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Distinguishing between Guarantee and
Suretyship Agreements
*
Att. Fatih Isik
Introduction
As is widely known, legal transactions are formed upon consensus
of declarations of intent. The purposes of the parties engaging in the
legal transactions are reflected in these declarations of intent. However,
the parties’ declarations of intent may not reflect the real intention of
the parties at all times. In some cases, the real intentions of the parties
must be determined. The disputes arising in practice mainly originate
from determining the nature of the relationship between the parties,
making it necessary to determine the rules applicable to this relation-
ship. Even though parties may define their relationship in a certain
way, the determination of the nature of the legal relationship between
parties must be made according to their real intentions
1
. This general
rule is based on Article 18
2
of the Code of Obligations numbered 818
(“CO”) and Article 19 of the Turkish Code of Obligations numbered
6098 (“TCO”). Pursuant to the two articles specified, while determin-
ing and interpreting the type and content of an agreement, the real and
common intentions of the parties shall be taken into consideration
regardless of the words used by the parties by mistake or with the
intention to hide their real purposes.
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NEWSLETTER 2012
*
Article of November 2012
1
Kocayusufpaşaoğlu, Necip / Hatemi, Hüseyin / Serozan, Rona / Arpaci, Abdulkadir
,
Borçlar Hukuku, Genel Bölüm, Istanbul 2008, p. 332. The author indicates that if the intentions
of the parties are declared falsely, the rule of “falsa demonstratio non nocet” shall be applied
and the nature of the agreement will be determined through an interpretation of the real inten-
tions of the parties.
2
For critique of the article please see
Kocayusufpaşaoğlu / Hatemi / Serozan / Arpacı
, p. 332.
According to the author, the article in question has the assumption that the real intentions of the
parties are known and it does not regulate how the unknown intentions will be examined. It is
indisputable that the author’s critique applies to Art. 19 of TCO, since the above article is the
same as Article 18 of CO.