Surety Not Responsible For Subsequent Borrowings
The principles of the surety agreement 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 contract. It should also be clear for which contractual debts the surety will be surety. The surety cannot be responsible for subsequent debts. You can examine the Sample Court of Cassation Decision.
12th Civil Chamber
Principal Number: 2015/8955
Decision Number: 2015/20045
“Case Law Text”
COURT :Execution Law Court
Upon the request of the debtors to examine the above-dated and numbered court decision on appeal within the due date, the file related to this matter was sent to the department from the neighbourhood, and after the report prepared by the Examining Judge for the case file was listened to and all the documents in the file were read and examined, the matter was discussed and considered:
1- In the examination of the appeal objections of the debtors … and ….;
The first decision was appealed after the expiry of the time limit. For this reason, the final decision regarding the rejection of the appeal request is in accordance with the law in accordance with Articles 365 of the EBL and 432 of the HUMK (APPROVAL),
2- In the examination of the appeal petition in respect of the debtor …;
It has been observed that the debtor … was notified of the hearing date for the case, but did not attend the hearing, and the case was continued and finalised in absentia for this debtor. It is understood that the court decision was notified to this debtor on 08.04.2014 and the petition of appeal was submitted by this debtor on 16.04.2014.
In this case, since the court decision was appealed before the expiration of the 10-day legal period specified in Article 363 of the BEC, the appeal is in time. After the court’s additional decision dated 11.09.2014, numbered 2013/460 main, 2014/60 decision, regarding the deeming of the appeal application as not filed, was decided to be removed unanimously since it was not appropriate, the appeal petition of … was examined.
It is understood that the debtors against the proceeding without judgement through general attachment initiated by the creditor applied to the execution court with the request for removal of the objection of the creditor, and the court decided to continue the proceeding by accepting the case in accordance with the report received from the expert after complying with the reversal order regarding the removal of the objection of authorisation.
According to the first paragraph of Article 583 of the Code No. 6098; “The suretyship agreement shall not be valid unless it is made in writing and unless the maximum amount for which the surety shall be liable and the date of suretyship are specified. It is obligatory for the surety to indicate the maximum amount for which the surety is liable, the date of suretyship and, in the case of a joint surety, the fact that he/she is under obligation in this capacity or with any expression that means this in his/her own handwriting in the suretyship agreement.”
Article 584 of the same Law stipulates that “Unless there is a separation judgement given by the court or unless the right to live separately legally arises, one of the spouses can only be a surety with the written consent of the other; this consent must be given before the conclusion of the contract or at the latest at the time of its conclusion”. Furthermore, it is also regulated in Article 27/1 that the agreements contrary to the mandatory provisions of the law shall be null and void.
The debtor … became a surety to the main debtor …, who is not subject to proceedings and litigation, before the creditor bank on 01.07.2004 and it was accepted by the parties that the debt was paid in relation to this surety. There is no surety of this debtor in the loan agreement dated 09.10.2007, which was made subject to proceedings by the creditor bank. Therefore, this debtor has no responsibility since there is no suretyship in the subsequent loan agreement. In the first suretyship agreement, the reference to the borrowings to be made later is not valid since the amount of suretyship is not specified.
In that case, while the court should reject the request for removal of the objection in respect of the debtor …, it is inappropriate to make a judgement as written.
CONCLUSION :
With the acceptance of the appeal objections of the debtor …, the court decision is (DISMISSED) in accordance with Articles 366 of the BEC and 428 of the HUMK for the reasons written in subparagraph (2) above, the prepaid fee may be refunded upon request, and it was unanimously decided on 08/09/2015, with the decision correction path being open within 10 days from the notification of the judgement.
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