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with amendments made in 1941. One of the reforms adopted with the
Federal Act dated December 10, 1941, which entered into force on July
1, 1942, was the provision regarding the consent of the spouse under the
surety agreement (Swiss CO Art. 494). One of the reasons for enacting
said provision was to protect the family. Paragraph 2 of that article set
forth that if the surety is the owner of an enterprise registered to the trade
registry, shareholder of an unlimited liability company, unlimited partner
of a limited partnership, manager or director of a joint stock company,
manager of a limited partnership divided into shares or the shareholder
who is a director of a limited liability partnership, the person has sufficient
business experience and spousal consent is not required; in other words,
protecting the family through the requirement of spousal consent was
not necessary. However, the Parliament abrogated this paragraph on June
17, 2005 and it remained in force until December 1st of the same year.
According to the legal affairs commission of the national council, it was
not appropriate to compare today’s economic conditions with the year
1941
1
: “
Nowadays, the mere fact of being registered with the trade registry,
is not sufficient to evaluate the results of the suretyship. If the economic
conditions of a company are not duly assessed, the surety agreement
may result in unfavorable consequences that were not paid attention
to beforehand with regards to the surety and his family. Therefore, the
consent of the spouse shall be required in all cases for married persons
which are not in the process of separation and who desire to be a surety.”
Consequently, as Swiss CO Art. 494, paragraph 2 has been abrogated
since December 1, 2005, the spousal consent has become obligatory for
the sureties by the persons stated in the abrogated paragraph as well.
Consent of the Spouse under Turkish Law
The aforementioned amendments made to the Swiss Code of
Obligations (which were made after 22.4.1926, the date of promulgation
of the Code of Obligations numbered 818), were not adopted under the
Turkish legal system until the entry into force of the Code of Obligations
No. 6098.
The draft text of the Code of Obligations No. 6098 set forth the
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Feuilles Fédérales 2004 4659.