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NEWSLETTER 2013
232
Joint and Several Surety
According to Article 586 TCO, if the guarantor assumes responsibility
for an obligation where the words “joint and several”, or an equivalent
phrase, are appended, the creditor may resort to him before suing the
principal debtor or before foreclosure of pledged immovable property.
However, for the application of this provision, the principal debtor must
be in default on his debt payments and be issued with payment reminders
to no avail, or be manifestly insolvent.
Where the debt is secured by a pledged chattel or claim, the surety
may not be enforced before going after said pledged chattels and claims.
However, the surety can be enforced before pursuing the pledge if the
pledge is deemed by the court unlikely to cover the debt or where the
debtor has been declared bankrupt or obtained a debt restructuring
moratorium.
Co-surety
According to Article 587 TCO, where two or more persons stand
surety for the same obligation, each of them is liable as guarantors for
their share and as collateral surety for the shares of the others.
Where the sureties have assumed joint and several liabilities by
agreement with the principal debtor or among themselves, each of them
is liable for the whole obligation. However, a co-surety may refuse to
pay more than his share if the debt enforcement proceedings have not
been commenced against all other jointly and severally liable co-sureties
with whom he entered into the contract of suretyship, and who may be
sued for the obligation in Turkey. He has the same right if his co-sureties
have paid their share or furnished real security. Unless otherwise agreed,
a co-surety who paid his share has a right of recourse against other jointly
and severally liable co-sureties to the extent that each of them has not yet
paid their share. This right may be exercised before recourse against the
principal debtor.
Where it was apparent to the creditor that the surety entered into the
contract on the condition that others would stand surety with him for the
same principal obligation, the surety is released if such condition is not