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Spousal Consent under the Surety Agreement pursuant
to Article 77 of the Law No. 6455 and the Provision
Added to Article 584 of the TCO
1
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Assoc. Prof. H. Murat Develioglu
Introduction
Following the entry into force of the Turkish Code of Obligations No.
6098 (“TCO”), many types of agreements have been subject to different
provisions as compared with the former Code of Obligations No. 818. One
of these agreements is the surety agreement. Indeed, the amendments made
to the Swiss Law of Obligations in 1941 in order to protect the surety,
especially those related to the validity of the surety agreement, are adopted
in the Code of Obligations No. 6098. One of these amendments is related
to the capacity of a married person to be a surety in accordance with Art.
584 of the TCO. Pursuant to this article, if the surety is married, the validity
of the surety agreement is subject to the written consent of the other spouse
unless there is a separation decision rendered by the court or the right to
live separately for the spouses has arisen. This provision has been criticized
on the grounds that it is a hindrance to business life, and is amended with
Article 77 of the Law No. 6455 on the Amendment to Customs Law
and Certain Laws and Decree Laws, which entered into force through
publication in the Official Gazette dated 11.04.2013 and numbered 28615.
Consent of the Spouse under Swiss Law
Unlike the Turkish Code of Obligations whose provisions regarding
suretyship have not been amended as of 1926, the Swiss Federal Code of
Obligations which dates back to 1881, underwent extensive changes in
1911 and the section regarding the surety agreement took its latest form
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Article of April 2013