of November 21, 2011 No. 01-06/1624/2011
Economic courts of Ukraine
About practice of application by the Supreme Economic Court of Ukraine in hearing of cases of separate regulations of the substantive right
For the purpose of ensuring the correct and identical court practice we consider necessary to draw the attention of economic courts to practice of application by court of cassation instance in hearing of cases of separate regulations of the Civil code of Ukraine (further - the Civil Code of Ukraine), the Economic code of Ukraine (further - HK of Ukraine) and other acts of the legislation containing regulations of the substantive right namely:
1) Articles 203, 215, 511 Civil Code of Ukraine in hearing of cases on disputes on recognition invalid the guarantee agreement signed between the creditor and the guarantor without the consent of the debtor to ensuring accomplishment of the obligation by the last.
The guarantee agreement on contents of instructions of Articles 553, of 554 Civil Code of Ukraine is signed by the creditor according to the obligation which is provided with the guarantee, and the guarantor. As for the debtor, he does not act as the agreement party of the guarantee, and is participant (party) in the obligation provided with the guarantee. The legislation of Ukraine does not provide and does not follow from content of legal relationship of the guarantee of obligation of the creditor or the guarantor according to the guarantee agreement to receive the consent of the debtor to the conclusion of such agreement (see resolutions of the Supreme Economic Court of Ukraine of 07.09.2010 No. 53/86-09, of 07.09.2010 No. 14/212pd).
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