Ercüment Erdem Assoc. Prof. H. Murat Develioğlu

Surety Rights To Recourse in Independent Collateral Suretyships

November 2015

Introduction

Independent collateral suretyships (also known as “auxiliary suretyship”), happens when more than one person becomes a surety for the same obligation without prior knowledge. As these sureties are unaware of other existing sureties, each of the sureties is responsible for the entire obligation. Auxiliary suretyships may be established as either simple, or joint and several suretyships[1].

In independent collateral suretyships, it is accepted that a given surety does not hold certain rights that are normally held by sureties in real collateral suretyships where the sureties are aware of each other.

For instance, when an independent collateral suretyship is in question, a surety may not claim that he/she will only pay his/her share, as long as the creditor initiates an enforcement action against other sureties.

Again, different from real collateral suretyships, TCC 587 I does not apply to independent collateral suretyships; in other words, none of the sureties shall be responsible for the other’s share in the capacity of surety of the surety.

As a matter of course, when the sureties are unaware of each other, TBK 587 III shall not apply. In other words, if sureties undertake a suretyship without the knowledge of other existing or future sureties, the surety may not be released from its debt by claiming that this assumption was not realized, or that one of the sureties was released by the creditor, or that the suretyship has been declared null and void.

The greatest issue concerning independent collateral sureties is the possibility to seek recourse from other sureties, provided that the creditor only applies to one of the sureties, and that the surety in question fulfills the obligation, wholly. In other words, how shall the question of whether the remaining sureties are released from their debts under the assumption that the creditor solely (and maybe coincidentally) initiates enforcement actions against one of the sureties be answered? This issue is addressed, below.

History

Code of Obligations numbered 818 neither regulated the possibility of seeking intra-group recourse, nor independent collateral suretyships, in general.

The majority view in the doctrine opined that if one the sureties fulfills its obligation, wholly, they may seek recourse from other sureties as a result of the principle of equity. Certain scholars who share this view state that it is inequitable for only one of the sureties to be responsible for the whole debt, and that this surety may seek recourse from others on the grounds of unjust enrichment[2].

The other view claims that unjust enrichment provisions are not even necessary. In accordance with Art. 496 of the Code of Obligations numbered 818, the surety who fulfills their debt becomes a successor to the creditor’s rights. Thus, the surety has the right to seek recourse from others according to this provision, even though he/she is unaware of the existence of other sureties[3].

The Regulation of Turkish Code of Obligations numbered 6098 on independent collateral suretyships

Turkish Code of Obligations numbered 6098 which entered into force on July, 2012 includes a regulation on independent collateral suretyships.

As per TCC 587 IV, “Each of the sureties who independently provide a surety shall be responsible for the whole obligation. However, the surety who paid shall have the right to recourse to the extent of his share within the whole obligation, unless otherwise agreed.”

As per the open wording of the provision, unless otherwise agreed upon by the parties, the surety who has paid shall have the right to recourse to the extent of his share within the whole obligation. The example given in the doctrine to illustrate this provision states as follows[4]: “For instance, if the principle obligation for which the sureties are given amounts to 150 TRL; and for this amount (K1) independently provided a surety for 200 TRL, (K2) for 50 TRL and (K3) for 50 TRL, the surety sum amounts to 300 TRL. When (K1) pays the whole 150 TRL, in calculation of recourse to other sureties, the ratio will be 2/3 and the responsibility of (K1) from the principal debt will be 100 TRL, the amount that corresponds to this ratio. In this case, (K1) shall provide recourse to (K2) and (K3) for the outstanding 50 TRL; each of them for 25 TRL, which corresponds to 1/6, determined by the same method.”

The dates on which the suretyship agreements are executed are irrelevant for a ratio-based distribution to be adopted. Hence, the right to recourse exists, irrelevant of the fact that the suretyship agreement to which the paying surety is a party has been executed earlier or later.

Finally, since the above explained provision is not mandatory, other solutions, for example the waiver of the right to recourse, may be agreed upon by the parties.

Conclusion

In Code of Obligations numbered 6098, the right to recourse in independent collateral suretyships is regulated. The views in Turkish doctrine have been taken into consideration when the related provision was formed, and it is regulated that all of the sureties are pro rata responsible for the whole of the obligation, although the sureties are unaware of each other’s existence in this type of suretyship.



[1] Alper GÜMÜŞ, p. 360.

[2] For example, Halûk TANDOĞAN, Borçlar Hukuku, Özel Borç İlişkileri, Cilt: II, Ankara 1987, p. 771, Seza REİSOĞLU, Türk Hukukunda ve Bankacılık Uygulamasında Kefalet, Ankara 1992, p. 126. It must be mentioned that, with the amendments made to Swiss Code of Obligations in 1941, a similiar provision has been introduced to Swiss Law. Before such amendment, the Swiss doctrine, contrary to Turkish doctrine, accepted that no right to recourse exists in this type of suretyships.

[3] Burak ÖZEN, 6098 sayılı Türk Borçlar Kanunu Çerçevesinde Kefalet Sözleşmesi, İstanbul 2012, p.308.

[4] Seza REİSOĞLU, Türk Kefalet Hukuku, Ankara 2013, p. 175-176.