Abstract:

Art. 7 of the New Turkish Commercial Code N. 6102 (“New TCC”), provides a presumption of solidarity in commercial affairs, as the Old Turkish Commercial Code N. 6762 (“Old TCC”). According to this presumption, unless it is otherwise stipulated by the parties, where there is plurality of debtors in commercial affairs or a suretyship (if there are more than one surety, also with regard their relation among themselves) is provided for any debt that is arisen thereof, joint and several indebtedness or joint and several suretyship rules apply. On the other hand, New Turkish Code of Obligation N. 6098 (“New TCO”), regulated the suretyship agreement differently from the Old Turkish Code of Obligations N. 818 (“Old TCO”), which amounted to a thorough reform of the related provisions. Accordingly, with regard to our subject matter, Art. 583 and 603 of the New TCO stipulate compulsory form requirements with regard to both surety contracts and all other types of personal securities (among other types, joint and several indebtedness and adhesion to an existing debt included thereto as well) provided by real persons. In this context, the interrelation of the Art. 7 of the New TCC and Art. 583 and 603 of the New TCO must be enlightened and the question whether Art. 7 of the New TCC can be applied by all means must be answered. This work aims to go in detail with regard the different views put forward both in the legal doctrine and court decisions; and accordingly to analyze the outcomes of the interactive relation of these mentioned provisions

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