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LAW OF OBLIGATIONS
229
following provision, which was in line with the aforementioned abrogated
provision of the Swiss Code of Obligations:
“
If a surety is granted with respect to an enterprise, by the owner
of the enterprise registered with 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 consent of
the spouse shall not be required.
”
With the amendments to the Swiss Code of Obligations in 2005 stated
above, which coincided with the period where said provision was included
in the Draft TCO, this provision corresponding to paragraph 2 of Article
585 of the TCO has been excluded from the draft text. Accordingly, the
exceptional provision regarding the instances where the consent of the
spouse is not required with respect to the validity of the surety contract
was deleted from the first version of the Code of Obligations No. 6098.
The provision of the TCO requiring spousal consent has been
criticized for a long time since it does not stipulate any exceptions and
thus adversely affects business life.
On the grounds to make “
amendments for the easement of the natural
flow of business life
” the relevant article of the TCO has been amended
with Article 77 of the Law No. 6455 on the Amendments to Customs
Law and to Certain Laws and Decree Laws, dated 28.3.2013. The article,
which entered into force on 11.04.2013 in accordance with Art. 90 of the
Law No. 6455, is as follows:
“The consent of the spouse shall not be required for the sureties
granted in relation to an enterprise or a company by the owners of the
enterprises registered with the trade registry or by the shareholder
or director of the company; the sureties granted by the craftsmen
and artisans registered to the craftsmen and artisans registry in
relation to their occupational activities, the sureties to be granted
for the credits used within the scope of Law numbered 5570 and
dated 27.12.2006 on the Provision of Credit Facilities Supported by
Interest Carried out by Banks with Public Capital; and the sureties
granted for agricultural credit, agricultural sale and craftsman and