ERDEM-NEWSLETTER-2018-metin

68 NEWSLETTER 2018 General Assembly of the Court of Cassation Decision that Unification of Judgments where Consent of Spouse for Surety is not required for Aval* Att. Alper Uzun The Summary of the Decision The General Assembly of the Court of Cassation on the Unifica- tion of Judgments decided by the majority of the votes that the regula- tion regarding the requirement of consent of the spouse for the surety- ship regulated under Article 584 of the Turkish Code of Obligations (“TCO”) is not applicable for the “aval” transaction in its decision dated 20.04.2018, numbered 2017/4 E. - 2018/5 K. and published in the Official Gazette on 16.10.2018. The Starting Point of the Differences of Opinion Originally, the discussions on this subject originate from the pro- vision of Article 603 of the TCO that regulates the application area of the suretyship, as follows: “The provisions regarding the form of the suretyship, capacity of the surety, and consent of the spouse, shall also apply to the other agreements that are concluded under different names for provision of personal guarantees by natural persons”. Yet, certain chambers of the Court of Cassation argued that the fact that aval is an unilateral personal guarantee does not rule out the aforesaid requirement, and that the legislator had the intention to prevent the parties from gravitating towards other agreements for the purpose of eliminating the requirements regarding the form in surety- ship contracts; in other words, eliminating the consent of the spouse as the requirement of form by choosing a different personal guarantee, and that the experience gained from the practice shows the legitimacy * Article of October 2018