In this newsletter we discuss issues on conditions required for a valid assignment of claims, whether an approval of the debtor is necessary in the transaction and assignment of future claims.
The provisions on Transfer of claims are stipulated in articles between 162 and 172 of the Code of Obligation (hereafter will be referred to as CO)
It is possible that a claim can be transferred totally or partially. A partial transfer can only be done if the claim is divisible. With the transfer the claimant will change and the claim is transferred to the transferee. In other words, the transferor cannot claim for the discharge of the debt from the debtor and this right passes over to a new claimant.
Transfer of claims can be divided into three groups. These are namely, transfer by law, transfer by judgement and voluntary transfer. The transfer by law is materialized when a claim is transferred to a third party because of requirements of the law without any declaration of intent. Transfer by judgement occurs when a claim is assigned to the third party by force of a judgement. Having provided brief information, in our newsletter we specifically want to put emphasis on voluntary transfer where a transferor and transferee make a contract and agree that the claim is directly transferred to the transferee.
As a rule a claimant is entitle to transfer all his claims to third parties regardless of where the claims are stemmed from. Although the main rule is expressed as it was just previously stated, article 162/1 states that “unless it is prohibited by law or contract or it is forbidden considering the nature of the affair, the claimant may transfer his claim to a third party without the debtor’s consent”. In pursuant of this article, it is impossible to transfer a claim if transferring the claim is prohibited by law or by contract or forbidden considering the nature of the affair .
Under Turkish law, transfer of claims is also prohibited by different acts. In addition, the claimant and the debtor may also agree to prohibit the transfer of claims. This deal may be arranged partially or fully and may also be limited to certain people or a certain time. On some occasions such as when the claim is bound tightly to the person, the composition of the affair inhibits the transfer of the claim. The question of which affairs according to their composition may not be transferred is left to the judge’s appreciation. According to case law and doctrine some of the forbidden claim transfers are as follows; alimony claims, a women’s contribution to the budget of the home, the right to be deprived from support, guarantees tied to the main debt, on contracts of constitution the jobs bound to a contracts personal knowledge and skill.
In order to have a valid claim transfer some conditions should be met. These conditions are listed below:
1- A claim subject to a transfer must exist. The right to claim is a right which is bound to the person and is relative. So the right to claim may only be used against its debtor. The transfer of a claim which doesn’t exist does not make the person who has seized the claim a claimant(this matter should not be confused with the matter of a claim which has been transferred becoming a prospective claim in the future).
2- The parties must have the capacity to act. If it is a non-consideration transfer then it is enough for the person accepting the claim to be at age whereas if it is a consideration transfer the legal representative’s permission or consent is needed.
3-The parties mutual expressions of will should be consistent with each other. Because the transfer of claim is a contract, the transferors consent must be in writing whereas the transferee sides consent may be explicit or implicit. For this reason the expression for acceptance does not have to be made in writing. When the acceptance is not made in writing the moment the transfer will come into effect is the moment the transferee notifies the transferor of his acceptance.
Because the contract for transferring the claim is made between the transferor and transferee the debtor’s (the claims debtor) permission is not needed with the reason that he is not a party of the contract. Concerning this matter in the decisions of 19th Civil Chamber of the Supreme Court, numbered 2002/7795 E. and 2003/5255 K. this conclusion is made “.. when the debt is going to be discharged directly by the debtor as long as the claimant has no benefit in the matter, the debtor does not have to execute the debt personally. The debt may be paid by a third party without the debtor’s knowledge. When the third party makes this payment he becomes the successor of the claimant rights on the amount of how much he has satisfied the claimant.”
According to the article 162 of CO, the claimant may transfer his right to a third party without the debtors consent as long as the contract is in writing and does not contain the specific circumstances in this article. In the case the plaintiff, by paying the debt fully which was born from the credit contract with V….bank outside the case he has been transferred with respect to the OC article 162 the claim he will take from the bank with a letter of conveyance
In this situation by observing that the defendant is a joint guarantor to the credit contract, when the court should have decided that the amount of the claim which the plaintiff may demand from the defendant should be examined by experts and in the frame of the result given a judgement the court has decided to refuse the case in which there is no logic. Also in the decision of the 14th Civil Chamber of the Supreme Court numbered 1999/632 E. and 1999/2221 K. Dated 23.03.1999 by saying that ‘‘ with the condition that it is in writing without getting the consent of the land owner the contractor may transfer his rights to a third party’’ they have decided in the same way.
According to the OC article 162 since the claimant may transfer his claim with the consent of the debtor, a declaration from debtor of the claim which will be transferred does not need to be found. In any way with the transfer procedure the debtor of the claim being transferred must endure the fact that the new claimant has taken over the place of the old claimant. Because the debtor has already accepted the situation which brought forth the debt with the deal made before and also with the transfer procedure the debtors debt amount does not change.
4- The fact that the transfer contract should be made in writing is one of the conditions of being valid according to the OC article 163. If it is not made in writing than it is deemed invalid and this deal does not become authenticated even if the transferor or his attorney accepts or acknowledges it in court. This matter has been explained by the 13th Civil Court of the Supreme Court in the decision they gave in the year 2000 numbered 2000/160E. and 2000/2973 K. In this way;‘‘… True fully with the mentioned contract the defendant contractor, because of the contract he made with a third party by accepting to give the plaintiff a part of the rights he will be entitled to, has transferred his right of claim from the third party to the plaintiff. The only condition for the contract to be valid according to the OC articles 162 and following is that it should be made in writing. Because the contract made between the parties was made in writing this condition has been met and therefore there is no legal possibility to accept that the contract is invalid…”
In the transfer contract the amount of the claim, the transferors name and signature must be found. Along with this the parties consent for the transfer must be understood from the contract. But the date, transfer location, and amount of the claim which will be transferred do not have to be indicated. Although it does not have to be drawn up in an official manner if the sides have decided to do the transfer contract in an official way than the contract should be made in this way.
This situation should not be confused with the promise to transfer which does not have any formal requirements. Involving this matter in the decision made by the Council of States 4th Office the fact that the transfer contract is made in writing is sufficient, and it does not need to separately be approved by a notary. In the current event because of a tax debt a seizure decision has been made for the mentioned company.The company has notified the defendant administration that the rent claims have been transferred to another company with a transfer of claims contract. The defendant administration has objected against the transfer contract because the contract did not have any public notary approval. However the plaintiff’s objection on the transfer has not been accepted. The defendant administration in this situation accepts the transfer contract but even with this declares that the contract does not bring forth a sense of trust because it is not approved by a notary. But in the OC article 162 in order for the transfer to be valid the contract must be done in writing and this is sufficient approval of a notary is not needed.
For this reason it is obvious that the procedures subject to the lawsuit are not lawful and in this way the plaintiff company’s objection to the transfer is just. This conclusion has been made relating this matter with the decision of the 14. Civil Chamber of the Supreme Court, numbered 2008/853 E. and 2008/2400 K., ‘‘… if a definition has to be made; a transfer of a claim is, a contract made between a claimant and a third party which will take over this claim which can be made without the consent of the debtor and which has the characteristic of a savings procedure and also has to meet certain conditions”.
According to the OC article 163 a transfer contract may only be established between a transferor and transferee in writing. Then again in the transfer of the claim the fact that the contract has to be in written form does not create an obstacle for it to be made in an official way. Thus in practise it can be seen that the third party’s which take over the contactors personal claim do the transfer contract in a simple written form or by doing it at a notary in which the notary draws up the contract himself as a sales promise contract.”
5- The subject of the transfer should not violate mandatory law rules, public order, general morals and personal rights. If there is such a violation the transfer contract made is deemed invalid.
6- Generally the power of disposition on a claim is owned by the claims possessor and they may only make a transfer contract if they have the power of disposition on the claim. In exception the power of disposition on the claim may be owned, by a representative which represents by law or by contract, owner of mortgage, testamentary executer.
TRANSFERRING AN UNBORN CLAIM:
As a rule in a transfer of a claim, since it bring forth a decline in the transferor’s assets there is no problem when transferring the claim but when an unborn claim is going to be transferred on which lawful grounds this is going to be done has become a subject of discussion.
In practice from the basis of unborn claims transfers made with the intention of assuring, are used instead of guarantees, and help the transferor gain credit. For this reason in our day the transfer of unborn claims is accepted without a doubt.
Involving this subject the 4th Civil Chamber of the Supreme Court’s decision numbered 1976/2040 E. and 1976/10645 K a judgement has been made in this way; ‘‘… In the general rules of the Obligations Code a right or claims transfer wither its born or going to be born is valid. However in special codes it could be ordered or conditioned that the transfer of a claim or right wither born or going to be born cannot be made by a contract made between parties…”
However despite this there are two different opinions on this matter. According to the first opinion in order for the transfer of a claim which does not exist yet, the amount has to be apparent and specified at the time of the transfer, but according to the other opinion which is accepted in general the fact that the claim is determinable enough for the transfer of the claim.
The subject of transferring an unborn claim is looked at in a different way and is divided into two and reviewed by a group of writers. During the transfer the claims depending on the current law relationship is reviewed by the first group and the second group reviews what happens during the transfer if the claim does not depend on any current law relationship. According to this opinion if the claim does not depend on the current law relationship at the moment of transfer this is deemed as a transfer bound to a delaying condition in other words it is defined as a transfer of a awaited right.
Basically here the debts birth and content will be apparent in the future. For example at the moment the transfer is made from the rent contract the transfer of the rent claims transfer which will be born in the future are like this. In this case because the real right which has been transferred is the awaited right a right which does not exist is not being transferred.
For the second group in which the transfer of a claim does not have any ground at the moment of transfer, the opinion that the transfer is bound to a delaying condition is not exactly correct because at the moment of the act of disposal there is no subject of the transfer procedure.
The rent claims which will be born from a house which will be rented in the future but which has not been rented yet could be an example for this. As a rule the transfer procedure affects the assets of the person who does the procedure but in this case because the right becomes the transferees as soon as it is born the transferor will not become the rights owner not even for a moment. However despite all of this transfer claims which do not have any grounds at the moment of transfer may still be kept standing by the way of accepting it as a promise of transfer with a bill of exchange.
If a claim which is invalid is transferred then not only does this transfer procedure not make the claim valid but the transfer is itself becomes invalid as well. For claims which are collusive there is an exception for this main rule. Because the claim is based on a contract which is collusive the transfer of an unborn claim to a third person will be able to be valid.
The transferee must take over the claim by trusting the written document which shows that the claim exists. On this document the debtor’s signature should be present but the transferors signature is not needed if he sees the document than that is sufficient enough for it to be accepted. Additionally when the transferee knows about the collusion then depending on written a document is not possible.
As long as it not contrary to the OC articles 19 and 20 in other words if it is not contrary to the law, morality, good manners, and personal rights or if it is not impossible to occur than a deal made between the parties may be accepted.
From this rule it may be concurred that when we review articles 19, 20 and 162 together it can be said that an unborn claim may be transferred by the claimant. The important fact is that the claimant’s claim which will be transferred must be a claim that is designated or be able to be designated. For example for a claim which will arise from renting an existing place its transfer is possible; but for a claim which will arise by renting a place in the future which does not exist the transferring it is not possible. In a decision by the Federal Court they have decided that when the debtors identity, the reason of the claim, if the amount is distinctive or may be able to become distinct then this enough for the transfer of an unborn claim to be valid.
For the wholesale transfer of unborn claims there two mains problems. These are the fact that the amount of the claim is uncertain and that there is an excessive commitment risk. In order for these problems to not occur when the unborn claims are transferred wholesale if it is limited by subject and time then the transfer procedure is deemed invalid. Because in this situation the contract made is contrary to economic freedom and general customs.
Kaynak: Prof. Dr. Kemal DAYINLARLI, Turgut UYGUR
Sources: Uygur, Turgut (2003) Açıklamalı-İçtihatlı Borçlar Kanunu Sorumluluk ve Tazminat Hukuku , Ankara, Seçkin Yayınevi ; Dayılarlı, Kemal (2008) Borçlar Kanununa göre Alacağın Temliki, Ankara, 3.Bası, Dayınlarlı Yayınları