Struktura części ogólnej prawa zobowiązań (wprowadzenie do dyskusji)

Abstrakt

The author analyses a proper structure of future obligation law in the new civil code in Poland. The Codification Commission for Private Law (its all members were dismissed in December 2015) worked for several years on the draft of general part of obligation law. The proposed structure of this draft was compared in the article on one hand with the structure of the general part of current Civil Code from 1964 and the Code of Obligation from 1933 (which was in force in Poland from 1 July 1934 until the end of 1964) and on other hand with structure of several foreign civil codes ? German Civil Code and Swiss Code of Obligation which were a model for the lawmaker when it prepared the Polish Code of Obligation from 1933; Czech and Hungarian Civil Codes which are the newest in Central Europe and Dutch and Quebec Civil Codes which were the model for many current codifications in the world in last 20 years. This comparison shows that the structure of obligation law in all analysed codes is rather similar. The structure of obligation law in both the current Polish Civil Code and in the draft of general part of obligation law generally do not divert from the structure of obligation law in other civil codes. The most important factor which influences the structure of general part of obligation law is the scope of regulation in general part of the civil code if such part is in the code (e.g. in German and Polish Civil Codes).
Particularly, if there is a regulation concerning the contract law in the general part of a civil code, for example a regulation on procedure of conclusion of the contract (like in Polish current Civil Code), the general part of obligation law regulates only some aspects of conclusion of the contract. If the conclusion of the contract is not regulated in the general part of civil code (as the Codification Commission proposed in the drafts of general part of civil code from 2008 and 2015) this issue is regulated in detail in the general part of obligation law (as in the draft of general part of obligation law). The author presents also the structure of general part of obligation law in the draft prepared by the Codification Commission and explains some new solutions proposed in it. This draft consists of four titles: general provisions, sources of obligation (including torts and unjustified enrichment), extinguishing of obligation (including not only the performance but also set-off, novation etc.) and breach
of obligation. This structure follows the life circle of obligation ? formation of the obligation, performance of the obligation and liability for non-performance. The draft regulates to some extent pre-contractual information duties of the business to the consumers and withdrawal from the contract in consumer contracts which are currently regulated in separate act on consumers rights.