SURETYSHIP CONTRACT IN CROATIAN AND COMPARATIVE LAW AND JURISPRUDENCE: DE LEGE LATA AND PERSPECITVES

Abstract

The requirement of legal certainty requires that the fulfilment of obligations arising from legal relations should also be ensured in a certain way. Through the centuries, legal practice and theory have developed numerous guarantee concepts, and suretyship is certainly one of the most important and commonly used. Since ancient times its importance has not decreased, but has evolved and adapted. The aim of this paper is to analyse the existing legislative framework related to this concept both of the Republic of Croatia and other comparative legislation systems. First, its basic characteristics are dealt with in order to gain more insight and understanding of its legal nature and purpose. Without explaining and understanding its main two properties – secondary nature and subsidiarity, it is difficult to understand the very idea of this institution. In addition to its main role in securing the fulfilment of the obligation, there is an economic purpose, which is also considered in the paper. The central part of the paper is the formation of the contract itself, and the main topics related to the manner of expressing the will of the parties, the ability to guarantee and the form of the suretyship contract. All issues are dealt with according to the applicable Law of Obligations in force and compared with similar solutions. They show great similarities and only slight differences in the arrangement of the institution in question. In addition to the fact that one can guarantee for monetary obligations, the paper also analyses other types of obligations that can be guaranteed, and the analysis is conducted into rights and obligations of the contracting parties. In conclusion the legislative solutions mostly protect the surety, so the negative connotations associated with the third party obligations are thus not founded.

Key words: suretyship, contracting parties, written form, secondary nature, subsidiarity