Comment to Article 336. Termination of guarantees and sureties of the Civil Code of the Republic of Kazakhstan  

The guarantee and surety are an additional (accessory) obligation to the main obligation, and they terminate with the termination of the obligation secured by them. At the same time, it does not matter on what basis the obligation secured by a guarantee or guarantee was terminated: due to its proper performance, offset, etc.

The guarantee and surety are also automatically terminated in the event of a change in the terms of the main obligation, entailing increased liability or other adverse consequences for the guarantor or surety. For example, an increase in the interest rate on a loan under an additional agreement between the creditor and the debtor entails the termination of the guarantee that ensures the repayment of the loan by the debtor. A guarantee or surety may continue to operate only if the guarantor or surety has consented to a change in the terms of the main obligation, entailing an increase in the responsibility of the guarantor or surety, that is, they have consented to increased liability or an increase in other adverse consequences for themselves.

The additional nature of guarantees and sureties is also manifested in the fact that they follow the fate of the main obligation when assigning a claim. However, when transferring a debt, the guarantee or surety is terminated if the guarantor or surety has not agreed to be responsible for the new debtor. The essence of this rule is that a guarantee or surety is characterized by a personally confidential relationship between the guarantor or surety and the debtor, and the identity of the debtor is essential for the guarantor or surety - the guarantor or surety undertakes to be responsible equally or additionally with a certain person, and not just for a certain obligation.

The guarantee or surety is also terminated if, upon the expiration of the term of performance of the obligation secured by them, the creditor refused to accept the proper performance proposed by the debtor or the guarantor and the surety (for the creditor's delay in the form of refusal to accept proper performance, see art. 366 of the Civil Code and the commentary thereto). The creditor's delay does not terminate the main obligation, and in this case the relationship between the creditor and the debtor is specifically regulated by Articles 364 and 366 of the Civil Code. But the creditor's refusal to accept proper execution terminates the surety or guarantee, and this is a kind of sanction for the creditor who has allowed the delay. The meaning of this rule also lies in the fact that the guarantee or surety is terminated in this case, regardless of the period for which they are given. The guarantee or surety is terminated, even if the term is not specified in them.

The guarantee or surety is terminated upon expiration of the period specified in the guarantee or surety agreement. This provision is of great practical importance, since by virtue of this provision, the term of the guarantee or surety, explicitly provided for in the text, must be longer than the term of the main obligation. If, however, the creditor submits claims for fulfillment of obligations under the guarantee or surety in accordance with the established procedure during this period of time and the guarantor or surety subsequently fails to fulfill these claims, the creditor is generally entitled to judicial protection, and in this case the general three-year limitation period applies. The fulfillment of the requirements under the guarantee or surety must be carried out, by virtue of art. 277 of the Civil Code, within seven days, unless the obligation to perform within another period arises from legislation, the terms of a guarantee or surety, business practices, or the nature of the main obligation.

If the deadline for the guarantee or surety is not set, they are terminated if the creditor does not file a claim against the guarantor or surety within one year from the date of the deadline for the fulfillment of the obligation secured by the guarantee or surety.

If the time limit for fulfilling the main obligation is not specified and cannot be determined or determined by the time of demand, the guarantee or surety is terminated unless the creditor files a claim against the guarantor or surety within two years from the date of conclusion of the guarantee or surety agreement. That is, if a guarantee or surety is given without setting a deadline - without a deadline or with a deadline for demand, the guarantee or surety is terminated if a claim is not filed within two years from the date of its issuance, regardless of the validity of the main obligation. The expiration of the time limits established by this norm not only entails the termination of the creditor's right to judicial protection, but also terminates the guarantee or surety. Consequently, these deadlines are prohibitive, and the rules for restoring the limitation period cannot be applied to them. It should be noted that, in accordance with paragraph 4 of the commented article, legislative acts may establish a different procedure for terminating an indefinite guarantee or assignment when the term of the main obligation is not specified and cannot be determined or is determined by the time of demand.  

The need to comply with the pre-trial claim procedure for dispute resolution often leads to missing deadlines for filing a claim against the guarantor or guarantor. In this regard, we would like to draw attention to the possibility of establishing a shortened time frame for reviewing claims in the guarantee or surety agreement, since in accordance with part two of paragraph 1 Regulations on the procedure for filing and reviewing Claims by Enterprises, organizations and institutions and Settling Disagreements on Business Contracts (approved by Resolution of the Cabinet of Ministers of the Republic of Kazakhstan dated February 15, 1993) the procedure established by this Regulation applies, unless otherwise established by applicable law or contract. In accordance with this, it is also possible to establish longer terms for reviewing claims in the contract.

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The commentary was prepared within the framework of the scientific and practical research program of the Scientific Research Center of Private Law of the Kazakh State Law University.  

Head of the working group on the preparation of the draft Civil Code of the Republic of Kazakhstan, Corresponding Member of the Academy of Sciences of the Republic of Kazakhstan, Professor Suleimenov M.K.

Deputy head Professor Basin Yu.G.