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BAILMENT CONTRACT

I. GENERALLY

The bailment contract is regulated between articles 581-603 of the Turkish Code of Obligations No. 6098.

In Article 581 of the TCO, the definition of the bailment contract is made. According to this; "The bailment contract is the contract in which the surety undertakes to be personally liable to the creditor for the consequences of the debtor's failure to perform." As can be understood from the article, the bailment contract is a personal guarantee contract.

It is possible to be a guarantor not only for contractual debts, but also for unjust enrichment, even for any debt arising from the law such as alimony debt.

II. FEATURES OF THE BAILMENT CONTRACT

1. It is a ancillary contract

The bailment contract is dependent on the principal debt and requires the existence of a principal debt secured by the guarantor. If the principal debt exists, it arises and continues to exist with it. If the principal debt is invalid for any reason, the bailment contract will also be invalid, and if it expires, the bailment contract will also expire. Therefore, the guarantor cannot bear more debt than the original debt. Whatever pleas the principal debtor has against the creditor, the guarantor also has them.

2. It is a subsidiary (secondary) contract.

In accordance with this principle, the creditor cannot apply to the guarantor without applying to the debtor. The guarantor is always the second debtor in any type of guarantor.

3. The bail debt is a money debt.

In the bailment contract, the subject of the fulfilment that the guarantor owes to the creditor is money, not the fulfilment of the debtor's debt. 4. Unless otherwise agreed, the provisions of the TCO regulating the bailment contract are mandatory in accordance with TCO 582/3, and it is not possible to waive these rights in advance.

III. CONDITIONS OF BAIL

There must be an existing and valid principal debt.

If the main debt is invalid for any reason, (for example, lack of shape, incompetence, etc.) the secondary bail contract, which is the guarantee of the debt arising from it, is also invalid. Even if a debt that is invalid at the time of guarantor is made valid later by the principal debtor - for example, the invalid debt due to non-compliance with the form, the original debtor's fulfillment of the required form-does not create a liability of bail.

However, there are exceptions to this situation in TCO article 582/2. According to this; The principal debt is invalid due to the debtor's incompetence, may be canceled and rendered invalid within one year due to fundamental mistake, the person who becomes the surety, knowing that the principal debt is time-barred, will be liable in accordance with the surety provisions.

2. The guarantor must have a bail license.

3. Pursuant to article 583 of the Turkish Code of Obligations, the bailment contract must be made in writing, and the contract is subject to strict form requirements.

a. First of all, in accordance with Article 583/1 of the TCO, the guarantor in the bailment contract;

- Must indicate in his/her own handwriting the maximum amount for which he/she will be liable: The maximum amount in the suretyship covers the debtor's side obligations, contractual and interest of defaults, expenses together with the principal debt. However, in case of default of the guarantor, the default interest to be requested from the surety, the expenses in case of proceeding and litigation against the surety are not included in the maximum amount.

- Must indicate the bail date in his/her own handwriting: Pursuant to TCO 589/3, 'Unless it is agreed otherwise in the contract, the guarantor is only responsible for the debts of the debtor after the establishment of the bailment contract.

- In case of being a joint guarantor, he/she has to indicate in his/her own handwriting that he/she is under obligation in this capacity or with any expression having this meaning.

Since the bailment contract is a contract that imposes a debt on one party, there is no need for the signature of the creditor in the contract. Only the signature of the guarantor is sufficient.

b. According to TCO 584, if the guarantor is married, the written consent of the other spouse must be obtained. This consent must be given before the conclusion of the contract or at the latest at the time of its conclusion.

In Article 584/3 of the TCO, some situations in which the consent of the spouse is not sought are specifically regulated. In addition to these, the Supreme Court case-law consolidation board has decided in 2018 that the provisions regarding the consent of the spouse in bail are not required to be applied in the aval.

c. Any changes in the bailment contract that increase the liability of the surety must be made in accordance with the form conditions described above.

Pursuant to TCO 583/3, changes made later in the bailment contract that increase the liability of the surety shall not be valid unless the form envisaged for the suretyship is complied with. If the change is beneficial for the guarantor, this change can be decided regardless of the form. However, any change that aggravates the condition of the guarantor must be made in accordance with the condition for validity of the bail.

The above-mentioned issues are conditions of validity, and if these are not complied with, the bailment contract will be invalid. If the joint guarantees statement is not handwritten, the bail will not be deemed invalid and will be accepted as ordinary guarantee. Despite the invalidity of the bailment contract, the person who makes the payment by assuming that he/she is a debtor may demand this payment from the creditor in accordance with the provisions of unjust enrichment.

IV. TYPES OF BAIL

1. Ordinary Guarantee

The feature of ordinary guarantee regulated according to Turkish Law of Obligations 585 is that the principal debtor can apply to the guarantor after his insolvency is determined. The will of the legislator is that the creditor applies to the guarantor after following the main debtor to the end through foreclosure and receiving the final proof of insolvency. If the creditor applies directly to the guarantor without applying to the debtor, the guarantor can ask the creditor to follow the debtor first, and this is called a defense plea. In the event that the receivable is also secured with a pledge, the guarantor in the ordinary guarantor may request that the debt be taken from the subject of the pledge first, and then followed by the conversion of the pledge into money.

Waiver of the guarantor's argument and redemption of the pledge is initially invalid, but possible later. Subsequent waiver may be express or dhimmi. If the surety pays the creditor who applies directly to her/his, there is actually a waiver of the debate plea. The plea for discussion is not definitive and there are exceptions to this in article 585 of the Turkish Law of Obligations. According to the article; In cases where the principal debtor's bankruptcy is decided ( opening bankruptcy), a meh of concordat is given to the debtor, a final insolvency document is obtained as a result of the proceedings against the debtor, and in cases where proceedings against the debtor in Turkey become impossible or significantly difficult, the creditor may apply directly to the guarantor.

Joint Guarantees

Turkish Law of Obligations the feature of the joint guarantees regulated in Article 586 is that the creditor can proceed against the bail without applying directly to the main debtor, if there is no separate maturity for the surety as soon as the debt becomes due. In addition, in joint guarantee, the creditor can apply directly to the surety without converting the pledges into money, except for the pledge of movable and debt. However, in the Turkish Law of Obligations, there are regulations protecting the guarantor in case the bail is joint guarantees. These;

- First of all, the surety must write in her own handwriting in bail contract that she/he is under obligation jointly or with a statement that means this. Otherwise, the bail contract will be accepted as ordinary guarantee.

With the 6th sub-article of article 4 of the Consumer Protection Law No. 6502, a special regulation has been introduced in this regard. According to this article, “In consumer transactions, personal guarantees received in return for the consumer's actions are considered ordinary guarantee under whatever name. Personal guarantees given by the other party regarding the receivables of the consumer are considered joint guarantees unless otherwise provided in other laws ‘Consumer transaction is defined in Article 3/I-(l) of the same Law as “To act on behalf of or on behalf of real or legal persons acting for commercial or professional purposes, including public legal entities in the goods or service markets, and consumers, transport, brokerage, ıt is defined as all kinds of contracts and legal transactions, including insurance, power of attorney, banking and similar contracts. In this case, pursuant to this provision in the law, a transaction may be both a commercial and a consumer transaction at the same time.

However, if there is both a consumer transaction and a commercial business at the same time due to this exception in the Consumer Protection Law, the presumption of solidarity valid for commercial transactions will not be applied. In case of bail for contracts where one of the parties is a consumer, in accordance with the provisions of the Consumer Protection Law, the provisions of ordinary bail shall apply in all cases

Pursuant to Article 7 of the Turkish Commercial Code No. 6102, 'If two or more persons are jointly liable to another person for a business of commercial nature for only one or all of them, they shall be jointly liable unless otherwise stipulated in the law or the contract. However, interest for default cannot be charged without notifying the guarantor and the guarantors that the commitment or payment has not been made or fulfilled. (7/1) In the case of a surety for commercial debts, the provision of the first sub-article is valid both for the relations between the principal debtor and the guarantor and the guarantors. (7/2) In this article, the presumption of solidarity is regulated in suretyship for commercial works. When guarantor for a debt arising from commercial business, if the parties have not specified the type of such bail, it is accepted that the surety is jointly liable. In this case, it is debatable whether the form requirement in the Turkish Code of Obligations No. 583/1 (writing the joint guarantees phrase in handwriting) is fulfilled in order to achieve this result, which is stated in Article 7/2 of the Turkish Commercial Code.

According to one view, the form requirement as to form in 583/I according to the Turkish Code of Obligations should also be sought in commercial transactions, and if the conditions are not met, ordinary guarantee provisions should be applied. Some authors defending this view are referred to as "unless otherwise stipulated in the law and contract" in article 7/I of the Turkish Commercial Code. According to the Turkish Code of Obligations, if the mandatory provision in article 583/I is taken into account in commercial affairs and it is not stated that there is no joint and several guarantor in commercial affairs, it is necessary to accept that the guarantor is ordinary collateral.

According to other authors of the same opinion, since the provision in article 7/1 of the Turkish Commercial Code is regulated as presumption, it will not lead to the elimination of a mandatory form provision. According to another view, this provision is a special provision in terms of commercial affairs, and when the guarantee is not specified without specifying the type of bail , this guarantee will be accepted as joint surety even if the surety does not indicate in handwriting that he is a joint surety. If the contrary is accepted, the provision of article 7/2 of the Turkish Commercial Code will have no scope and meaning.

In order to resolve the issue, it is necessary to apply the principles to be applied in case of conflict of laws. In this sense, in order to be able to talk about a conflict, there must be more than one provision regarding the same legal situation and with opposite content. We have two principles that we can use in this regard. The first of these is lex posterior, which deals with the priority-after relationship (the next law abolishes the previous law), and the other is lex specialir, which is based on the generality-property relationship (the special law prevents the application of the general law). In the light of these principles, when the article 583/I of the Turkish Code of Obligation and Article 7/2 of the Turkish Commercial Code are evaluated, it is seen that both provisions make regulations regarding joint guaraentees. The Turkish Code of Obligation, which is a general law, and the Turkish Commercial Code, which is a special law, entered into force on 1.7.2012 at the same time. Therefore, the principle of lex posterior cannot be applied, since there is no priority and recency relationship between laws. The other principle, the lex specialis principle, should be used.

- From this point of view, considering that the Commercial Code is a special law according to the Code of Obligations, the application of the provision of article 7/2 of the Turkish Commercial Code and the special condition specified in 583/I of the Turkish Code of Obligations to write the 'joint guarantees statement' in handwriting jobs should not be sought.

In our opinion, in accordance with the regulation in the Turkish Commercial Code, which is also a special law, the form requirement in the Turkish Code of Obligations should not be sought in commercial affairs. The decisions of the Court of Cassation on this subject are in the direction of the fact that the sureties given for commercial business are joint guarantees, even if there is no requirement for the "joint guaarantees statement to be written in handwriting" specified in Article 583 of the Turkish Code of Obligations.

- In order for the creditor to apply to the guarantor; After the receivable is due or due by the notice of the creditor, the creditor must first give a warning to the principal debtor to pay the debt, and this warning must be inconclusive. If this warning to the debtor is unsuccessful, the creditor has the right to apply to the surety. There is no requirement that the creditor also give notice to the joint guarantee.

However, if the principal debtor is incapacitated or bankrupt, obtaining a final proof of insolvency , concordat settlement, if the debtor is clearly in difficulty in payment, if the principal debtor has moved his place of residence abroad and cannot be followed in Turkey, it is possible to apply directly to the co- guarantee without the need for a warning to the principal debtor.

If the receivable is secured by a movable pledge or a pledge of receivables, the creditor must first request that this pledge be converted into money.

A pledge of movables can be established on vehicles by registration with the highway traffic registry, without being dependent on delivery (without transferring possession). Since this issue is included in Article 940/2 of the Civil Code regarding the pledge of movables without delivery under the title of 'A.Pledge on Delivery', such vehicle pledges can also be considered as pledges on movables subject to delivery. However, in the decisions of the Court of Cassation, the pledge of vehicles has been accepted as a registered pledge of movables, and therefore it has been accepted that it cannot be claimed that the pledge cannot be turned into money within the scope of this article.

3. Coguarantees (Real Coguarantees)

Real coguarantees is when two or more people are surety for the same debt, provided that each of them knows about the others guarantor and taking this into account. Here, it is not necessary for the sureties to come to an agreement with each other to establish guarantor or to be under the obligation of surety at the same time. The important thing is that they are aware of each other. This type of bail is divided into two as ordinary coguarantees and joint coguarantees.

A. Ordinary Coguarantees

Ordinary coguarantee is regulated in article 587/1 of the Turkish Code of Obligations. In coguarantees if the type of surety is not shown, there is an ordinary coguarantee as a rule. Pursuant to Turkish Code of Obligations 587/1, 'If more than one person is a guarantor for the same debt, each of them will be liable as the ordinary guarantor for his own share and as the guarantor for the other's share.' An ordinary coguarantee may first put forward the plea of argument and ask the creditor to follow the principal debtor first and avoid paying the debt.

In case of insolvency of the principal debtor, she/he is only obliged to pay her/his part. In the bailment contract, the share that each guarantor will be responsible for can be clearly determined. Therefore, the amount that each coguarantee surety will be liable to the creditor "like the ordinary guarantor" will be calculated over this ratio. However, if the coguarantors have not agreed on such a rate in the bailment contract, it is accepted that each joint guarantor will be liable with "equal shares".

The liability of the ordinary guarantor for more than his/her share is the guarantor's responsibility for a kind of guarantor. For this reason, the creditor should first apply to other guarantors and guarantors. The coguarantee, who pays her/his own share as the ordinary surety will also pay the remaining part of the debt in case of insolvency of the other guarantor or guarantors. Since the guarantor who pays more than his/her share pays this debt as a guarantor, he/she becomes a successor to the rights of the creditor for the excess he/she has paid and will be able to recourse to whichever guarantor has paid his/her debt. However, in ordinary coguarantee, the creditor will not be able to follow the other joint guarantors without following the co-guarantor and determining her/his insolvency, so recourse to the other incapable guarantor will also have no meaning. In this case, the guarantor who pays more than her share may demand this payment from the other coguarantors in proportion to their shares.

B. Joint Coguarantee

Joint coguarantee is regulated in article 587/2 of the Turkish Code of Obligations. It is a type of bail in which the sureties undertake to be jointly and severally liable to the creditor among themselves or together with the debtor. The form requirements for joint guarantees must be complied with, otherwise, ordinary coguarantees will be in question. There are two possibilities here. These;

- First of all, joint guarantors can be several guarantors for the debt among themselves, without being together with the main debtor. Here, the creditor must first follow the principal debtor. The coguarantors only waive the defence of distribution.

- Secondly, coguarantors can also be jointly and severally in debt together with the principal debtor. Here, both the discussion plea and the distribution plea are in question.

In joint suretyship, the co-guarantor may refrain from paying more than his share unless proceedings are initiated against all guarantors who are jointly or severally liable together with him or her and can be followed in Turkey. The guarantor who pays the debt has the right of recourse against other guarantors.

C. In Real Joint Bail, Co-Guarantor's Release from Liability by Claiming Article 587/3 of the Turkish Code of Obligations

Pursuant to article 587/3 of the Turkish Code of Obligations; If the creditor knows or needs to know that there are other persons assuming or will be a surety for the same receivable, if this assumption is not fulfilled later or if one of the sureties is released from the surety debt by the creditor or it is decided that the surety is void, the surety is released from the surety debt.

In order for the guarantor to get rid of her commitment, she must calculate that another guarantor will undertake it, and this matter must be known to the creditor

It is immaterial why the bail of the other coguarantee is invalid. This invalidity is due to lack of capacity to act, lack of form condition, etc. can withstand. If the co-guarantor making the payment to the creditor is relieved of his debt in accordance with the Turkish Code of Obligations 587/3, he will be able to demand the payment back in accordance with the provisions of unjust enrichment.

D. Independent Bail (Unreal Coguarantees)

In the independent surety regulated in article 587/4 of the Turkish Code of Obligations, more than one person has become a guarantor for the same debt independently and without knowing it. In this case, each of the guarantors is responsible for the entirety of the surety debt to the creditor. Unless there is an agreement contrary to the guarantor who pays the debt, she/he has the right of recourse to the others in proportion to their share in the total amount of surety. It can be independent bail, ordinary independent surety or jointly independent.

V. SCOPE OF GUARANTEED BAIL

1. The liability of the guarantor is limited to the maximum amount.

Pursuant to article 583 of the Turkish Code of Obligations, the maximum amount that the guarantor will be responsible for in the guarantor agreement must be written in the handwriting of the guarantor. However, the amount written in this surety agreement is not the amount that the surety must pay, as stated in article 589/1 of the Turkish Code of Obligations; In any case, it means the maximum amount that can be followed due to the principal debt. This provision is mandatory and the liability of the guarantor can never exceed the maximum amount. To this maximum amount; principal debt, default interest, pursuance and lawsuit expense are also included. However, in case of default of the guarantor, the default interest to be requested from the surety, the expenses in case of proceeding and litigation against the guarantors are not included in the maximum amount.

2. The guarantor is only liable for the debts of the debtor after the conclusion of the bailment contact.

Pursuant to Turkish Code of Obligations 589/3, 'Unless it is agreed otherwise in the contract, the guarantor is only responsible for the debts of the debtor after the establishment of the bailment contect.

3. The bail debt becomes due at the earliest due date of the principal debt.

Agreements that the principal debtor will have a lawsuit against the guarantor without a lawsuit against the debtor are void. The guarantor debt becomes due at the earliest due date of the principal debt. However, it can also be decided that the bail will become due long after the original debt. Pursuant to article 590/1 of the Turkish Code of Obligation; ‘Even if the main debt is due before due to the bankruptcy of the debtor, no action can be taken against the guarantor before the specified maturity date.’

4. The guarantor is also and unlimitedly liable for the default interest and court costs arising as a result of her/his own default.

In the bail contact, the maximum amount that the guarantor is responsible for must be written in the handwriting of the guarantor, and the liability of the sur is limited to this maximum amount. However, if the guarantor's default is in question, she/he will also be responsible for the resulting default interest and court costs.

VI. PLEA RIGHTS OF THE GUARANTOR

The surety has two types of redemption rights, namely the debtor's defense rights and her/his own defense rights.

- The guarantor's defense rights of the principal debtor are regulated in article 591 of the Turkish Code of Obligations. Pursuant to article 591/1 of the Turkish Code of Obligation; The guarantor has the right to assert against the creditor all the defenses which belong to the principal debtor or his heirs and which are not due to the principal debtor's insolvency.

Even if the main debtor has waived a defense that belongs to him, the guarantor can still claim this defense against the creditor.' (Turkish Code of Obligation Article 591/2)

These pleas may be related to the fact that the original debt is not valid or that the original debt has been partially or completely eliminated. For example; Invalidity of the principal debt, termination of the principal debt for any reason, non-duty of the principal debt, the statute of limitations of the principal debt are among the defense rights that can be exercised by the guarantor belonging to the principal debtor

The obligation of the guarantor to put forward the defenses of the principal debtor, as stated in the article, should not be understood only literally. The guarantor is prevented from suing the principal debtor by applying at least against the creditor for what she/he could have avoided by claiming the debtor's defense. For this reason, the bail, who does not knowingly put forward the debtor's defenses against the creditor, loses her right of recourse to the original debtor to the extent that she/he can get rid of the debt with this defense.

However, pursuant to the last sentence of Article 591/1 of the Turkish Code of Obligations, 'The state of knowingly guarantor for a debt that the debtor is not liable due to mistake or inability to make a contract or a debt that has expired is excluded from this provision.' According to this provision, a person who becomes a guarantor knowing the existence of these situations will not be able to claim these pleas afterwards.

Pursuant to article 591/3 of the Turkish Code of Obligations, if the guarantor makes a payment without knowing the existence of the original debtor's defenses, she/he has the right of recourse. On the other hand, if the main debtor proves that the guarantor knew or should have known these defenses, the surety loses her right of recourse to the extent that she/he would have avoided payment if they had been claimed. The guarantor is obliged to put forward the final defenses of the main debtor, and if she/he does not put forward these, she/he will lose her/his right of recourse to the main debtor to this extent. However, if the guarantor pays the creditor because she/he does not know these pleas, she/he will have the right of recourse against the main debtor.

If the guarantor pays regardless of the original debtor's pleas and loses her right of recourse under paragraph 3, she/he may file a recovery action against the creditor in accordance with the unjust enrichment provisions. It can also apply to the principal debtor for the same reasons

-The guarantor's own defense rights are the defenses arising from the bailment contract. Examples of such cases are that the surety is not validly existing, that the surety is not due, that the surety is time-barred.

VII. TIMEOUT CASES

1. Expiration of Bail

If the surety is time-barred, the creditor cannot force the guarantor to pay. The bail debt, like the debts arising from other contracts, is time-barred in 10 years from the date of the receivable arising from the bail. (Turkish Code of Obligation article 146- Turkish Code of Obligation 149) First of all, since the principal debt cannot be applied to the guarantor, the beginning of the statute of limitations is subject to the due date of the principal debt. By the way, the statute of limitations will run from the date the surety is due, that is, from the date on which the creditor can apply to the guarantor.

2. Expiration of Principal Debt

In the event that the principal debt expires, the guarantor has the right and obligation to assert this statute of limitations belonging to the principal debtor.

3. .Expiration of the Guarantor's Right of Recourse to the Principal Debtor

Pursuant to article 596/5 of the Turkish Code of Obligations, 'The statute of limitations on the guarantor's right of recourse begins to run as soon as the guarantor performs to the creditor.' 'Accordingly, when the surety pays the creditor, her/his own receivable will arise against the principal debtor and the 10-year statute of limitations will begin to run for this receivable.

VIII. Expiration of Bail

1. Expiration of Bail Due to Expiration of Principal Debt for Any Reason

In the event that the main debt is terminated for any reason, the bail, which is an accessory debt, will also come to an end. Examples of these situations are;

-Fulfillment of the original debt by the debtor

-Expiration by the creditor of the contract that gave rise to the main debt: If the contract is terminated by the creditor, even as a result of the fault of the principal debtor, the surety will be relieved of her/his debt. With the termination, the debt ends and it is replaced by the obligation to tort. As it is clearly stated in article 589/4 of the Turkish Code of Obligations, the guarantor is not responsible for the damages and penalties caused by the nullity of the original debt relationship.

-The creditor's expiration of the debt relationship by acquitting the principal debtor

2. Expiration of Bail While Principal Debt Continues

Examples of situations that terminate the bail while the principal debt continues;

-The creditor's bailout of the bail

-Withdrawal from Bail: Pursuant to Article 599 of the Turkish Code of Obligations, 'If the debtor's financial condition before the birth of the debt has deteriorated significantly after the conclusion of the bailment contact or if his financial situation has turned out to be much worse than what the guarantor assumed in good faith during the suretyship, the surety is to the creditor. By giving a written notice, he can always withdraw from the surety agreement as long as the debt does not arise. The guarantor is obliged to compensate for the damage suffered by the creditor due to her/his reliance on the bail. '

-The expiry of the surety in real persons at the end of 10 years: Pursuant to article 598 of the Turkish Code of Obligations, "Any bail given by a natural person automatically ceases to exist after ten years, starting from the conclusion of the relevant contract. (598/3) Even if the bail has been given for a period of more than ten years, the bail can only be followed until the ten-year period has expired, unless an extended or new surety has been given. (598/4) The bail period may be extended for a new period of maximum ten years, provided that it is made one year before the expiry of the bail at the earliest, with the written statement of the bail in accordance with the form of the bailment contract. (598/5)

This provision is valid for all kinds of bail given by natural persons for an indefinite period or for more than 10 years. This provision is out of question due to the bails given by legal person, and these guarantees will continue to exist even if they last longer than 10 years.

If the guarantor is followed up or sued before the end of 10 years, but the 10-year period expires before the follow-up or lawsuit is finalized, the surety will continue. However, the creditor must continue this legal proceeding without interruption.

-Fixed-term bail : Pursuant to article 600 of the Turkish Code of Obligations, the guarantor is released from his debt at the end of the period. By the way not the principal debt (the principal debt can be temporary or indefinite), the surety must be given for a period of time. In fixed-term bails, the guarantor is released from her debt without giving any notice to the creditor when the period expires.

In the event that the main debt is not due by the end of the bail period, the debt arising from the bail will come to an end. Provided that the principal debt is due before the bail period expires; In the event that the guarantor is followed or a lawsuit is filed against the guarantor, it is not possible to argue that the periodical surety has expired while the proceedings and the lawsuit continue.

-In non-terminated bail, the guarantor's release from debt pursuant to article 601 of the Turkish Code of Obligation: According to Article 601 of the Turkish Code of Obligations, 'In the case of an indefinite surety, the surety is always in ordinary suretyship and in cases stipulated by the law, the creditor, if any, to use the right of action and proceeding against the debtor within one month, to follow up by converting the pledge into money may ask him to continue the follow-up without interruption. (601/1) If the debt is due as a result of the notification made by the creditor to the debtor, the surety may request the creditor to make this notification one year after the date of establishment of the bailment contract and to exercise its rights of prosecution and litigation in accordance with the provisions of the above paragraph, when the debt becomes due in this way. (601/2) If the creditor does not fulfill these requests of the guarantor the guarantor is released from his/her debt. (601/3)’

The guarantor can apply this way only after the debt becomes due, at any time in the ordinary suretyship, and in the cases stipulated by the law in the joint suretyship. However, if the principal debt is subject to a maturity, the guarantor has to wait until the end of this maturity.

If there is joint guarantees , the surety has the opportunity to pay the debt at any time after the debt becomes due. It is also unreasonable to give her/his time to be followed and to think that she/he will get out of debt otherwise. As stated in the article, the coguarantee can only resort to this method in cases stipulated by the law. In this case, the joint guarantor can apply for this procedure only if a pledge of movables or pledges of receivables are taken pursuant to Article 586/2 of the Code of Obligations.

-Transfer of debt: The person of the debtor is very important for the guarantor since the guarantor is in debt mostly for someone she /he knows. For this reason, pursuant to article 198/2 of the Turkish Code of Obligations, in case the debtor changes as a result of the transfer of debt, if the surety consents to the change of the original debtor, the bailment contact will continue to be valid, otherwise it will expire. This consent to be given must also be a consent that complies with the form conditions in the surety.

-Annulment of bail for employees: In accordance with article 602 of the Turkish Code of Obligations, 'The guarantor in non-terminated surety can notify the employees that he has terminated the contract, effective at the end of the following year, every three years.'

SOURCE

Eren, Fikret, Law of Obligations Special Provisions, Ankara 2016. Gözler, Kemal, ıntroduction to Law, Bursa 2014.

Midyat, Nuri Aziz, The Effect of the Presumption of Succession Regulated in the Turkish Commercial Code on the Form Condition of Joint Bail, Istanbul University Faculty of Law Magazine, C. LXXV, S. 2, s. 681-706, 2017, s.690.,

Reisoğlu, Seza, Turkish Bail Law, Ankara 2013.