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LAW OF OBLIGATIONS
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Guarantee and Surety Agreements
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Att. Berna Aşık Zibel
Surety Agreements
Surety agreement is defined under Article 487 of the Code of
Obligations numbered 818 which is currently in force as “an agreement
with which a person undertakes to the creditor to warrant the performance
of an obligation entered into by an obligor”.
The parties for the surety agreements are creditor or obligee and the
surety. In other words, the surety agreement between the surety and the
creditor is a different agreement from the agreement between the creditor
and the principal obligor.
The most important and distinct feature of the surety is its ancillary
character. Therefore, it requires the existence of a valid main obligation.
If there is no valid obligation, a formulation of a valid surety is not
possible. In addition, in case of the termination of the main obligation,
the suretyship is also ended simultaneously.
Another distinctive feature of the suretyship is its secondary nature.
This feature could be observed from the ordinary suretyship where it
is necessary to apply to the obligor first and if the application becomes
fruitless, application to the surety is possible.
Surety can also bring its own defenses against the creditor such as
the surety agreement to be invalid, a time granted to the surety or the
obligation is not due; along with the defenses of the main obligor such as
the main obligation is invalid because of statute of limitation or the main
obligation is not due.
Major Changes in Surety by the New Code of Obligations
The articles on suretyship in the New Turkish Code of Obligations
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(“NTCO”) are set forth between articles 581-603 under the title of “Surety
Agreements”.
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Article of September 2011
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NTCO announced in the Official Gazette dated 04.02.2011 and numbered 27836 will enter
into force on 01.07.2012.