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The Form of Terminating a Contract by Parties’ Agreement under Serbian Law with Special Regard to Maintenance Contract

Summary/Abstract: The effective Serbian law, like the majority of European legal orders, adopts the principle of consensuality of contracts, which means that the parties are free, in principle, to choose the form of their contract. However, modern law recognizes numerous exceptions from this general rule, whereby the legal order prescribes or the parties foresee a mandatory form of contract. These exceptions are quite common, but they do not, however, intend to reinstate the system of formality of contracts, in which contracts produce legal effect only if they are concluded in the prescribed or stipulated form. Another issue is whether a contract, concluded in the form prescribed by law or stipulated by the parties, could be terminated by a simple oral agreement of the parties or even tacitly. This is particularly important in respect of the termination of long-term contracts, such as, for example, the contract of maintenance, the conclusion of which is subject to strict formal requirements. According to the general rules of contract law, a formal contract can be terminated in a simple oral form, unless the purpose of the form implies otherwise. This general rule is in the case law applied to the maintenance contract as well. However, in order to safeguard legal certainty and parties’ interests, it seems reasonable to apply the rule of ‚parallelism of formalities’ in such cases, according to which the termination of the contract by parties’ agreement is subject to the same form in which it has been concluded. By applying the rule of ‚parallelism of formalities’ to maintenance contract, the form of the contract would achieve its protective and evidentiary function.

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