Abstract:

The formal requirements for suretyship were aggravated in the Code of Obligations Act No. 6098 and the validity of a solidary suretyship was tied to the condition of being drawn up in handwriting by the guarantor (Code of Obligations Art. 583). However, Commercial Code Act No. 6102 enacted at the same time as the Act of Obligations, has maintained the statutory presumption on joint and several liability as regulated in its previous version and assumes that in cases of suretyships for business transactions the suretyship has the quality of a joint guarantee (Commercial Code Art. 7). These contradictory regulations of the two acts has led to controversy between doctrine and practice on which of the provision should prevail. In this study it is conclude that, considering the Commercial Code having the quality of a special law compared to the Act of Obligations, its provisions have to prevail. However, despite this conclusion reached in terms of the current law, de lege ferenda as in German Law, the application of the provision only for merchants would be a more appropriate solution. In this regard, we deem it necessary to amend the law in this sense.

Keywords: