KÜHEYLAN HUKUK
What Happens If the Person I Guarantee Does Not Pay His Debt? Liability of the Guarantor and Ways to Avoid Guarantee Within the scope of Turkish Code of Obligations Article 581-603 No. 6098, ordinary and several guarantees in bank loans, spousal consent, ten-year period and right of recourse have been updated as of 2026.
The person guarantoring the bank loan often signs the contract as a formality; If the debt is not paid, it faces a payment order or account fold notice. However, surety is one of the contracts subject to the strictest formal rules of the Turkish Code of Obligations, and if one of the conditions of handwriting, maximum amount, date or spousal consent is missing, the guarantor may not be responsible at all. The guide explains in which cases and to what extent the guarantor is responsible, the difference between ordinary and joint surety, the reasons for the invalidity of the surety, the termination situations arising from the law, and the right of recourse of the guarantor who pays the debt to the main debtor, together with the decisions of the Supreme Court.
1. What is Bail and When Does the Guarantor Have to Pay?
With the surety agreement, the guarantor undertakes to be personally responsible to the creditor for the consequences of the principal debtor's failure to pay his debt (TBK article 581). The guarantor's debt is a debt dependent on the principal debt: if the principal debt ends for whatever reason, the guarantor is also released from his debt (TBK art. 598/1). This commitment also allows the guarantor to use the defenses that the principal debtor has. The guarantor may assert against the creditor all defenses belonging to the principal debtor that do not arise from inability to pay; This right continues even if the principal debtor renounces these (TBK art. 591).
When a guarantor can be pursued depends on the type of guarantor. Most of the guarantees signed for bank loans are joint guarantees; Therefore, in most cases, the guarantor receives the payment order at the same time as the principal debtor.
In ordinary suretyship, the creditor, as a rule, must first apply to the principal debtor. In order to go to the guarantor directly, a certificate of absolute insolvency must be obtained for the debtor, the debtor must be declared bankrupt, a concordat period must be granted, or it must become impossible to pursue the debtor in Türkiye (TBK Article 585). If the receivable is also secured by a pledge, the ordinary guarantor may first request that the pledge be converted into cash.
In joint and several suretyship, the creditor can apply to the guarantor without pursuing the debtor or converting the real estate pledge into cash. However, for this to happen, the main debtor must be late in the performance and the warning must be ineffective, or the debtor must be clearly incapable of paying (TBK art. 586). This condition is a defense opportunity that is often ignored in practice: proceedings initiated against the guarantor without a proper notice being sent to the debtor are open to objection. Criterion Ordinary Guarantee Joint Guarantee
Creditor's application order First the principal debtor (TBK article 585) Direct guarantor (TBK article 586)
Condition of going to guarantor Certificate of insolvency, bankruptcy, composition or impossibility of follow-up Debtor's default and inconclusive notice or obvious insolvency
If there is a pledge The guarantor may first request that the pledge be converted into cash. You can go to a guarantor without waiting for a real estate lien.
handwriting requirement Maximum amount and date Maximum amount, date and joint guarantor statement
3. In Which Situations Is the Guarantee Agreement Invalid?
The surety agreement must be made in writing, the maximum amount for which the guarantor will be responsible and the surety date must be specified. The guarantor must write the maximum amount, date and, if he is a joint guarantor, this title in his own handwriting (TBK article 583). The Supreme Court accepts this form as a form of validity, not a form of proof, and considers bail that does not comply with the form to be absolutely void (11th HD, 15.02.2024, E.2022/7015, K.2024/1137). For this reason, pre-printed sureties filled out by bank personnel and signed only by the guarantor are often invalid.
A married person can only become a guarantor with the written consent of his/her spouse, unless there is a separation order issued by the court. Consent must be given before the contract or at the latest at the time of the contract; Approval received later does not make the guarantee valid (TBK Article 584). The Supreme Court accepts that this condition is mandatory, that it will be observed ex officio by the court, and that the bank that makes the surety sign without the consent of the spouse does not act as a prudent merchant (11th HD, 11.05.2023, E.2021/8734, K.2023/2919). The decision of the bank that initiated proceedings against the person appointed as guarantor without the consent of the spouse to a bad faith compensation of twenty percent of the pursuit amount was approved by the Supreme Court (11th HD, 06.02.2025, E.2024/1843, K.2025/655).
Exceptions to the requirement of spousal consent are also listed in the law: the consent of the spouse is not required for the guarantees related to the business or company of the business owner or company partner or manager registered in the trade registry, the guarantees related to the professional activities of tradesmen and craftsmen, and the guarantees in cooperatives and interest-supported public loans (TBK Article 584/3). The partner who acts as guarantor for the company loan cannot therefore benefit from the defense of spousal consent.
4. How much of the debt is the guarantor responsible for?
In any case, the guarantor is liable up to the maximum amount written in the contract. Unless otherwise agreed in the contract, within this limit, the person is responsible for the principal debt, the legal consequences of the debtor's default, follow-up costs provided that he is notified in advance, and the contractual interest for an accrued year and the current year (TBK art. 589). The guarantor is only responsible for debts arising after the contract of guarantee, unless expressly agreed otherwise. If the principal debtor is six months late in paying the principal or interest, the creditor must notify the guarantor; If he does not notify, the guarantor loses his rights in proportion to the damage he suffers due to this (TBK article 594).
Ten-year legal period: Any guarantee given by a real person automatically terminates ten years after the conclusion of the contract. If there is no extension or new guarantee, the guarantor can only be followed until the ten-year period expires (TBK article 598/3-4).
Term guarantee: If a period of time is determined in the contract, the guarantor is released from his debt at the end of the period (TBK article 600).
Request to pursue indefinite suretyship: When the main debt becomes due, the guarantor may request the creditor to initiate proceedings against the debtor within one month; If the creditor does not do this, the guarantor is released from his debt (TBK article 601).
Reduction of guarantees: If the creditor reduces the pledge or other guarantees received from the debtor to the detriment of the guarantor, the liability of the guarantor is reduced to that extent; If the guarantor disposes of the guarantee due to gross negligence, the guarantor is completely freed (TBK art. 592).
Rejection of payment: If the creditor does not accept the payment offered by the guarantor without a justified reason after the debt becomes due, the guarantor is released from his debt (TBK article 593).
The guarantor becomes successor to the creditor's rights to the extent that he pays the creditor, and can use these rights against the principal debtor when the principal debt becomes due (TBK art. 596). Subrogation also includes liens and other guarantees held by the creditor; For this reason, the guarantor making the payment must request documents regarding the transfer of the receivable and the guarantee document from the bank (TBK article 592/3). The statute of limitations for recourse receivables begins as soon as the guarantor makes payment. If there is more than one joint guarantor, the guarantor who pays more than his share may have recourse to other guarantors (TBK Article 587).
The guarantor is not passive at the stage where the debt has not yet been paid: If the principal debtor is in default or his financial situation has significantly deteriorated, the guarantor may ask the debtor to provide assurance and to be released from the debt if the debt is due (TBK art. 595).
In 2017, S.T. became a joint guarantor for the loan of 450,000 TL used by his brother-in-law for his business. When the loan was not paid in 2025, the bank account was overdrawn and S.T. initiated enforcement proceedings against him. During the examination, it was determined that the maximum amount and date of the surety bond were typed in by the bank staff, and S.T.'s wife approved it in a separate document three months after the date of the surety.
By objecting to the payment order in due time, it was claimed that both the handwriting requirement in Article 583 of the TCO and the spousal consent in Article 584 were not present at the time of the contract. Since the subsequent approval given by the spouse did not meet the timing requirement required by law, the bail was deemed to be absolutely void. The lawsuit for annulment of the objection filed by the bank was rejected and bad faith compensation was awarded against the bank, which should have known about the invalidity of the guarantee. Even though the loan was made available to the business, S.T. Since there is no owner or partner of the business, the exception in Article 584/3 is not applied.
If the person I guarantor dies, will the debt be left to me?
The death of the principal debtor does not terminate the guarantee; The debt passes to the heirs and the guarantor's responsibility continues. Even if the heirs reject the inheritance, the guarantor remains liable within the maximum amount and ten-year period.
When the guarantor dies, does the surety debt pass to his heirs?
Yes. The surety debt is included in the estate and passes to the heirs who do not reject the inheritance. The heirs may claim the reasons for the invalidity of the guarantee and the ten-year period as if they were guarantors.
Can the bank send a payment order directly to me without going to the debtor first?
He can send joint and several guarantees; However, the debtor must be in default and the warning must be ineffective. In ordinary surety, it is mandatory to apply to the principal debtor first, except for the exceptions listed in the law. Will my liability increase if the loan for which I am a guarantor is restructured? Subsequent amendments that increase the liability of the guarantor do not bind the guarantor unless the form prescribed for the guarantee is complied with (TBK article 583/3). In the restructuring made without the signature of the guarantor, the increased interest and maturity cannot be charged to the guarantor.
Making a payment without examining the bail bond: Lack of handwriting or spousal consent is a defense that can get rid of the entire debt; Once payment is made it is more difficult to get it back.
Missing the objection period to the payment order: If the reasons for invalidity are not put forward within the seven-day objection period, it is necessary to resort to longer and more costly methods such as a negative declaratory action.
Not calculating the ten-year period: Guarantees established after the Turkish Code of Obligations came into force on July 1, 2012 and not extended may have expired; Guarantees dated 2016 and earlier should be checked in this regard.
Not receiving documents after payment: For recourse, a payment receipt from the bank, a letter regarding the transfer of the receivable and guarantee documents must be requested.
Mistaking company guarantee for individual guarantee: Spousal consent is not required for the company partner or manager; The defense strategy should be established accordingly.
Guarantee is a heavy obligation in which the guarantor puts forward his own assets for someone else's debt, and for this reason, the legislator has prescribed strict form, duration and notification rules. A significant portion of the guarantees signed for bank loans do not fully comply with these rules; Lack of handwriting, timing of spousal consent, or expiration of the ten-year period may result in the guarantor not being liable at all. Küheylan Law Firm protects the legal position of guarantors with a strategy based on documents and jurisprudence, from examining the surety bond and loan agreement, to objection to the payment order and negative determination case, to the collection of the recourse receivable of the guarantor who pays the debt.
Important Legal Notice: The legal explanations, tables and case studies in this guide have been prepared by Küheylan Law Firm for general information purposes based on the legislation and judicial decisions in force as of 2026 and do not constitute legal advice. Since contract provisions, notification dates and periods directly determine the outcome in banking and finance disputes, it is recommended that each concrete case be evaluated separately by a lawyer. © 2026 Küheylan Law Firm. All rights reserved.
KÜHEYLAN HUKUK