The principles of surety agreements are regulated in the Code of Obligations. According to the law, the maximum amount for which the surety is liable must be specified in the agreement. To reiterate, it must be clearly stated that the surety will be liable for debts arising from the agreement. The surety cannot be held liable for debts that arise later. You can review an example of a Supreme Court Decision.
Legal Department
File Number: 2015/8955
Decision Number: 2015/20045
“Text of Justice”
COURT: Enforcement Court
Upon the request of the debtors for the review of the court decision dated and numbered above, within the appeal period, the file related to this matter was forwarded from the court of first instance to the relevant office.
1- In the examination of the appeals filed by the debtors … and …;
The objection to the initial decision was filed after the appeal period. Therefore, it was determined that the final decision to reject the appeal request was in accordance with Articles 365 of the Enforcement and Bankruptcy Law (İİK) and 432 of the Code of Civil Procedure (HUMK).
2- In the examination of the appeal petition against the debtor …;
It was seen that the debtor was notified about the case on the hearing date, but did not attend the hearing and the case continued in the absence of this debtor. It was understood that the court decision was served on this debtor on 08.04.2014 and that this debtor filed his appeal on 16.04.2014.
In this case, the court decision was appealed within the 10-day statutory period specified in Article 363 of the Code of Civil Procedure, and therefore the appeal is within the appeal period. After the court unanimously overturned the decision, the additional decision issued by the court based on its decision numbered 2014/60 dated 11.09.2014 and numbered 2013/460 was invalid,
and the examination of the debtors’ appeal against the invalid enforcement initiated by the creditor through general seizure has begun. Upon the creditor’s objection that they were guarantors in the credit agreement dated July 1, 2004, but that this debt had been paid, and that there were no guarantors in the credit agreement dated October 9, 2007, the creditor applied to the enforcement court requesting that the objection regarding the authorization be lifted, and the court ruled to cancel the objection regarding the authorization. As understood, based on the report obtained from the expert witness, it was decided to accept the case and continue the proceedings.
According to the first paragraph of Article 583 of Law No. 6098 of the United Kingdom, “A surety agreement is not valid unless it is made in writing and specifies the maximum amount for which the guarantor is liable and the date of the surety. The guarantor must indicate in writing the maximum amount for which he or she is liable, the date of the guarantee, and, in the case of a joint guarantor, that he or she is liable in that capacity or any other expression to that effect.” Article 584 of the same law states:
“Except in cases where one spouse has been separated by court order or has the right to live separately, the other spouse may act as a guarantor with the written consent of the other spouse; this consent must be given before or at the latest at the time the agreement is concluded.” Furthermore, Article 27/1 stipulates that contracts that violate the mandatory provisions of the law shall be entirely void.
The debtor became the guarantor of the principal debtor at the creditor bank on July 1, 2004, and the parties agreed that the debt was paid in exchange for this guarantee. The debtor is not listed as a guarantor in the credit agreement dated October 9, 2007, which is subject to the creditor bank’s enforcement. Therefore, since the debtor was not a guarantor in the subsequent loan agreement, the debtor has no liability. The reference in the initial deposit agreement to subsequent borrowings is invalid because the deposit amount was not specified.
In this case, the court should reject the debtor’s request to dismiss the objection, but it would not be correct to issue a written decision.
CONCLUSION:
Upon acceptance of the debtor’s appeal, the court, for the reasons stated in paragraph (2) above, in accordance with Article 366 of the EBL and Article 428 of the HUMK, unanimously decided on 08/09/2015 to overturn its decision, leaving the way open for correction.