Türkçe
A surety agreement, which is one of the types of personal guarantee regulated in detail under Articles 581 to 603 of the Turkish Code of Obligations numbered 6098 (“TCO”), is defined under Article 581 of the TCO as “the contract under which the surety undertakes to be personally responsible for the consequences of the debtor’s failure to fulfill his debt to the creditor”.
There are some validity conditions which should be complied with in order for surety agreements, which are one of the most commonly used types of personal guarantee to guarantee a receivable, to be legally valid and applicable.
1- Existence of a Valid Primary Obligation
In accordance with Article 582 of the TCO; a surety agreement may only be made for an existing and valid debt. Therefore, the surety’s debt under the surety agreement depends on the existence and validity of the debt of the principal debtor. However, a surety agreement may also be established for a future or contingent debt to be effective when this debt arises or the condition is met.
2- Written Form Requirement
Pursuant to Article 583 of the TCO, the surety contract is subject to a written form, and the maximum amount that the surety will be responsible for and the surety date should also be indicated. In accordance with the same article, the surety should indicate under the surety agreement with his own handwriting, the amount of his responsibility, the date of the surety, and also, in case he is a joint surety, his capacity of being a joint surety or similar expression indicating that capacity.
3- Consent of the Spouse
In accordance with Article 584 of the TCO, if the surety is married, the written consent of his spouse should be obtained in order for the surety to be sufficient. However, if a separation decision has been rendered by a court for one of the spouses or if one of the spouses has the legal right to live separately, the consent of the surety’s spouse will not be sought for the validity of the surety agreement.
Since the condition for obtaining the consent of the spouse of the surety caused some discussions and difficulties in implementation in terms of the continuity of commercial life, the third paragraph has been added to Article 584 of the TCO with the Law numbered 6455, and the exceptions to this principle are explicitly indicated under such paragraph. Accordingly, the situations in which spouse consent will not be sought are as follows:
a) Sureties to be provided in relation with the enterprise or the company, by the owner of such commercial enterprise registered in the trade registry or the partner or manager of such trade company,
b) Sureties to be provided by tradesmen or craftsmen registered in the registry of tradesmen and craftsmen, in relation with their professional activities,
c) Sureties to be provided for loans to be utilized within the scope of the Law No. 5570 on the Utilization of Interest Supported Loans Implemented by State-Owned Banks,
d) Sureties to be provided for loans to be utilized to cooperative partners by credit and surety cooperatives of agricultural credit, agricultural sales and craftsmen and artisans and by public institutions and organizations,
Similarly; pursuant to the decision of the Supreme Court Unification of Judgements Board rendered to resolve the dispute between the jurisprudence of different chambers of the Supreme Court; the consent of the spouse is not sought in order to sign bills of exchange such as checks and bills as surety.
4- Period of Surety
Pursuant to Article 598 of the TCO, any kind of surety provided by a real person automatically terminates after ten years as from the establishment of the related contract, and it is stipulated that the sureties provided by natural persons should not be unlimited in terms of time. As a matter of fact, in accordance with the same article, even if it is regulated that the surety has been provided for more than 10 years, the surety can only be subjected to debt collection procedures up within 10 years. This period is not a prescription period or a lapse of time, and is not subject to stopping or interruption.
It is possible to extend the surety period or renew the surety if certain conditions are met. Such conditions are as follows:
- Compliance with the form conditions sought for the validity of the surety agreement,
- Renewal or extension of the surety one year before expiry of the surety period. (For example, if the surety is provided for 10 years, it will not be possible to extend the surety period before the 9th)
In cases where the surety period is extended or the surety is renewed, the surety may only be provided for a maximum of 10 years.
5- Expression of Joint Surety
According to Article 583 of TCO; in the case of joint surety, it is obligatory for the surety to indicate in the surety contract with his own handwriting that the obligation has been undertaken as a joint surety or the surety contract should include a similar expression indicating that capacity.
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