This is the English version of a Turkish article. The original, with further detail and linked petition templates, is at Kefil Olmak: Eş Rızası, Şekil Şartları ve Sorumluluk Sınırı.
A contract of suretyship is valid only if it is in writing and the surety writes the maximum amount for which they are liable and the date of the suretyship in their own hand (Article 583 of the Code of Obligations). For a married surety, the written consent of the spouse is also required. If any of these is missing the suretyship is invalid — and in practice that is where the strongest defence comes from.
“Just sign it, nothing will happen.” Suretyship is among the legal acts people most regret.
But Turkish law protects sureties seriously, and a suretyship that does not meet the formal requirements is invalid. This article sets out those requirements and the limits of liability.
When Is a Suretyship Valid?
Article 583 is explicit: a contract of suretyship is not valid unless it is made in writing and states the maximum amount for which the surety will be liable and the date of the suretyship.
More than that: the surety must state in their own handwriting, in the contract, the maximum amount, the date, and — where the suretyship is joint and several — that they undertake liability in that capacity or in words to that effect.
So three elements must be in the surety's own hand:
- the maximum amount of liability
- the date of the suretyship
- where applicable, the joint and several capacity
If one is missing, or printed rather than handwritten, the suretyship is invalid. This is the commonest cause of invalidity in practice.
The same rules apply to later changes to the contract that increase the surety's liability.
Why Is the Spouse's Consent Required?
Article 584: unless there is a court order of separation or a legal right to live apart has arisen, one spouse may act as a surety only with the written consent of the other.
That consent must be given before the contract is made or at the latest when it is made. Consent given afterwards is not valid.
Consent is likewise required for later changes that increase the amount for which the surety is liable, that turn a simple suretyship into a joint and several one, or that materially reduce the securities benefiting the surety.
This rule invalidates suretyships given without the spouse's consent, and in practice leads to a great many being set aside.
There are exceptions: suretyships given in connection with the business by the owner of a commercial enterprise registered in the trade register, or by a partner or manager of a company; suretyships given by tradespeople registered in the tradesmen's register in connection with their occupation; and certain suretyships relating to public institutions.
Simple or Joint and Several Suretyship?
In a simple suretyship (Article 585) the creditor cannot proceed against the surety without first proceeding against the debtor. The surety can be held liable only where proceedings against the debtor have proved fruitless, or where the debtor is bankrupt or has been granted a moratorium. This is the defence of prior recourse.
In a joint and several suretyship (Article 586) the creditor may proceed against the surety without pursuing the debtor or realising any immovable pledge — provided the debtor is in default and a notice has produced nothing, or the debtor is manifestly insolvent.
In practice almost every bank and creditor requires a joint and several suretyship, so the expectation that “they must go to the debtor first” is usually disappointed.
Where there is more than one surety liable jointly and severally, the creditor may claim the whole from any of them. A surety who pays may then seek contribution from the others.
| Simple suretyship | Joint and several suretyship | |
|---|---|---|
| Whom the creditor pursues first | The principal debtor | May go straight to the surety |
| Defence of prior recourse | Available | Not available |
| Defence that the pledge be realised first | Available | Limited |
| How common in practice | Rare | Very common (banks require it as a rule) |
| Nature of liability | Secondary | Alongside the principal debtor |
A suretyship is limited to the maximum amount the surety wrote by hand; nothing above it can be claimed.
How Does a Suretyship Come to an End?
A suretyship for a fixed term (Article 598). Where a term is fixed, the surety is released when it expires.
Ten years for an open-ended suretyship. Any suretyship given by a natural person lapses automatically ten years after the contract was made, even if it was given for a longer period.
It may be extended, at the earliest after those ten years have passed and by the surety's written declaration, for a further period of at most ten years.
Fault of the creditor (Article 594). Where the creditor reduces, to the surety's detriment, securities existing at the time of the suretyship or later obtained from the debtor, the surety's liability is reduced correspondingly.
Subrogation on payment (Article 596). A surety who pays is subrogated to the creditor's rights to that extent: they may claim against the debtor and take the benefit of the creditor's securities.
What to Check Before Signing
- Write the maximum amount in your own hand, and make it a figure you could actually bear.
- Fix a term. Ask for a fixed-term suretyship rather than an open-ended one.
- Ask for a simple suretyship, even if it is refused.
- Assess the principal debtor's ability to pay. Standing surety means agreeing to pay the debt.
- Take a copy of the contract. A missing copy causes problems of proof later.
- Where spousal consent is needed, make sure it is given at the same time.
If enforcement is brought against you as a surety, the first thing to check is the formal requirements: where the handwritten elements are missing or the spouse's consent was not given, the invalidity of the suretyship can be raised by an action for a negative declaration.
The maximum amount, the date, and the joint and several capacity must be written by the surety in their own hand; if one is missing the suretyship is invalid. And a married person may as a rule stand surety only with the written consent of their spouse, given no later than when the contract is made.