Selçuk Üniversitesi Sosyal Bilimler Enstitüsü Dergisi

Öz

Social and economic necessities have led to emergence of a type of contract called “Construction Agreement in Return for Land Share”. Thanks to this type of contract, land owner who frequently does not have enough money become owner of a flat in exchange for transferring his/her land share to the contractor, and also, contractor makes profit by selling single spaces that he/she obtains over these land shares. In the event that contractor sells his/her single spaces to the third parties after gaining property right, any legal disputes will not arise. However, in the event that contractor sells his/her prospective single space to the third parties before construction is completed, some legal disputes might arise. It is called as “transfer of claims” that contractor sells his/her rights to the third parties. In order that contractor can transfer his/her land share claim to the third party, “a valid agreement”, “existence of transferred claim” and “absence of transfer obstacle” are required. It’s differed with reference to causality and non-causality of transfer of claim if land owner could put invalidity of transfer agreement forward third parties or not. The primary consequence of transfer of claim is that land share claim that is transferred according to construction agreement in return for land share goes out from wealth of contractor and pass to wealth of third parties. On this topic, reserve rules of law in Turkish Code of Obligation find an execution area if parties do not insert a provision into transfer agreement. According to principle accepted in Obligation Law, transfer of claim does not make the status of debtor heavier. Land owner can exercise his/her rights towards cancelling and rescission of construction agreement in return for land share against contractor even after his/her learning of transfer of claim and also put this forward third parties as defense. On the other hand, construction agreement in return for land share is a synallagmatic agreement. Thus, contractor can not want his/her claim’s fulfillment from land owner unless he/she fulfill his/her own debt Turkish Code of Obligation, Art.97 . Since therefore, land owner might also put forward exceptions and objections which he/she has against contractor to the third parties. In this study, essential conditions for a valid transfer of claims, the extent of transfer of claims and the results of transfer of claims with respect to contractor, land owner and third part are tried to be stated