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and the participant. In such an event, the participant shall become a
joint obligor of the obligations arising from an agreement, even without
obtaining the approval of the obligor. Thus, a person not bound by the
obligations of a contractual relation will become jointly responsible for
the obligations along with the original obligor through a participation
agreement executed with the creditor
9
.
This mechanism differs from adhesion to an agreement. The reason
is that, as a result of the adhesion, the adhering person becomes joint
creditor and joint obligor together with one of the parties of an agreement,
which therefore includes becoming the creditor of certain obligations in
the agreement. Moreover, unlike participation to an obligation, adhesion
to an agreement is not a bilateral agreement; to the contrary, both parties
to the agreement in addition to the adhering person shall execute the
agreement.
Conclusion
Transfer and adhesion agreements are regulated for the first time under
the TCO. However prior to the introduction of the relevant provisions, it
was accepted that transfer and adhesion was possible within the scope of
the liberty of contract principle and that such agreements would constitute
sui generis
agreements.
Pursuant to the provisions of the TCO, transfer of and adhesion to an
agreement is possible with an agreement executed between the transferee
or the adhering person, as the case may be, and the original parties of the
agreement. It is also possible for the transferor and the transferee to execute
a bilateral agreement subject to a separate approval of the remaining party
when transferring an agreement. Both transfer and adhesion agreements
are subject to the form of the original agreement.
9
In principle, the agreement regarding participation to an obligation is not subject to any
requirement of form; nonetheless, the provisions governing capacity, form and the consent
of the spouse for surety may be applicable for participations for the purpose of providing
collateral pursuant to TCO Art. 603.
Oguzman/Oz
, p. 592.