283 / 521
clause has been added to the mortgage agreement table designating the
mortgagor, which is also the defendant, as a joint debtor and surety,
limited within the mortgage margin. Ordinary execution proceeding to
the detriment of the defendant has been initiated; however, the pro-
ceeding has been ceased upon the defendant’s objection. In response,
the plaintiff has filed an action of the annulment of objection demand-
ing an execution denial indemnity and the continuation of the execu-
tion proceedings.
Considering the fact that the defendant has become surety for the
debt by providing a mortgage, the court of first instance has decided
that the execution proceedings shall continue in the manner of foreclo-
sure of the mortgage, but not in the manner of ordinary execution.
Therefore, the court of first instance ruled for continuation of the exe-
cution proceedings with respect to the other defendants; on the other
hand, ruled partial dismissal in favor of the mortgagor-defendant due
to its above mentioned reasoning. Plaintiff bank has appealed against
this ruling. Consequently, the Court of Cassation rendered a judgement
regarding the validity of the suretyship clause added to the mortgage
agreement table.
Assessments within the General Transaction Terms
In accordance with TCO Article 21, the validity of the clauses des-
ignating the mortgagor as a joint debtor and surety shall be contingent
upon the refutation of the bank that they gave the adequate information
to, and shared the content of the agreement with the mortgagor, while
formulating the agreement. Such clauses added to the agreement to the
detriment of the mortgagor shall be considered as non-conforming
with the nature and characteristics of the mortgage agreement; hence,
it shall be deemed to not have been written
1
.
By evaluating the mortgagor’s commitment of being joint surety to
the loan debt, within the scope of the mortgage agreement as a clause
imposed by the banks, unilaterally, the Court of Cassation enabled
such clauses to be subject to the assessment of the general transaction
terms.
LAW OF OBLIGATIONS
267
1
Yeni Borçlar Kanunun Getirdiği Başlıca Değişiklikler ve Yenilikler,
Prof. Dr. Turgut. Öz
, p.8,
Istanbul 2012.