ABSTRACT
In an obligation, each party (obligor and obligee) may refer to a person or there might be more than one obligor or obligee1. Under the Turkish Code of Obligations2 (“TCO”), though joint indebtedness types are not explicitly regulated in specified titles, in our study, they will be categorized based on existing provisions under the TCO and each type will be examined based on its own structure and comparisons will be made accordingly.
Although some of the reasons of the establishment of a joint indebtedness relationship are derived from the law, joint indebtedness is a frequently applied method due to the desire of the obligee to secure itself against the obligors, by including more than one obligor into the obligation or the desire of the obligors to share obligations before the obligee.
I. INTRODUCTION
In today’s world, due to the rapid change pin business life and also increase of foreign investments and partnerships, legal transactions not only bind between two contracting parties but have implication on more than two persons. In this context, more complex indebtedness structures will erupt between contracting parties. For example, because of the influx of investment to a great amount, the demand for loans from the financial institutions has been increased as well. As these financial institutions bear a great risk in losing their allocated money to a great amount, these institutions need an additional security to spread the risk. Therefore, in such relationships, other parties, such a surety or guarantor, will also be involved in addition to the investor.
In this article, the aim is to compare and examine the topic of joint indebtedness, which is regulated in law or developed in practice, by examining advantages and disadvantages of each joint indebtedness to the parties.
A typical contractual relationship is characterized by the parties, which are referred as obligor against an obligee. Generally, the articles regarding the constitution, provisions and termination of the obligations that arise and the related explanations refers to this typical scenario3. However, contractual relationships may also include more than one contracting party on either side. “Joint indebtedness” refers to when there is more than one obligor4. In legal terms, the case where there is more than one obligor is really preferable for the obligee. As a matter of fact, the obligee would have the opportunity to charge the other obligor in case of collection issues with one obligor due to financial problems or disappearance of one of the obligors or other similar reasons and if oblegee wishes, he/she may execute proceedings against all obligors at the same time.
Joint indebtedness types are divided into four divisions as “non-dividing indebtedness”, “cooperation in indebtedness”, “partial indebtedness” and “solidary indebtedness”5. Most common type of the joint indebtedness in practice is solidary indebtedness. Another classification regarding the types of the joint indebtedness is made based on whether the cause of action and the obligation are the same or different, as “joint indebtedness in real terms” and “virtual joint indebtedness” respectively.
The types of the joint indebtedness in real terms are listed as cooperation in indebtedness, partial indebtedness, mutual/joint indebtedness, participation in obligation and non-dividing indebtedness; and the types of the virtual joint indebtedness are listed as cumulative indebtedness, guarantee contract, contract of surety and cases that arise out of the insurance contract6. The types of the joint indebtedness will be examined separately and basically based upon this classification under each title.
II. TYPES OF JOINT INDEBTEDNESS UNDER THE TURKISH CODE OF OBLIGATIONS
A. Solidarity among Obligors
Solidarity among the obligors is a type of obligation where each obligor is liable to the obligee for the whole part of the obligation which arises out of an agreement or law and the performance of one of the obligors releases the other obligors as well. A solidary obligation is in question if more than one person is responsible to the obligee for the whole part of the obligation based on the same reason as “primary obligor”. Hence, in case of a solidary obligation, the obligee may request the payment of the full amount from all, some or just one of the obligors. Also, the obligee may claim for a portion of or the full payment from all or some of the obligors. However, all of the obligors –including the ones that have provided part performance continue to be obligated for the performance until the debt is wholly paid off7.
There is no presumption of solidary indebtedness other than the commercial affairs (see Turkish Commercial Code Article 7/II). The obligee is obliged to prove the solidary among the obligors8. The solidary indebtedness is arisen out of the will of each obligor to be liable for the whole part of the obligation or in cases that are regulated by law9. If the obligor does not accept solidary indebtedness voluntarily and no solidary liability is attributed to him/her by law, the common indebtedness shall be determined as the basis of indebtedness10.
The following and other similar regulations can be referred as examples to the solidary indebtedness regulated by law (i) solidary liability of the shareholders of the unincorporated companies for their obligations undertaken jointly or via a representative against third parties within the scope of the partnership relations11; (ii) solidarity among the persons who cause a damage together or are responsible for the same damage for various reasons12; (iii) solidary obligation of the transferor of an asset or an enterprise along with its assets and liabilities with the transferee for the obligations related to the asset or enterprise for two years as of the transfer13; (iv) with respect to the office leases, the solidary liability of the transferor leaseholder regarding the obligations of the lease contract with the transferee until the expiry of the contract or for a period of maximum two years as of the transfer14; (v) solidary liability of the ones who obtain something to borrow or preserve together15; (vi) solidary liability of the ones who give a power of attorney to the attorney16.
The following three major features may be listed as the features of solidary indebtedness:
(i) The right of the obligee to charge any obligor
The obligee in a solidary indebtedness relationship may charge any obligor separately. The obligee may commence enforcement proceedings against more than one obligor or all of them as to his/her desire. The obligee has this option until the obligation is expired due to the performance or any other way.
(ii) Solidary liability of the obligors for the whole obligation and the independency of the indebtedness to the obligee from the internal relations
The most important difference of the solidary indebtedness from the allocated (divided) indebtedness is that each obligor is responsible for the whole obligation17. For instance, three persons named (B), (C) and (D) undertakes to pay 9,000 TL to (A) as solidary obligors, each one of these three persons shall be obliged to pay to (A) 9,000 TL individually like the single obligor.
(iii) Being applicable to any type of obligation
Solidary indebtedness may appear in any kind of obligation. Any kind of contract may be drawn up in a way to derive solidary indebtedness in the obligation derived from a contract. For instance, solidary indebtedness may be arisen out of a sale contract comprising more than one seller or buyer, a construction contract comprising more than one contractor or employer or a lease contract comprising more than one leaseholder or similar contracts18.
In the event that one or more solidary obligor terminates the whole or a part of the obligation by performing the deed or declaring a set off statement, other obligors shall also be discharged for the completed part of the obligation19. The TCO Article 166/1 describes this as: “If one of the obligors terminates the whole or a part of the obligation by performance or set off, he/she discharges the other obligors in that proportion20 of the completed part.”21
If not the whole but a part of the obligation is terminated due to the performance of deed or set off, the obligee may continue claiming the performance of the remaining part of the obligation from all of the obligors in solidarity. The obligee cannot claim more than this part. For instance, when one of the solidary obligors (B) of the obligation worth 10,000 TL sets off his/her 7,000 TL of debt against the obligee’s receivable, the remaining 3,000 TL shall be the remaining solidary obligation and the other obligor (C) may object the obligee (A)’s claim for the obligation worth 10,000 TL by claiming that the part of the obligation worth 7,000 TL is terminated.
If any one of the obligors is discharged due to any reason other than the performance or set off, whether the other obligors will be affected or not, the rate of the effect shall be determined based upon the reason of termination22.
Once the performance of obligation becomes impossible without any fault of any obligor, the obligation shall be terminated for all of the obligors23. If a contract for release is drawn up between the obligee and one of the obligors aims to release all obligors, it is accepted that the obligors who are not a party of this contract shall be released as well.
In the event that the obligee becomes an inheritor to one of the obligors or an obligor becomes an inheritor to the obligee or the obligee transfers his/her receivable to an obligor; such obligee and obligor titles shall be converged. Although the convergence of obligee and obligor titles is a reason to terminate the obligation, it is commonly accepted that other obligors cannot benefit from this24. Other obligors should make a partial payment by deducting the share of the obligee with respect to internal affairs.
All obligors benefit from a settlement contract for consideration or a concordatum contract between the obligee and an obligor and may claim against the obligee who requests the performance25.
As a result of non-performance of a counter deed to an obligor, other obligors may also refuse to provide their performance by claiming non-payment defense against the obligee26.
B. Partial Indebtedness
If there is no solidarity among the obligees or obligors pursuant to the contract or laws, with respect to a divisible deed arisen from the obligation, each obligor is liable to perform the part that refers to his/her share of the deed27. Similarly, each one of the obligee may claim for the part of his/her share of the deed with respect to the number of the obligees. In this case, “partial obligations=partial receivables” derived from the same legal transaction but independent from each other will be in question. For instance; if (B) and (C) buy a radio from (A) for 200 TL, each (B) or (C) (unless otherwise agreed on the contract)28 is obliged to pay (A) 100 TL independent from each other. If (B) does not pay the price, (C) is not obliged to pay the whole of 200 TL.
Although the obligation of the partial indebtedness based on one cause of action, each obligation is independent from each other. In the event that one of the obligors somehow cannot perform its obligation and in default, the obligee does not have the opportunity to request it from the other partial obligors or the obligee cannot claim the defenses that he/she has against an obligor from another obligor29. Taking into consideration other types of indebtedness, the position of the obligee with respect to the partial indebtedness may be interpreted as disadvantageous.
C. Cooperation in Indebtedness
Cooperation in indebtedness denotes an indebtedness structure whereby all obligors are obliged to perform one obligation by acting together30. Generally, these kind of cases are encountered in cooperation partnerships. Family property partnership31 or community of heirs32, which is designated under the Turkish Civil Code33 (“TCC”) or unincorporated company34 designated under the TCO are examples of cooperations in partnership which are regulated by law.
Not being able to commence executive proceedings against each obligor, who is liable for the whole part of the obligation, in case of cooperation in indebtedness, the obligee is required to commence executive proceedings against all of the obligors at once. The reflection of this into the law of procedure is the mandatory joinder of parties of the obligors in cooperation35. Unless agreed otherwise, the obligors in cooperation shall be accountable to each other for the equal shares of the obligation.
To materialize the mentioned indebtedness with a concrete example, it can be stated that if (B), (C) and (D) become indebted to transfer the property right of an antique car in cooperation to (A), (A) may claim the performance of the deed from all obligors. However, if the car gets burnt as a result of (B)’s fault, (C) and (D) do not become discharged from the debt and all (B), (C) and (D) shall be responsible against (A). In addition, within internal affairs, (B) who creates the damage by his/her fault shall bear the ultimate obligation and other obligors ((C) and (D)) may recourse to (B).
After having examined all the features, it can be seen that although cooperation in indebtedness is more advantageous for the obligor, it is not preferred in practice.
D. Participation in Obligation
Participation in obligation is regulated for the first time in Article 201 of the TCO, and leads to the establishment of solidary obligation. Relevant provision regulates that;
“Participation in obligation is an agreement which is executed between the obligee and the participant to be on obligor’s side with respect to a present obligation and results in the participant to be liable for the obligation along with the obligor. The participant in obligation and the obligor shall be responsible against the obligee in solidarity.”
In this respect, with the participation in obligation, a third party becomes responsible for a present obligation under the title of obligor by agreeing with the obligee. The participant in obligation earns the title of indebtedness by being included in the obligor’s side. The participant in obligation does not undertake a dependent (accessory) obligation like surety or undertaking the deed of a third party, but undertakes this obligation as a primary obligation like the first obligor. It is not mandatory for the participation in obligation contract to be made in a certain form.
Nonetheless, most of the participation in obligation contracts is made in order to secure the obligee regarding a present obligation in practice. In other words, it appears as a transaction made for the purpose of security just like surety or undertaking the deed of a third party in practice. For this reason, for the participations in obligation for the purpose of security, a form to be validly made may be required. (see Article 603 of the TCO)
The participation in obligation contract is made between the participant and the obligee. As participation of the present obligor into this contract is not mandatory, his/ her permission is not required either. Even if it is not within the first obligor’s knowledge, it is possible for any person to agree with the obligee to participate in obligation in principle.
The consequence of the participation in obligation is regulated as the first obligor and the participant being liable to the obligee in solidarity. In this respect, “solidary indebtedness provisions” under the TCO shall apply for cases including the position of the participant against the obligee, the defenses he/she may claim against the obligee, obligation to claim the common defenses, termination of the obligation, recourse of the obligors among each other, succession and etc.
E. Non-Dividing Indebtedness36
As stated by doctrine, non-dividing deed is the deed that cannot be divided into pieces without any change in its nature or target or any loss on its value. The aforementioned situation may appear directly from its nature or may be based upon its functional features. In this respect, the procurement deeds are sometimes, performance deeds are often, and non-performance deeds are always in the nature of non-dividing deeds37. The obligee may (mandatorily) request the whole part of the deed from any or all of the obligors. In this manner, non-dividing indebtedness seems similar to the solidary indebtedness.
In some cases, a deed that is required to apply to all of the obligors at once arises and a similar case to the cooperation in obligation may emerge. For example, scripter (B) and audiovisual expert (C) comes together and undertakes the obligation to procure a short video to (A). In this case, (A) may apply to only (B) for the performance of the obligation on the due date38, however (B) cannot perform the deed in any way without the participation of (C)39.
F. Cumulative Indebtedness
The indebtedness relationship in which each obligor is liable separately and more than once to an obligee will be referred as cumulative indebtedness40. The obligee may assert independent claims for the obligors who undertake an obligation with different reasons and based on different legal transactions. The typical example of this type of indebtedness is personal insurances. The obligee (who suffered from the damages) may claim compensation from either the primary obligor (who creates the damage) or insurer. While the basis of the claim of the obligee against the primary obligor is a tortious act, its claim against the insurer is based on the personal insurance contract. Since the personal insurance is an insurance of amount, the insurer cannot recourse to the primary obligor later41. The prohibition of enrichment with compensation which refers to the main principle of the coverage of the damage is disregarded here. Since each obligor is independent from each other, they can only be released by performance of their own obligations.
Although the cumulative indebtedness shows similarities with partial indebtedness with regard to its feature of each obligor being solely liable for its own obligation independent from another obligor, cumulative indebtedness diverges from partial indebtedness, as it is seen in the insurance example, by having the basis of the obligation different for each obligor, it is the same for each partial obligor.
G. Guarantee Contract
Guarantee contract is not regulated under the TCO. However, Article 12842 of the TCO may be applicable by analogy. Guarantee contract may also include other acts or risks along with the undertaking of the performance of the third party. In this respect, the undertaking of the performance of the third party is defined as a type of the guarantee contract by doctrine as well43. According to a definition which is also adopted by the Supreme Court of Appeals, guarantee contract is an agreement with an independent nature which comprises the obligation to cover the hazards of an act to be borne by a person in part or as a whole for the purpose of leading this person to this type of action44. Independency, here, refers to the independency of the obligation undertaken by the guarantor from the relationship between the beneficiary and the warrantee and not being affected by this relationship. In consequence of the principle of independency, even if the obligation of the beneficiary is not valid, in principle, the guarantor continues to be obliged and cannot claim defenses and objections of the primary relationship against the warrantee. The guarantee contract comprises the undertaking to compensate the other party (warrantee) in the event that the third party does not perform the secured deed or that the promised outcome does not occur. The aforementioned compensation is the compensation for the positive damage of the warrantee for the occurrence of the risk that is subject to guarantee. The fault of the guarantor is not required. If the guarantee is provided for a period, the guarantee contract shall be terminated even if the risk does not occur within the given period.
H. Contract of Surety
Contract of surety is the contract in which a person guarantees the performance of an obligation arisen from a contract by the obligor against the obligee. The person who undertakes this guarantee is called surety and the person who the surety undertakes the obligation for benefit is called the obligee45. The primary obligor is not a party to the contract of surety. Taking this definition into account, surety appears as a guarantee of payment or performance. This payment will be made by a third party who is not an obligor of the primary contract.
The surety is obliged to claim all defenses -even if the primary obligor waived from this defense of his/hersof the primary obligor or its inheritors which are not originated from the financial difficulty of the primary obligor.
In principle, due to its accessory nature, when the primary obligation is expired, the surety shall be released from its obligation as well. In the event that the primary obligation is not expired, unless an extension or a new suretyship is provided, commencement of executive proceedings against the surety can continue until the end of a ten years period. If the suretyship is provided for a period of time, the surety shall be released at the end of this period.
The types of the suretyship regulated under the TCO are ordinary suretyship, solidary suretyship, secondary surety, co-surety and counter guarantee. In case of a hesitation regarding the solidarity nature of suretyship, it is determined by doctrine that it shall be accepted as ordinary suretyship.
1. Ordinary Suretyship
It is a type of suretyship in which the surety undertakes not only an accessory obligation but also a secondary (subsidiary) obligation. This means that the surety has the right to object to the executive proceedings before the executive proceedings is commenced against the primary obligor, to claim his/her defense of resorting the encashment of the pledge first, in other words not to make payment until the obligee commences executive proceedings with regard to the encashment of the pledge46. The type of the suretyship that the law accepts as presumption is ordinary suretyship. In short, when it is not regulated under a contract of surety which type of suretyship it provides, ordinary suretyship instead of solidary suretyship shall apply. The reason of this determination is for the benefit of the surety.
2. Solidary Suretyship
It is a suretyship type in which the secondary nature of the obligation is nearly removed; in fact, the solidary surety does not possess the defenses that the ordinary surety possesses47. Solidary surety may commence executive proceedings against the surety even before its commencement of these proceedings against the obligor in the event that (i) the obligor is in default and the notice sent to him/her remains inconclusive or (ii) the obligor obviously in financial difficulty. In the event that a receivable is secured with chattel mortgage available for delivery or pledge of receivables, the surety cannot be charged before the encashment of the pledge in principle. But if (i) it is determined by the judge that the receivable will not be covered in whole by the encashment of the pledge or (ii) the obligor bankrupts or (iii) the concordatum has been granted with an extension, the surety may be charged before the encashment of the pledge.
3. Co-Surety
Being formed as ordinary co-surety or solidary co-surety, co-surety has the same features of ordinary co-surety as presumption. Ordinary co-surety refers to each one of sureties being liable for their shares like ordinary surety and for the share of others as secondary guarantor in case of more than one person jointly securing as co-sureties for the same obligation. On the other hand, in the solidary co-surety, each surety who undertakes to secure the obligation along with the obligor or among each other as solidary sureties is responsible for the whole part of the obligation. However, one surety may refuse to pay more than his/her share unless all sureties who are liable in solidarity along with him/her before or at the same time and against whom legal proceedings may be enforced in Turkey are commenced executive proceedings.
4. The Auxiliary Surety and Counter Surety
The auxiliary surety which secures the obligee for obligation of the surety shall be liable like ordinary surety. A surety which secures the receivable of recourse of the surety from the obligor is called counter surety.
I. Insurance Contract
Insurance contract, which is defined48 under the Turkish Commercial Code49, (“TCC”) comprises both damage and life insurance types. Joint indebtedness may not be formed under each type of insurance or in any condition. Because the joint indebtedness is derived from life (personal) insurances, it does not generate a recourse relation, instead it forms a cumulative joint indebtedness50. Within the damage insurances, a joint indebtedness of insurer and the third party who creates the damage are both at stake here. More than one insurer may also be included. Reserving the prohibition of enrichment, the insurant may claim a compensation from both more than one (as the case may be solidary or divided) insurer and the third party who has created the damage and has tortious liability for the coverage of his/her damages.
III. COMPARISON
The types of joint indebtedness mentioned above indicate differences with respect to their basic cause of action and their consequences. Therefore, in this chapter, most commonly preferred types of joint indebtedness and contracts in which joint indebtedness is often included, are compared under the light of the developments and needs of the commercial affairs and on the basis of the liabilities of the obligors which demonstrate distinctions in their obligations that the obligors are undertaken together or get involved in later.
A. Differences among the Solidary Indebtedness, Partial Indebtedness and Cooperation in Indebtedness
While the solidary indebtedness grants the obligee the right to claim the performance of the deed from each obligor, partial indebtedness enables the obligee to separately enforce legal proceedings against each obligor with respect to only their part of the obligation.
Whereas the solidary indebtedness and cooperation in indebtedness demonstrate similarity on holding all of the obligors liable; the solidary indebtedness appears to be the preferred method of the obligee since it enables the obligee to claim all obligation by enforcing legal proceedings against one obligor while in the cooperation in indebtedness the obligee may only enforce legal proceedings by enforcing against all obligors at once.
B. Differences between Guarantee Contract and Surety Contract
The guarantee, which is considered to be independent from primary obligation, and opted for by the obligees, rather than surety that contains an accessory nature demonstrates that it is in favor of the obliges especially in the conditions below.
Although the obligation of the surety ends when the primary obligation becomes invalid due to the violation of the required form, cancellation of the contract, absolute disability, simulation or similar reasons, the guarantor’s liability against the obligee maintains.
In case of expiry of the primary obligation as a result of compatibility of the performance of the obligor with the contract, set off, renewal, convergence of the obligor and obligee title, acceptance of the obligee of the performance of a deed in substitute of the performance of the agreed obligation or other similar reasons; such two joint indebtedness types providing the liability along with the primary obligation shall be expired as well. Although the reasons of expiration, which emerges at a later stage, force majeure, contingency, release, realization of the condition subsequent or comprehension of not materialization of the dilatory condition, mutual rescission, termination, retraction from the contract or lapse of time shall expire the surety contract, but the guarantor’s liability continues.
While the obligation of compensation of the guarantor becomes due when the damage is incurred due to the materialization of the hazard, the surety may benefit from the opportunities provided by law before the commencement of legal proceedings. Even though surety claims defenses of the primary obligor, the guarantor does not have a right to claim defenses of the primary obligor or become a successor of the rights of the primary obligor.
IV. CONCLUSION
As stated above, the types of joint indebtedness under Turkish Law are not regulated separately under the TCO and the relevant legislation. It is necessary in commercial relations and occurs by undertakings of the obligors with their wills to assure the obligee; or even though the desire of obligors is out of the question, due to the mandatory cases -for the purpose of securing the obligee in order to receive its receivable in a less amount of time- regulated by law.
While solidary indebtedness in which one obligor shall be primarily liable for the whole part of the obligation, guarantee which grants the obligee a right of requesting compensation upon the materialization of the hazard without any fault or surety which creates another obligor along with the primary obligor to be held responsible are seen as commonly preferred methods in practice for the obligee; partial indebtedness in which all parties are held liable solely for their own undertakings appears as the only scenario favorable with respect to the obligor.
BIBLIOGRAPHY
Ferhat Canbolat, Müteselsil Borcun Sona Erme Nedenleri, Ankara Bar Association Journal, Year: 66, Issue: 3, Summer 2008, p. 68-81
Fikret Eren, Borçlar Hukuku Genel Hükümler, C. III, Ankara 1991
Hüseyin Murat Develioğlu, Kefalet Sözleşmesini Düzenleyen Hükümler Işığında Bağımsız Garanti Sözleşmeleri, Istanbul 2009
Kadir Berk Kapancı, Birlikte Borçlulukta Borçlular Arası İlişkiler, Istanbul 2014
N. Kemal Oğuzman, M. Turgut Öz, Borçlar Hukuku Genel Hükümler, Istanbul 2012
Safa Reisoğlu, Türk Borçlar Hukuku Genel Hükümler, Istanbul 2014
Selhattin Sulhi Tekinay, Sermet Akman, Haluk Burcuoğlu, Atilla Altop, Borçlar Hukuku Genel Hükümler, Istanbul 1988
Turgut Akıntürk, Müteselsil Borçluluk, Ankara 1971
FOOTNOTE
1 Safa Reisoğlu, Türk Borçlar Hukuku Genel Hükümler, Istanbul 2014, p. 442.
2 Published on the Official Gazette (OG) numbered 27836 and dated 04.02.2011 and come into force on 01.07.2012.
3 N. Kemal Oğuzman, M. Turgut Öz, Borçlar Hukuku Genel Hükümler, Istanbul 2012, p. 436.
4 Reisoğlu, p. 442.
5 Ferhat Canbolat, “Müteselsil Borcun Sona Erme Nedenleri”, Ankara Bar Association Journal, Year: 66, Issue: 3, Summer 2008, pp. 68-81.
6 Kadir Berk Kapancı, Birlikte Borçlulukta Borçlular Arası İlişkiler, Istanbul, 2014, p. 5.
7 Selhattin Sulhi Tekinay, Sermet Akman, Haluk Burcuoğlu, Atilla Altop, Borçlar Hukuku Genel Hükümler, Istanbul 1988, p. 377.
8 Reisoğlu, p. 443.
9 TCO Art. 162: “(1) Solidary indebtedness shall be arisen if each of the obligors notifies the creditor regarding the fact that he/she accepts to be liable for the whole debt. (2) If there is no such notification, the solidary indebtedness shall only arise in cases regulated by law.”
10 Chapter 2.2.
11 TCO Art. 638/3.
12 TCO Art. 61.
13 TCO Art. 202/2.
14 TCO Art. 323/3.
15 TCO Art. 382, 567.
16 TCO Art. 511/1.
17 Oğuzman, Öz, p. 441.
18 Oğuzman, Öz, p. 442.
19 Turgut Akıntürk, Müteselsil Borçluluk, Ankara 1971, p. 198 ff.
20 Here “in proportion” refers to “jusqu ‘à concurrence”. If (B) undertakes to pay 5 TL of the obligation of (A) amounting 10 TL as a solidary obligor and (A) makes a payment amounting 6 TL; (B) shall also be released for 6/10 of its obligation amounting 5 TL (refers to 3 TL).
21 Oğuzman, Öz, p. 453.
22 This issue is regulated under the Art. 166/2 of TCO as: “If one of the obligors is discharged without performing the obligation to the obligee, other obligors shall benefit from this as long as the condition or the nature of the obligation permits.”
23 Oğuzman, Öz, p. 454.
24 Oğuzman, Öz, p. 456.
25 Oğuzman, Öz, 456.
26 Fikret Eren, Borçlar Hukuku Genel Hükümler, C. III, Ankara 1991, p. 396.
27 Reisoğlu, p. 442, Decision of the Assembly of Civil Chambers of the Supreme Court of Appeals dated 20.1.1965 with decision no. 34 (Olgaç Precedents Law pp. 598-599).
28 Kapancı, p. 20: Obligors can determine in what way they will be responsible for the relationship between them and the creditor. If there is no agreement, partial obligors shall equally be responsible.
29 Kapancı, p. 20.
30 Kapancı, p. 8.
31 TCC Art. 376.
32 TCC Art. 640.
33 Entered into force on 01.01.2002 and published on the OG dated 8/12/2001 and numbered 24607.
34 TCO Art. 638/1: “Assets, receivables or real rights which are obtained for the company or transferred to the company shall be under the property of the all shareholders in cooperation within the framework of the articles of association.”
35 Kapancı, s. 139: The obligee has a right to claim the assets of the company in return of his/her receivable; in case he/she commenced the legal or executive proceedings and his/her claim is not fulfilled. Other than this, since it is not possible to apply to the obligors in person, in principle he/she cannot claim any right over the personal assets of them. However, if the assets of the company in cooperation are not available to cover the obligation, in the background, personal executive proceedings may be commenced against each obligor for the nominal shares of the obligation.
36 TCO Art. 85: “(1) if there is more than one obligee of a non-dividing obligation; each obligee can claim the performance of the obligation to all obligees. (2) Obligor is obliged to perform the deed to all obligees at once. If there is more than one obligor of a non-dividing obligation; each obligor is obliged to perform his/her whole deed to all obligees. (3) Unless otherwise is required by nature, the obligor who provides his/her performance shall become a succession of the obligee and may claim his/her receivable to the other obligors in proportion to their shares.”
37 Kapancı, p. 72.
38 TCO Art. 85.
39 Kapancı, p. 80.
40 Kapancı, p. 84.
41 Kapancı, p. 85.
42 Undertaking the performance of the third party, Art. 128: “One, who undertakes the performance of a third party against another, is obliged to compensate the damage derived from the non-performance of this deed. With respect to an undertaking for a period of time, the liability of the undertaker shall be expired, if no claim is asserted against the undertaker to perform his/her deed in writing until the end of this period.”
43 Eren, p. 1154.
44 Decision of the 11th Civil Chamber of the Supreme Court of Appeals dated 27.02.1979 with merits no. 346 and decision no. 906.
45 Hüseyin Murat Develioğlu, Kefalet Sözleşmesini Düzenleyen Hükümler Işığında Bağımsız Garanti Sözleşmeleri, Istanbul 2009, p. 30.
46 Develioğlu, p. 32.
47 Develioğlu, p. 41.
48 TCO Art. 1401: “(1) Insurance contract is the contract in which the insurer undertakes to compensate the insurant for his/her damages derived from the occurrence of a hazard or risk insured, or to pay a certain amount by reason of the life time of a person or some events occurred in a person’s life or to perform other deeds in return of a Premium.”
49 Published on the OG dated 14.02.2011, numbered 27846 and entered into force on 01.07.2012.
50 Kapancı, p. 126.
