Polish Civil Code Research Articles

Monetary Compensation for Violating Family Ties with the Immediate Family Members of the Injured Party under the new Article 4462 of the Polish Civil Code

The article investigates the background, contents, methods of interpretation as well as consequences of the newly adopted Article 4462 of the Polish Civil Code. The authors conduct a critical analysis of the provision by indicating numerous doubts that have not been resolved by the legislator when introducing it to the Civil Code. What seems particularly doubtful is the relationship of the provision with regulations in force relating to the possibility of awarding financial compensation to persons indirectly injured and the principle of applying this provision to the state of events that occurred prior to its entry into force date.

Functions of easement (servitude)– de lege lata and de lege ferenda

The Polish Civil Code provides for three types of easements (servitude), namely easement in gross (personal servitude), easement appurtenant (predial servitude) and transmission easement (transmission servitude), each with a specific function within the legal system. The first two types of easement have emerged out of Roman law tradition. It should be pointed out that the traditional understanding of the purpose of easement is not sufficient or optimal, considering the changing social and economic realities of today. This would justify a renewed debate as to the purpose of establishing and maintaining particular types of easement on property. Also, easement could see more extensive use in legal practice once its definition is fixed. This paper presents de lege lata conclusions and de lege ferenda postulates, speculating on the most desirable future directions in which the functions of easement could evolve in order to best serve the needs of various civil-law transactions.

Succession of Digital Goods. A Comparative Legal Study

The purpose of this article is to present possible solutions to the problem of access to digital contents left by a deceased user of Internet services under different European legal systems. Discussion of this issue from a comparative perspective will allow the drawing of general conclusions about the direction de lege lata in which European legislation is heading. In my opinion there should be dedicated legal provisons introduced into the polish civil code which would pertain to digital goods. This would also facilitate the harmonization of inheritance matters in a European perspective. Technological development requires amending the civil code to fit changing reality.

Gloss to the Resolution of the Supreme Court of 26 February 2021, III CZP 24/20 [on the Interpretation of the Will

The resolution with gloss concerns the rules for interpreting a will. The Supreme Court stated in it that an interpretation of a will should be performed taking into account all circumstances, including those external to the will and using all means of evidence. The Supreme Court decided that it is the court adjudicating in the case for inheritance acquisition, assessing the evidence gathered in a specific case, that should assess whether it is actually possible to establish the will of the testator. The author of the gloss accepts the thesis of the resolution, but argues with the position of the Supreme Court contained in its justification that only the rules for evidence assessment constitute an instrument allowing one to establish the testator’s will. In the opinion of the author of the gloss the functional interpretation of Art. 948 of the Polish Civil Code (k.c.) indicates limits to the interpretation of the will. After all this is a process that renders it possible to determine the testator’s will in a manner that does not raise any doubts. Therefore, if the interpretation of the will of such fails to secure such a degree of certainty, even despite a positive assessment of the evidence gathered in the case, the court should state that the inheritance has been acquired under the Act.

Civil Law Status of Transmission Equipment (Article 49 of the Polish Civil Code)

<p>The article provides an analysis of the civil law status of transmission equipment (devices) referred to in Article 49 of the Civil Code (transmission devices). Conducting business activity by a transmission entrepreneur in the field of utility services and waste disposal requires the use of transmission devices. These devices are located on real estate which are not owned by the entrepreneur and in a typical situation they remain permanently connected to such real estate. According to Article 49 of the Polish Civil Code, such devices do not constitute component parts of real estate if they are part of an enterprise. The assessment of the entry of transmission equipment into the composition of the enterprise and their ownership status, especially after entering the composition of the enterprise raises interpretation doubts. Determining who is the owner of transmission equipment is important because the owner of the equipment may be granted (Article 305<sup>1</sup> of the Civil Code) a transmission easement, which is a right related to the ownership of these devices. In this article, an attempt was made to resolve the aforementioned interpretation doubts.</p>

THE PASSIVE SIDE OF THE CAPACITY TO ACT

The paper elaborates the problem of the passive side of capacity to act which consists in the ability to receive (or to be an addressee of) the will declarations. Given the absence of an explicit regulation in the Polish civil code, the passive side of capacity to act has lost its attribute of a doctrinal evidence. However, the capacity to act should not be understood in a popular way limiting this concept to its active side only. Such an understanding generates in fact a grievous gap in the Polish civil law.

Liability of an Air Carrier for Personal Damage

Abstract The aim of the study is to present the principles of civil liability for damage caused to a passenger for which an air carrier is responsible, regulated by the Warsaw and Montreal Conventions, and the norms of national law providing issues that are not included in international law acts. The paper presents a historical overview of the applicable Conventions. The provisions of the Polish Civil Code that are useful for interpretation of law institutions and complement the legal norms contained in the Conventions are also presented. The compiled issues put the legal norms contained in various law systems in order by indicating the practical dimension of the pursuit of potential claims by passengers vis-à-vis air carriers. This is followed by a discussion of the grounds for excluding third party liability of an air carrier in case of excessive or illegitimate claims of the carrier’s clients, and of the insurer.

The Scope of Exercising Public Authority in the Context of State (Treasury) Liability for Vaccinations Against COVID-19

Purpose: The purpose of this paper is to investigate the possibility of attributing liability to the State (State Treasury) for damages suffered by individuals who undergo voluntary vaccination against COVID-19, introduced in Poland from December 2020. Design/Methodology/Approach: The author employs a dogmatic method, analyzing the potential liability of the State on the assumption that there is currently no possibility to make a binding determination that the public authority's action in this regard can be judged as unlawful. Findings: With this assumption in mind, the study shows that the Polish Civil Code provisions make State liability possible only if it is established that the actions of public authorities are peremptory in nature. It then becomes possible to apply Article 4172 of the Civil Code, which constitues the liability of public authorities based on the principle of equity for the so-called legal damages. Practical implications: Conclusions can be applied in lawsuits in the event of vaccine-induced damages. Originality/value: The issue of tort liability for non-mandatory vaccinations, but administered by the State, has not been more widely analyzed by the Polish legislation so far.

Glosa do uchwały Sądu Najwyższego z dnia 20 listopada 2019 r., III CZP 3/19

The aim of this article is to critically respond to the resolution of the Supreme Court of 20th November 2019 (III CZP 3/19). In the author’s opinion, the resolution of the Supreme Court deserves approval. In the current legal status, there is no possibility of a valid reservation of liquidated damages (in Polish literally referred as a contractual penalty) in case of withdrawal from the contract due to non-performance of an obligation of pecuniary nature. In the author’s opinion, this kind of reservation is contrary to the provisions concerning the legal nature of the statutory right of withdrawal (art. 491 et seq. of the Polish Civil Code), as well as provisions concerning liquidated damages (art. 483 et seq. of the Polish Civil Code). The author approves the final decision of the Supreme Court, however, is critical of its justification. In particular, he notices to the inaccuracies in the concept proposed by the Supreme Court explaining that the liquidated damages reserved in the analysed circumstances are considered invalid. Moreover, he draws attention to the technical and workshop issues of the justification, pointing to chaos and lack of clarity and transparency of the Supreme Court’s arguments.

Należyta staranność adwokata i radcy prawnego wykonujących zawód w ramach indywidualnej praktyki prawniczej (analiza porównawcza polskiego i amerykańskiego systemu prawnego)

The Author of the article conducts an analysis of the concept of due diligence in Polish and US civil law in the aspect of individual legal practice of the profession of attorney. The study concerns the discussion of the liability in the subject matter and the legal regime that is created by the key articles of Polish Civil Code, views of Polish judicial decisions and the US judicial decisions. Herein an attention has been devoted to the problem of the definition and demarcation of the semantic range of the due diligence clause, opinions of the doctrine and judicature and the practical issues. This paper includes the attempts of the author to indicate the relevant circumstances which give the rise to civil liability for legal malpractice.

Protection of Personal Rights in Poland on the Basis of the Judgment of the Polish Supreme Court – The Tiger Case

Abstract The protection of personal rights in Poland is currently one of the fastest developing areas of law. Each year it is noted that the number of cases in this area is growing, mostly because people are looking to protect their rights, such as freedom, name, pseudonym, image, health or another right on the basis of the Polish Civil Code. It allows them to receive financial compensation where their, mostly, immaterial rights were infringed or when they feel injured. This is also why the open catalogue of the values protected by personal rights is increasing rapidly, and now one can observe that such values as national identity, a sense of belonging to a gender or dignity are protected by these rights. The subject matter of this article is an opinion on the Polish Supreme Court case where the Court decided that the nickname ‘Tiger’ used by a Polish boxer cannot be protected as a personal right on the bases of the Civil Code. This article presents basic information about protecting personal rights in Polish law and sets out the author’s opinion on this case.**

Szczególni pełnomocnicy spółek kapitałowych w sporach ze spółką

<p>The study provides an analysis of the status of representatives in disputes with the company and, consequently, of the rules of representation in those disputes. The research problem addressed herein is based on the analysis of Article 210 § 1 and Article 253 of the Polish Code of Commercial Partnerships and Companies (CCPC). These rules govern issues related to the occurrence of disputes with the company and, in particular, the problem of the participation of the company’s representatives in those disputes. It should be clear that power of attorney plays a special role in the regulation of the Code of Commercial Partnerships and Companies. It is also widely applicable not only in the classic representation of entities or persons within the company, but also of the company itself. A representative is granted a special status due to the transactions in which he participates. One should also keep in mind the situations where a representative represents the company in classical activities besides Articles 210 or 253 CCPC. In that case, the representative’s authorisation is “activated” by the body usually having the power to do so (the management board) or by other representatives (statutory representatives or representatives appointed under a power of attorney, if the conditions laid down in Article 106 of the Polish Civil Code are met). Another situation is when they are appointed by a meeting of shareholders or partners (Articles 210 and 253 CCPC). Another feature of the special power of attorney is the use of it in disputes and not in legal transactions. It can therefore be concluded that the use of the word “representative” in the context of the provisions of the Polish Code of Commercial Partnerships and Companies may be of particular importance.</p>

A Gloss to the Decision of the Supreme Court of 22 July 2020 (III CZP 31/19) on the Admissibility of the Victim's Claims for Compensation for the Costs of Care Provided Free of Charge by the Relatives Pursuant to Article 444 § 1 of the Polish Civil Code

The gloss refers to the Supreme Court’s resolution (III CZP 31/19), which states that pursuant to Article 444 § 1 of the Civil Code, an injured person who has suffered a bodily injury or health disorder may claim compensation for the costs of care provided to them free of charge by their relatives. The author of the gloss expresses his critical attitude towards the resolution, proving that the term 'cost' applied by the legislator in Article 444 § 1 must be interpreted as an expense. Therefore, if the victim has not paid any care expenses, he or she has not suffered damage and is not entitled to compensation. In addition, the obligation to take care of a family member who has suffered a bodily injury or health disorder results from the regulations of family law and is of the family law nature. Consequently, the care provided by a relative ought not to be considered as a benefit the value of which is taken into account while estimating the amount of damage.

Admissibility of Electronic Awards in the UNCITRAL Model Law Jurisdiction: Polish Law Example

The author examines whether an award signed electronically can be deemed to constitute an award in writing as provided for in Article 31 of the UNCITRAL Model Law, which is reflected verbatim in article 1197 of the Polish Civil Code. The conclusion is that an electronic signature as such is functionally equivalent to the written signature. Having said that, not all types of electronic signature can be admitted in this respect. The eIDAS Regulation (Regulation 910/2014 of the European Parliament and of the Council on electronic identification and trust services) provides for three types of electronic signature: regular, advanced, and qualified, stating that the qualified signature should be deemed as equivalent to the written signature. The author is of the opinion that both the advanced and qualified electronic signatures fulfil the requirements of the form ‘in writing’, ensuring the safeguards as listed in article 26 of the Regulation. Specifically: it is uniquely linked to the signatory; it is capable of identifying the signatory; it is created using electronic signature creation data that the signatory can, with a high level of confidence, use under his sole control; and it is linked to the data signed therewith in such a way that any subsequent change in the data is detectable. arbitration, form of acts in law, arbitration award, electronic form, UNCITRAL model law, electronic signature, eIDAS Regulation

Prevention and Rescue in Liability Insurance, i.e. the Opinion of the World Community of Compulsory Insurance in the Light of Interpretation of Article 439 of the Civil Code

This article examines preventive obligations imposed on the insurer and other entities of the insurance relationship in liability insurance. Not only does the analysis consider comparative legal aspects, but it also shows the evolution of regulations of Polish private law. Moreover, it refers to a specificity of the Compulsory Insurance Act. Having paid particular attention to the interpretation and practical relevance of Article 439 of the Polish Civil Code, the author invokes possible differences in the interpretation of the injured party status in liability insurance and of the person threatened by damage within the meaning of Article 439 of the Polish Civil Code. Furthermore, the discussion in Polish specialist literature on the range of designates of the term "consumer" in insurance law has been referred to. Finally, conclusions de lege ferenda have been drawn, as well as postulates presented for the interpretation of the above-mentioned Article 439 in the context of private insurance.

The standards of tortious liability in the West Galician Code and its influence on ABGB in light of modern Polish tort law

The aim of the article is to describe the general outline of the provisions of the West Galician Code of 1797 regarding standards of tortious liability. To this end, the genesis of this codification and its significance for the development of law in Central Europe is shown. Chosen provi-sions of Chapter XIII of Part Three of the Code are then discussed and compared, especially those incorporating specific or original regulations, taking into account the relevant provisions in ABGB and the Polish Civil Code. The utilization of comparative, legal-historical and dogmatic methods shall enable showing the evolution and timelessness of certain contract law problems over the last two centuries.

Culpa in Contrahendo as the General Ground for Precontractual Liability in Polish Civil Code

The justified and legally relevant relationship between contracting partners acting together in order to conclude a contract along with a comprehensive system of precontractual liability have been recognized in Poland at least since the enter into force of the Code of Obligations in 1933. Nevertheless until 2003 there wasn’t any specific legislative enactment of general duty of fair dealing in the precontractual stage. This article sheds light on the legal concept of culpa in contrahendo, with particular emphasis on questions of tort, contract or tertium genus, the objective character of precontractual liability, the scope of protected precontractual interest, and the adequate causal link and the moment of breaking off negotiations. The article concludes with an overview of the perspectives of culpa in contrahendo in the new Civil Code in Poland.

Więź emocjonalna ze zwierzęciem a dobra osobiste

Emotional bond with an animal and personal interests The paper looks at the legal consequences of a domesticated animal’s death in the sphere of private law. A prevailing view of the Polish doctrine excludes any claims aimed at monetary or non-monetary compensation of the harm suffered by an owner as a result of an animal’s death. Several recent cases concerning such claims, resolved by the Polish courts differently, have been criticized. In particular, most authors think that the emotional bond between a person and their animal cannot qualify as a personal interest protected by Article 24 of the Polish Civil Code. The article discusses critically the majority view and presents arguments in favor of a different approach to the civil law compensation for harm caused by a domesticated animal’s death.

Fryderyk Zoll (starszy), Leon Piniński i zakres zastosowania actio negatoria. Koncepcje dwóch XIX-wiecznych romanistów a regulacja Kodeksu cywilnego

Przedmiot badań: Kwestia zakresu zastosowania actio negatoria budziła spore zainteresowanie w XIX-wiecznej doktrynie i stanowiła przedmiot ożywionych dyskusji. W artykule odniesio­no się do koncepcji sformułowanych przez Fryderyka Zolla (starszego) oraz Leona Pinińskiego. Zwrócono również uwagę na uregulowania polskiego Kodeksu cywilnego, poszukując jednocze­śnie śladów teorii tych dwóch dziewiętnastowiecznych uczonych we współcześnie obowiązują­cych regulacjach.
 Cel badawczy: Celem artykułu jest nie tylko przypomnienie poglądów dwóch wybitnych pol­skich romanistów: Fryderyka Zolla (starszego) i Leona Pinińskiego, ale także odniesienie ich za­patrywań do współcześnie obowiązujących uregulowań dotyczących skargi negatoryjnej. Artykuł jest próbą udzielenia odpowiedzi na pytanie, czy we współczesnej regulacji skargi negatoryjnej można odnaleźć ślady koncepcji tych rodzimych uczonych.
 Metoda badawcza: W artykule wykorzystano metodę prawno-historyczną oraz dogmatyczną.
 Wyniki: Koncepcje sformułowane przez F. Zolla (starszego), a także L. Pinińskiego, dotyczące skargi negatoryjnej z pewnością zasługują na uznanie. Klarowność ich przedstawienia, a także precyzja wywodów uprawnia do stwierdzenia, że warsztat tych uczonych stał na najwyższym po­ziomie. W obecnie obowiązującym Kodeksie cywilnym odnaleźć można ślady poglądów dwóch polskich romanistów. Prawdopodobnie nie da się jednak ustalić, czy twórcy aktualnie obowiązu­jących uregulowań sięgali bezpośrednio do dzieł F. Zolla (starszego) oraz L. Pinińskiego podczas prac związanych z kodyfikacją prawa

Selected institutions of the General part of the Polish Civil Code

The article first outlines the basic features of Polish legal culture from the perspective of the philosophy of law and theory of law. Polish legal culture is quite commonly described as moderately positivist. The validity of natural law, and especially the superiority of the norms of natural law over the norms of positive law, is not recognized, however, the legislature requires that moral considerations be taken into account in the process of enacting, interpreting and applying the law. It has been emphasized that Polish legal culture has created very advanced tools enabling an almost algorithmic interpretation of regulations. However, the practice differs quite significantly from the theory. The article then provides an overview of selected institutions of the General part of the Polish Civil Code: subjective rights (with a particular emphasis on the abuse thereof), civil-law protection of personal interests, acts in law (with a particular emphasis on the capacity to perform acts in law, making declarations of intent, interpretation of declarations of intent and defects of declarations of intent), procedures for concluding contracts, conditions, time limit and limitations of claims. The Civil Code can be described as a creative, original compilation of regulations adopted from the Napoleon Code, the German Civil Code and the Austrian Civil Code. The institution of the abuse of subjective rights resembles, at least in terms of the terminology used in the Code, solutions known from Soviet law; other institutions, not taking into account their specific features, fall within the “standard” European legal solutions. The article also presents the most important ruling of the Supreme Court, which determines the practice of applying some of the provisions that constitute the above-mentioned institutions.