The aim of this paper is to discuss the validity of the bail against bail in the Turkish Code of Obligations. The reason of this discussion is that the 12th Law Department of the Supreme Court of Appeals has given af concurrent consent ‘and am consent Bu.
Validity Requirements of the Multiple Bail
- A valid principal debt relationship
- Written form
- The maximum amount of liability of the guarantor
- Date of bail
- If the guarantor of the guarantor, the date of bail and the succession of the bail, the name of this record with the author’s hand writing to be specified
- The consent of the spouse (TBK Art. 584 – Art. 494 of the Swiss Code of Obligations)
As it will be seen, the Law has made bail very strict. All conditions here are valid and any bail relationship that is contrary to these conditions is invalid. We will not, however, examine these conditions in detail. However, there are two exceptions to the necessity of spousal consent. These:
The consent of the spouse is not required for changes that are subsequently made in the bail contract and which do not lead to an increase in the amount to which the guarantor will be responsible or to the conversion of ordinary bail to successive bail or to a substantial reduction in the guarantees for the benefit of the guarantor.
The surety to be given by the shareholder or the manager of the commercial enterprise registered to the trade registry or by the partner or the manager of the trade company regarding the enterprise or company, and the tradesmen or craftsmen registered in the registry of the tradesmen and artisans regarding their professional activities, are The guarantee of the surety to be given in the loans to be used in the scope of the Law on Interest Supported Loans granted by Banks and agricultural surpluses, agricultural sales, tradesmen and craftsmen, credit and surety cooperatives, and public institutions and organizations shall not be sought for the surety to be given to the cooperative shareholders.
It should be noted here that the first exception of the spousal consent is a viable exception, regardless of the parties to the original debt relationship. The second exception of the partner agreement is an exception to the parties of the original debt relationship and the subject of the original debt relationship. According to this exception, the spouse’s consent will not be searched bail relationship:
Sureties of the companies or their partners who are guarantor to the bank, agricultural credit, agricultural sales loans.
Banking or agricultural loans related to the professional activities of the tradesmen, agricultural sales, tradesmen and craftsmen, credit and surety cooperatives, and loans to be used by co-operative partners by public institutions and organizations.
Bills (Bono), Executive Bail and 12. Legal Department’s Opinion
12. The Legal Chamber of the Supreme Court explicitly emphasizes that in case of the absence of consensual guarantee on bail, the execution bail shall not be valid. Even in the numbered 2013/31202, it is also considered unlawful that the borrower does not have his / her handwriting as a joint guarantor.
12. Legal Department of the Supreme Court; it does not seek the consent of the consortium on the joint bail. This is because they do not consider bail as a bail in the securities and evaluate them as AVAL.
In short, the relevant apartment; it does not seek this condition in bonds when seeking conditions for bail in a lending process with the participation of the official. In our opinion, there are two basic problems. The first of these; in all bail transactions with the participation of official officers, the conditions of bail are searched; the second one is the interpretation of surety in bonds.
The most important aim of the law is the protection of the family as socio-economic. It is the purpose of this norm to protect the economic structure of the family as a result of borrowing due to the debt of someone else, unaware of the husband. When we make a purposeful interpretation, whether or not whether the deed or executive surety, and necessarily, on the bail should be sought consensual consent.
In the normative system, we believe that there are some legal difficulties in seeking the consent of the spouses in the bail with the participation of official officials. The two most basic examples are; surety in the title deed with the mortgages in the registry, notarde bail in the form of regulation. It should also be examined whether it is possible for the person claimed to be guarantor to accept the case in a case of bail.
In our opinion, bail is also possible with the principal mortgage in the land registry. The form of mortgage contracts is uniform and is shown in the legislation. In such a contract, it is not possible to fill in the bail limit and the handwritten by the guarantor of the sign that we are joint guarantor. In this case, a separate bail contract must be made in our opinion in accordance with the separate TBK. In addition, the creditor can obtain the consent of the spouse externally until the contract is established.
Again, we do not see the possibility of the handwriting condition in the bail documents prepared by the notary public.
We believe that the norm for spousal consent is a public mandate. For this reason, one should investigate the existence of a spouse with the claim that he / she is a guarantor or not. The person who claims to be a creditor and bail is liable to prove that he has received his spouse’s consent. However, in a lawsuit filed against x with the claim that he is a creditor and that x is a guarantor; x ‘s wife is not a success until the bail contract is established; If x accepts the case in the trial, this “acceptance” should be considered invalid.
As a result, the existence of conditions of bail must be sought even in the cases of bail.
The reason why the 12th Legal Department of the Semi-Criminal Court has made this assessment, which defines the responsibility for the signature under the sign Kanunu joint guarantor 70 on the front side of the notes, is 701/3. Agent. Accordingly, except for the signatory or the signatory’s signatures, each signature on the face of the policy shall be deemed to be avaliable. This provision also applies to bonds, bonds. In addition, these provisions are special provisions in accordance with the provisions of the Code of Obligations.
However, in our opinion, we believe that all conditions related to the bailiffs in the TBK should be established for the bailment of the signature signed with the sign of joint guarantor.