256 / 473
LAW OF OBLIGATIONS
243
accepted that adhesion to an agreement was possible despite the lack of
an express provision.
In General
The TCO defines adhesion as an agreement between the adhering
person and the parties to the original agreement, by which the adhering
person is entitled to the rights and assumes the obligations of one of the
parties to the original agreement together with such party (Art. 206/1).
The previous parties to the agreement continue to be the parties following
the adherence. The adhering person on the other hand becomes the new
party to the agreement next to one of the parties thereto.
TCO Art. 206 is materially similar to the provision governing the
transfer of an agreement. The adhesion agreement is regulated as a
trilateral agreement and is subject to the form of the original agreement.
Unlike the transfer agreement, there is no article in the TCO enabling
a bilateral agreement between the adhering person and the party whose
rights and obligations will be assumed which shall be subject to the
approval of the other party.
The adhering person will jointly own the rights and jointly assume
the obligations of one party next to whom it joins the agreement. Thus,
the adhering person will be in a position of joint creditor and debtor with
the relevant party of the agreement.
The TCO does not regulate the exercise of innovative rights (for
instance elective rights in the event of default by the other party) by the
adhering party nor the original party in the event of adhesion. However,
scholars argue that the principles of joint ownership will be applicable by
analogy
8
.
Differences from Participation to an Obligation
Participation to an obligation has been regulated for the first time
under the TCO (Art. 201) and it is possible to participate in an obligation
through the execution of an agreement between the creditor of a receivable
8
Oguzman/Oz
, p. 605.