279 / 516
Consequently, the legal nature of the relationship between the par-
ties in all cases shall be determined by considering whether or not the
declaration of intent of the parties legally qualifies their relationship
3
.
Guarantee or Suretyship?
One of the circumstances which requires interpretation of the par-
ties’ intentions under Turkish law is a dispute concerning whether a
security relationship between the parties is a guarantee agreement or a
suretyship agreement. This matter has been discussed in the doctrine
and rulings of the Court for a long time
4
.
Determining whether the nature of the security relationship
between parties is a guarantee agreement or a suretyship agreement is
essential, due to differences in the conditions concerning the forma-
tion, features and the articles of the agreements, even though their
function of security is similar. It is useful to begin by mentioning the
differences between these two agreements briefly
5
.
For instance, since the obligations arising from suretyship agree-
ments are accessory to the obligations arising from the main agree-
ment, the invalidity of the main agreement shall result in the invalidity
of the suretyship agreement. However, in cases where there is a guar-
antee agreement independent from the main agreement, the creditor of
the guarantee agreement may recourse to the guarantor even if the prin-
cipal obligation becomes or is deemed invalid.
LAW OF OBLIGATIONS
265
3
Even though it may be claimed that interpretation is not necessary if the intentions of the
parties are sufficiently clear (in claris non fit interpretatio), this view is justifiably criticized in
the doctrine. Please see
Kocayusufpaşaoğlu / Hatemi / Serozan / Arpacı
, p. 333. Even if the
parties use clear expressions, the determination of intentions, which are opposite to what has
been expressed, can only be determined through interpretation. Not applying the method of
interpretation because of the clear expressions of the parties may result in undesirable conse-
quences. Therefore, even if the parties’ intentions are clearly expressed, determining the real
intention of the parties is important.
4
Barlas, Nami
, Kefalet Hukukuna İlişkin Bazı Sorunlar/ Yargıtay Uygulaması, Ticaret Hukuku
veYargıtay Kararları Sempozyumu, 2005, XXI, p. 56 vd.;
Develioğlu, Hüseyin Murat
: Kefalet
Sözleşmesini Düzenleyen Hükümler Işığında Bağımsız Garanti Sözleşmeleri, İstanbul, 2009;
Kocaman, Arif
, B., Banka Teminat Mektuplarının Hukuki Niteliği Üzerine, Batider 1990, p. 49
- 64;
Özen, Burak
, Kefalet Sözleşmesi, İstanbul 2012.
5
For detailed explanations concerning the differences between suretyship and guarantee agree-
ments and the regulations adopted by the TCO, please see
Asik Zibel, Berna
, Guarantee and
Suretyship Agreements, Erdem - Erdem Newsletter, September 2011.