NEWSLETTER-2020-metin

96 NEWSLETTER 2020 Contracts of Guarantee Relating to Capital Market Instruments* Att. Yağmur Zeytinkaya Contracts of guarantee, which are the fundamental supporters ensuring the continuity of debtor-creditor relationships, are subject to specific principles inherited from Roman law. One of those principles is “lex commissoria , ” which prohibits the forfeit of the pledge if a loan is not repaid. Article 47 ( Contracts of Guarantee Relating to Capital Market Instruments ) of Capital Market Law numbered 6362 (“CML”) offers a new and remarkable regulation that enables the guarantee taker to assume the ownership of the pledged capital market instru- ments under specific circumstances. This article reviews the contracts of guarantee under Article 47 of the CML. The regulation and the reasoning under Article 47 of CML The lex commissoria rule aims to protect the guarantee provider in cases where the guarantee amount is higher than the debt amount 1 . Turkish Civil Code numbered 4721 also reflects this principle, which has been inherited from Roman law, for movable and immovable pledges. However, Article 47 of the CML enables a practice that is different from the lex commissoria rule. The reasoning of such Article states that the said Article has been drafted in compliance with the UNIDROIT ( International Institut for the Unification of Private Law ) rules regarding international private law principles on contracts of guarantee, which protect the rights of the guarantee provider and the guarantee taker 2 . The UNIDROIT and European Union have initi- ated the drafting of international and national regulations in order to provide the required basis for cross-border financial transactions, and * Article of March, 2020 1 Sirmen, Lale: Eşya Hukuku, Ankara, 2016, p. 654. 2 Reasoning of Article 47 of CML - https://www.tbmm.gov.tr/sirasayi/donem24/ yil01/ss337.pdf (Access date: 29.03.2020).