A Surety Cannot Be Held Liable for a Debt for Which the Principal Debtor Cannot Be Held Liable

Kayseri Regional Court of Appeal, 6th Civil Chamber, 02.05.2025, E. 2025/788, K. 2025/922

In a file in which I acted as counsel, the Chamber recalled a classic but very often forgotten rule of suretyship liability; a surety cannot be held liable for a debt for which the principal debtor cannot be held liable.

In an undertaking given to a university, the surety cannot be held liable for an amount for which the principal debtor cannot be held liable. This conclusion draws not only on Article 582 of the Turkish Code of Obligations but also on the principles of fair trial and freedom of contract. In debts based on a consent form the surety can be held liable only for a valid and determinable debt; if the payment obligation of the principal debtor has ended, the surety is released too. Otherwise the institution of suretyship would be applied as if it created an independent debt, which is contrary both to statute and to law.

The decision is a fresh reminder that the text of the contract must be drafted with great care in guaranteed undertakings given to public institutions or universities. An appeal to the Court of Cassation remains open.