The purpose of the journal is to record the developments in the field of the civil law including the latest legislative changes, to research the impact of new technologies and social changes on the private law and its institutions, and to accentuate the doctrine of the private law of Central and Eastern Europe and emphasize its unique character in the international discourse. The journal is co-financed by the Ministry of Education and Science, within the aid granted under the program "Development of scientific journals on the basis of contract no. RCN/SP/0308/2021/1 of 6 March 2023 and by the Faculty of Law and Administration under the Strategic Programme Excellence Initiative at the Jagiellonian University.
Understanding the concepts of wrongfulness of result and wrongulness of conduct in Polish civil law
In Polish legal literature, one can find references to the concepts of the wrongfulness of result and the wrongfulness of conduct. Both of these concepts are derived from German legal literature and jurisprudence. According to the theory of wrongfulness of result, wrongfulness arises from the fact that a legally protected good or interest has been violated. According to the theory of wrongfulness of conduct, wrongfulness arises from a violation of rules or prohibitions established by the legal system, whether derived from provisions of law or norms of morality. In Polish civil law, there are at least two spheres of tortious liability in which these concepts are considered: liability for damage resulting from court judgments and infringement of personal goods. The first sphere is doubtful, due to the fact that only the conduct of a judge as the person issuing a judgment — and not the validity of the judgment as such — could be assessed as wrongful or not. Furthermore, it does not have much in common with the German concept, which is based on the assumption that the legal system protects certain goods through absolute subjective rights, and that their violation is treated as the decisive factor in determining the wrongfulness of specific conduct. The second sphere is more similar to its German-law counterpart. However, it does not cover the various distinctions present in German literature. Furthermore, its theoretical correctness raises numerous doubts in Polish legal literature.
action for the declaration of wrongfulness of a final and non-appealable judgment
Copyright (c) 2026 The Transformation of Private Law
Healthcare in the context of contractual obligation of result - challenges and questions
The article examines the contractual relationship between a healthcare provider and a patient from the perspective of private law. It builds upon current debates among legal scholars and commentators, and addresses the ongoing transformation of healthcare provision. Particular attention is devoted to the resulting implications and questions regarding the content of contractual obligations between the provider and the patient, taking into account the patient’s position as a consumer.
Effective exercise of the creditor's right to substitute performance
Substitute performance is an institution whose importance in practice should not be underestimated. However, Article 480 of the Civil Code presents several practical challenges that have yet to be adequately addressed by either civil law or procedural law doctrine. By combining both perspectives, this article resolves many of these issues, including the legal nature of the norm set out in Article 480, as well as the conditions for invoking a state of emergency as described in Article 480 Section 3. The article also outlines how a claimant should draft a claim to assert the rights provided for in Article 480 Sections 1 and 2. Additionally, it explains the relationship between a judgment authorizing substitute performance and the provisions of Article 1049 of the Code of Civil Procedure. Issues such as the accumulation of claims for performance with requests for substitute performance at the defendant’s expense in the event that the debtor fails to comply within a set timeframe, the permissibility of novation as security, and passive and active joint and several liability are also addressed for the first time.
Rights of Dissolution, Termination, Avoidance and Beyond in Multi-Party Contracts and Obligations. Between Myth and Legal Uncertainty?
The aim of the article is to examine the commonly accepted view in doctrine and jurisprudence that, in the case of a multi-party side of an obligation, the exercise of the right to terminate, the right to avoid the contract, or any similar rights requires the involvement of all entities forming such a party. The starting point for the analysis is the recognition that the dominant view is based on an unverified assumption: that the rights in question are always attributed jointly to the entire „collective” party to the obligation. This assumption appears to be false. The author proposes abandoning the a priori assumption about the joint character of the aforementioned rights in multi-party obligations. He suggests replacing it with a purposive interpretation of each provision granting these rights, considering each separately as a tool for determining the holder of the right. The purposive interpretation of selected provisions discussed in the article (e.g., those concerning defects in declarations of will) indicates that their ratio legis supports the hypothesis that the legislator grants some of these rights individually to particular entities forming part of the multi-party side of an obligation. The practical consequence of this conclusion is that these rights may be exercised by such entities individually, without the consent of the remaining entities forming part of the multi-party obligation.
Is Free Will a Fiction? A Review Article on Sapolsky’s Monograph — Determined
The article offers a review of Robert Sapolsky’s monograph Determined: A Science of Life without Free Will. The book clearly represents one of the most consistent contemporary attempts to deny the existence of free will, drawing on extensive evidence from neuroscience, psychology, biology and sociology. The review discusses Sapolsky’s principal theses and analyses their implications for fundamental constructs of private law, such as autonomy of will, intention, consent, mistake and tort liability. It identifies both the reductionist limitations of Sapolsky’s position and its inspirational value, which encourages a reconsideration of classical private-law categories in light of contemporary knowledge about the determinants of human behaviour. The article situates the monograph within the broader interdisciplinary debate on free will and emphasises its relevance for the further development of private-law theory.
ELI-Mount Scopus European Standards of Judicial Independence
Translation into Polish of the official version of the ELI-Mount Scopus European Standards of Judicial Independence published by the European Law Institute (ELI) — The Translator gratefully acknowledges the permission to translate the text given by the ELI on 27th May 2025. Polish not being a working language of the ELI, the ELI assumes no liability for any errors, omissions, or ambiguities in the translation.
Europejski Instytut Prawa (European Law Institute)
The (Lack of) Regulation of Intestate Succession for Unmarried Partners in Europe
The increasing numbers of unmarried partnerships, the introduction of legislation affecting unmarried partners’ legal position, and the growing inclusiveness of succession law lead to a question: Should unmarried partners also be among each other’s intestate heirs? The majority of European countries do not provide for unmarried partners to inherit from one another in intestacy. Only some jurisdictions grant rights or claims to unmarried partners in intestacy; from the European perspective, such provisions are both exceptional as well as innovative. They are also largely unexplored in international legal literature. Thus, the first aim of this paper is to collect and analyze the relevant provisions from across Europe. Accordingly, the discussion begins with a systematic overview of the rights and claims currently available to unmarried partners in Europe in intestacy (Part I). This part of the publication comprises four sections: The first two provide an overview of the different types of intestate rights unmarried partners can exercise; the third and fourth survey the claims they can pursue. Part I concludes by stressing the profound diversity of the various legal solutions across Europe. The second aim of this paper is to support efforts to draft legislation to grant intestate rights or claims to unmarried partners to remedy the current situation in which unmarried partners do not inherit from each other in most European jurisdictions. Based on the overview provided in Part I, Part II therefore examines the policy questions (and challenges) that legislators must consider and address when regulating entitlements for unmarried partners. It emphasizes that there is no universal solution that could be implemented in every country; the introduction of rights or claims for unmarried partners must be preceded by consideration of the unique legal and socio-cultural framework in a given jurisdiction and must be harmonized with other succession-law rights and claims available there.
List of Reviewers for Transformacje Prawa Prywatnego 2025
Replacing the Institution of Incapacitation with the Supported Decision-Making Model
Because Polish regulations concerning the institution of guardianship, which automatically deprive individuals of decision-making autonomy, are inconsistent with international human rights standards, legislative work is underway in Poland to replace this institution in the civil law system with a model of supported decision-making. The aim of this publication is to analyze the draft Act on supported decision-making instruments. Specifically, the analysis is conducted within the context of the civil law system. The publication also presents a characterization of the proposed supported decision-making instruments.
Copyright (c) 2025 The Transformation of Private Law
Creditor Protection Institutions of a Cross-Border Transformed Company in the Light of Directive 2019/2121 of the European Parliament and of the Council of 27 November 2019 and the Polish Commercial Companies Code
The article defines the concept of "cross-border conversion", taking into account the influence of the case law of the Court of Justice of the European Union (CJEU) on the development of this notion. It then outlines the phases of cross-border corporate operations, allowing for a more precise identification of potential instruments for the protection of creditors at each stage of the conversion procedure. The subsequent part of the analysis highlights the risks that cross-border conversions pose for creditors and discusses the principle of continuity and its impact on their legal position. Furthermore, the study presents creditor protection mechanisms provided under both EU law and the Polish Commercial Companies Code. The article focuses primarily on substantive law instruments, while also including references to procedural law and conflict-of-laws rules where relevant.
Preparatory Sessions as a Method of Alternative Dispute Resolution in Civl Court Cases
The aim of this article is to answer the following questions: Has the newly introduced institution of preparatory sessions in the Code of Civil Procedure achieved the objective of reducing the duration of civil proceedings, as intended by the amendment? Are the legal regulations governing preparatory sessions adequate to achieve this goal, and if not, in what direction should they be amended? What does a model preparatory session look like? In this study, the author presents the origins of the legal provisions governing preparatory sessions and interprets these provisions. The study analyzes data regarding the number of scheduled preparatory sessions and their outcomes. Furthermore, the study highlights common practical problems associated with organizing preparatory sessions and proposes ways to address them. These issues are particularly significant given the lack of detailed research on this topic and the scarcity of literature in the field. The study offers conclusions on whether it is worthwhile to organize preparatory sessions and, if so, how they should be conducted, as well as the impact of such sessions on the subsequent course of court proceedings and the overall number of cases. The author presents her perspective on the direction of legislative changes that could fully harness the potential of this institution to significantly reduce the duration of civil court proceedings. In conducting this analysis, the author relies on the practices of Polish courts, including a survey of civil judges. The study employs both the dogmatic method and sociological methods of legal research, such as surveys and interviews. Due to its limited scope, this study does not aim to be exhaustive. Its purpose is to outline the topic and associated issues, identified based on the author's professional experience as a civil judge, and to propose solutions.
the right to have a case heard without undue delay
mediation and negotiation techniques in the courtroom
Contractual subrogation: analysis of admissibility, current legal framework, and the need for regulation
This article argues that the conclusion of a subrogation agreement between the original creditor and a third party effecting payment (solvens) is admissible under current Polish law as an innominate contract falling within the principle of freedom of contract. Furthermore, it is proposed that the explicit regulation of contractual subrogation ex parte creditoris, known from the 1933 Code of Obligations, be reinstated in the Civil Code. In this context, arguments are presented pointing to significant differences between contractual subrogation and assignment, both in terms of their legal construction and the economic objectives pursued by these agreements. Subrogation can only apply to pecuniary claims that are due, always occurs together with payment, and the scope of the transfer of the receivable is determined by the amount of payment made by the solvens. Its purpose is to increase the solvens’s chances of recovering the funds expended on satisfying the creditor. A subrogation agreement may prove useful in situations where statutory subrogation does not apply and where the payment is made by a security provider. The final part of the article attempts to reconstruct the legal regime of contractual subrogation, including the restrictions on the transferability of claims and the scope of the accessory rights to the claim that are transferred to the subrogated party. The analysis is enriched by the experience of French legal doctrine and practice, as well as that of other legal systems in which contractual subrogation is a well-established institution.
Tokenization of Shares as an Example of Asset Tekonization - Comparative Reflections
The concepts of distributed ledgers and blockchain technology have been a subject of doctrinal discussions in Poland and abroad for several years. Closely related to these technologies is the notion of tokenization, which involves the representation of property rights through entries in distributed ledgers. This concept is gaining increasing traction. Technological innovations are not entirely foreign to the Polish legal system, as demonstrated by Article 3281 § 3 of the Code of Commercial Companies, which allows the shareholders' register to take the form of a dispersed and decentralized database. Consequently, it can be inferred that shares of Polish joint-stock companies may be subject to tokenization. However, the concise nature of this provision has given rise to several uncertainties, as noted by legal scholars. This paper aims to evaluate the framework established in the Code of Commercial Companies, particularly in terms of its ability to provide a robust legal foundation for the effective operation of shares within distributed ledger environments. The paper also includes comparative analyses of the German and Swiss legal systems, which permit the existence of securities in distributed ledgers. Finally, the paper offers de lege lata and de lege ferenda proposals.
The Construction of Copyright Relinquishment in the Polsih Legal Order
Some time ago, the academic community of Western research centres began examining the possibility of the definitive relinquishment of copyrights (both economic and moral rights) by virtue of the author's will, which led to WIPO reports adopting a comparative approach to this issue. The Polish doctrine has paid relatively little attention to the subject of copyright relinquishment, effectively marginalising the issue; hence the need for this study. This article briefly outlines the concept of copyright relinquishment, which allows an author to voluntarily relinquish the copyright to their own work, thereby placing it in the public domain and making it non-appropriable. The article then examines various solutions in foreign legal systems, either directly referencing this concept (e.g., Colombia, Chile, Kenya) or implementing it to varying degrees (e.g., France, India, Norway, Luxembourg, the USA, and the United Kingdom). Within the Polish legal system, the possibility of copyright relinquishment is first analysed in the framework of private law, specifically dispositive and unilateral legal acts. Additionally, conclusions are drawn by analogy to property law - specifically the concept of dereliction (Article 181 of the Civil Code). The main part of the article, however, focuses on analysing the normative framework - particularly Articles 16 and 17 of the Copyright and Related Rights Act - and doctrinal perspectives on the possibility of relinquishing either economic or moral rights. This analysis leads to the conclusion that, under de lege lata, relinquishing copyright in Poland is not currently possible. The analysis leads the author to conclude that emerging socio-economic needs, which require rethinking and adjusting existing normative solutions, may significantly influence the evolution of legal doctrine. Over time, this may also lead to broader transformations in private law in general and copyright law in particular.
One-Person Limited Liability Partnership for One Year? The Implication of the Withdrawal (Termination) of a Limited Liability Partnership Contract in the Context of the Art 98 § 2 of Code of Commercial Code
This paper examines the legal implications of the termination (withdrawal) of a limited liability partnership (professional partnership) agreement by all partners except one. The central question is whether, in such a scenario, the partnership should be dissolved and liquidated pursuant to Articles 64-66 of the Code of Commercial Companies, or whether it should continue as a one-person limited liability partnership under Article 98 § 2 of the Code of Commercial Companies for a transitional period of one year. The authors critically analyze the ratio legis of Article 98 § 2 and its legal consequences. They challenge the rationale for its existence and explore both theoretical and practical issues arising from its incorporation into the Code of Commercial Companies.
consequences of withdrawal (termination)
one-person limited liability partnership
The Rebus Sic Stantibus Clause - an Economic and Legal Understanding of an Extraordinary Change in Relations in the Face of Post-2020 Socio-Economic Change
Events such as the SARS-Cov-2 pandemic, persistently rising inflation and wars are reflected not only in social and political life, but also in economic transactions. This complicates the prediction of the effects of contracts and fulfilling them often negatively impacts at least one party involved. This research aims to determine whether instruments like the rebus sic stantibus clause, outlined in Article 357(1) of the Civil Code, can effectively mitigate the adverse effects of contracts. The analysis will be conducted through the lens of Law & Economics, with a focus on the practical application of Article 357(1) in Polish jurisprudence. In the first part of the article, certain general assumptions and theses stemming from Law & Economic are examined. Of particular importance to the discussion is economic efficiency in the Pareto sense, which is closely linked to the bargaining model. This section concludes with an explanation, based on the bargaining model, of the requirements posed by economic analysis of law regarding obligations law, including the existence of the clausula rebus sic stantibus. The second part of the article conducts a dogmatic analysis of Article 357(1) of the Civil Code using tools from Law & Economics. This section also covers the general assumptions of the rebus sic stantibus clause and predictions regarding its application presented by representatives of legal sciences at the onset of the pandemic. Special attention is given to post-2020 jurisprudence related to the rebus sic stantibus clause. To structure the discussion, the article will be divided into four parts: inflation, currency fluctuations, the pandemic, and Article 357(1) as a procedural demurrer. The discussion will also include the history of the rebus sic stantibus clause in the Polish legal system. The article will also explore alternative solutions that can substitute for the rebus sic stantibus clause. This paper aims to formulate preliminary conclusions about the understanding of extraordinary changes in circumstances after 2020 and assess whether the solutions currently adopted by courts are economically effective.
Admissibility of Acquisitive Prescription of Land Easements in Comparative Perspective
The aim of the article is to present rules on acquisitive prescription of land easements in a comparative perspective. The article discusses the law of civil and common law jurisdictions (Germany, Switzerland, Austria, France, Italy, Spain, England, Australia, Canada, the United States, and Rome of the classical period). It includes a brief review of the law of adverse possession of land in order to offer some substantive depth. An observation underlying the analysis is that there is a relatively close correlation between the strength of the land registration system adopted in a jurisdiction and the admissibility of land and easement prescription in that jurisdiction. Jurisdictions with strong registration systems (Germany, Torrens jurisdictions) are less likely than jurisdictions with weak registration systems (France, Italy, the United States) to admit prescription, although this is not an absolute rule (see: England). Although some legal systems admit acquisitive prescription of easements and others do not, there is a common core of understanding among most of them regarding what prescription is and how it should operate, if it is to be allowed. This common core can be traced to the Roman rule that land use resulting in prescription must be nec vi, nec clam, nec precario. Translated into modern language, the use needs to be open and visible, and should lead to the acquisition of the easement only where the landowner has an appropriate opportunity to identify and interrupt the use. Certain Latin European jurisdictions have developed additional conditions for the prescription of easements, namely requirements of continuity (met when no human action is needed for the exercise of the easement) and disclosure of the easement by specific installations. It is arguable that this leads to arbitrary results and excessive curtailment of prescription. The Polish land registration system is a compromise between strong and weak registration systems. It is suggested that the prescription of easements be retained in Poland, as it serves useful social purposes. A general requirement of nec vi, nec clam, nec precario should be a guiding principle in Polish law regarding easement prescription, and more detailed requirements, particularly those concerning installations disclosing the use, should be employed cautiously, as they may unduly restrict prescription and produce arbitrary results.
Usucaption of agricultural real estate and its limitations in the light of the introduction, validity and derogation of Art. 172 § 3 of the Civil Code
On 30 April 2016 trade in agricultural real estate in Poland was significantly restricted. The restrictions did not apply only to contractual trading, but also extended to non-contractual ways of acquiring property. At that time, Article 172 § 3 of the Civil Code was adopted,indicating that only an individual farmer, as defined by the Act on the Formation of the Agricultural System, could acquire agricultural property, as defined by the Act on the Formation of the Agricultural System, by way of usucaption. This provision was repealed as of 5 October 2023. This study addresses the basic issues related to the introduced and subsequently repealed regulation, both in the context of intertemporal issues and against thebackground of the general provisions of the Act on the Formation of the Agricultural System.
Construction of the Value Chain in the Directive on Liability for Defective Products - a Comparison of Directive 85/374/EEC and Directive 2024/2853
The 20th century has been characterised by the progressive fragmentation of previously centralised production centres into value chains. This new form of production has necessitated, and continues to necessitate, updates to legislation and existing legal constructs, which have not kept pace with changing economic circumstances. One response to this phenomenon has been the EU directive on liability for defective products, which has introduced a new regime of tort liability. The defective product liability regime allows injured persons to claim compensation for damage caused by a defective product not only from the direct seller with whom they have contracted but also from other participants in the value chain. Due to changes in the organisation of production and the increasing importance of distribution through digital tools, the European Commission decided to propose a new draft directive to replace the previous 1985 directive. Following the legislative process, the European Parliament and the Council adopted a common text of the new directive, which was published in the Official Journal of the EU on 18 November 2024, thereby repealing the previous directive. The aim of this article is to analyse the construction of the value chain as presented in both the previous and the newly adopted directives, using progressive digitalisation as a criterion for analysis. Special attention is devoted to those actors in the value chain who appear in the new directive but were not included in the scope of the previous directive.
Review of the Monograph by Karolina Panfil Withdrawal from a Contract as a Sanction for Breach of Contract Published by Wolters Kluwer in Warsaw in 2018 with 440 Pages
The author of the review critically analyzes the main theses of Karolina Panfil's monograph Withdrawal from a contract as a sanction for breach of contract. The review examines the proposal to separate the sanction regime of rescission beyond the existing division into contractual and statutory rescission rights. Karolina Panfil's ideas are contrasted with the assumptions that originally inspired the authors of the Code of Obligations responsible for the current regulation of the right of withdrawal. The article refers to the criticism of the monograph in Filip Pubart's review.
Copyright (c) 2024 The Transformation of Private Law
The AI Liability Directive and German Law
In 2022, the EU Commission published a proposal for a directive to adapt the rules on non-contractual civil liability to artificial intelligence. various approaches have been discussed, in particular that of strict liability as well as that of fault-based liability. In view of the fact that the technology of artificial intelligence is still new, but is developing rapidly in many areas and cultures, it is important to find out whether the EU Commission has opted for a strongly preventive or a more accompanying regulation of liability for AI systems. It will also be necessary to clarify how the draft directive will affect German law. In this context, it is particularly important to consider whether the risks posed by AI systems can already be addressed without such a directive, and whether and how the directive on AI liability will address the risks for manufacturers, users and potential victims in terms of civil liability.
Private Law Aspect of Dumpster Diving - Remarks on the Polish and German Law Examples
The article discusses the phenomenon of dumpster diving in the context of the problems that arise in connection with the unclear ownership status of things (especially food waste) found in dumpsters. In particular, the adequacy of the application of the legal construction of abandonment in this case is assessed. The findings are deepened, where necessary, by related criminal law considerations, as well as by comparative remarks on German law. The article concludes that in the case of food waste, intention to abandon is not always easy to determine. And, more generally, there is a tendency in the interpretation of the owner's intention to favor solutions involving the derivative acquisition of property and to avoid uncertainty as to who owns a particular thing.
Can a Legal Entity Claim Adequate Compensation under Czech Law in the Event of Infringement of Its Good Reputation?
This article provides an analysis of the possible means of protection for a legal entity that has suffered an infringement of its reputation. The paper focuses specifically on two options - unfair competition and general private law protection of reputation: it points out the differences between them, especially with regard to the right to claim adequate compensation as a claim for compensation of non-pecuniary damage caused by the infringement of the reputation of a legal entity, both in terms of legal regulation and the current case law of the Czech courts.
Separate Proceedings with the Participation of Consumers - Strengthening the Legal Protection of Consumers in Civil Procedure or Complicating the Examination of Cases with Their Participation?
The aim of the article is to evaluate the introduction of new separate proceedings with the participation of consumers into the Civil Procedure Code. The author analyzes the scope of application of the new regulation. This new separate proceeding is conducted in cases of claims of consumers against entrepreneurs and claims of entrepreneurs against consumers. The author points out that the concept of consumer has a wide meaning in Polish civil law, so the scope of application of this separate proceeding is also wide. Separate proceeding with participation of consumers contains three separate legal regulations. One of them is regulation of territorial jurisdiction of the court in cases with participation of consumers, which should be positively assessed. Another provision of this new separate procedure concerns the concentration of the procedural material. This institution raises objections of doctrine because it can violate the equality of the parties of civil procedure. Third regulation concerns the rules of reimbursement, which can be applied if the entrepreneur does not attempt to settle the dispute amicably or avoids participating in such settlement or participates in it in bad faith. The author questions the necessity of introducing a new separate procedure with the participation of consumers, since it contains only three specific regulations, while the reason for introducing a new separate procedure is the large number of separate regulations in relation to the general regulations. The multiplicity of separate proceedings in the Civil Procedure Code causes their concurrence, and the conflict rule, which constitutes about the priority of proceedings with the participation of consumers, will not resolve this concurrence. Therefore, the author comes to the conclusion that this new separate procedure will not strengthen legal protection of consumers in civil procedure, but will complicate examination of cases with their participation.
proceedings with the participation of consumers
Permissibility of Acquisition of Ownership of Author's Economic Rights Not Belonging to the Bankrupt by a Third Party and the Principle of Nemo Plus Iuris
This study attempts to answer the question of whether it is possible for a third party to acquire, as a result of bankruptcy proceedings, the economic copyright in a work erroneously considered part of the bankruptcy estate. The first part of the paper deals with the principle of nemo plus iuris... and the exceptions to it, including those relating to economic copyright. The second part of the paper discusses the effect of the acquisition of property or rights as a result of enforcement proceedings and then as a result of bankruptcy proceedings. The third part presents the basic arguments in favor of the possibility of acquiring the rights in question as a result of the bankruptcy proceedings, even though they did not actually belong to the bankrupt, as well as the arguments against this thesis. Consideration of these arguments has led to the conclusion presented in the conclusion of the publication. The issue in question had not previously been discussed in this form in the legal doctrine.
Considerations of Exploitation (Article 388 of the Polish Civil Code) from the Perspective of Austrian Law and Jurisprudence
The private law protection of interests of an aggrieved party under Article 388 of the Polish Civil Code (exploitation) is not without vulnerabilities. The main problem is the burden of proof (Article 6 of the Polish Civil Code). The same applies to protection under criminal law (Article 286 para. 1 of the Polish Penal Code - fraud), which can be harsh for all potential and/or actual injured parties. Therefore, it is worth to examine the Polish institution of exploitation, including the recent changes in this provision, from the perspective of Austrian law and jurisprudence and, if necessary, to construct de lege ferenda proposals for the Polish legislator.
Non-adoption and Untimely Adoption of the Resolution to Grant Shares in Exchange for Capital Bonds
The Act of 14 April 2023 introduced a new hybrid instrument of capital bonds into Polish law. Upon a triggering event specified in their terms and conditions, capital bonds are converted into shares of the issuer. The conversion takes place as a result of adoption of a resolution of the issuer's management board to grant shares, within the time limit specified in Article 4544 para. 1 of the Code of Commercial Companies. The article analyzes the consequences of failure to meet the deadline for adopting the resolution on the grant of shares, i.e. late adoption of the resolution, failure to adopt the resolution, and adoption of the resolution despite the non-occurrence of the triggering event. Members of the issuer's management board and the issuer are liable for damages caused by the delay in adopting the resolution. In addition, the bondholder may demand that the issuer's management board adopts the resolution. Article 64 of the Civil Code and Article 1047 para. 1 of the Code of Civil Procedure shall apply. An early resolution is null and void, the shares granted in it do not exist and should be eliminated from the market, unless they have undergone assimilation.
The Family Foundation Established in the Last Will
The family foundation represents a major transformation of Polish inheritance law. It is a far-reaching instrument of succession planning, enabling the transfer of assets for many generations ahead. The family foundation is presented as the functional equivalent of the institution of a trust widely used in common law systems. It is even argued that if a trust mortis causa was established in a will (made under foreign law), and the effects of the will were evaluated from the perspective of Polish law (Article 21 of Regulation 650/2012), such a trust could be considered a declaration of the establishment of a family foundation (Article 21(1) of the Family Foundations Act). At the same time, Polish inheritance law is averse to far-reaching trusts. This is manifested in the prohibitions and restrictions provided, among others, in Article 962, Article 964, and Article 981(3) of the Civil Code. An internal inconsistency arises in this regard, since the fundamental inadmissibility of trusteeship mortis causa in the general law of succession is overridden by the family foundation, which allows for full and essentially unlimited trusteeship in succession after the death of its founder. This is particularly evident when one considers the position of other European legal systems, which, instead, seek to balance these mortis causa fiduciary institutions. The purpose of this text is to present the most important legal problems associated with the formation of a family foundation established by a last will (testament), which arise from the interpretation of the law.
Proposal for an amendment to Directive 771/2019 - Modification of the right to choose between subsequent delivery and rectification from the perspective of environmental compatibility
The aim of this article is to analyze the proposal to amend Art. 13 para. 2 sentence 2 of the Sale of Goods Directive and to examine the extent to which a "right to repair" can serve the guiding principles of the European legislator, consumer protection and environ- mental protection. To this end, the urgent need for legislative changes to promote more sustainable consumption and thus environmental protection is presented. This article focuses on the specific form of the proposal and its necessary corrections. To this end, it provides a legal interpretation of the terms "costs", "seller" and "conformity" used in the proposal and presents the resulting consequences. The article then relates these to the desired environmental and consumer protection and shows that both objectives cannot be achieved equally by amending Art. 13 para. 2 sentence 2 of the Directive. The aim of the article is to take a critical look at the "right to repair" and to highlight sustainable and environmentally friendly alternatives and additions to the current proposal.
Concept of Divisibility of the Performance
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.