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suretyships.
As per TCC 587 IV, “
Each of the sureties who independently pro-
vide a surety shall be responsible for the whole obligation. However,
the surety who paid shall have the right to recourse to the extent of his
share within the whole obligation, unless otherwise agreed.
”
As per the open wording of the provision, unless otherwise agreed
upon by the parties, the surety who has paid shall have the right to
recourse to the extent of his share within the whole obligation. The
example given in the doctrine to illustrate this provision states as fol-
lows
4
: “
For instance, if the principle obligation for which the sureties
are given amounts to 150 TRL; and for this amount (K1) independently
provided a surety for 200 TRL, (K2) for 50 TRL and (K3) for 50 TRL, the
surety sum amounts to 300 TRL. When (K1) pays the whole 150 TRL, in
calculation of recourse to other sureties, the ratio will be 2/3 and the
responsibility of (K1) from the principal debt will be 100 TRL, the
amount that corresponds to this ratio. In this case, (K1) shall provide
recourse to (K2) and (K3) for the outstanding 50 TRL; each of them for
25 TRL, which corresponds to 1/6, determined by the same method.
”
The dates on which the suretyship agreements are executed are
irrelevant for a ratio-based distribution to be adopted. Hence, the right
to recourse exists, irrelevant of the fact that the suretyship agreement
to which the paying surety is a party has been executed earlier or later.
Finally, since the above explained provision is not mandatory,
other solutions, for example the waiver of the right to recourse, may be
agreed upon by the parties.
Conclusion
In Code of Obligations numbered 6098, the right to recourse in
independent collateral suretyships is regulated. The views in Turkish
doctrine have been taken into consideration when the related provision
was formed, and it is regulated that all of the sureties are pro rata
responsible for the whole of the obligation, although the sureties are
unaware of each other’s existence in this type of suretyship.
256
NEWSLETTER 2015
4
Seza REİSOĞLU
, Türk Kefalet Hukuku, Ankara 2013, p. 175-176.