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The greatest issue concerning independent collateral sureties is the
possibility to seek recourse from other sureties, provided that the cred-
itor only applies to one of the sureties, and that the surety in question
fulfills the obligation, wholly. In other words, how shall the question of
whether the remaining sureties are released from their debts under the
assumption that the creditor solely (and maybe coincidentally) initiates
enforcement actions against one of the sureties be answered? This
issue is addressed, below.
History
Code of Obligations numbered 818 neither regulated the possibil-
ity of seeking intra-group recourse, nor independent collateral surety-
ships, in general.
The majority view in the doctrine opined that if one the sureties
fulfills its obligation, wholly, they may seek recourse from other
sureties as a result of the principle of equity. Certain scholars who
share this view state that it is inequitable for only one of the sureties to
be responsible for the whole debt, and that this surety may seek
recourse from others on the grounds of unjust enrichment
2
.
The other view claims that unjust enrichment provisions are not
even necessary. In accordance with Art. 496 of the Code of Obligations
numbered 818, the surety who fulfills their debt becomes a successor
to the creditor’s rights. Thus, the surety has the right to seek recourse
from others according to this provision, even though he/she is unaware
of the existence of other sureties
3
.
The Regulation of Turkish Code of Obligations Numbered
6098 on Independent Collateral Suretyships
Turkish Code of Obligations numbered 6098 which entered into
force on July, 2012 includes a regulation on independent collateral
LAW OF OBLIGATIONS
255
2
For example,
Halûk TANDOĞAN
, Borçlar Hukuku, Özel Borç İlişkileri, Cilt: II, Ankara 1987,
p. 771,
Seza REİSOĞLU
, Türk Hukukunda ve Bankacılık Uygulamasında Kefalet, Ankara
1992, p. 126. It must be mentioned that, with the amendments made to Swiss Code of
Obligations in 1941, a similiar provision has been introduced to Swiss Law. Before such amend-
ment, the Swiss doctrine, contrary to Turkish doctrine, accepted that no right to recourse exists
in this type of suretyships.
3
Burak ÖZEN
, 6098 sayılı Türk Borçlar Kanunu Çerçevesinde Kefalet Sözleşmesi, İstanbul
2012, p. 308.