Abstract:

Special lien is a limited real right that authorizes the creditor to retain and realize chattels and securities that have come into his or her possession with the debtor’s consent. As an accessory right, a special lien serves to secure the claim. The conditions of the general special lien are regulated under Articles 950-953 of the Turkish Civil Code no. 4721. For the special lien to arise, the creditor’s claim must be due, the creditor must possess the retained object with the debtor’s consent, and there must be a connection between the retained object and the claim. Special lien may not be exercised in cases that are incompatible with the obligations of the creditor, the instructions of the debtor, or public policy. Whether the special lien is transferred to the assignee when the claim secured by the special lien is assigned remains debatable. Some authors argue that the special lien is not transferred to the assignee, whereas others state that only the commercial special lien is not transferred to the assignee. Meanwhile, some authors agreed that the special lien is transferred to the assignee. In the justifications of these opinions, many issues are examined: the legal nature of the special lien, whether the assignee of the claim fulfills the conditions of the special lien, and whether the special lien is one of the accessory rights that can be transferred to the assignee pursuant to Article 189/I of the Turkish Code of Obligations no. 6098. In this study, opinions are evaluated on whether the special lien can be transferred to the assignee in the case of the assignment of the claim secured by the special lien. In this context, it is accepted that the special lien is transferred to the assignee without distinction according to Article 189/I of the Turkish Code of Obligations. It is sufficient for the special lien to arise prior to the claim’s assignment. The conditions of the special lien are not required to be fulfilled by the assignee.

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