Pojęcie Podzielności Świadczenia

Abstrakt

In a situation where a performance based on a contract (e.g. a construction contract, IT system implementation contract) has an indivisible object (e.g. a building, IT system) and could not be divided into independent identical parts performed simultaneously by different persons acting independently of each other, but this performance is divisible only in time, i.e. it can be performed in time in several stages, without loss of value. by several entities acting consecutively, such a performance cannot be classified as divisible under Art. 379 § 2 of the Polish Civil Code. However at the same time it is divisible performance under Art. 491 § 2 of the Polish Civil Code. The different function of the above provisions, as well as their systematic interpretation, lead to the conclusion that the scope of application of the legal definition of "divisible performance" contained in Art. 379 § 2 of the Civil Code is limited to the norms regulating the effects of a multi-party contract, regulated under Art. 379 et seq. of the Polish Civil Code. The function of Art. 492 § 2 of the Civil Code, on the other hand, is to protect the permanence of the contractual legal relationship (pacta sunt servanda) by specifying the situations in which the creditor can be required to settle with the debtor on the contractual terms for a partially fulfilled performance. On the basis of Art. 491 § 2 of the Civil Code, the performance should also be classified as divisible if it is divisible in time, i.e. if a third party could (on the basis of a separate contract) satisfy the creditor's full inter- est in such a way that it would not have to start performing this performance from the very beginning, but could already make use of the performance partially performed by the previ- ous contractor. If the next contractor could not use the previously performed part of the performance (e.g. due to lack of rights to use the design) when completing the object, and would have to start the performance (e.g. construction works) from the very beginning, repeating the works already performed by the first debtor, it would mean that the performance is not divisible. However, such divisibility of the performance only over the time of its realisation is not a criterion for qualifying the performance as divisible under Art. 379 § 2 of the Civil Code. It would lead to unacceptable results in the application of such a shaped definition for the purposes of determining the effects of a multi-entity party.