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during the signature procedure of the agreement but also for the future-
later amendments to the surety agreement that may adversely affect the
surety.
As per this provision of NTCO, if there is a separation decision given
by the court or a statutory right of living separately comes into existence,
there is no necessity for obtaining the consent of spouse. Other than those
situations, it is necessary to obtain such consent.
Scope of Liability
Pursuant to Article 589 of NTCO, “
the surety is, in any case, liable
up to the amount indicated in the surety agreement”.
Although it is
explicitly indicated therein, since it is already accepted by the practice,
this provision does not reflect a major change of the rule.
As to the surety agreements, one of the major changes is set forth
by the NTCO in Article 589. According to the third paragraph, “
unless
otherwise explicitly set forth in the agreement, the surety is only liable
for the obligation becomes due after execution of the surety agreement”.
Pursuant to this, the surety will not be liable for the obligation which
exists before the execution of the surety agreements.
In addition, there is another major provision in this article which
states that all agreements which set forth that the surety is liable for
the damages arising out of the invalidity of the underlying contractual
relation and the penalty clauses is null and void.
Default in Performance under Joint and Several Suretyship
As to the joint and several suretyship, the opportunity to apply to
the joint and several suretyship without applying the main obligor and
without asking for foreclosure of pledges is criticized by the doctrine for
the reason that it harms the secondary nature of the surety agreements.
4
3
Therefore Article 586 of the NTCO related to the joint and several
suretyship sets forth that;
3
Özen, Burak
; Kefalet Sözleşmesi, İstanbul, 2008, s.230; Tandoğan, Haluk; Borçlar Hukuku
– Özel Borç İlişkileri, Vedat Kitapçılık İstanbul 2010, 5inci Tıpkıbasım, s.770.