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Differences Between Surety and Guarantee Agreements

02 November, 2020

Although both Surety and Guarantee Contracts are personal guarantee agreements; they are different in terms of the relation of principality-individual, the conditions for making pleas and objections, and succession provisions. 

In a surety contract, the guarantor's debt is a subsidiary debt which is in genetic (congenital) and functional dependence with the original debt. In this context, if the original contract is null and void, the debt arising from the surety agreement is also relieved. At the same time, the surety receivable (debt) is limited to the amount of the original receivable (debt) and it is not possible to waive even partially from the attribute of the surety debt. In case of such a waiver, there will be a guarantee agreement or joint debt, not a surety. The debt in the guarantee agreement, although essential, unlike the debt in the surety agreement, does not depend on the realization, existence or suitability of the main debt in the basic relationship. [1] Another difference is that it is about the assertion of the debts belonging to the main debtor. Under the surety contract, whichever pleas the principal debtor has against the creditor, the surety also has them, and the creditor is obliged to prove the original receivable in the lawsuit filed against the surety. [2] In summary, according to the surety agreement, while the surety can make pleas and objections owned by the principal debtor against the creditor; the guarantor cannot make pleas and objections owned by the principal debtor against the creditor. The last difference to be noted between the surety agreement and the guarantee agreement is: in addition to the surety's successor to the rights of the creditor to the extent that the guarantor performs to the creditor within the framework of the provisions of succession; there is an absence of such a succession relationship and the right of recourse in guarantee contracts. The guarantor pays its debt if the guaranteed risk occurs independently of the original debt. [3]  

 

[1] EREN, Fikret; Law of Obligations Special Provisions, Yetkin Publications, Ankara 2019,p.779 

[2] EREN, FikretLaw of Obligations Special ProvisionsYetkin Publications, Ankara 2019,p.776 

[3] TURAN GamzeDifferences Between Guarantee and Surety Agreements and the Nature of Personal Guarantee in Bank Credit Card AgreementsJournal of Turkish Bar AssociationIssue 66, p.27,2006 

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