Czy niezachowanie należytej staranności przez osobę trzecią dokonującą z dłużnikiem czynności prawnej krzywdzącej wierzycieli zasługuje na sankcję?

Abstrakt

According to Article 527 para. 1 of the Polish Civil Code, a third party who performed a legal act with the debtor is liable towards the debtor's creditors if such person had known about the detrimental character of the transaction to the creditors, or if it could have recognized the detrimental character of the transaction had it exercised the duty of care. The article questions such solution as being too severe towards a third party who performed the legal act. In the author's opinion, demanding that a third party should exercise the duty of care towards the creditors of the other party is inconsistent with the predominant opinion presented both in tort law and in contract law, according to which one should take into account the interests of the third persons only with regard that it is forbidden to act consciously to the detriment of others. Neither tort law nor contract law demand considering the interests of others in the broader sense; generally, in the civil law there is no duty of care towards all possible people, because only acts that are consciously damaging the others are forbidden and sanctioned.

The theories of the actio pauliana also do not provide any justification for such severe treatment of a third party who transacted with the debtor as is presupposed in the Polish Civil Code. The main statement presented in the literature, according to which such third party can bring a claim against the debtor in order to receive indemnification gives only limited comfort, because the addressee of such claim is a debtor who is ex definitione insolvent and thus unable to provide any meaningful indemnification.