LEGAL QUALITY OF VEHICLE PASS GUARANTEE IN BUILD-OPERATE-TRANSFER PROJECTS

ABSTRACT

In this article, in the first analysis, the legal definition and character of the build-operate-transfer (“BOT”) model will be examined, and the leading parties and agreements of the build-operate-transfer agreement will be mentioned. In the final analysis, the legal character of the guarantee agreement will be examined within the scope of Article 128 of the Turkish Code of Obligations (“TCO”), and will be discussed within the scope of vehicle pass guaran-tees included in the implementation agreement of the BOT model.

Finally, in light of the information given, the legal character of the guarantee commitments of the highway projects implemented with the build-operate-transfer model will be evaluated within the scope of the vehicle pass guarantee.

I. INTRODUCTION

The build-operate-transfer model, which is becoming more and more widespread in the world and in Turkey, as a result of developing technology and needs, enables high-budget public infrastructure projects to be undertaken by the private sector by taking the financial burden off the state. Since the projects made with the build-operate-transfer model require high capital financing, the joint venture companies that will enter the project require the Administration to ensure that the loan can be repaid with the revenues obtained from the project, in order to ensure that the project can be financed. In these projects, which are an extension of the state's public obligation, the state, which puts the public's interest in the forefront, makes a guarantee commitment to projects that will contribute significantly to the development of the country. Thus, the private sector will be encouraged to invest in the public sector, and the domestic-foreign investment market in the country will be revitalized, contributing to the economic development of the country. 

In this article, after focusing on the private law character of the BOT model and its contracts, the debates in the doctrine about the legal qualities of guarantee agreements within the scope of TCO article 128 and the decisions of the Supreme Court will be given. Finally, in light of the information given, the legal character of the guarantee commitments of the highway projects implemented with the build-operate-transfer model will be evaluated within the scope of the vehicle pass guarantee.

II. BUILD-OPERATETRANSFER AGREEMENT

A. Build Operate Transfer Model

The obligation of the state to carry out public services has come to a point where its resources cannot be met with the effect of developing technology, and alternative methods have been developed to finance high-budget technological projects. The build-operate-transfer model, which is one of these alternative methods, is defined in paragraph a) of Article 3 of the Law No. 39961 as follows; “a) It means a special financing model developed to be used in the implementation of projects that require high technology or high financial resources, and the investment value (including the profit to be obtained) is paid to the capital company or foreign company by purchasing the goods or services produced by the company during the operation period by the administration or the beneficiaries of the service.”2 

The build-operate-transfer model, which is generally preferred by developing countries, ensures that high-investment infrastructure projects that will take the financial burden off the administration in the financing of public investments and contribute significantly to the development of the country are made and operated by the private sector capital for a certain period of time. In this relationship, where the expertise and capital of the private sector and the audit and surveillance function of the public are at the forefront, the main purpose is to provide faster, more dynamic and high quality public services, which are the responsibility of the state, by stimulating the domestic and foreign investment markets. 

The implementation process3 of the build-operate-transfer model in Turkey starts with the taking of the administrative decision allowing the implementation of the relevant project with the build-operate-transfer method. Afterwards, capital companies or foreign companies make offers to the project, which is put out to tender, by bringing at least 20% equity4. The assignment commission determines the company that the agreement will be signed with by sealed tender5, and sends it to the higher authorities for approval. With the approval received, an agreement is signed between the public administration determined by the High Planning Council and the joint venture company. In line with this agreement, the scope of the project, investment and service cost, operating and transfer principles are determined in detail by taking into account the relevant law6, provided that the contract period is no longer than 49 years.

B. Legal Characteristics of the Build Operate Transfer Model

It has been a matter of debate for a long time whether the BOT model is a concession agreement based on administrative law provisions or a private law agreement based on private law provisions. The administration wanted to carry out the determined public services with private law contracts and many legal arrangements were made in this context. However, these regulations were annulled as unlawful by the Constitutional Court and the Council of State, based on the reasons that the nature of the executive consisted of public service, the contract features comprise of the concession procedure and must be delivered on the opinion of the Council of State7 . With the amendment made in Article 47 of the Constitution in 1999, the legislature has been given a discretionary power on which public services will be carried out through private law contracts. After this constitutional amendment, as the regulation8 of Article 5 of Law No. 3996, “The agreement made between the administration determined by the High Planning Council and the capital company or a foreign company is subject to the provisions of private law.”, BOT contracts were made subject to private law provisions. 

BOT contracts, which are in the character of private law contracts according to the investment subject of the project, will be subject to the Law of Obligations and the contract procedures and principles will be determined accordingly. Equality between the parties, which is one of the most important principles of the contracts established within the framework of the Code of Obligations, will prevent the administration from putting unilateral clauses, and will provide assurance to the party opposing the administration and will encourage investor companies to make financial investments in public services with large budgets.

C. Contracts Arising Between the Parties as a Result of Build Operate Transfer

While there are many parties to the contracts established within the framework of the BOT project, their leading parties are; the project owner public administration, the investor joint venture company, and the lender credit institution9. 

Public administration means the institution that is authorized to make a contract with the joint venture company and is the main owner of the service10. The public administration is responsible for ensuring the supervision and surveillance of the project. 

The joint venture company is the joint stock company to be established by the companies aiming to realize the investment in accordance with the laws of the host country. The joint venture company is responsible for providing the design, finance, construction, operation and maintenance of the project11. 

Credit institution; means commercial banks, institutional investors and leasing companies that finance the project by lending money to the joint venture company12. 

In the build-operate-transfer model, depending on the nature of the project, many contracts are made by the parties, but the leading contracts are; the implementation agreement, which is the main contract; the loan agreement, which is the providing financing; and the direct contract, which is the commitment.

1. Implementation Agreement

In the contract made between the public administration and the joint venture company, all the principles to be applied such as the preparation of the project, determination of its fee, process, operation, maintenance, transfer and termination are determined. It is the main contract on which all other contracts to be made within the framework of the project are based. Therefore, it should be prepared carefully and in detail.

2. Loan Agreement

In the contract made between the joint venture company and the lending public institutions, loan money is provided to finance the project. The joint venture company, which puts at least 20% equity ratio for the financing of the project, draws loans from public institutions that provide loans for the remaining 80% share.

3. Direct Agreement

In the contract between the public administration, the joint venture company and the credit institution, if the joint venture company does not fulfill its obligations, the contract parties in the project make an agreement with the credit institutions in order not to cancel the contracts they have already signed13.

III . GUARANTEE COMMITMENTS UNDER ARTICLE 128 OF THE TCO

The word “guarantee” literally means assurance, and it means that the other party is given the belief that it will happen no matter what. A contract of guarantee can be defined as “a contract in which the guarantor undertakes the risk of loss arising from the undertaking of the guarantor or the failure of the third party with whom he has entered into a debt relationship to fulfill his debt”14. 

The guarantee agreement, which is not specifically regulated in the law, has laid the groundwork for different definitions with various doctrines and Supreme Court decisions15. The legal basis of the discussions about the guarantee agreement is whether the independent agreements in question meet the guarantee agreement, which is regulated under the title of "Assumption of the Act of a Third Party" in Article 12816 of the TCO. The agreement of guarantee, in a decision accepted by the Supreme Court and considered as a criterion in practice; is defined as contracts that are not of an auxiliary nature, in which the guarantor undertakes the risks of the undertaking or business in whole or in part, independently, not to gain an advantage from the warrantee, but to induce to undertake an enterprise or business17.The guarantee agreement, which is not regulated as a special contract type in the Turkish Code of Obligations, finds a response in practice based on the "Assumption of the Act of a Third Party" provision in the TCO. According to the provision of this article, it is stated that "the person who undertakes the act of a third person against another is obliged to compensate the damage arising from the failure of this act". In the doctrine, three different theories have been developed in order to explain the legal relationship between the guarantee agreement and the undertaking of the performance of the third party18. In the most popular19; undertaking the performance of the third party and the guarantee agreement seem to be coinciding institutions. According to this view, Article 128 of the TCO meets all the elements of the guarantee agreement. According to the second theory20, which was accepted by the Supreme Court and accepted predominantly in the doctrine; the agreement of guarantee has been evaluated as a type of undertaking the act of the third party or undertaking the act of the third party in the context of Article 128 of the TCO, and the opinion has been adopted that undertaking the act of the third party constitutes21 a type of the guarantee agreement. In this respect, the guarantee agreement should be examined in two types as a pure guarantee agreement and a surety-like guarantee agreement, and a surety-like guarantee agreement should be examined separately from Article 128 of the TCO22; because undertaking the act of the third party is a type of guarantee agreement. According to the third and minority opinion23, the guarantee agreement is a "sui generis" contract and should not be accepted as undertaking the act of a third party within the scope of the TCO Article 128. In this context, the aforementioned opinions will be examined in detail below.

A. The Opinion that Article 128 of the TCO is a Guarantee Agreement

The widely accepted view in the doctrine24 is that the relationship of undertaking the act of the third person is a guarantee agreement. The guarantor who undertakes the legal relationship in which the act of the third party is undertaken, assures that the act of the third party will be fulfilled, and evaluates the damage caused by any risk that will prevent the performance of the act as a commitment of the "deed of the third party" within the guarantee agreement. 

In view of this idea, those who consider the provision of undertaking the act of a third party to be equivalent to the guarantee agreement, accepts that all elements of the guarantee agreement are included in Article 128 of the TCO by making a teleological interpretation25. Thus, it has been concluded that contracts in which all kinds of risks arising from the act of the third party are guaranteed by the act of the guarantor in the guarantee agreement. When the core elements of the guarantee agreement are examined, one of the essential elements of the guarantee agreement, which is mentioned in the article, is the risk assumed by the act of the third party, and the undertaking of the risk arising from the debt relationship by connecting it to any type of action of the guarantor. Among the other important elements of the guarantee agreement, the elements of undertaking an enterprise and enterprise elements are also contained in the text ofthe article. In particular, while giving a guarantee to the performance of the third party, it aims to induce the guarantor to a course of action. All kinds of behaviors such as “establishing a commercial enterprise, investing, being a partner in companies, and making contracts”26 are examined as enterprise elements. The fact that the guarantor directs the contracting party to a certain relationship with the risks he/ she undertakes constitutes the element of enterprise, which forms the basis of the guarantee contract. It has been argued that independence from the elements of the agreement of guarantee can be excluded from the text of the article, since it is within the scope of covering the loss arising from the guarantee agreement, even if the debt of the third party is not valid27. Another element that can be included in the guarantee contract is the element of gratuitousness. 

The Supreme Court could not reach a clear decision about the legal nature of the guarantee agreement, but in many of its decisions it was emphasized that the commitment of the act of the third party constitutes the guarantee agreement. In a decisions, the General Assembly of the Supreme Court of Appeals ruled that "Even though the guarantee contract is not specifically regulated in the law, it accepts that it will be met/ covered by the provision of undertaking the act of the third party regulated in Article 128 of the TCO28".

B. The Opinion that Article 128 of the TCO is an Agreement of Guarantee with the Purpose of Guarantee (Surety-Like)

According to the prevailing view in Turkish Law, it is possible to examine the guarantee agreement as a pure guarantee agreement and a surety-like guarantee agreement. Guarantee contracts/agreements are regulated as contracts in which the risks arising from any behavior of the guarantor are secured, as it has been since the time of Rudolf Stammler29. The main point is to examine the damages arising from this relationships which the warranty is partially or completely undertaken independently by the warrantee to induce the warrantee to undertake a particular enterprise30. Thus, it is accepted that the element of enterprise to the undertaking constitutes the main element of the contract. However, in the definitions made for the guarantee agreement today, the view of the guarantee suggested by Stammler covers the pure guarantee agreement part of the guarantee agreement, therefore, the commitment of the act of the third party, which includes the risks of non-payment of the debt, should also be considered separately as a surety-like guarantee agreement31. Considering the view accepted as a doctrine, Article 128 of the TCO meets the commitment of the act of the third person. At thus point, it is accepted that guarantee contracts, such as surety-like guarantee contracts, established by giving a guarantee to the debt of the debtor in the main debt relationship, are actually a type of guarantee contract32. As can be seen, the distinctiveness guarantee contract reveals that the guarantee can be characterized in two different ways as pure guarantee and surety-like guarantee based on the basis of the assumed risk33. 

A surety-like guarantee contract is a type of guarantee contract in which the guarantor undertakes the responsibility for the loss arising from the debtor's failure to pay the debt duly or on time in the basic debt relationship, in which the guarantee recipient and the third party are a party, regardless of the actual debt relationship34. Thus, “the guarantor fully or partially assumes the negative consequences of the risk of not realizing the act of performance or the performance of the debt "fully and correctly", which is separated from the basic debt relationship on which the debtor is based, and provides the guarantee holder with confidence and security against the risk of non-payment of the debt”35. At this point, the difference between a surety-like guarantee and a pure guarantee contract was initially seen as incentive to enterprise, but later on, the idea that the element of enterprise to the undertaking is also in the surety-like guarantee has developed. In light of these explanations, it can be said that; the main separation between with pure guarantee and surety-like guarantee is the type of enterprise to be undertaken by the guarantee holder36. In pure guarantee, the guarantor does not have a debt relationship with a third party, but the guarantor encourages him to undertake any economic, scientific, social or similar undertaking in which he undertakes to achieve success or profit in relations such as establishing an investment, business or partnership. In this way, the guarantor will establish the debt relationship by turning to the desired behavior with the commitment given37. Thus, the risk undertaken with the subject of the contract will be a matter of compensation for the losses incurred when the expected benefit is not provided or the loss is incurred due to the expected relationship with the third party38. 

The legal relationship regulated under the title of undertaking the act of the third party in Article 128 of the TCO is the legal relationship in which the act of the third party is committed, and the concept that meets this is a surety-like guarantee agreement39. Guarantee debt is entered into by undertaking that the third party's debt will be fulfilled40. As a result, whether there is an existing debt relationship or not, the contracts in which the commitment is given that the damages arising from the basic debt relationship will be covered independently of the main debt relationship, that the pleas arising from this debt relationship cannot be used by the warrantee, and that he/ she will be liable to cover the damage even if his strict liability41 is mentioned, are called surety-like agreements. 

Another point in the guarantee agreement is whether the pleas arising from the original debt relationship are used by the guarantee giver, regardless of whether the debt in the underlying debt relationship is established or not42. If the debtor in the basic debt relationship cannot perform his debt fully and properly, it is a legal relationship in which he/she is responsible for not performing this debt fully and properly, completely independent of the basic debt relationship. Thus, as a result of the guarantee contract, the guarantor undertakes to eliminate the objective impossibility in the basic debt relationship, the cogent grounds for the debtor's right of cancellation, and the performance of the act that terminates the debt relationship in cases where the debt relationship is null andvoid43. The only factor that will invalidate the guarantee contract is the commitment to unlawful and immoral contracts, leaving the scope of freedom of contract. 

In addition, it can be concluded that the terms and scope of the responsibility of the guarantee giver are also considered as a guarantee contract when the main debt relationship is analyzed abstractly from the guarantee agreement, separately from the main debt relationship. In order for the contractual relationship to be evaluated as a guarantee contract, it must be decided by the guarantee giver that a payment obligation will arise, provided that the guaranteed risk has arisenwith documents, or if it is not presented by the specified date44. Thus, in the event that a certain performance covered by the guarantee is not fulfilled, the provisions of the guarantee contract will be applied, in which the obligation to pay arises without any objection by the guarantee giver, and the justification of the payment request will be met without the need for questioning, with the first verbal or written45 application of the warrantee that the risk has occurred. 

The view we agree with is that the legal relationship in which the performance of the third party is undertaken constitutes a surety-like guarantee agreement. The view that the material facts that give rise to the responsibility of the undertaker constitute a surety-like guarantee agreement, with the declaration that the defenses arising from the basic relationship are waived against the payment request of the guarantee, should be considered as a guarantee agreement.

C. The Opinion that Article 128 of the TCO is a Sui Generis Agreement

Another legal opinion46 put forward regarding the character of the guarantee agreements is that the undertaking of the third party's act, which is regulated by the provision of Article 128 of the TCO, cannot be described as a guarantee agreement and should be considered as an agreement with a unique structure. According to the supporters of this view, the validity of undertaking the act of the third party is mentioned in Article 128 of the TCO, but it is assumed that it is not related to the guarantee agreement. 

One of the legal grounds on which this opinion is used is that the guarantee agreement is not only established with the element of undertaking the performance of the third party, but there are also contracts that attempt to enter into a legal relationship (pure guarantee) within the scope of the guarantee. Another justification47 is that even if the factor of undertaking the performance of the third party is mentioned, these relations constitute relations in which there is no guarantee agreement institution such as contingent agreements, acting without authority. As a result, the sui generis view is of the opinion that guarantee agreements are not a contract made to cover the damage caused by the act of the third party. For this reason, even if it is accepted that the commitment of the third party's performance has common points with the guarantee agreement, they are of the opinion that "the guarantee contract is a contract with its own specific structure (sui generis) that has no connection with the undertaking of the act of the third party"48. 

Other issues defended against the view that the doctrine constitutes the guarantee agreement in Article 128 of the TCO are; this article, which constitutes the guarantee agreement, is insufficient in terms of explaining the guarantee agreement, the legal nature of the agreement, its elements, the mutual rights and obligations of the parties and the expiration of the debt are not regulated. Secondly49, considering that the guarantee agreement is examined with Article 128 of the TCO, this provision should be regulated in the Special Debt Relations section of the TCO. However, it is a surety-like guarantee contract that only serves as a guarantee, regulated by Article 128 of the TCO, and there is no mention of an attempt to direct the person to a legal relationship. 

IV . LEGAL QUALITY OF TRAFFIC GUARANTEES IN BUILD-OPERATE TRANSFER PROJECTS

Joint venture companies, which are investor parties in high-cost BOT projects, want to receive a guarantee from the administration that the loan used within the scope of the project can be repaid to the creditors with the income to be received in return for the goods/services they produce in the project they undertake. In this context, within the scope of the implementation contract concluded in highway transportation projects, such as highways, bridges and tunnels made within the framework of the BOT model, the public administration undertakes to cover the loss arising from the vehicle pass, by guaranteeing a certain number of vehicle passes with the fee determined on a daily basis to the joint venture company, if this number cannot be reached. With the undertaking of a toll vehicle guarantee by the public administration for the project carried out within the scope of the BOT project, it is guaranteed that the loan provided by the creditors within the scope of the project and used by the joint venture company can be repaid with the revenues covered from the service of the goods produced. 

Vehicle pass guarantees in build-operate-transfer projects are an act of the public administration in the implementation contract made within the scope of the BOT project and covering the basic principles of the project. Within the scope of this contract, the joint venture company will implement the project, operate it for the specified period and assign to the public administration free of charge at the end of the period. The joint venture company, which must assume both profit and risk during the operation, may be reluctant to assume the risk. The public administration, which puts the public interest at the forefront, will make a daily paid toll vehicle pass commitment to the joint venture companies during the period they use the service, and will pay the fee under the specified number under the implementation contract. 

Vehicle pass guarantees undertaken by the administration within the scope of build-operate-transfer projects should be examined in the surety-like guarantee agreement, which is one types of undertaking the performance of a third party within the scope of Article 128 of the TCO. Even if it is not agreed that the TCO Article 128 is a surety-like guarantee agreement in which the performance of a third party is undertaken, as a result of the decision50 of the Supreme Court in 1979, it was decided that the provision of Article 128 of the TCO should be interpreted broadly in any case, and that the commitments made should be considered as a guarantee agreement. As a matter of fact, a guarantee agreement can be concluded with the commitments of the guarantee giver to establish a legal relationship with the guarantee owner himself51. In a surety-like guarantee agreement, which is a type of guarantee agreement, the guarantor undertakes to indemnify the loss arising from the non-fulfillment of the performance subject to debt52. In this respect, with the guarantee of the daily toll vehicle pass planned within the framework of the BOT implementation contract, which is the main debt relationship, by the public administration, in case the daily toll vehicle pass cannot reach the sufficient number, the less-than-guaranteed number of vehicle passes will be covered by the public administration, within the scope of the performance obligation. 

In the surety-like guarantee agreement, which creates the responsibility arising from the failure to perform the performance at all or properly, together with the risk of the invalidity of the principal debt relationship, the damages arising as a result of the performance not fulfilled by the debtor shall be compensated by the guarantee provider, free from the main contract. The damage to be compensated will be as much as the positive damage amount, which expresses the difference between the current state of the assets of the guarantee holder and the situation that would have occurred, had the performance been performed53. 

Vehicle pass guarantees provided by the public administration in the implementation contracts included in the BOT projects play an important role in encouraging the private sector to finance public capital. With the provision of these guarantees, it is certain that joint venture companies will be more interested in public investments and will be encouraged to invest in similar projects.

V . CONCLUSION

The vehicle pass guarantee in the build-op - erate-transfer projects is an act of the public administration in the implementation con - tract made within the scope of BOT projects. A daily toll vehicle pass guarantee is given to the joint venture company by the public administration, and if this number cannot be reached, it is obliged to cover the loss result - ing from the missing fee. 

Vehicle pass guarantees in build-oper - ate-transfer projects are in the character of a surety-like guarantee agreements, and the said agreement should be evaluated within the scope of the provisions of the third par - ty's debt under Article 128 of the TCO. As a result of the evaluations made in this article, vehicle pass guarantees are in the character of a guarantee agreements independent of BOT agreements, which the administration undertakes to protect against the risk of not providing the number of vehicle passes de - termined per day to the joint venture com - pany. Within the scope of this guarantee agreement, if the number of vehicle passes promised by the public administration in the BOT agreement cannot be reached, the con - tractual payment will be covered by the ad - ministration within the scope of the vehicle pass guarantee.

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FOOTNOTE

1 13.06.1994 dated, 21959 numbered Official Gazette, Bazı Yatırım ve Hizmetlerin Yap-İşlet-Devret Modeli Çerçevesinde Yaptırılması Hakkında Kanun (Yap-İşlet-Devret Kanunu).

2 Yap-İşlet-Devret Kanunu article 3.

3 Fırat Kalkınma Ajansı, “Yap işlet devret modelinde uygulanan usul ve esasların kalkınma ajansları açısından analizi”, Research Report, 2016 Malatya, p.23.

4 11.06.2011 dated, 27961 numbered Official Gazette, Bazı Yatırım ve Hizmetlerin Yap-İlet-Devret Modeli Çerçevesinde Yaptırılması Hakkında Kanunun Uygulama Usul ve Esaslarına İlişkin Karar (Yap-İşlet Devret Kararı) article 17.

5 Yap-İşlet-Devret Kararı article 14.

6 Yap-İşlet-Devret Kanunu.

7 Hüsniye Akıllı, Kamu Hizmeti İmtiyazından Yap, İşlet Devret Yönetimine: Yasal Serüven (Yasal Serüven), Sayıştay Journal Number:89 /AprilJune 2013, p.102.

8 Akıllı, Yasal Serüven, p.106.

9 Elif Acar, “Yap İşlet Devret Modeli, Tarafları, Önemli Sözleşme Unsurları ve Belirsizlikleri” (Yap-İşlet-Devret Modeli), The Journal of Academic Social Science Year: 3, Number 12, June 2015, p.301.

10 Yap-İşlet-Devret Kanunu, Article 3/d.

11 Acar, Yap İşlet Devret Modeli, p.301.

12 Acar, Yap İşlet Devret Modeli, p.302.

13 Gökalp Yılmaz, “Gebze-Orhangazi-İzmir Otoyolu Projesi Örneği Çerçevesinde Yap-İşlet-Devret Modeli ile Karayolu Proje Geliştirme ve İşletme Modelinin Değerlendirilmesi”, Ankara University Institute of Science and Technology Term Project, Ankara, February 2016, p.20.

14 Haluk Tandoğan, “Garanti ve Kefalet Sözleşmeleri Arasındaki Farklar ve Banka Kredi Kartı Sözleşmelerin-deki Şahsi Teminatın Niteliği”, TBB Journal, 2006, N. 66, p. 28.

15 Kemal Atasoy, “Garanti Sözleşmesinin Türleri, Hukuki Özellikleri ve Sonuçları” (Garanti Sözleşmesi), Journal of Anadolu University Faculty of Law, 2019, N.5, p.101/134.

16 4.02.2011 dated, 27836 numbered Official Gazette, https:// www.resmigazete.gov.tr/eskiler/2011/02/20110204-1.htm.

17 Yargıtay 11. H.D., T. 15.10.1985, E. 1985/4169, K. 1985/ 561.; Yargıtay İBK.E., T. 11.06.1969, E. 1969/4, K.1969/6.

18 Kemal Atasoy, Garanti Sözleşmesi, p.105.

19 Ünal Tekinalp, Banka Hukukunun Esasları, 2. Edition, Istanbul 2009, p. 520.

20 Yargıtay 11.HD., T. 29.11.2004, E. 2269/11663.; YHGK, T. 15.2.1985, 15- 7/108; Yargıtay 13.HD., T. 4.4.2003, 12569/3985.

21 Safa Reisoğlu, Türk Borçlar Hukuku Genel Hükümler (Genel Hükümler), 23. Edition, İstanbul 2012, p. 393.; Seza Reisoğlu, Türk Hukukunda ve Bankacılık Uygulamasında Kefalet, Ankara 1992, p.78.; A. Özge Yenice, Teminat Sözleşmelerinde Rücu İlişkileri, 1. Baskı, İstanbul 2009, p. 12.

22 Kemal Oğuzman, Turgut Öz, Borçlar Hukuku Genel Hükümler, V. I-II, 16. Edition, İstanbul, 2018, p. 762.; Melek Bilgin Yüce, Garanti Sözleşmesinin Bir Türü Olarak Üçüncü Kişinin Fiilini Taahhüt Sözleşmesi, İstan-bul 2007, p. 10-11.

23 Haluk Tandoğan, Borçlar Hukuku Özel Borç İlişkileri (Özel Borç İlişkileri), C. II, 3. Edition, İstanbul 1987, p. 849 vd.; Arslan Kaya, “İlk Yazılı Talepte Ödeme Klozunu İhtiva Eden Banka Garantilerinde Hakkın Kötüye Kullanılması Sorunu”, Reha Poroy’a Armağan, İstanbul 1995, p.218.

24 Fahrettin Aral, Banka Teminat Mektuplarının Hukuki Niteliği ve Kefaletten Farkları, Prof. Dr. Fikret Eren’e Armağan, Ankara 2006, p.133-134.

25 Ünal Tekinalp, Banka Hukukunun Esasları, 2. Edition, İstanbul 2009, p. 521.

26 Sevgi Kayak, “Hukuki Gelişimi Açısından Üçüncü Kişinin Fiilini Taahhüt”(Hukuki Gelişim), Doctoral Thesis, Istanbul University, 2009, p. 41/136.

27 Kayak, Hukuki Gelişim, p. 41.

28 YHGK, T. 4.7.2001, E.2001/19-534, K.2001/583.

29 Kayak, Hukuki Gelişim, p. 50.

30 Reisoğlu, Genel Hükümler, p. 35.

31 Kayak, Hukuki Gelişim, p. 51.

32 Seza Reisoğlu, Banka Teminat Mektupları ve Kontrgarantiler, 4. EDition, Ankara 2003, p. 35.

33 Kayak, Hukuki Gelişim, p. 50.

34 Cevdet Yavuz, Borçlar Hukuku Dersleri (Özel Hükümler), 16. Edition, İstanbul 2019, p. 843.

35 Alper Gümüş, Borçlar Hukuku Özel Hükümler (Kısa Ders Kitabı), 4. Edition, İstanbul 2019, p.587.

36 Kayak, Hukuki Gelişim p.56.

37 Yasemin Yılmaz, “Garanti Sözleşmesi”, TAAD, October 2014 numbered 19, p.1080. (last Access date 27.11.2021) https://docplayer.biz. tr/20012761-Garanti-sozlesmesi-contract-of-guaranty-yasemin-yilmaz.html

38 Kayak, Hukuki Gelişim, p. 57.

39 Yavuz, Özel Hükümler, p. 843.

40 Ünal Tekinalp, Banka Hukukunun Esasları, C: I, 1. Baskı, İstanbul 1988, p. 374.

41 Fikret Eren, Borçlar Hukuku Genel Hükümler, 9. Edition, İstanbul 2006, p.1111-1112.

42 Atasoy, Garanti Sözleşmesinin Türleri, Hukuki Özellikleri ve Sonuçları p. 123.

43 Gümüş, Özel Hükümler, p.591.

44 Atasoy, Garanti Sözleşmesi, p.114.

45 Ferhat Canbolat, “Banka Garantisinde Savunma İmkânları ve İhtiyati Tedbirler”, Doctoral Thesis, Ankara University, 2008, p.37.; Yargıtay 15. HD., T. 18.05.1999, E. 1999/2159, K.1999/4122.

46 Tandoğan, Özel Borç İlişkileri, p.849.; Kaya, Garanti p.218.

47 Yılmaz, Garanti Sözleşmesi, p. 1087-1088.

48 Hüseyin Hatemi, Emre Gökyayla, Borçlar Hukuku Genel Bölüm, İstanbul 2011, p.293.

49 Tandoğan, Özel Borç İlişkileri, p.848,849.

50 In a decision made in 1979, the Supreme Court included the views in the doctrine and decided that “whatever opinion is adopted”, the provision in question should be interpreted broadly and applied to the guarantee contract as well. (Atasoy, Garanti Sözleşmesi, p.106. via. Yarg. 11. HD., E. 1979/5075, K. 1979/ 5456, T. 27.11.1979)

51 Tandoğan, Özel Borç İlişkileri, p.808-809.

52 Aydın Zevkliler, Özel Borç İlişkileri, 20. edition, İstanbul 2020, p. 706.

53 Kemal Atasoy, Garanti Sözleşmesi p.125 via Eren, s.1159; Oğuzman, Öz, a.g.e., s., p.421.