Polish Civil Code Research Articles

„AID” TO THE LEGISLATOR AS A PREMISE OF JUDICIAL LEGISLATION. PHILOSOPHICAL AND LEGAL INTERPRETATION OF THE RESOLUTION OF THE SUPREME COURT OF FEBRUARY 15, 2019

The aim of the article is a philosophical and legal interpretation of the the resolution of the polish Supreme Court of February 15, 2019. It makes an element of the jurisprudenential tendency which going beyond both the linguistic interpretation and the established categories of civil law, significantly limits the possibility of exercising one of the rights enshrined in the polish Civil Code, namely the possibility for the owner of the land on which transmission facilities are located, getting remuneration for the establishment of transmission easement. The Supreme Court did not justify its decision with a specific way of understanding the right of the land owner, but with the need to correct a mistake made by the legislator almost thirty years earlier. The author claims that this judgment is an expression of the legal and political tendency to move away from recognizing the protection of subjective rights as the basic criterion for the legitimacy of power. He inscribes the ruling into the ideological and institutional phenomena of a global nature, which are expressed in concepts adopting a fluid content of subjective rights (the concept of Ronald Dworkin, neo-Marxism), as well as phenomena such as far-reaching restrictions on subjective rights in the name of fighting the so-called COVID-19 pandemic or climate change.

Umowy adopcyjne zwierząt

Animal adoption contracts The article aims to discuss the purpose, subject matter and content of animal adoption contracts that are present in circulation. The considerations are inspired by the analysis of the practice of circulation and case law on the issue of animal adoption contracts, against which the article raises some criticism. The Author differentiates within the framework of the article between contracts under which ownership of the animal is granted to the adopter, and contracts that grant the guardian rights and obligations of a relative nature that make up the so-called adoption obligation. Both types of adoption contracts should be considered unnamed contracts permissible under the principle of the freedom of contract, but the possibility of applying legal norms to them per analogiam is different. However, it is important to make the general assumption that when considering analogy, priority should be granted to analogy from those norms that relate to legal relations that allow the use of a property for oneself and in one’s interest. Among the principal theses of the article the thesis on the permissibility of the adopter’s acquisition of ownership of an animal abandoned under the procedure outlined in Articles 180-181 of the Polish Civil Code, which is sometimes disputed in the doctrine, should also be included.

Spełnienie świadczenia do rąk osoby okazującej pokwitowanie wierzyciela - źródła regulacji w prawie polskim

This article deals with the origins of the Polish regulation on fulfilling an obligation to the person bearing a receipt issued by the creditor. The article focuses primarily on the regulation set forth in the Polish Code of Obligations of 1933 and its impact on the Polish Civil Code of 1964. The authors of the Code of Obligations faced the challenge of unifying four different systems of private law after Poland regained its independence in 1918. At the same time, this mosaic of systems was a great opportunity for them to introduce new, original solutions. The importance of the way in which the authors of the Polish Code of Obligations addressed this issue can also be seen in the analyzed rules on the fulfillment of an obligation to the person bearing a receipt issued by the creditor. This article first presents the origins of this legal construction in the first German Commercial Code (Allgemeines Handelsgesetzbuch of 1861) and then looks at the codifications and drafts which were relevant to the provisions adopted in the Polish Code of Obligations. Finally, the article seeks to demonstrate to what extent the regulations of the Code of Obligations have influenced the provisions of the Polish Civil Code of 1964.

Student w otoczeniu Internetu Rzeczy, czyli o jego bezpieczeństwie cybernetycznym

The study seeks to answer the question whether the current norms of Polish civil law provide effective mechanisms for protecting the rights of students as users of Internet of Things products/devices. Hence, in addition to explaining basic concepts such as the Internet of Things or cybersecurity, the paper provides an exegesis of legally relevant norms of the Polish Civil Code, including in particular the provisions on liability for a dangerous product or the possibility for the student to assert his/her claims under the warranty for defects of Internet of Things products/devices. The analysis identifies various legislative shortcomings, the recognition of which is the first step towards formulating postulates de lege ferenda.

Prawne aspekty hałasu „sąsiedzkiego” – cz. II (odpowiedzialność cywilna)

Legal aspects of “neighborhood” nuisance – Part Two (civil liability) The authors analyze civil law protection measures, in particular the claim for the protection of personal rights under Article 23 and Article 24 of the Polish Civil Code, as well as the restitution claim under Article 222 § 2 of the Polish Civil Code due to nuisances, which may be applicable in counteracting “neighborhood” nuisance such as noise.

Protection of Personal Rights in Law of Succession

This author aims to demonstrate that in addition to the legal measures provided for in Article 24 of the Polish Civil Code, protection of personal rights may also indirectly serve the institutions mentioned in Book IV of the Civil Code, one of which is the law of succession. These institutions are primarily disinheritance (Article 1008 of the Civil Code) and unworthiness of inheritance (Article 928 of the Civil Code), as well as the exclusion of a spouse from inheritance (Article 940 of the Civil Code). They serve to protect, above all, such personal rights as life and health, honour and freedom, in particular the freedom to make a will. Violation of these personal rights will be met with specific pecuniary sanctions, among them, deprivation of the right to inheritance, to the reserved share of the estate, to bequests, or to the statutory superannuation as provided for in Article 939 of the Civil Code.

Początki i znaczenie ogólnej definicji prawa własności w tradycji prawnej zachodu

The legal institution of ownership, despite its central place in private law system, saw the first attempt to formulate its definition relatively late - at the turn of the 11th and 12th centuries. The definition was not needed by the Romans, whose approach to law seemed to be characterized by the far-reaching pragmatism being in stark contrast to the more dogmatic medieval scholars' way of thinking. The first attempts to formulate a comprehensive, positive definition of ownership can be attributed to glossators and conciliators. Their achievements were creatively developed by scholars from the school of legal humanism and the law of nature, but were rejected as inconsistent with Roman law by the pandectists, who promoted negative definition of property. Nowadays, for instance in the Polish Civil Code, a partial return to a positive definition of ownership can be observed.

Źródła regulacji zarachowania świadczenia w polskim prawie zobowiązań

This article deals with the origins of the rules on imputation of payments in the Polish law of obligations. These rules apply to the situation when there exist more contracts of the same type of performance between the same parties, and the performance of the debtor does not allow the discharge of all obligations. The article focuses primarily on the regulation existing in the Polish Code of Obligations of 1933. The authors of this Code faced the challenge of unifying four different systems of private law after Poland regained its independence in 1918. At the same time, this mosaic of systems was a great opportunity to create original new solutions. The importance of the way in which the authors of the Polish Code of Obligations created it, can also be seen in the analyzed rules on imputation of payments. This article first outlines Roman solutions as a common benchmark for European codifications of the Civil Law; then those codifications and drafts which were relevant to the rules got adopted in the Polish Code of Obligations. Finally, the article is aimed to show to what extent the regulations of the Code of Obligations have influenced the rules in the Polish Civil Code of 1964.

GLOSA KRYTYCZNA DO WYROKU SĄDU NAJWYŻSZEGO Z DNIA 24 MAJA 2019 R., I CSK 218/18

The Supreme Court in its judgment of 24 May 2019, I CSK 218/18, ruled that the purpose of increase in a lump sum remuneration under Article 632 § 2 of the Polish Civil Code is only to reduce the loss. The purpose of increasing the lump sum remuneration is not to compensate for the entire imminent loss. Such increase should cover that part of the loss which exceeds the normal contractual risk. The aim of this paper is to comment on the above judgment of the Supreme Court. The author compares the Supreme Court judgment with the views of legal scholars and commentators on the Polish judicial law, and with the previous case law.

O namowie lub udzieleniu pomocy do samobójstwa spadkodawcy w kontekście przyczyn niegodności dziedziczenia

The article contains a discussion of a criminal-law and civil-law nature in the context of the judgment of the Court of Appeal in Krakow of 20 May 2014 (I ACa 357/14, Legalis no. 1171941). Essential to settle a case of unworthiness of inheritance were the findings made in the criminal case for committing an act under Article 151 of the Polish Penal Code (PC) regarding whether the behaviour of a man who subsequently committed suicide can be considered as assisting his mother in committing suicide. The crucial issue here was the analysis of the mental state of the “perpetrator” and his motivation in the context of the implementation of the conditions of insanity or sanity limited to a significant extent (Article 31 §§ 1 and 2 PC). A judgment upholding an action for the man’s unworthiness of inheritance, assuming that the defendant in these proceedings assisted his mother to commit suicide, could be made only if he were able to be pleaded guilty. Otherwise, namely in the case of declaration of his insanity at the time of committing the act, it would be pointless for the civil court to assess the crime of assisting suicide (Article 151 PC) from the point of view of its severity within the meaning of Article 928 § 1 (1) of the Polish Civil Code.

Gloss to the Judgment of the Court of Justice of the European Union of 13 October 2022 on the agent's entitlement to commission on contracts concluded with customers previously acquired by the agent (Case C-64/21)

The gloss refers to the judgment of the Court of Justice of the European Union of 13 October 2022 in Case C-64/21. The court adjudicated on the problem presented in the request for a preliminary ruling from the Polish Supreme Court (Case I CSK 483/18). The issue considered by the Supreme Court related to the legal nature of the provision of Article 761 1 in fine of the Polish Civil Code, and more specifically to the determination whether this provision is dispositive, imperative or semi-imperative. In reality, the question was whether Article 761 1 in fine of the Polish Civil Code ‘imposes’ the agent's entitlement to commission on contracts entered into by the ordering party with clients previously acquired by the agent for contracts of the same kind, or whether that entitlement may be contractually excluded. The referral to the CJEU for a preliminary ruling resulted from the fact that Article 7(1)(b) of Council Directive 86/653/EEC had been transposed into Polish law by means of Article 761 1 in fine of the Polish Civil Code and, in the Supreme Court’s opinion, it was desirable to apply a pro-EU interpretation. In the glossed judgment, the Court ruled that Article 7(1)(b) of the Directive is dispositive and that the agent's entitlement to commission on such contracts may be derogated. In general, the author of this gloss considers the CJEU's judgment to be correct in the context of the arguments cited by the Court, with those arguments being based on the interpretation borne out by the legislative history of the directive, its genesis and the process of creating its legal provisions at the initial stage.

Gloss to the judgment of the Court of Appeal in Lublin of 30 June 2020 (I ACa 233/19) and to the judgment of the Court of Appeal in Szczecin of 24 March 2021 (I ACa 434/20)No Liability of the Property Owner (Road Manager) for Damage due to the Failure to Maintain Property in Winter Conditions

The gloss refers to judgments rendered by two courts of appeal on the subject of the property owner’s liability for the proper maintenance of pavements and other pedestrianized zones against adverse weather conditions (snow, rain, black ice). The necessity of providing proper maintenance of road infrastructure in winter has been of interest to both civil law scholarship and jurisprudence for a long time, which has resulted in the emergence of different tendencies. The author, who agrees with the position expressed in the glossed judgments that liability for proper maintenance of infrastructure has been regulated in Article 415 of the Polish Civil Code, emphasizes that this provision will apply regardless of the fact whether the liable entity is a private person, a cooperative, a municipality or other unit of local government. In addition to analyzing the provisions in force, the scope of obligations imposed on property owners or road managers and the requirement of exercising due care by the above-mentioned entities, the author also points out that it is possible to present a number of no-liability cases, including events which are actually ‘unfortunate accidents’.

Pojęcie papieru wartościowego a tokeny cyfrowe

Dematerialisation of trading in securities has become an inseparable element of technological development. A consequence of this phenomenon is dematerialisation of securities. Therefore, the question arises whether a digital token may be recognized as a security. The above issue requires an analysis of the concept of a security in the context of national and EU regulations. It must be emphasised that Polish Civil Code does not define a security. For this reason, many doubts concerning validity of the numerus clausus principle arose.

Testament na statku morskim lub powietrznym de lege lata i de lege ferenda w prawie polskim na tle porównawczym

A will made on board a ship or an aircraft (often referred to as travel will) is regulated in Polish law in Article 953 of the Polish Civil Code of 1964. Since this regulation has never been applied in practice and because of interpretative doubts related to it, as well as the standards of conduct of the Polish carriers, unaware of the existence of this type of will, the Polish literature suggests that it should be removed from the Civil Code. Also, a proposal by the Polish government from 2022 provides for the removal of this type of will from the Civil Code. The removal of the travel will from the Civil Code may be supported by arguments derived from comparative law. A number of European legislations contain forms of wills that can only be drawn up while travelling on a ship (more often) or by aircraft (less often). However, they are criticized in the literature. Emphasis is placed on the fact that wills of this nature are not used in practice, and arguments are presented referring to the lack of economic rationality of this solution. Moreover, a comparative analysis shows first of all that the creation of the possibility to draw up a will in a specific form for persons travelling by sea or air is not obvious. There are no obstacles preventing a traveller from drawing up such a will on board a ship or an aircraft in holographic form, or to draw up a will in public form (e.g. in the notary’s office) before starting the voyage. On the other hand, in cases of emergency it is admissible to draw up a will in a specific form (e.g. an oral will). In practice, in emergency situations involving a shipwreck or a plane crash, in most cases a travel will drawn up on paper will be destroyed.

Der Ansatz von herrenlosen Grundstücken im polnischen Recht – Wirklichkeit oder Fiktion?

Assumption of ownerless lands in polish law. Reality or fiction? Many legal systems belonging to the so called civil law tradition are familiar with ownerless lands. This family includes polish law as well, however it is usually assumed that a land in Poland is constantly owned by someone. The explanations of that theory are neither comprehensive nor convincing. The author prepared an article based on his diploma thesis, which offers a deepened argumentation about the previously mentioned topic. The conclusion is that in fact there are no ownerless lands in Poland, but the justification of that legislative decision is profoundly different than just brief statements that were delivered by current polish legal literature. The special emphasis has been put on the meaning of Art. 46 of the polish Civil code. Any functional interpretation has just a subsidiary meaning but is not meaningless at all.

Allegro als die größte Online-Plattform in Polen mit eigenen, quasi-autonomen Regeln

Online platforms are defined as intermediaries for the economic exchange of goods and services. They aim to connect users with each other so that contracts can be concluded between them. This article discusses how the largest online platform in Poland, i.e. Allegro, works. It discusses the conditions for the participation of users, the available modes of concluding contracts on Allegro, the course of the transaction and its implementation, the feedback system (rating system), the dispute resolution methods offered by Allegro, the additional guarantees for buyers offered by Allegro and the possibility of blocking or cancellation of a user's account by Allegro. The scope of regulation (by Allegro) of relations between Allegro users leads to a reduction in the scope of application of the provisions of the Polish Civil Code. The online platform offers buyer-friendly internal legal solutions that are designed to function much more efficiently and effectively than the institutions of applicable law. In this way, users can effectively pursue their claims via Allegro without having to rely on the support of the state apparatus to enforce their claims.

The Loss of a Close Person – Intersections Between Law and Psychology. Case of Polish Law


 
 
 
 The Polish legislator allows for compensation for the harm suffered due to the death of close person resulting from a tort (for example, a car accident). The basis for such claims is Article 446 § 4 of the Polish Civil Code, which contains a vague expression “the closest family member.” Courts must therefore determine whether and how someone was close to someone. The language of the judicial justifications indicates that the courts do not determine proximity solely based on legal criteria. In this publication, I will analyze court decisions in which the scope of the vague expression “the closest family member” has been adjudicated. The analysis aims to establish the legal understanding of closeness in the indicated case and to determine whether and how references to psychology support it.
 
 
 

State Liability for Judicial Decisions Infringing EU Law – the Polish Experience

The liability of Member States for damages caused by the issuance of a judicial decision in breach of EU law has been shaped in the jurisprudence of the CJEU, as a mechanism to ensure effective legal protection of EU citizens. Its primary purpose is to ensure that in a situation where a court of a Member State causes damage to a citizen by violating EU laws by its ruling, the citizen has a legal remedy to obtain compensation for such a violation. Based on the principle of procedural autonomy of the Member States, such claims can be asserted on the grounds of national procedural rules under the substantive legal grounds laid down by the CJEU in its case law.Research conducted by the authors of the article indicates that despite more than 18 years of Poland’s presence in the European Union, it is extremely difficult to find rulings on liability for damages for breach of EU law by Polish courts. It seems that such a state of affairs may be caused by ambiguities and interpretative doubts that arise on the grounds of Polish procedure in the case of claims for damages for breach of EU law by the courts. Both in the doctrine and case law there are far-reaching divergences as to whether the pre-judgment provided for in the Polish Civil Code should apply to claims for breach of EU law, and if so, when it should be applied. These doubts are reflected in the scant judicial case law on the issue in question. It seems that the indicated procedural doubts and lack of clarity as to the proper procedure in pursuing such claims may deter parties from more frequent initiation of proceedings to obtain compensation for breach of EU law by a national courts in the Polish context.

Początek biegu terminu przedawnienia roszczenia o zwrot środków ze stosunku rachunku bankowego

This article is dedicated to the issue of the beginning of the prescription period of a claim for repayment of funds from a bank account relationship. The doctrine presents various positions in this regard, most of which lead to a departure from the general rule set forth in Art. 120 § 1 sentence 2 of the Polish Civil Code. According to the view presented, the pr escription period for a claim for repayment begins to run from the date on which the relevant pool of funds is deposited with the bank or up to a few days later. The running of the prescription period is constantly interrupted by the bank’s acknowledgement of the holder’s claim, which, in the opinion of the author of the article, makes it possible to refute the arguments of the opponents of this approach. Cases of unjustified non-recognition of a holder’s claim by the bank should be viewed through the prism of Art. 5 of the Polish Civil Code.

The institution of entering into a lease of a dwelling after the death of the current tenant (Art. 691 of the Civil Code) in the light of the jurisprudence

The aim of this study is to explain how an institution can enter into a lease after the death of the tenant in accordance with Art. 691 of the the Polish Civil Code. The author tries to clarify the wording of Art. 691, which raises questions of interpretation on the basis of case law. In particular, the author undertook the examination of the conditions for entering into the rental relationship of a dwelling after the deceased tenant. Subsequently, the focus was on approximating the premises covered by this standard, then on clarifying the terms “residence” and “other persons to whom the tenant owed maintenance,” and on actual cohabitation with the tenant. The legal proceedings relating to the regulation in question are dealt with next, while the final part describes the possibility of terminating the contract by the rightholder and briefly refers to the provision of Art. 691 para. 5 of the Civil Code.