Surety Agreement
The Surety Agreement is regulated between Articles 581-603 in the current Turkish Code of Obligations numbered 6098. According to Article 581 of the TCO, “A surety agreement is a contract whereby the surety undertakes to be personally liable to the creditor for the consequences of the debtor’s failure to fulfil its obligation.”
It is a contract that imposes an obligation on one party. In the contract in question, the source of the debt may arise from the contract, as well as from tort or unjust enrichment. There is a relationship between 3 different persons. These are: Surety, creditor and debtor.
WHICH FORMAL CONDITIONS IS THE SURETY AGREEMENT SUBJECT TO?
The surety agreement is subject to certain formal conditions. According to Article 583 of the TCO;
It must be made in writing.
The maximum amount for which the surety shall be liable and the date of suretyship must be specified, otherwise it shall not be valid.
The surety must indicate in his/her own handwriting the maximum amount for which he/she is liable, the date of suretyship and, if he/she is a joint surety, that he/she is under obligation in this capacity or with any expression that means this. Subsequent amendments to the contract that increase the surety’s liability shall not be effective unless the form prescribed for suretyship is complied with.
The consent of the principal debtor is not required and even his/her knowledge is not necessary.
BETWEEN WHOM IS THE SURETYSHIP CONTRACT CONCLUDED?
The suretyship contract is concluded between the surety and the creditor of the principal debt relationship by reflecting their mutual declarations of will. The surety undertakes to pay the debt of the debtor if the debtor fails to pay the debt. There is a tripartite relationship here. The debtor and the creditor, who are the parties of the principal debt relationship, and the parties of the contract, the surety and the principal creditor, come to the fore.
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