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he has beforehand.
3
2
However, with the new law this will be changed and
this change will notably find its reflections in the surety provisions of the
loan agreements drafted by banks.
Qualified Form Requirement
One of the major changes of NTCO on surety agreements is regarding
the qualified formal validity requirement.
As per Article 583, as well as the “written form” requirement, the
cap for which the surety is liable, “the date” of suretyship and in case
of joint and several suretyship, the expression for “joint suretyship”
should be noted with surety’s handwriting and signature. These form
requirements will also be applicable for the proxies granted for suretyship,
the agreements containing surety promise and the later amendments
of the surety agreement adversely affecting the surety. These imposed
qualified formal requirements are general validity form conditions but
not evidentiary form requirements.
Concurrently with the NTCO entering into force, the opinion of
Supreme Courts of Appeal affirming “the validity of the surety when the
amount is easily understood from the content of the agreement, even when
there is no cap expressly indicated” will no-longer be effective and the
surety agreements which do not contain cap should be accepted as invalid.
Consent of Spouse for Surety
One of the other major changes for the surety agreements set forth
by the NTCO is the provision on “Consent of Spouse” in Article 584.
According to this provision, for the validity of the surety agreements
concluded by the married people, written consent of the spouse must be
obtained. This requirement will be applicable irrespective of the type of
suretyship.
This provision is mandatory. Therefore it is not possible to waive such
right beforehand and conclude an agreement otherwise. As indicated for
the form requirements, the consent of the spouse is not only required
2
General Board of Supreme Court of Appeal 12.06.2002 dated and E:19-426, K:513 numbered
decisions.