ODNOS KOMPENZACIJE, PRIGOVORA NEISPUNjENOG UGOVORA I RETENCIJE

Abstract

The subject of the work are three interesting institutes of civil law, namely: compensation, complaint of unfulfilled contract and right of retaning possession, which share the common role of private law security of threatened claim and which are carried out using an authentic technique of self-protection. Bilaterally binding debtor-creditor relations in general, including those in the sphere of service law, often in practice suffer from various disturbances of mutual obligations, due to breach of contractual obligations, violation of bona fides, etc. At that time, the creditor was recognized by law with various means in the function of returning the equivalence of mutual benefits, in accordance with the principle of process economy. Since these three institutes have similar spheres of application, as well as certain common elements in their physiognomy, the subject of analysis are certain segments of these legal constructions in domestic and comparative law (concept, characteristics, conditions for establishment and function). The goal of these considerations is to locate the similarities and differences among them, and to formulate an answer to the question - is it the same institute with several subtypes or - different and independent institutes, which must then be precisely demarcated. In the paper, the author with an explanation concludes that these are three independent institutes whose crucial differences are: content, effect, legal nature, object, conditions of creation and termination. Since their relationship is complementary, these institutes should coexist in Serbian future law.