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NEWSLETTER 2013
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Provisions Governing the Transfer Agreement
Upon the execution of the transfer agreement, the transferee shall
replace the transferor, assumingall their rights andobligations.Nonetheless,
apart from the change of parties, all other provisions of the agreement
remain unchanged. The new party assumes all rights of its successor and
undertakes all its obligations and owns its innovative rights (elective right
to choose the performance, determine the due date, renounce from the
contract, etc.). Thus, in the event a compensation obligation arose from
the violation of the agreement by the transferor prior to the transfer, the
transferee shall have assumed this obligation as well
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.
It is accepted by scholars that the transfer of an agreement is
independent from its legal cause. Pursuant to this opinion, unless there
are grounds directly affecting the validity of the transfer agreement, the
invalidity of the legal cause for executing the transfer agreement shall not
automatically render the transfer void. Nonetheless, it is possible for the
transfer agreement itself to be invalid or subject to annulment pursuant to
the general provisions of the TCO. In the event of invalidity or annulment,
the parties to the agreement shall be deemed to remain unchanged.
In order for a transfer agreement to be executed, it is necessary for
a valid agreement, which may be transferred, to exist. A renounced
agreement, or an agreement which became impossible to be performed
may not be transferred as there will be no agreement which may constitute
the subject matter of the transfer in such cases.
Certain agreements may not be transferred even if the transfer
agreement complies with the necessary form requirements. The reason for
such limitation may arise from the fact that certain obligations may only
be performed by certain persons having specific qualities. For instance,
an attorney who is party to a mandate agreement may not transfer this
agreement to a person who is not an attorney.
Adhesion to an Agreement
As with the transfer agreements, adhesion to an agreement has been
regulated for the first time under the TCO. Nonetheless, it was generally
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Oguzman/Oz
, p. 603.