141 Union of Turkish Bar Associations Review 2023 Muhammed Enes YILDIZ Article 428 of the Turkish Code of Obligations, which regulates the transfer of the workplace, regulates the joint liability of the transferor and transferee employers in line with Article 6 of the Labour Law (Art. 428/3 of the TBK). In the next article, the transfer of the employment contract, there is no provision on joint liability. One of the opinions in the doctrine states that the legislator aims not to accept joint liability through deliberate silence in order not to make a negative regulation, and therefore, a gap in the law cannot be mentioned here. According to this opinion, unlike the transfer of the workplace, the consent of the employer is sought in the transfer of the employment contract, and therefore the transfer of the employment contract occurs with the will of the employee who is in a position to calculate the consequences of the transfer of the receivables from the transferor employer to the transferee.87 Again, unless explicitly stipulated in the law, it is not possible to create a joint liability through interpretation or to extend a joint liability provision by analogy.88 Pursuant to Article 141 of the TBK, the source of joint liability is only the agreement of the parties or an express provision of law.89 According to another opinion in the doctrine, the absence of a provision on the liability of the transferor employer in Article 429 of the TBK regarding the transfer of the employment contract is due to the negligence of the legislator. Therefore, this gap in the law should be filled by applying the joint liability provisions stipulated in the provisions of the TBK and the İK regarding the transfer of the workplace by analogy to the transfer of the employment contract, which is similar in terms of the interests protected.90 In our opinion, holding the transferor employer liable for the preassignment debts by analogy in the face of the explicit provision of the Law on joint liability does not comply with the logic of law (Art. 141 TBK). However, even though the employee is given the authority 87 Ekmekçi/Yiğit, p. 241. 88 Ekmekçi/Yiğit, p. 242; Yamakoğlu/Karaçöp, p. 125. 89 İpek Kocagil, “Yeni Borçlar Kanunu Işığında İş Sözleşmesinin Devri”, Sicil İHD, Issue. 22, Haziran 2011, p. 56. 90 Özkaraca, Sözleşmenin Devri, p. 137 et seq; Süzek, p. 331; Çelik/Caniklioğlu/ Canbolat/Özkaraca, p. 312; Mustafa Alp, İş Sözleşmesinin Devri, Kadir Has Üniversitesi Hukuk Fakültesi, İş hukukunda Üçlü İş İlişkileri Sempozyumu, 4. April 2009, İstanbul 2009 (Devir), p. 327.
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