CIVIL LAW AND CIVIL PROCEDURE

Succession in Obligations upon the Death of The Borrower and the Limits of the Guarantor’s Liability: The Problem of Consent as a Condition for the Preservation of Security

Abstract

The article is devoted to the analysis of the legal nature of the guarantor’s (surety’s) obligation in the event of the death of the debtor under the principal obligation. The author critically assesses the legal position set out in the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated November 25, 2016 No. 7 and confirmed by the Resolution of the Judicial Panel for Civil Cases of the Supreme Court dated March 13, 2025, according to which the death of the borrower does not terminate the obligations under the guarantee, and the guarantor remains liable in full. The paper substantiates that a guarantee constitutes an obligation inseparably linked to the personality of a specific debtor. The death of the borrower entails the substitution of the debtor in the obligation by his or her heirs, which, by analogy with paragraph 2 of Article 336 of the Civil Code of the Republic of Kazakhstan, requires the guarantor’s consent to be liable for the new debtor. In the absence of such consent, the guarantee shall be terminated. Where the guarantor agrees to be liable for the heirs, the scope of the guarantor’s liability should be limited to the value of the property transferred to the heirs (Articles 332(2) and 1081 of the Civil Code of the Republic of Kazakhstan). The author concludes that there is a legislative gap in regulating the substitution of the debtor on grounds not related to the transfer of debt and proposes to fill this gap by analogy of law, as well as emphasizes the need for comprehensive modernization of the institutions of guarantee and suretyship in the civil legislation of Kazakhstan.