254 / 473
LAW OF OBLIGATIONS
241
Form of the Agreement
The TCO states that the transfer agreement shall be made in the same
form as the original (transferred) agreement. Thus, if the transferred
agreement is made in ordinary or qualified written form or official form,
the transfer agreement shall be subject to the same form. Moreover,
pursuant to TCOArt. 29, a promise to execute an agreement is also subject
to the same form as the promised agreement. Therefore, an agreement to
promise to transfer an agreement is subject to the same form requirement
mentioned above. Nonetheless, the approval of the remaining party is not
mandatory in order for a promise to transfer an agreement to generate an
obligation
5
.
TCO Art. 205, applicable to trilateral agreements without any
hesitation, gave rise to disputes on how it will be applicable to bilateral
agreements subject to the approval of the remaining party of the original
agreement. TCO Art. 205/2 states that the agreement between the
transferor and the transferee shall be subject to the provisions governing
transfer agreements. However, there is a legal gap concerning the form of
the approval of the remaining party. Accepting that such approval should
conform to the form of the transferred agreement may result in certain
difficulties in practice. In such an event, for instance, when transferring
an agreement made under official form at the land registry pursuant to
an agreement between the transferor and the transferee, the remaining
party would be obliged to execute a separate transaction at the land
registry. Nonetheless, such a transaction is not among the defined actions
under the Land Registry By-Laws. From an academic point of view, it is
also argued that the approval of the remaining party is a declaration for
achieving a legal purpose, and therefore that it is not subject to any form
requirement; nonetheless the principle of proof based on a deed (executed
document) should be taken into consideration
6
.
5
Nonetheless, it should be stated that in the event the transferor is faulty of not foreseeing that
the remaining party would not consent to the transfer agreement, while executing the promise
to transfer, it is accepted that this will constitute a violation of contractual obligations.
Oguzman/Oz
, p. 601.
6
Oguzman/Oz
, p. 600;
Kilicoglu
, p. 811.