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6098 Sayılı Türk Borçlar Kanunu’na Göre Kefalet Sözleşmesinde Eşin Rızası
Anahtar Kelimeler:
Kefalet Sözleşmesi, Kefalet Ehliyeti, Eşin
Rızası
Abstract:
One of the main principles of the Code of Obligations
is the freedom of contract. The principle of freedom of contract me-
ans freedom of the individuals to take decisions at their own disc-
retion in establishing contracts and defining their terms and con-
ditions. However, this freedom is not absolute and unlimited. This
freedom has its own limitations arising from the contract or code.
In accordance with Article 193 of Turkish Civil Code no 4721, each of
the spouse is entitled to engage in all legal transactions with each
other and with third parties unless otherwise stipulated by law. In
line with this principle, spouses are entitled to carry out all kinds
of legal transactions without any approval of any other persons or
authorities. However, some restrictions were imposed by laws on
the freedom of contract of the spouses in order to protect the fa-
milies. These restrictions are valid both for men and women based
on the gender equality adopted by Turkish Civil Code. One of these
restrictions were regulated in Article 584 of Turkish Code of Obliga-
tions no 6098. Pursuant to one of the articles of this law, spousal
consent is sought to sign a contract of bailment. Some exceptional
cases in which spousal consent is not sought are also stipulated un-
der the same article. In this study, legal characteristics of the spo-
usal consent principle in contract of bailment is discussed and the
cases in which such principle is not sought are examined. The study
also aims to present some recommendations on the methods to fol-
low in case of some issues that may emerge in practice although
not mentioned in the article. Justifications of the related articles in
the Code were studied using the related studies in the Turkish law,
decisions of the Supreme Course and explanations in the doctrine
concerning Article 494 of the Swiss Code of Obligations. Protective
purpose of the normwere observed while suggesting recommenda-
tions on whether the Code is sufficient or not, and the fact that this
article basically aimed to protect the family and the women in par-
ticularly were kept in mind. This legislation may not be sufficient at
some points while applying to some problems that may emerge in
practice and may need further interpretation. In addition, although
this article aims to protect the families, it is questionable how much
it serves for this purpose.
Keywords:
Contract of Bailment, Mischievous Discretion, Con-
sent of the Spouse
I. GİRİŞ
Toplum olarak kültürümüzün en önemli özelliklerinden biri ‘ha-
yır’ diyememek. Özellikle bir arkadaş, akraba veya ahbabımızın yar-
dım istediğine ‘hayır’ demeyi beceremiyoruz. Hâl böyle olunca bir ta-
nıdığımızın borcuna kefil olmamıza ilişkin ricasını geri çevirmek en
çok zorlandığımız konular arasında. Günlük hayatta kişiler, kefalet
sözleşmesine ilişkin olarak irade beyanında bulunurken bu beyanın