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NEWSLETTER 2011
210
When comparing TCO, which is still in force, Article 584 with the
title “
Consent of Spouse
”, Article 599 with the title “
Termination of
Suretyship
” andArticle 603with the title “
ApplicationArea
” are the new
articles embedded into NTCO. Other than those, previously controversial
issues are clarified with the explicit and delineated provisions of the
new code. Within this section of this paper, the major changes and new
provisions are summarized.
Definition
Article 581 of NTCO defines surety agreement as “the agreement in
which the surety undertakes to be personally liable against the creditor
for the consequences of which the obligor’s non-performance of the
obligation or failure to fulfill the contractual duties. This definition
replaces the provisions, which could be interpreted as surety can be
undertaken only for the obligations arising out of an agreement and
provides a clear provision, which accepts that it could be undertaken for
wrongful act, unjust enrichment and other legislative obligations.
Surety for an Invalid Obligation
As is known, Article 485 of TCO sets forth that in the event of a non-
liability of an obligor for the contractual obligation due to mistake or legal
incapacity, the surety remains valid if undertaking surety has knowledge
of these material facts. Article 582 of the NTCO expands this exception
further and includes the obligation lapsed due to statute of limitation in
this exception.
Surety’s Previous Waiver from the Defenses
Article 582 of NTCO clearly sets forth an issue, which has been
controversial in Turkish legal doctrine. In accordance with this provision,
“unless otherwise understood from the law, the surety cannot previously
waive the rights given to him under this section.” Since there is no such
provision in the current code, Supreme Court of Appeal’s implementation
reflects the opinion that, it is possible for the surety to waive the defenses