ПОБИЈАЊЕ УГОВОРА О ЈЕМСТВУ У СТЕЧАЈНОМ ПОСТУПКУ
AVOIDING SURETY CONTRACTS IN BANKRUPTCY PROCEDURE

Summary/Abstract: Serbia’s courts jurisprudence has divergent attitudes with respect to the dilemma whether a surety contract represents a contract without consideration, which may be avoided once the guarantor is subject to bankruptcy procedure without any additional conditions, or an onerous contract. Whether a surety contract is an onerous one has anyhow been disputed in the legal theory. One school of thought considers this contract as non-onerous one, since vis-a-vis guarantor’s obligation no benefit to be expected from the other contractual party (i. e. creditor) exists. The other school of thought understands surety (almost always) as an onerous contract bearing in mind that the guarantor who enters into this contract does not have intentio liberalis. There are numerous and nuanced views based on analyses of the relation between a guarantor and a debtor focused on the argument that surety is a contract without consideration if intentio liberalis existed vis-a-vis main debtor rather than vis-a-vis creditor.

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