280 / 516
Another difference between these two agreements is in the excep-
tions and objections arising from the main agreement. In a suretyship
agreement, the surety may exercise the exceptions and objections of
the principal debtor against the creditor, whereas the guarantor of a
guarantee agreement may not exercise the exceptions and objections of
the principal debtor against the principal creditor.
The main difference with respect to these agreements is the form
requirements. Suretyship agreements may be concluded only by com-
plying with important form requirements, whereas the validity of a
guarantee agreement does not require any special form
6
.
As seen, there are important differences between these two securi-
ty agreements. Therefore, a determination of which agreement the par-
ties desire to sign is important. It is observed that parties often use the
terms “suretyship agreement” and “guarantee agreement” interchange-
ably, thus the real intentions of the parties while signing the agreement
must be determined. For instance, a 2001 decision of the General
Assembly of the Civil Chambers of the Court of Cassation concluded
that an agreement referred to as a guarantee agreement by the parties
was actually a suretyship agreement, and the Court ruled that the
agreement was invalid, since the requirements of form were not
respected
7
.
Criteria to be Considered
Certain criteria may be used for distinguishing these two types of
agreements
8
. The first criteria to be taken into account are the expres-
sions used by the parties. Despite the fact that the expressions of the
266
NEWSLETTER 2012
6
However, Article 603 of the Turkish Code of Obligations is reserved. Namely, pursuant to the
aforesaid article, in all security relationships which real persons are party to, including guaran-
tee agreements, the requirements of form set forth for the suretyship agreement shall be com-
plied with.
7
Please see Yarg. HGK. 4.7.2001 Tarih E. 2001/19 – 534, K. 2001/583
(www.kazanci.com) For
detailed assessment of the decision please see
Kocaman, Arif, B
., Yargıtay Hukuk Genel
Kurulu’nun 4.7.2001 Tarih ve E. 2001/19-534, K. 2001/583 Sayılı Kararı Üzerine Bir
Değerlendirme – Kredi Kartı İlişkisinde Bankaya Karşı Verilen Kişisel Teminatın Hukuki
Niteliği: Garanti mi, Kefalet mi?, Ticaret Hukuku ve Yargıtay Kararları Sempozyumu, 2003,
C.XIX, p. 65 et seq.
8
For detailed information please see
Develioğlu
, p. 225-228.