Analiza posebnosti instituta samostalne bankarske garancije kroz tumačenje relevantnih domaćih propisa
Particularity analysis of the institute of independent bank guarantee through the interpretation of relevant domestic regulations

Summary/Abstract: An independent bank guarantee or, as it is known in our Law of Contracts and Torts, a guarantee “without objection” or “at the first call” is a special form of bank guarantee that is widely used in the international exchange of goods. There are several explanations for such widespread use in international transactions, but among them the most important is certainly the fact that through an independent bank guarantee the creditor (guarantee user) is insured not only from the risk of insolvency of the debtor from the basic contract, but also from the invalidity or impossibility of fulfilling his obligation. In domestic law, very conflicting opinions have been expressed regarding the defi-nition of the legal nature of an independent bank guarantee, and they are primarily based on claims that in existing sources of obligations, and above all in the contract and unilateral declaration of will, the necessary solutions cannot be found that fully explain the origin, but also the abstract or independent character of the obligation that the bank assumes towards the beneficiary of the guarantee. By clarifying the existing doubts regarding its concept and legal nature, and determining similarities and differences with other institutions of securing the creditor’s claim, in this paper we have established that, from the aspect of interpretation of domestic regulations, an independent bank guarantee is a reliable but insufficiently regulated instrument for securing the fulfillment of the debtor’s obligation from the basic contract.

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