The assignment of the claim is a kind of contract in which the assignor transfers its right to claim to another. In the transfer of the claim, a legal relationship is established between the old and the new assignor and the person who is the assignee of this claim. People need to transfer their claims to others for various reasons. For example, methods such as the transfer of the claim to someone to pay the debt, the transfer of the claim to the bank as a guarantee for the loans, and the transfer of the right of the claim for the collection have many conveniences in practice.
In this bulletin, you can find general explanations about the transfer of claim as well as the Supreme Court decisions on the subject.
İçindekiler
1. The Transfer of Claim (Assignment) Agreement in General Terms
It is a legal transaction that is based on a contract between the assignor and the assignee and that emerges when the right of claim leaves the assets of the assignor and is included in the assets of the assignee. In terms of its legal nature, it is described as a kind of fiduciary contract. In addition, the assignment of claims is both a promissory conveyance and an act for disposal in terms of having a direct effect on the assets of individuals and decreasing or increasing their assets.
By the transfer of claim agreement, only the right to claim is replaced, but since the contractual relationship is not fully transferred, the title of the creditor remains with the old creditor. This means that only the old creditor can exercise some contractual rights. For example, the former creditor may exercise still some declarations such as the right of termination and the declaration of rescission, even if she has transferred its claims.
2. The Agreement on the Transfer of Claims Must Be Made in Writing
The Agreement on the transfer of claims must be necessarily made in writing. In order for the contract to be valid, the ordinary written form requirement is sought. However, this situation does not prevent the transfer of the claim from being made officially in the notary public. Although it is possible to transfer the claim in official written form in order to obtain stronger proof, it is sufficient to make the contract in ordinary written form for the validity of the contract.
3. What Claims Can Be Transferred?
As a rule, transfer of receivables of any kind is possible. It does not matter from what reason the claim to be transferred arises. For example, as well as the right to claim earned due to the tort of someone else can be transferred, the claims arising from the contract can also be transferred.
It is also possible to transfer the claims that are legally transferable by the Agreement on the Transfer of Claims. Asset rights, that is, monetary rights, are the primary claims. Personal rights and some rights related to the person cannot be transferred. Naturally, strictly personal rights such as the inalienable right of residence, the right of usufruct, the right to disposition mortis causa, and the right to damages for mental anguish arising in favour of the non-faulty betrothed in case the engagement is breached, cannot naturally constitute the subject of the Agreement on the Transfer of Claims. Accessory rights related to the personality of the person transferring the right of claim cannot be transferred to the other party by the Agreement of Transfer of Claim.
“As soon as the assignment is made, the claims pass to the assignee accompanying with all the privileges and accessory rights on the claims. For this reason, all accessory rights and claims both that have been processed and not collected by the old creditor and have been still processing belong to the new creditor. As a matter of fact, as the legal relationship of the assignor with the debtor is broken off by the assignment, the transfer of the right of claim and the right to sue of the collection of the claim to the assignee, who has become the new owner,is a natural consequence of the assignment of the claims .”[1]
The transfer of claims arising from inheritance law, property law and family law is also possible.
There is no obstacle to the transfer of the claims, which have been the subject of a lawsuit and for which a final decision has not been made yet, or which are considered to be contentious due to the existence of a claim on them.
While it is debatable whether it is possible to transfer the rights that do not exist yet and will arise in the future, the Supreme Court decides that in the presence of certain conditions, the claims that will arise in the future can also be transferred.
“In the assignment of the claim, the assignor can transfer a right that she/he still has, or she/he can also transfer a future receivable that does not exist yet.”[2]
The point to be noted here is that; in order for a future claim to be transferred, the claim must be determined or determinable. The transfer of completely fictious, expected claims will be invalid. The reason for the claim, its source (for example, the existence of a signed contractual relationship) and the amount of the claim should be determined or determinable.. For example, the transfer of claims arising from a lease agreement is a good example of this situation. However, for such wholesale transfers to be valid, they must be limited in time or subject. Otherwise, there may be a danger that the economic asset of the assignor will be overburdened or destroyed.
For example, transfering all the debts to be arised to someone else is null. Instead, it is considered legally possible and legitimate to transfer the claims, which are limited to a certain amount or time, arising from a certain contractual relationship.
4. The Conditions Required for the Transfer of Claims to be Valid
- The claim shall be transferable.
- A written contract must be concluded between the assignor and the assginee.
- The assignor must actually have the claims that has been transferred. Because there is a general rule in law that no one can transfer more than they have.
- The assignor must have the power of appointment on claims. If the power of appointment is restricted for various reasons or if it is absent, the Agreement on transfer of claim will be invalid. For example, a person who is insolvent cannot transfer claims. Because it has no power of appointment on claims.
- As in every contract, mutual and consentaneous declarations of intention are required in the transfer of claims.
- In order for the claim to be transferred, the claim does not need to become due and the assignor does not need to give permission or approval for the transfer.
5. Notification of the Transfer of Claim to the Debtor
In order for the claim to be transferred in a valid way, there is no need to obtain the consent of the debtor. Because for a debtor, in practice, the change of creditor does not cause much change. However, the principle of “not aggravating the legal status of the debtor due to the transfer” has been adopted in order to protect the debtor regarding the transfer of the claim. Because in this case, the debtor is affected by a contract in which he does not take part.
Although the debtor’s permission or approval is not required for the transfer of the claim, notifying the debtor that the transfer has been made will prevent some confusion. That is, if the debtor has not been notified by the assignor or the assignee that the claim has been transferred, she/he is deemed to get out of her/his debt by the payment to be made to the former creditor. Likewise, if the claim has been transferred more than once, the debtor can get out by making a payment to one of the previous assignees other than the last assignee. However, if the debtor has been notified that the claim has been transferred, the debtor can get out of the debt only by paying the claim to the assignee.
Notifying the debtor of the transfer has another importance in another issue. When the debtor is notified about the transfer, it may raise the defenses (pleas), which it has against the assignor, against the transferee The debtor may exchange the non-due claim when it learns about the transfer, provided that it is due before or simultaneously with the transferred claim.
According to Article 188 of the Turkish Code of Obligations; “The debtor can also raise defenses she/he against the assignor, against the assignee when she/he learns about the transfer.” Accordingly, the owner of the land, who learned about the assignment, can raise the same defenses against the new creditor (the assignee plaintiff) as he would have put forward against the previous creditor (the contractor) if the assignment had not occurred.[3]
6. Terms and Consequences of Transfer of Claims
By the transfer of the claim, the right to claim leaves the assets of the assignor and is transferred to the assets of the assignee without the consent of the debtor. By the signed contract, the assignee becomes the owner of the right to claim, and it is not a case that the performance is sought. By the transfer of the claim, all other rights related to the claim pass to the assignee. For example, the interest receivable that has been processed (but has not yet been collected) and is being processed will also be transferred to the assignee.
The assignee creditor also obtains the power of appointment on the claims. Thus, the assignee has the authority to carry out the transfer, execution and litigation transactions regarding the claim.
It is possible to transfer the right subject to the proceedings even after an enforcement proceeding has been initiated. The transfer process in question can be made in the execution office.
“In cases where the assignor transfers a right that she/he has at the time of assignment, the creditor shall accept a reduction in the current rights in the assets in favor of someone else by this act of disposal. “Thus, as soon as the assignment is made, the claims pass to the assignee accompanying with all the privileges and accessory rights on the claims. For this reason, all accessory rights and claims both that have been processed and not collected by the old assignor and have been still processing belong to the new assignor. As a matter of fact, as the legal relationship of the assignor with the debtor is broken off by the assignment, the transfer of the right of claim and the right to sue of the collection of the claim to the assignee, who has become the new owner,is a natural consequence of the assignment of the claims. As a rule, there is no change in the legal status of the debtor in the assignment of the claim, only the person to whom it will be addressed changes.[4]
Conclusion
The transfer of claim is a legal action that is frequently made between individuals for different purposes. In order for a claim to be valid, certain conditions must exist. In our article, we have provided brief information about the validity conditions of the transfer of claims, which claims are transferable, and the terms and results of the Agreement on the transfer of claim.
We wish that it will be useful.
For detailed information, you can address the special types of assignment of claim, “THE TRANSFER OF CREDIT (ASSIGNMENT) MADE TO PROVIDE COLLATERAL TO BANKS” and “LEGAL VALIDITY OF BUYING FLATS FROM THE CONTRACTOR BY WRITTEN AGREEMENT, AND THE LAND REGISTRATION CASES AGAINST THE CONTRACTOR” on our blog.
Solmaz Law and Consultancy Team.
References
EREN, Fikret, Borçlar Hukuku Genel Hükümler, 2011, Beta Yayıncılık, Ankara, p.1176-1194.
ARDA BAĞCE, Duygu Hidayet, Alacağın Devri Ve Diğer Hukuki Kurumlarla Karşılaştırılması, Yüksek Lisans Tezi, T.C. İSTANBUL KÜLTÜR ÜNİVERSİTESİ SOSYAL BİLİMLER ENSTİTÜSÜ, İSTANBUL, 2015.
DALCI, Nurcihan, Alacağın Toptan Temliki, Yüksek Lisans Tezi, Ankara Üniversitesi Sosyal Bilimler Enstitüsü Özel Hukuk (Medeni Hukuk) Anabilim Dalı, 2009, Ankara.
13rd Civil Chamber of the Supreme Court, 2016/18730 E., 2019/6711, T.28.05.2019.
13rd Civil Chamber of the Supreme Court, 2014/40855 E., 2015/35505 K., T.03.12.2015.
15th Civil Chamber of the Supreme Court, 2020/627 E., 2020/3297 K., T.22.12.2020.
13rd Civil Chamber of the Supreme Court, 2017/44 E. , 2017/4290 K.
[1]13rd Civil Chamber of the Supreme Court, 2016/18730 E., 2019/6711, T.28.05.2019.
[2]13rd Civil Chamber of the Supreme Court, 2014/40855 E., 2015/35505 K., T.03.12.2015.
[3]15th Civil Chamber of the Supreme Court, 2020/627 E., 2020/3297 K., T.22.12.2020.
[4] 13rd Civil Chamber of the Supreme Court, 2017/44 E. , 2017/4290 K.
