13 Apr Termination Of Surety Agreement
In accordance with Article 486/S.2, if the commitment is made by “real guarantees” (caution and mortgages) that were initiated prior to the execution of the bonding agreement, the creditor first executes this effective guarantee. If the creditor directly demands payment of the guarantee without such a review, the guarantee has the right to invoke the creditor on a defence based on such a fact. However, such a defence is not available to the common guarantee under the TCO. Thus, as stated in section 487, the creditor may demand payment of the guarantee before any debt from the principal debtor. The articles on security in the new Turkish bond law [i] (“NTCO”) are defined between articles 581 to 603 under the title “Surety Agreements”. As explained above, the new provisions adopted in the review of the amendments to the NTCO appear to be used to protect the warranty. The main criteria for distinguishing between guarantee agreements for guarantee agreements are: (a) the primary and secondary obligation: the most notable difference between a guarantee agreement and a guarantee contract is this; While the guarantee imposes an incidental and secondary obligation of execution (depending on the types), a guarantee imposes a primary and independent obligation. Under a guarantee agreement, the guarantee is only liable if the underlying contractual relationship is valid and enforceable. Under section 492 of the OCT, “in the event of termination of the underlying contractual relationship, the guarantee is relieved of its benefit obligation.” The bond commitment is independent because it is separate from the underlying contractual relationship between the principal debtor and the creditor.
In the same case, even if the underlying contractual relationship between the creditor and the debtor becomes invalidated, the security company (agreement) continues to apply effectively, so that the surety is liable to the creditor for the performance of the guarantee business. In other words, when the creditor is reimbursed, the surety would fulfill its own obligation to the guarantee contract, but not the debtor`s obligation arising from the underlying relationship. b) Defences (average derived from an appeal): under section 497 of the OCT, “the guarantee is invoked and obligated to provide the guarantee of all defence claims arising from the primary liability relationship belonging to the debtor,” whereas this possibility is not granted to the surety, so that the surety cannot make these alleged arguments against the creditor. (c) Right of appeal: the guarantee is the legal consequence of the rights of the creditors vis-à-vis the debtor, limited to the amount paid to the creditor by the bonding company. Therefore, the “guarantee, as defined in section 496 TCO, has the right to withdraw from the debtor until the amount paid by the guarantee to the creditor,” whereas that right is not granted to the surety and therefore cannot claim repayment of the debtor resulting from the estate.