Abstract
The concept of transfer of claim is an agreement between the creditor and the relevant third party, who has taken over the respective receivables, in relation to assignment of a claim arising from a significant debtor-creditor relationship. With the transfer of a claim, the right to collect the relevant receivables changes hands and passes to the transferee who becomes entitled to request payment of the respective debt from the debtor. As stipulated both in the previous Code of Obligations No. 818 (“PCO”) dated 19261 and the Turkish Code of Obligations numbered 6098 (“TCO”) dated 2011,2 it is not required to get the consent of the debtor or to inform him about the assignment of any claim. Because of the trilateral structure of the assignment of claim, economic risks are likely to occur. However,such risks have been apportioned by the legislator through several complementary regulations within the scope of the law of obligations. The parties can also regulate the relevant risk sharing under an agreement. In this respect, the TCO has expanded the guarantee responsibility of transferor, which had been also covered by the PCO, in transfer of claim made for consideration.
I. INTRODUCTION
Transfer of claim3 establishes a trilateral legal relationship between the transferor of the claim, transferee and debtor. Transferee of a claim is the person who takes over the rights arising from the claim, however, is not a party of the relevant agreement causing the debt. Transferor of a claim means the person who transfers his contractual rights to a third party; and debtor refers to the person who has contractual liabilities arising from the respective agreement.
Transferee of a claim usually has limited information regarding the relationship between the transferor and the debtor. For instance, the claim may be assigned even if the relevant debt has not arisen yet or will never arise. Furthermore, it may have arisen in the past but has expired at the time of the transfer. Likewise, even though the existence of a debt is definite, the relevant debtor may have become insolvent.
Turkish legislator has made a regulation in order to provide the most effective risk dispersion in order to keep the parties out of extra cost and time. According to Article 191 of the TCO, if a claim has passed to someone else without any action in return (gratuitous) or in accordance with the law; the transferor or the prior creditor shall not be responsible for the existence of such claim and the debtor’s ability to pay. However, when the claim is transferred in return for an action (onerous), the transferor of such claim guarantees the existence of that claim along with the debtor’s ability to pay during the transfer.
The liability of the transferor in terms of the relevant debtor’s ability to pay is a new regulation brought by the TCO which has not been regulated under the PCO before. In this article, the regulations under the TCO that have expanded the liability of the transferor who assigns its claim in onerous or gratuitous way will be analyzed and also the scope of that liability of the transferor will be assessed within the context of risk distribution.
II. THE GUARANTEE LIABILITY OF THE TRASFEROR IN TRANSFER OF CLAIM
A. Regulations under the TCO for the Liability of Guarantee
The TCO has not only simplified the provisions set out in the PCO but also made modernization and modifications in terms of the guarantee liability of transferor of claim. In accordance with Article 191 of the TCO titled “Guarantee”, “If a claim has been transferred in return for an action; transferor of such claim guarantees the existence of that claim along with the debtor’s ability to pay during the transfer. If a claim has passed to someone else without any action in return or in accordance with the law; the transferor or the prior creditor is responsible neither for the existence of such claim nor the debtor’s ability to pay.”
In this context, the TCO has made a dual separation, which considers if the transfer is gratuitous or onerous, regarding the guarantee liability of transferor. When legal outcomes of this dual separation is evaluated, it is seen that, unless otherwise agreed, in terms of transfers practiced gratuitous – as in the PCO - there is not any liability for guarantee; on the other hand, as for the transfers practiced onerous, the ability of the debtor to pay is guaranteed along with the existence of claim which is independent from the fact that whether the transferor has any fault or not. In terms of onerous transfers, while it was stated under the PCO that the transferor will have a guarantee liability only for the circumstances in which the debtor’s payment ability is undertaken by the transferor; such a commitment is not required for the guarantee of the transferor under the TCO. It should also be noted that there is no separation regulated either under the PCO or the TCO for the circumstances in which a claim is passed to someone else in accordance with the provisions of the law, and it is regulated that the transferor will not be liable for the existence of claim or debtor’s ability to pay, regardless of the fact that whether the transfer is onerous or gratuitous.
It is possible to classify the concept of “transfer of claim” as transfer instead of discharge; transfer for discharge; transfer with assurance-purpose and transfer for the purpose of collecting the relevant debt. The concept of “transfer of claim for discharge” is regulated in Article 192 of the TCO (corresponding to Article 170 of the PCO). Transfer of claim to be carried out for discharge, within the scope of aforementioned article, means that the claim is assigned for the purpose of discharge of another obligation or for the sake of discharge. In the transfer of claim “instead of discharge”, the relevant debt is deemed as fulfilled by the assignment. However, in the transfer of claim “for discharge”, the relevant amount that the transferee has already obtained or would have obtained from the debtor if the transferee had exercised due diligence, will be deducted from the debt of the transferor. The purpose of the mentioned provision is to make sure that the transferee (who has taken over the relevant claim “for discharge”) puts in effort to receive the claim.
Within the scope of Article 193 of the TCO, transferee will be able to request from the transferor who bears the guarantee liability,
i. repayment of the performed counter discharge including its interest,
ii. the expenses occurred due to the transfer of claim,
iii. the expenses made by the transferee in order to obtain the relevant claim and the expenses occurred as a result of unavailing attempts which the transferee made to receive the claim from the debtor and
iv. other damages suffered by the transferee unless the transferor proves his faultlessness.
While the regulations mentioned in the first three articles were also regulated under the PCO, the last one has been newly brought by the TCO. In other words, in addition to the relevant provisions under the PCO, the TCO also includes the right to demand other damages incurred by transferee apart from the damages mentioned in the first three articles, in case the transferor of claim cannot prove his faultlessness. Also, it should be mentioned that even though this right was not regulated explicitly in the law, it is argued that such right of transferee was applicable even before the new law has entered into force; however, the burden of proof in terms of the transferor’s fault was on the transferee 4.
B. The Relationship between the Guarantee Liability in Transfer of Claim and the Fault Liability and Non-Compulsory Nature of the Guarantee Liability Provisions
According to the concept of “fault liability”, in order for the debtor to be held responsible from damages, the debtor’s fault should be ascertained. Within the context of the TCO, the fault of a person is determined as the main principle for fault based liability5. Furthermore, it has been regulated in the law that one can be held responsible in terms of certain legal transactions, even if there is no fault ascertained for that person.
In accordance with the TCO, as for the transfer of claim, provisions related to the guarantee liability has not been based on “fault”, on the contrary, it is based on “absolute liability” principle 6. The legislator has held the transferor of claim liable to the transferee, even in cases where the claim does not exist or the transferee does not know or is not required to know that the debtor is not able to pay the relevant debt7. In transfer of claim, in addition to the fact that the guarantee principle is in favor of transferee according to the fault liability principle, it is possible to draw up the agreement for transfer of claim in such a way as to eliminate the responsibility for guarantee, as Article 191 of the TCO is not compulsory8.
Since Article 191 and the following articles of the TCO have been specifically regulated by the legislator, the guarantee provisions will not be applicable for the transfer of claim. Even though the guarantee provisions regulated under the law will be applicable for seller’s obligations under “sale contracts”, provisions within the scope of guarantee liability are particular and should be primarily enforced.
C. Concepts and Separation of Onerous and Gratuitous Transfers in terms of the Guarantee Liability in the Transfer of Claim
In accordance with the TCO, obligatory and dispositive transactions can be drawn up as onerous or gratuitous 9. However, it should be noted that dispositive transactions, which are regulated for discharge of an obligation caused by a legal transaction, cannot be classified as onerous or gratuitous. If the opposite party is granted with a claim by incurring an obligation with the transfer of claim, the qualification of the relevant obligatory transaction will determine the legal nature of the relevant transaction10. If the claim has been transferred in return for an action, then the relevant assignment of claim will be onerous; however, if an unreciprocated transfer has been made, then such assignment will be gratuitous. As mentioned before, this dual separation has been regulated in Article 191 of the TCO and the guarantee liability of the transferor has different limitations for onerous and gratuitous assignments.
In any case, the scope of the guarantee liability of the transferor in an onerous transfer will be larger than a gratuitous transfer. However, it is not possible to say that no liability can be regulated in gratuitous transfers. Hence, even though the transfer is gratuitous, parties can agree on the fact that creditor can be liable for existence of the claim11. Considering the responsibility of the transferor of claim for guarantee in onerous transfers, it is possible to guarantee the “existence of claim” and “ability of payment” of the opposite part, as it can be clearly seen in the first paragraph of Article 191 of the TCO. However, the transferor is not held responsible for these two situations in gratuitous transfers, and as seen in the statement of “in accordance with law”, the transferor will not have a guarantee liability in the transfers arising from the law, according to Article 191/2 of the TCO 12.
In addition to the mentioned regulation, in some special cases the differentiation between onerous and gratuitous transactions may not be possible. The transfer of claim can also be carried out as a result of a court decision or enforcement of a provision of law. In Article 185 of the TCO titled “Legal or Judicial Transfer and its Effect”, it is stated:
“If the transfer of claim has been performed in accordance with the law or a court decision, this transfer can be brought forward against third parties without the necessity of any particular form and consent of the prior creditor.”
Pursuant to the above-mentioned provision, in transfer of a claim, which will be performed in accordance with the law, the debtor will not hold responsible for guarantee either13. This is clearly inferred from Article 191/2 of the TCO. Another exception regulated in Article 185 of the TCO is related to judicial decisions. If there is a transfer of claim to be performed as a result of a judicial decision, as in the transition in accordance with the law, it will be transferred to a third party without any necessity of will for transfer. In addition to that, as there is no regulation to the contrary in the law and the majority of academics embrace this opinion,14 the transferor will not have any guarantee liability. However, if there is a promise to onerous transfer, in terms of the damages that may occur when such promise is not fulfilled, even though the transfer is performed by a court decision, as long as obligation of transfer is caused by an onerous transaction, the guarantee liability will be in question15.
D. The Transferor’s Liability of Existence of Claim and the Debtor’s Payment Ability in Onerous Transfers
1. The Transferor’s Liability of Existence of Claim in Onerous Transfers
When Article 191 of the TCO is interpreted largely, two concepts arise within the scope of guaranteeing the existence of claim in onerous transfers. By this point, the claim’s being in the asset of the transferor during the transfer and the factors which make it difficult to collect the claim from the debtor should be understood 16. Besides, with the transfer of a claim, secondary rights related to the claim also pass to the transferee without making any other transaction. On the other hand, the guarantee liability in terms of the secondary rights may only occur if those rights are also guaranteed17.First of all, the claim should fully or partially exist in the assets of the transferor during the transfer. Otherwise, the transferor will be liable for non-existence of the relevant claim in the transferor’s assets. Another situation that the transferor will be liable within this scope may be the fact that the relevant claim does not exist at all. If the subject of a contract is impossible from the beginning, it means that a claim which actually does not exist at all is subjected to a transfer;18 as a matter of fact, such claim may have never been occurred and subjected to the transfer. Nevertheless, since the legislator has adopted the concept of absolute liability in the transfer of claim, Article 27 of the TCO will not be applicable which regulates that the contract shall be deemed void/invalid since the subject of the relevant contract is impossible from the beginning and instead, Article 191 of the TCO will be applicable in which case, the transferor’s guarantee liability will remain valid19.
Guarantee responsibility related to the existence of claim regulated within onerous transfers under Article 191 of the TCO can be associated only with the existence of the relevant claim. In other words, invalidity situations that may occur in relation to the agreement for transfer of claim are not included within the guarantee liability. If an agreement for the transfer of a claim has been considered invalid by any other reason other than the fact that the relevant claim does not actually exist; then it is not possible to mention a liability for guarantee20. In addition, if the respective claim has been transferred despite any obstacle that prevents such transfer, the guarantee liability cannot be applicable in this case as well 21. Namely, if there is a claim which cannot be transferred or a legal obstacle to transfer the claim exists, considering the fact that the transferee has no benefit that is worth preventing in this regard, it is possible to deduce that the transferor does not have any guarantee liability22 On the contrary, if a claim has been transferred despite an obstacle arising from the contract executed between the debtor and the creditor, and the debtor does not perform its obligations to the transferee by setting forth the obstacle as the reason; it will be possible to say that the transferor has a guarantee liability23.
When the matter is a claim with a certain due date, the relevant claim will not be due and payable on the transfer date; however, such claim will exist as long as the due date continues to exist24. In this case, the important point is that the time in which the guarantee liability will start is the time of transfer25. In some cases a certain condition may be stipulated for a claim. In the event of contingent claims, if there is a new creditor who is not aware of the conditions; depending on the fact that whether the aforementioned condition will be realized on the transfer date or not, it can be argued that such claim does not exist.
In certain cases even though the claim exists, the transferor may be required to fulfill certain obligations, so that the transferee obtains the claim. For this reason, the transferor will be liable if he does not fulfill such obligations. The transactions which are required to be performed for the assignment of the claim can be considered within the scope of such obligations26.
2. The Transferor’s Liability of the Debtor’s Ability to Pay in Onerous Transfers
Legislator has held the transferor responsible for the ability of debtor to pay, unless otherwise agreed, and stipulated a larger liability compared to the regulation in the PCO by bringing an additional regulation with the TCO. The important point which should be considered in terms of the transferor’s liability for the debtor’s payment ability is the date on which the respective claim has been transferred or the date on which it has become due and payable. The reason why these dates are important is because it will not be possible to make reference to the guarantee liability of the transferor if the debtor has ability to pay his debt until the transfer date or the due date and if it is concluded that the creditor will be able to receive the debt by pursuing the debtor in due course 27. Although it is controversial in the law to determine for which moment of the debtor’s ability to pay the transferor will be liable; in terms of onerous transfers, the transferor is not allowed to evade responsibility by proving that the debtor had ability to make the relevant payment at the time of the transfer of claim. In this context, the new creditor will continue to be responsible for the debtor’s payment ability until being exposed to the plea of lapse of time28.
The party who is obliged to prove the debtor’s insolvency is the transferee, and he can prove it with any kind of evidence. In addition, if the debtor causes execution of an agreement by imposing the idea that the debtor has the ability to make the relevant payment, the transferee will have the right to cancel that agreement29.
The debtor’s solvency or insolvency is not actually a feature relating to the claim. In that case, the debtor is a third party aside from the parties of the transfer transaction. A debtor that was able to pay at the beginning may have become insolvent in time without the transferor’s knowledge. For this reason, the ability of the debtor to pay is not a phenomenon which can be controlled by the transferor30. The ideal resolution in terms of the balance of interest is not to consider the transferor (excluding a separately made commitment) being responsible for the ability of debtor to pay. However in the TCO, it is regulated that the transferor will be held responsible for the debtor’s payment ability31.
E. The Transferor’s Guarantee Liability in Gratuitous Transfers (In General and in Case of a Contractual Undertaking)
In the cases where transfer of claim is gratuitous, the transferor has no guarantee liability and he is not responsible for the existence of claim either. Therefore, within the scope of the TCO, if the claim has been transferred without any action in return, namely if it is gratuitous, the transferor of claim has no liability for existence of the claim and the debtor’s ability to pay.
Due to the “donatio” character of a gratuitous transfer, if the donator also gives a guarantee and makes a commitment with regard to the relevant claim, it will give rise to the transferor’s liability (Article 191/II of the TCO). In this context, according to the TCO, the donator will be liable only for the damages resulting from his gross negligence 32.
Since Article 191 of the TCO, which regulates that the transferor or the prior creditor shall not be liable for the existence of the claim or the debtor’s ability to pay if the relevant claim has been transferred to another person without any action in return, is not compulsory in terms of the gratuitous transfers, the parties can draw an agreement which is contrary to that provision, and in terms of gratuitous transfers, it is possible to regulate that the transferor will have a guarantee liability if he guarantees the existence of the claim and the ability of the debtor to pay.
F. The Scope of the Guarantee Liability in Transfer of Claim
Under the PCO, the scope of the guarantee liability in transfer of claim has been determined as the capital gained in return of the transfer of claim and its interest, damages resulting from an unreciprocated prosecutions and expenses caused by the transfer itself. The TCO, in addition to this, has stated that transferee can request from the transferor to indemnify his other damages unless the transferor proves his faultlessness33. The legislator, here, in parallel to Article 112 of the TCO, regulated the compensation of positive damages arising in the cases where the claim would not be received even if there is a fault.
Even though the transferor has not been informed regarding the reasons abolishing the claim or insolvency of the debtor, the transferor will still have the guarantee liability34. Within the scope of the guarantee liability, the following requests can be directed to the transferor.
1. The Amount Paid in Return for the Transfer and Its Interest
In case the transferee cannot receive the money because of the reasons such as inability of the debtor to pay or non-existence of the claim at the time of the transfer, the transferee can request the capital along with its interest. In practice, as transfer occurs in return for a lower amount than the claim in general, the transferee can request only this amount and its interest 35.
2. Expenses and Prosecution Costs Caused by the Transfer
The transferee can request the expenses which he made for the transfer, and also the costs resulting from his unavailing attempts to obtain the relevant claim from the debtor. Transferee can request only the compulsory expenses such as the expenses that are made for the preparation of the transfer agreement and prosecution fees 36.
3. Other Damages
In addition to the liabilities determined in the PCO, it has been regulated under the TCO that if the transferor has a fault, the transferee can request other damages as well. Therefore, transferor can be held responsible for the positive damages of the transferee at the rate of the transferor’s fault. In accordance with Article 193 of the TCO, the transferee is not obliged to prove the fault of the transferor. The burden of proof belongs to the transferor.
When the transferor of the claim proves his faultlessness, the guarantee liability of the transferor only covers the negative damages of the transferee. In this case, transferee cannot request compensation of the benefit that he would have received if he had collected the claim 37.
4. Lapse of Time
Within the scope of the guarantee liability of the claim which takes place between Articles 191 to 194 of the TCO, no lapse of time has been regulated for the requests to be directed to the transferor. The general rule regarding the lapse of time, which is 10 years, regulated in Article 146 of the TCO will be applicable for the expenses arising from the liability guarantee, as well.
G. Particular Circumstances
According to the scenario regulated under the title of “transfer for discharge” in Article 192 of the TCO, the creditor transfers its claim in order to discharge its obligation, however if the amount of the claim, which will be deducted from the respective debt of the transferor, has not been determined along with that; the transferee will be obliged to deduct only the amount that he has already received or would have received from the debtor if he had exercised due diligence 38.
In terms of the action instead of discharge, the debtor exchanges his debt with someone else (in this situation, transfer of claim) and when the action is fulfilled the debtor will be discharged from its debt. As for the actions for the purpose of discharge, the debt is not over when the transfer is made. In such a case, the relevant receivable, instead of the debt itself, should be converted into money in order to fulfill the debt. In this case, the debtor will be discharged from its debt in respect of the creditor’s satisfaction. The creditor can reapply the debtor for the remaining part of the debt. Unless it is explicitly stated that transfer of claim is made instead of discharge, such transfer of claim will be construed as transfer of claim “for discharge”, which is in favor of the creditor 39. When the transfer of claim for the purpose of discharge is in question, transferee should reduce the amount which he could have received from debtor if he had exercised due diligence. In case the amount to be received if the transferee had exercised the required due diligence is more than the debt itself, it has been accepted that the transferee can file a claim for such surplus damages. The transferee will have to pay the required attention, for example, duly perform the respective execution proceedings.
When these two situations are evaluated together, it is necessary to state that although the debt is immediately over in the action of “instead of discharge”; the debt will not be over when the transfer of claim is made for “the purpose of discharge”. The reason behind this is that in the transfer for the purpose of discharge, the creditor is granted with another opportunity to receive the claim. The debtor, who performed on any other subject following the performance for the purpose of discharge, will continue to be held responsible for the main obligation to the creditor and for the mentioned debt. Unlike the transfer instead of discharge, in terms of transfer for the purpose of discharge, it is not possible to say that the debtor will also be liable if the relevant additional opportunity becomes unreciprocated; since the obligation of the debtor continues to exist in terms of transfer for discharge. In some additional situations where the claim transferred for the purpose of discharge is not available, where there is any legal obstacle for transfer or where the debtor does not have the ability to pay, and it is also not possible to say that the transferor will be liable 40.
III. ASSESSMENT AND CONCLUSION
The concept of transfer of claim is a transaction that regulates the transfer of claim of the creditor arising from a relation of obligation without asking for the consent of the debtor. For this transition transaction, the consent of the debtor is not needed and even he is not required to be informed, and qualification of the claim does not change by transition in question. The creditor, without requiring any condition of form apart from the base form, can transfer his claim and gain consideration in return for this transfer. As for the other side of the agreement of transfer, it is to gain a claim in return for consideration in the onerous disposition agreement and without any performance in the gratuitous disposition agreements.
The TCO includes two important differences that are distinct from the provisions in the PCO period. At first, the scope of liability of transferor of claim for guarantee has been enlarged in the relation of transfer of claim.
Even if the fault liability situations have been regulated by the law, here, an exceptional absolute liability situation arises making the transferor of claim be liable to the transferee. Within the scope of new regulations, transferor of claim in return for the performance is liable for both the existence of claim and ability of the debtor to pay. However, in the PCO period, unless the transferor of claim took over any guarantee or commitment, he was liable for only the existence of claim.
The liability of the transferor for guarantee that arises from the TCO is criticized by certain academic writers and it is considered incorrect to hold the transferor responsible for anything that he cannot be informed, and therefore Article 191 of the TCO that enlarged the scope of the liability of the transferor for guarantee is found improper. In contrary, according to other views in the doctrine, it is necessary to enlarge the scope of the guarantee; as neither the consent of the debtor nor informing him is required for the transfer of claim.
If the transfer is made as onerous in the agreement, the liability of the transferor is not formed and the transferor of claim will be responsible for neither existence of claim nor the ability of the debtor to pay. As for an agreement of gratuitous transfer, a contrary situation should not be expected, and the risk of the unavailable claim should be on the transferee of claim. The results encountered in gratuitous transfers will be valid in the transfer of claim for a reason arising from the law.
Finally, another change that is brought about is the situation of being liable for damages in accordance with the fact that the faultlessness is proved or not. The transferee of claim will be liable for positive damages as well as negative damages including penalties and interests in the cases where the transferor is faulty as he did not perform the discharge. In this context, the scope of the damage that needs to be compensated will be determined in accordance with the fault of the transferor. This responsibility is not limited to returning the performed counter discharge including its interest, the expenses of the transfer and the expenses to pursue the claim. Unless faultlessness is proved, other relevant damages can be requested from the transferor.
BIBLIOGRAPHY
Baki İlkay Engin, Alacağı Temlik Edenin Garanti Sorumluluğu, Ankara 2002.
Duygu Diren, “Alacağın Temlikinin Hüküm ve Sonuçları” Unpublished Master’s Thesis, Çankaya University, Ankara 2011 (Access: 27.05.2016) http://earsiv.cankaya.edu.tr:8080/xmlui/handle/123456789/118?show=.
Güler Gümüşsoy, “Alacağın Devrinde Devredenin Garanti Yükümlülüğü.” Master’s Thesis, Istanbul Kültür University, Istanbul 2013 (Access: 27.05.2016) http://acikerisim.iku.edu.tr:8080/xmlui/handle/11413/737.
Hüseyin Can Aksoy, “Alacağı Temlik Edenin Kanundan Doğan Garanti Sorumluluğunun Ekonomi Hukuku Prensipleri Işığında Değerlendirilmesi” Ankara Barosu Dergisi 1, 2012 (Access: 02.05.2016) http://acikerisim. iku.edu.tr:8080/xmlui/bitstream/handle/11413/737/GulerGumussoyYLtez. pdf?sequence=1&isAllowed=y.
M. Kemal Oğuzman, M. Turgut Öz, Borçlar Hukuku Genel Hükümler, Istanbul 2012.
Mehmet Deniz Yener, “Alacağı Devredenin Garanti Sorumluluğu ve 6098 Sayılı Borçlar Kanunu ile Yapılan Değişiklikler” Finansal Araştırmalar ve Çalışmalar Dergisi 67, 2011 (Access: 27.05.2016) http://e-dergi.marmara.edu.tr/marufacd/ article/download/5000006325/5000006778.
Necip Kocayusufpaşaoğlu, Hüseyin Hatemi, Rona Serozan, Abdülkadir Arpacı, Borçlar Hukuku Genel Bölüm, Cilt 1, Istanbul 2008.
Özcan Günergök, Alacağın Devrinde Borçlunun Hukuki Durumu, Istanbul 2014.
FOOTNOTE
1 Official Gazette (OG) dated 29.04.1926 and numbered 359.
2 OG dated 04.02.2011 and numbered 27836.
3 It has been regulated between Articles 183 to 194 of the TCO.
4 Baki İlkay Engin, Alacağı Devredenin Garanti Sorumluluğu, Ankara 2002, p. 152.
5 M. Kemal Oğuzman, M. Turgut Öz, Borçlar Hukuku: Genel Hükümler, Istanbul 2012, p. 2.
6 Mehmet Deniz Yener, “Alacağı Devredenin Garanti Sorumluluğu ve 6098 Sayılı Borçlar Kanunu ile Yapılan Değişiklikler”, Finansal Araştırmalar ve Çalışmalar Dergisi, 2011, p. 71. http://e-dergi.marmara.edu.tr/marufacd/article/ download/5000006325/5000006778 (Access: 27.05.2016).
7 Güler Gümüşsoy, Alacağın Devrinde Devredenin Garanti Yükümlülüğü, Master’s Thesis Istanbul Kültür University, Istanbul 2013, p. 79 http://acikerisim.iku. edu.tr:8080/xmlui/handle/11413/737 (Access: 27.05.2016).
8 Gümüşsoy, p. 79.
9 Necip Kocayusufpaşaoğlu, Hüseyin Hatemi, Rona Serozan, Abdülkadir Arpacı, Borçlar Hukuku Genel Bölüm, Cilt 1, Istanbul 2008, p. 114-115.
10 Engin, p. 95.
11 Duygu Diren, “Alacağın Temlikinin Hüküm ve Sonuçları”, Unpublished Master’s Thesis Çankaya University, Ankara 2011, p.85 http://earsiv.cankaya. edu.tr:8080/xmlui/handle/123456789/118?show=full (Access: 27.05.2016).
12 Gümüşsoy, p. 80-81.
13 Gümüşsoy, p. 82.
14 Gümüşsoy, p. 83.
15 Engin, p. 102.
16 Gümüşsoy, p. 79.
17 Yener, p. 72.
18 Gümüşsoy, p. 86.
19 Gümüşsoy, p. 86.
20 Gümüşsoy, p. 88.
21 Gümüşsoy, p. 91.
22 Engin, p. 111.
23 Engin, p. 111.
24 Yener, p. 72.
25 Gümüşsoy, p. 88.
26 Gümüşsoy, p. 85.
27 Yener, p. 73.
28 Oğuzman, Öz, p. 580.
29 Yener, p. 73.
30 Hüseyin Can Aksoy, “Alacağı Temlik Edenin Kanundan Doğan Garanti Sorumluluğunun Ekonomi Hukuku Prensipleri Işığında Değerlendirilmesi.” Ankara Barosu Dergisi 1, 2012, p. 155.
31 Yener, p. 73.
32 According to the Article 294 of the TCO, “Grantor is not liable for the damage arising from the granting the granted person unless he does not cause this damage by his absolute liability.
33 Gümüşsoy, p. 105.
34 Özcan Günergök, Alacağın Devrinde Borçlunun Hukuki Durumu, Istanbul 2014, p. 117.
35 Engin, p. 150.
36 Günergök, p. 128.
37 Yener, p. 71.
38 Günergök, p. 129.
39 Gümüşsoy, p. 109-110.
40 Engin, p. 157.
