Türkçe
Since it became significantly difficult for the creditors to collect their receivables nowadays, it has become a necessity to secure the payment of receivables. In that respect; in order to create a more reliable situation in collecting his receivables, the creditor in a debt relationship may request a third party to provide assurance against the risk of failure of the debtor to fulfill its obligations arising from the contract or commercial relationship. One of the most commonly used personal guarantee types today is the guarantee agreement.
WHAT IS A GUARANTEE AGREEMENT? WHAT ARE THE CONDITIONS?
A person who provides an assurance under a guarantee agreement undertakes to ensure a certain behavior or a result of a third party and to compensate the creditor if this behavior or outcome does not occur. In other words, the guarantor agrees to be responsible for the performance of the debtor independently from the debt undertaken under the main relationship and assumes the obligation to reimburse the creditor if the debtor fails to perform his debt. In that respect, the guarantor assumes the risk of the third party’s action or the failure of a result.
Although the guarantee agreement is not defined under the Turkish Code of Obligations (“TCO”), according to the generally accepted opinion in the doctrine, the legal nature of the guarantee agreement is “third party undertaking” as regulated under article 128 of the TCO. In this respect, guarantee contracts are unilateral and gratuitous contracts.
WHAT ARE THE TYPES OF GUARANTEE AGREEMENTS?
Guarantee Agreement for Collateral Purpose (Similar to Surety)
In the guarantee contracts for collateral purpose, the guarantor undertakes to be liable to the creditor for the performance of the debtor under the main relationship, independently from the debt in the main relationship. In such guarantee contracts, the commitment of the guarantor does not depend on the validity and existence of the debt under the main debt relationship. In that respect, there is an independent debt relationship between the guarantor and the creditor.
Pure Guarantee Agreements
In pure guarantee contracts, in order to direct the creditor to a certain behavior or to direct the creditor to establish, change or terminate a legal relationship with a third party, the guarantor fully or partially undertakes the risks that may arise under such relationship. In other words; unlike the guarantee agreement for collateral purpose, a debt relationship has not yet been established between the creditor and the debtor.
Similar to the guarantee agreements for collateral purpose; under pure guarantee agreements, the guarantor undertakes debt independently from the debt of the debtor whose performance is guaranteed.
WHAT ARE THE VALIDITY CONDITIONS OF THE GUARANTEE AGREEMENT?
In principle, there isn’t any validity condition envisaged for guarantee agreements. However, if the guarantee within the scope of the concluded guarantee agreement is provided by a real person, the provisions of the TCO on surety should also be taken into account. Although guarantee agreements are not defined under the TCO, the provisions included under article 603 of the TCO regarding the form of surety, the capacity to be a guarantor and the consent of the spouse, which indicate the area of application of the surety agreements will also be applied to other agreements which includes a personal assurance of a real person, regardless of the title of such agreement. executed under any other name.
Therefore, the guarantee agreements which will include a personal assurance of a real person should be executed in writing to be valid. However, in cases where the guarantor is a legal person, it will not be necessary to comply with the requirement of written form.
Again; as per article 603 of the TCO, in all guarantee agreements which will include a personal assurance of a real person, the maximum amount of responsibility, which is one of the validity conditions of the guarantee agreement, should be specified. However, in cases where the guarantor is a legal person, this requirement will not be applied.
Pursuant to article 603 of the TCO, the consent of the spouse envisaged for surety contracts will also be valid for the guarantee agreements which will include a personal assurance of a real person. In that respect; failure to apply the regulations regarding the consent of the guarantor’s spouse as envisaged for surety contracts will lead to the invalidity of the guarantee agreement which includes a personal assurance of a real person.
Since there are no other restrictions regarding the content of the guarantee agreements, the parties may freely determine the content of the same within the scope of freedom of agreement.
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