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LAW OF OBLIGATIONS
231
Types of Contracts of Suretyship within the Scope of the
Turkish Code of Obligations
1
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Att. Ceyda Buyukoral
Articles 585 to 588 of the Turkish Code of Obligations (“TCO”)
numbered 6098 and dated 01.07.2012 set forth the types of Contracts of
Suretyship. The types of Contracts of Suretyship are named in the TCO as
i) simple surety ii) joint and several surety iii) co-surety and iv) collateral
surety and counter-surety.
Simple Surety
According to Article 585 TCO, the creditor cannot resort to debt
recovery via a simple surety before suing the principal debtor. The
creditor may resort to the surety only under the following circumstances:
1. If a definitive certificate of loss is issued as a result of the debt
enforcement proceeding,
2. If the debtor can no longer or hardly be sued in Turkey,
3. If the debtor is declared bankrupt, and
4. If the debtor obtains a debt restructuring moratorium.
Where the claim is secured by pledges, a simple surety may include
a provision that requires the creditor to satisfy his claim first from such
pledges. But this provision shall not be applied if the debtor has been
declared bankrupt or obtained a debt restructuring moratorium.
Where the surety was undertaken solely to cover a shortfall, the surety
may only be enforced if a definitive certificate of loss has been issued as a
result of the debt enforcement proceeding or the debtor can no longer be
sued in Turkey or a composition agreement has been concluded. In such a
case, an obligation to first resort to the principal debtor may be regulated
by the contract.
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Article of October 2013