Abstrakt
The principal aim of the paper consists in the analysis of axiological coherence between the norms of the Polish civil law relating to the right to exclude a disposition of a property by virtue of a contractual arrangement. First, Article 57 of Civil Code that provides for a relative prohibition of contractual exclusions or limitations of the right of disposal of an assignable rights is examined. Thereafter, leges speciales introducing exceptions to the general rule are analyzed (Chapter 2). Those exceptions include both norms reinforcing the general rule (in case of ordinary lien, lien on rights, mortgage), as well as provisions liberalizing it (negative pledge in the case of registered lien and assignment of liabilities).
The author attempts to identify axiological, legal and economic conditions for the adoption of reviewed solutions. The purpose of Chapter 3 is to examine various legal consequences resulting from adoption of different regulations in the discussed norms concerning contractual exclusions of right of disposal. Particular emphasis is put on situations where property is subject to various rights that are governed by different norms concerning the exclusion of the right of disposal. The confrontation of different specific solutions justifies the conclusion that the design of the rules in question is not subordinated to a single hierarchy of values, what in turn justifies the assertion of partial inconsistency of axiological system of the civil law in this respect. The subject matter of the last section is a confrontation of the Polish regulations with the solutions proposed in the Draft Common Frame of Reference. The article concludes with some ? based on the DCFR ? postulates de lege ferenda, as well as with suggestions concerning the interpretation of the rules currently in place.