Even though the Serbian law does not establish specific rules for handling concurrent delay, the issue of concurrent delay may be dealt with by using general rules for delay and damage compensation stipulated by Serbian Law on Contracts and Torts, as well as rules on extension of time prescribed by Specific Customs on Construction (Posebne uzanse o građenju). Specific Customs on Construction are collection of construction customs that are applied to construction agreements only if contractual parties have specifically agreed to their application.
The Law on Contracts and Torts differentiates between debtor’s and creditor’s delay and sets out consequences of those delays.
Namely, under the said Law, a debtor’s delay occurs if the debtor fails to perform its obligation at due time. A debtor’s delay may occur even without debtor being at fault. Accordingly, if the delay was caused by circumstances that were outside of debtor’s control, the debtor will not be responsible for damages suffered by the creditor. However, if the debtor’s fault exists, the creditor will be entitled to damages.
On the other hand, a creditor will be in delay if it refuses, without justified ground, to accept performance by the debtor or if it prevents performance through its conduct. A creditor will also be in delay if, although ready to accept performance of a debtor's simultaneous or dependent obligation, it fails to offer performance of its due obligation. At that moment, the creditor is considered to be in delay both as creditor and as debtor. However, creditor’s delay will not occur if it proves that, at the time the debtor offered its performance, or at the time set for performance, the debtor was unable to perform its obligation.
Hence, under the Law, creditor’s delay prevents occurrence of debtor’s delay. Once creditor’s delay takes place, the debtor’s delay ceases and the risk of loss or damage is transferred to the creditor. Additionally, the creditor is obliged to compensate the debtor for damages suffered due to its delay.
As seen from the above, the delay provisions of the Law on Contracts and Torts are most suitable for resolving issues of delay in case of simultaneous obligations of debtor and creditor. As concurrent delay does not have to imply delay in simultaneous obligations, but also obligations that are due independently of each other, the below presented provisions of the Specific Customs on Construction may be more useful for resolving concurrent delay issues.
Under the Specific Customs on Construction, a contractor would be entitled to seek extension of time, in case it was prevented from performing the works due to changed circumstances or employer’s failure to fulfil its obligation. The Specific Customs on Construction envisage a list of circumstances that can be considered as circumstances giving right to extension of time - natural events (fire, flood, earthquake, etc.), unforeseen works that could not be anticipated by the contractor at the time of conclusion of the contract, delay in delivery of equipment (if the employer or person appointed by employer is responsible for such delivery), etc.
The contractor would not be entitled to seek an extension of time in case the relevant changed circumstance occurred after completion date (note that, under the Specific Customs on Construction, completion date implies not only final completion date but completion date of each phase of the works). But, the contractor would be granted an extension of time if it proved that the changed circumstance would occur even if the works had been performed within the agreed deadline.
The Specific Customs on Construction do not regulate contractor’s entitlement to damage compensation in case of extension of time. But, based on the above described rules of the Law on Contracts and Torts, the contractor would be entitled to additional payment if the reasons for delay can be attributed to the employer.
Further on, the Specific Customs on Construction allow a contractor to suspend construction works if performance of works is hindered or prevented due to the employer’s actions (i.e. due to employer’s non-fulfilment or delay in fulfilment of obligations) and the employer failed to fulfil the relevant obligation within an additionally provided period of time. Note that such employer’s actions are considered as a circumstance that entitles contractor to the above mentioned right to seek an extension of time.
Additionally, the Specific Customs on Construction envisage that the party responsible for suspension of works has to compensate the other party for the damages suffered due to such suspension.