Other criteria that can be used to differentiate these two agreements are the clauses defined in the agreement. Some of the clauses in the agreement may indicate the existence of a guarantee agreement, while some clauses may indicate the existence of a guarantee agreement. For example.B. it may be concluded that an exception waiver to replace the principal debtor in lieu of the guarantee or with the exception of enforced enforcement or waiver of the right of appeal may indicate the existence of a guarantee agreement, since the above exceptions can only be seen in guarantee agreements; and it can be considered that the clauses for waiving these rights can only be considered as a guarantee agreement. In addition, a clause relating to multiple liability and shared liability of both parties may lead to the assessment of the guarantee as a guarantee. In addition, a reference in the guarantee agreement to the main agreement, which gives the main commitment, may indicate the existence of a guarantee agreement, since a guarantee agreement is an ancillary part of the main agreement, while a guarantee agreement is an agreement independent of the main agreement that gives the main commitment. 5. You will find detailed explanations of the differences between the guarantee and guarantee agreements and the schemes adopted by TCO under Asik Zibel, Berna, guarantee and guarantee agreements, Erdem – Erdem Newsletter, September 2011. Another difference between these two agreements is the exceptions and objections that arise from the main agreement. In a guarantee agreement, the guarantee may exercise the principal debtor`s exceptions and objections to the creditor, while the surety of a guarantee agreement cannot exercise the principal debtor`s exceptions and objections to the principal creditor. In addition, first-application payment clauses, linked to an unconditional obligation and not subject to recourse or the absence of a right of objection to the debt, may lead to the conclusion that the agreement is a guarantee agreement.
It turned out that guarantee agreements and guarantee agreements are two distinct types of agreements that are easy to confuse. However, it is important to distinguish between the two and the above criteria can be used. However, the above criteria are not sufficient to determine the nature of an agreement. In addition, each legal relationship has its unique conditions. Therefore, each situation must be assessed on a case-by-case basis when it is established whether a security relationship is a guarantee agreement or a guarantee agreement.