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The Validity Terms of the Contract of Surety pursuant to
New Code of Obligations
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Att. Ceyda Buyukoral
The New Turkish Code of Obligations numbered 6098 (“TCO”)
which has entered into force on 01.07.2012 regulates the contract of
surety under article 581 et seq.
Article 581 of the TCO defines the contract of surety. According to
the definition, under a contract of surety, the surety undertakes to be
personally liable towards the creditor in case the debtor fails to fulfill
his obligations.
The contract of surety is deemed valid in case of the presence of
the following conditions:
(i) there shall be a valid primary obligation,
(ii) it shall be made in written form and
(iii) approval of the spouse shall be received.
The Existence of a Valid Primary Obligation
According to article 582 of the TCO, the contract of surety
requires the existence of a primary obligation. However, a contract of
surety may be concluded for a future or a conditional obligation. In
such case, contract of surety takes effect when the obligation becomes
due or the condition is satisfied. The existence of primary obligation is
not required at the time when the contract of surety is concluded; how-
ever primary obligation shall exist at the time when the creditor
demands the performance of the contract of surety. The surety granted
for a conditional obligation takes effect when the condition is satisfied.
On the other hand, if the surety is granted for an obligation affiliated
with a condition subsequent, obligation of the surety terminates when
the condition is satisfied.
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NEWSLETTER 2012
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Article of September 2012