NEWSLETTER-2017

257 LAW OF OBLIGATIONS Although it is regulated that if the leased property is handed over after the formation of the contract, a third party can become a party to the contract in TCO Article 310, and there is no explanation regarding whether it is required to leave the leased property for the use of the les- see. Though this matter is debated, in Swedish and Turkish doctrines, TCO Article 310 shall apply upon the handover of the leased property after it is left for the use of the lessee 1 . Another discussion in doctrine is whether it is required for the person who transfers the leased property to hold the title of the lessee. According to the Swiss Code of Obligations Article 261 that regulates the same topic, only in a case where the person who transfers the own- ership of the leased property also holds the title of the lessor, a third party can become party to the contract. On the other hand, there is no such regulation in TCO Article 310. The transition of the rights and obligations arising from the lease agreement to the new owner shall be proactive when the transfer is made pursuant to article 310 of the TCO. In this regard, the lessee shall be liable to the transferor for the mature obligations prior to the transfer of the agreement. Moreover, Article 198/2 of the TCO shall apply for the pledges and guarantees that are given by third parties. In other words, the liability of the third party that pledges as security for loans, as well as the guarantor, shall be maintained only if they consent in writing to undertake the liability. Conclusion Code of Obligations numbered 6098 brings with it two major novelties regarding transfer of a leased property. While the first of these novelties, the third party automatically – due to law- becomes party to the contract upon the transfer of the leased property to the third party, the other novelty is that the third party also becomes a party to the contract upon gaining a right in rem that affects the right of the lessee, other than ownership. 1 Alper Gümüş, Lease Contract According to New Turkish Code of Obligations numbered 6098, İstanbul 2012, p. 147 ff.