateral agreement.
The parties to the agreement are the transferor, the transferee and
the unchanged remaining party to the original agreement. Upon the
execution of the transfer agreement, the transferor ceases to be a party
to the transferred agreement. This transfer agreement is a dispositive act
for the transferor, an acquisition act for the transferee and an innovative
agreement for the remaining party to the original agreement
4
.
However, it is not mandatory for this agreement to be executed in
the form of a trilateral agreement. Pursuant to the TCO, it is possible
to transfer an agreement by obtaining the prior consent or succeeding
approval of the remaining party to a bilateral transfer agreement signed
by the transferor and the transferee.
3
Oguzman/Oz
, p. 598;
Ahmet M. Kilicoglu
, Borçlar Hukuku Genel Hükümler (Law of
Obligations, General Provisions), 15
th
Edition, Ankara 2012, p. 809.
4
Oguzman/Oz
, p. 601.