The new Turkish Commercial Code ("TCC") that entered
into force on 07/01/2012 brought about some changes in terms of a
number of debt-creating transactions in the day-to-day business
life. Although the TCC applies to a majority of commercial
transactions, those changes have also affected the commercial
transactions to a considerable extent since the provisions of the
TCC apply to debt relations not governed in the TCC. With the
introduction of the new TCC, conditions as to form and validity of
surety and similar procedures concerning other forms of personal
warranty have been considerably aggravated.
Suretyship is an accessory agreement by which a person (the
surety) binds himself for another already bound (the debtor) as for
his debt and accepts to be bound by the debt owed by the debtor to
the creditor if and when the circumstances require so. Since the
surety assumes a specific liability with no benefit in return under
a suretyship agreement, the validity of a suretyship is made
conditional upon very strict terms in the new TCC in order to
protect the economic integrity of both the surety and the
surety's family. As per the new TCC, a surety must write down
certain issues in his own handwriting and is also required to
obtain the consent of the spouse to ensure validity of the
TERMS AS TO FORM
The new TCC has made suretyship conditional upon very strict
terms as to form for the first time. As per the Code, the surety
must write down certain issues by his own handwriting in order to
be aware of the amount of the debt assumed, the amount of his
personal guarantee and the conditions applicable to his suretyship
and not to be deceived, cheated or misled.
Therefore, the surety must write down the issues given below in
his own handwriting in the surety statement:
Amount of suretyship
Type of suretyship
Date of suretyship
To this end, the surety shall have to write down the amount
(maximum), type (ordinary or joint) and the date of suretyship in
his own handwriting in the surety statement.
As the Code does not require the surety to write down the entire
surety statement in his own handwriting, it is the common opinion
that the surety statement shall be deemed valid if only the issues
mentioned above are written in his own handwriting by the surety.
Therefore, a statement given in the following form must exist to
establish an appropriate and valid suretyship agreement:
I hereby state that I stand joint surety towards A for
the debts of B which may arise from the Sales Agreement enacted
between the parties dated 01/01/2013 for any amount up to TL
100,000 (one hundred thousand TL). 01/10/2013.
The TCC aims to protect not only the surety but also his family
from the liabilities the surety assumes by standing surety as a
surety debt assumed without any benefit in return may pose the risk
of becoming hard up economically and therefore the breakdown of the
unity of the family. The Code prevents the surety to establish a
suretyship contract without the spouse's consent and requires
written consent of the spouse for this purpose.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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