THE CONSENT OF THE SPOUSE WILL NOT BE NEEDED IN REGARD TO THE GUARANTEE AGREEMENT
According to article 584 of the Turkish Code of Obligation, Law no. 6098 and dated 4th February 2011; if one of the spouse would like to be a guarantee, he/she has to have other spouses’ consent (at the time of the guarantee agreement is signed or before) to make guarantee agreement valid if there is not any court order in regard to the separation or any legal separation order.
There are some provisions in the Turkish Civil Code that regulate spouses (husband and wife) as associates in regard to the property issues. Due to these provisions, which regulates the spouse’s need of the consent of the other spouse to sign a guarantee agreement; Law no. 6098 aims to protect spouses from economic challenges in regard to the family’s business transactions. At the same time, it is aimed to secure the unity in the legislation. However, the application of the regulation cannot result as it is expected. According to article 584 of the Turkish Code of Obligations; the consent of a spouse is necessary for all guarantee agreements. For this reason, the regulation is criticized that it causes the deceleration and the extension of the commercial procedures.
Due to that reason, the Legislator regulated some changes (that the spouse’s consent is not needed in regard to the specific conditions) in the article 584 by article 77 of the “Law of Changing Some Codes and the Statutory Decrees via the Customs Code, Law no. 6455” dated 11th April 2013.
According to that, the consent of a spouse will not be needed from 11th April 2013 in regard to; the guarantees which will be given; (i) by the owner of a business corporation recorded to the trade register or the associate or a manager of a civil corporation in regard to the business or company, (ii) by a craftsman or artificer recorded to the craft and related trades workers’ registry in regard to the their professional activities, and (iii) the guarantees which will be given in regard to the loans as part of the Law of the Public Capital Banks’ Interest Support, Law no. 5570 and dated 27th December 2006, (iv) the guarantees which will be given to the agricultural credit, agriculture sales and craftsmen and artificers loan and guarantee cooperatives and (v) the guarantees which will be given to the associates of a cooperative by the Public Bodies and Public Enterprises in regard to the loans.