289 / 521
Agreements Included in the Scope of Article 603 and the Issue
of whether said Provision shall be Applicable to Bill Guarantees
Article 603 sets forth the following regulation: “
the provisions
regarding the form of the surety, legal capacity for being a surety, and
consent of the spouse are also applicable to other agreements entitled
differently where real persons provide personal guarantee.
” In the doc-
trine, the application area of this article is a question of debate. There
is no doubt that guarantee and assurance debt participation agreements
for the purpose of assurance are within the scope of Art.603. The char-
acteristics of these agreements are that their forms and provisions are
not explicitly determined within the law.
On the other hand, implementation of Art. 603 was debatable for
agreements whose forms and provisions have already been specified in
the law, such as the bill guarantee. There were two opinions about this
matter. The first opinion defended that this provision should be applied
to bill guarantee relationships as well. For justification, the defenders
of this opinion asserted that TLOArt. 603 is a mandatory provision and
non-application of this regulation to bill guarantees may prevent the
purposes of the provision by tangling around it. Authors who defend
the second opinion hold that since the form requirements of a bill guar-
antee are specified in the TCC, bill guarantees cannot be subject to
TLO Art.603.
Court of Casssation’s Opinion
The Court of Cassation decision, dated 04.07.2013
3
. states that,
“
Under the Turkish Commercial Code, the consent of the spouse
requirement is not regulated in order to make a commitment. Since
negotiable instruments are regarded as business transactions pursuant
to the Article 3 of the Turkish Commercial Code No. 6102, there is no
place for the application of Art. 584 of the Law of Obligations in the
present case since Law of Obligations counts as a general provision
against the provisions of the Turkish Commercial Code
”, and therefore
embraces the second opinion.
LAW OF OBLIGATIONS
273
3
Supreme Court, 12
th
Civil Chamber decision numbered 2013/16400 E., 2013/25100 K., and
dated 4.7.2013.