284 / 521
The 19
th
Civil Chamber of the Court of Cassation decided that the
clause rendering the mortgagor, which is also the defendant, as a joint
surety shall be evaluated within the scope of general transaction terms,
by stating that this is not in compliance with the nature and the char-
acteristics of the mortgage agreement. In accordance with TCO Article
21/II, and the foregoing, the Court of Cassation decided that this clause
attached to the mortgage agreement table shall be considered within
the scope of assessment of the general transaction terms and, accord-
ingly, shall be deemed to not have been written.
Evaluation within the framework of the Implementation Law
Despite the above mentioned explanations, the 19
th
Civil Chamber
of the Court of Cassation has foreseen a time limitation for the imple-
mentation of general transaction terms assessment on the clauses ren-
dering joint suretyship for the mortgagor, attached to the mortgage
agreement made in the scope of the loan agreement.
Court of Cassation referred to Articles 1 and 7 of the Law regard-
ing the Entry into Force and Implementation of the Turkish Code of
Obligations numbered 6101 (“Implementation Law”) in the case in
question. In accordance with Implementation Law Article 1, “
The acts
and actions occurred prior to the date of entry into force of the Turkish
Code of Obligations, the consequences and legal grounds of such acts
and actions shall be subject to the rules of the law which is in effect on
the date of the occurrence
.” In addition, Implementation Law Article 7
states that the articles of the TCO regarding public order and public
moral shall be implemented in the pending actions.
Although the joint suretyship clause attached by banks to mort-
gage agreements shall be deemed as a general transaction term, by
virtue of Court of Cassation’s attribution of these two articles and on
the grounds that
i. the mortgage was established prior to 01.07.2012, which is the
effective date of the TCO, and
ii. the clauses should not have been considered within the scope
of Implementation Law Article 7, which relates to public order
and morality, the sanctions of which are deemed as non-written
due to incompliance with the nature and characteristics of the
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NEWSLETTER 2014