A guaranty agreement is a personal security contract under Turkish Law whereby a third party (guarantor/surety) undertakes to be personally liable to the creditor for the performance of a debtor's obligation. When suretyship is executed directly before an Enforcement Office during an ongoing execution proceeding, it is referred to as **Execution Suretyship (İcra Kefaleti)**.

Pursuant to Article 38 of the Enforcement and Bankruptcy Law (EBL No. 2004), an execution suretyship recorded in official enforcement minutes holds the legal force of a court judgment (ilam) and constitutes joint suretyship. However, for an execution suretyship to obtain valid enforceable status, it must strictly comply with the mandatory formal requirements laid down in the Turkish Code of Obligations (TCO No. 6098).

I. Mandatory Form Requirements in Execution Suretyship (TCO Art. 583)

Under Article 583/1 of TCO No. 6098, the validity of an execution suretyship requires full compliance with the following formal statutory criteria:

  • Maximum Amount of Liability: The exact maximum monetary amount for which the surety assumes liability must be explicitly specified. Broad terms such as "all debts and accessories" render the agreement void.
  • Date of Suretyship: The precise date on which the suretyship is granted must be explicitly recorded.
  • Handwriting Requirement: The surety must **personally write in their own handwriting** the maximum liability amount, the date of suretyship, and the expression indicating joint liability ("müteselsil kefil") in the official enforcement minutes before signing. Minutes drafted entirely by enforcement officers where the surety merely appends a signature are legally null and void.

II. Mandatory Requirement of Spousal Consent (TCO Art. 584)

Under Article 584/1 of TCO No. 6098, a married individual cannot validly act as a guarantor without the **prior or contemporaneous written consent of their spouse**, unless a judicial separation decree exists or the spouses are legally entitled to live apart.

Execution suretyships executed without written spousal consent and subsequent payment undertakings based thereon are **void ab initio**. (Suretyships granted by sole proprietors registered in the trade registry or company partners regarding their commercial activities constitute statutory exceptions.)

III. Prerequisite of Finalization Against the Principal Debtor

Under settled precedents of the Turkish Court of Cassation (Yargıtay), even if a formally valid execution suretyship exists, no execution order (icra emri) can be issued against an execution surety until the underlying execution proceeding against the principal debtor has become final.

IV. Jurisprudence of the Court of Cassation on Breach of Undertaking (Coercive Imprisonment)

In criminal proceedings initiated for coercive imprisonment (tazyik hapsi) under Article 340 of the EBL due to a breach of payment undertaking by an execution surety, the Court of Cassation consistently quashes conviction orders on the following grounds:

  • Failure of the surety to write the maximum amount, date, and joint liability status in their **own handwriting**,
  • Absence of **written spousal consent** for married execution sureties,
  • Lack of finalization of execution proceedings against the principal debtor.

In such instances, the execution suretyship and the underlying payment undertaking are deemed legally invalid. Consequently, the statutory elements of the offense of breaching a payment undertaking fail to materialize, leading to the absolute quashing of coercive imprisonment orders.

Disclaimer: The information provided above is for general guidance purposes only and does not constitute formal legal advice. Consulting a qualified attorney for specific legal disputes is strongly recommended.