Civil law
Legal aid consists of advice, opinions and representation in total or partial guardianship proceedings.
Pursuant to Article 13 § 1 of the Civil Code, a person over the age of thirteen may be placed under plenary guardianship if, as a result of mental illness, mental retardation or other mental disorder, in particular drunkenness or drug addiction, he or she is incapable of directing his or her own proceedings.
Pursuant to Article 16 § 1 of the Civil Code, an adult may be partially incapacitated due to mental illness, mental retardation or other mental disorders, in particular drunkenness or drug addiction, if the person’s condition does not justify total incapacitation, but assistance is needed to manage his or her affairs.
Cases of guardianship fall within the jurisdiction of the district courts. The competent court to hear these cases is the court of the place of residence of the person who is the subject of the application for guardianship or, in the absence of a place of residence, the court of the person’s place of residence.
An application for incapacitation can be made:
- the spouse of the person who is the subject of the application for incapacitation;
- her relatives in the direct line and her siblings;
- its legal representative.
Relatives of a person who is the subject of an application for incapacitation may not make this application if the person has a legal representative.
A request for partial guardianship can be made as early as one year before the person concerned reaches the age of majority
Submission of an application recklessly or in bad faith is punishable by a fine.
If necessary to protect the person affected by the guardianship proceedings or his or her property, the court may appoint an interim counsel for him or her. The appointment of an interim counsel shall have the effect of restricting the person affected by the guardianship proceedings in his or her capacity on a par with a person who is partially guardian.
Legal assistance consists of advice, opinions and representation in personal injury proceedings, as well as negotiations and the exchange of letters at the pre-court stage.
Legal aid seeks to implement legal remedies to protect personal rights, including most often a good name, reputation or business, or to defend against legal remedies claimed for infringement of personal rights.
Pursuant to Article 23 of the Civil Code, a person’s personal goods, such as, in particular, health, freedom, honour, freedom of conscience, surname or alias, image, secrecy of correspondence, inviolability of the dwelling, scientific, artistic, inventive and rationalisation creativity, remain under the protection of civil law irrespective of the protection provided by other regulations.
Both natural persons and organisational entities with and without legal personality may be represented.
Legal remedies for the protection of personal rights may be civil law, criminal law, and may also derive from press law or copyright and invention law.
Pursuant to Article 24(1) and (2) of the Civil Code, one may demand from the infringer to take actions necessary to remove the effects of the infringement, in particular to submit a statement of appropriate content and in an appropriate form, as well as monetary compensation, damages on general principles or payment of an appropriate sum of money to a designated social purpose.
Criminal law remedies may consist of representation in proceedings for the offences of defamation and insult.
If the infringement of personal rights has arisen in connection with the dissemination of press publications containing inaccurate or untrue information, remedies may consist, in addition to the remedies provided for under the general rules, also in the rectification of the message contained in the press material.
Legal aid may also consist of preparing applications to enter or remove a journal from the register of journals and periodicals or to amend it.
Recognition of death
Legal aid consists of advice, opinions and representation in proceedings for declarations of death.
According to Article 29 § 1 of the Civil Code, a missing person may be declared dead if ten years have elapsed since the end of the calendar year in which, according to existing knowledge, he or she was still alive; however, if the missing person had reached the age of seventy at the time of being declared dead, the lapse of five years is sufficient. According to article 29, paragraph 2, of the Civil Code, a person may not be declared dead before the end of the calendar year in which the missing person would have reached the age of twenty-three.
However, the legislator shortens the time needed for the missing person to be declared dead when special circumstances exist. Pursuant to Article 30 § 1 of the Civil Code, whoever goes missing during a voyage by air or sea in connection with a ship or vessel catastrophe or other special event may be declared dead after the expiry of six months from the day on which the catastrophe or other special event occurred. Paragraph 2 of the said article provides that if the ship or vessel cannot be established to have been shipwrecked, the six-month period shall commence with the expiry of one year from the date on which the ship or vessel was due to arrive at the port of destination or, if it had no port of destination, with the expiry of two years from the date on which it was last known. According to paragraph 3 of the aforementioned provision, a person who is missing on account of an imminent danger to life not provided for in the preceding paragraphs may be presumed dead one year after the day on which the danger ceased or, according to the circumstances, should have ceased.
Presumptions are also introduced to facilitate the determination of the moment of death. Article 31 § 1 of the Civil Code provides that the missing person is presumed to have died at the time indicated in the decision declaring him or her dead. Pursuant to Article 31 § 2 of the Civil Code, the time of the presumed death of the missing person shall be the time which, according to the circumstances, is most probable, or, in the absence of all data, the first day of the period on the expiry of which recognition as dead became possible. According to Article 31 § 3 of the Civil Code, on the other hand, if in a declaration of death the time of death is indicated only by the date of a day, the moment of the presumed death of the missing person is deemed to be the end of that day.
Pursuant to Article 32 of the Civil Code, if several persons lose their lives during a jointly imminent danger, they are presumed to have died simultaneously.
Legal assistance consists of advice, opinions and representation in proceedings for the appointment, dismissal of a curator for a legal person or obtaining permission from the registration court for the curator to carry out a legal act for which the approval of the registration court is required.
According to Article 42 of the Civil Code, if a legal person cannot be represented or conduct its affairs due to the lack of a body or the absence of a body authorised to represent it, the court shall appoint a curator for it. The curator is subject to the supervision of the court which appointed him. Until the aforementioned body is appointed or supplemented or a liquidator is appointed, the curator shall represent the legal person and manage its affairs within the limits specified in the court certificate. The curator shall immediately take steps to appoint or supplement the composition of the body of the legal person authorised to represent it and, if necessary, to liquidate it.
Under pain of nullity, the superintendent is required to obtain the permission of the court of registration to:
1) the acquisition and disposal of an undertaking or an organised part thereof, and for the execution of a legal transaction whereby an undertaking or an organised part thereof is put into temporary use;
2) acquisition and disposal and encumbrance of real estate, perpetual usufruct or an interest in real estate.
According to Article 421 of the Civil Code, a curator shall be appointed for a period not exceeding one year. In particularly justified cases, the appointment of a curator may be extended for a specified period of time if the activities of the curator, for which he is obliged to obtain the authorisation of the registration court, could not be completed before the expiry of the period for which he was appointed. If the activities undertaken by the curator have not led to the appointment or completion of the body of the legal person authorised to represent it or its liquidation, he shall immediately apply to the registration court for the dissolution of the legal person. This shall be without prejudice to the powers of the curator to request the dissolution of the legal person under separate regulations.
Legal aid consists of advice, opinions and representation in proceedings involving defective representation of a legal person or a defective legal person (an organisational unit without legal personality but with legal capacity).
According to Article 39 § 1 of the Civil Code, if the contracting party as a body of a legal person lacks authority or exceeds its scope, the validity of the contract depends on its confirmation by the legal person on whose behalf the contract was concluded. According to Article 39 § 2 of the Civil Code, the other party may set a reasonable time limit for the legal person on whose behalf the contract was concluded to confirm the contract; it becomes free upon the ineffective expiry of the set time limit. Pursuant to Article 39 § 3 of the Civil Code, in the absence of confirmation, the one who concluded the contract as an organ of the legal person is obliged to return what he received from the other party in the performance of the contract and to compensate for the damage that the other party has suffered by the fact that he concluded the contract without knowing that he was not authorised or that he exceeded the scope of the authorisation. Pursuant to Article 39 § 4 of the Civil Code, a unilateral legal act performed by a person acting as a body of a legal person without authority or in excess of its scope is invalid. However, when the one to whom the declaration of intent was made on behalf of the legal person agreed to act without authority, the provisions on entering into a contract without authority apply accordingly. Pursuant to Article 39 § 5 of the Civil Code, the provisions of § 3 shall apply mutatis mutandis where a legal act has been performed on behalf of a legal person that does not exist.
Legal aid consists of advice, opinions and representation in proceedings relating to the disposal or acquisition of a business or farm, as well as in actions taken at the pre-court stage.
According to Article 551 of the Civil Code, an enterprise is an organised set of intangible and tangible components designed to carry out business activities.
It includes, in particular:
1) a designation identifying the undertaking or its separate parts (name of the undertaking);
2) ownership of immovable or movable property, including equipment, materials, goods and products, and other rights in rem in immovable or movable property;
3) rights arising from contracts of lease or hire of immovable or movable property and rights to use immovable or movable property arising from other legal relationships;
4) receivables, rights under securities and cash;
5) concessions, licences and permits;
6) patents and other industrial property rights;
7) property copyright and property related rights;
8) company secrets;
9) Books and documents relating to the conduct of business.
Pursuant to Article 552 of the Civil Code, a legal act having as its object an enterprise includes everything that is part of the enterprise, unless the content of the legal act or specific provisions indicate otherwise.
According to Article 553 of the Civil Code, an agricultural holding is considered to be agricultural land together with forest land, buildings or parts thereof, equipment and livestock, if they constitute or may constitute an organised economic unit, and rights connected with the running of the agricultural holding.
Pursuant to Article 554 of the Civil Code, the purchaser of an enterprise or farm is jointly and severally liable with the vendor for the vendor’s obligations relating to the operation of the enterprise or farm, unless the purchaser was not aware of these obligations at the time of acquisition despite exercising due diligence. The liability of the transferee shall be limited to the value of the acquired enterprise or farm at the time of acquisition and at the prices at the time of satisfaction of the creditor. This liability cannot be excluded or limited without the creditor’s consent.
Legal assistance consists of advice, opinions and representation in proceedings relating to the invalidity or ineffectiveness of legal actions, as well as actions taken at the pre-court stage.
The legislator distinguishes between several types of defects in declarations of intent, which entail different legal consequences.
Pursuant to Article 82 of the Polish Civil Code, a declaration of will made by a person who, for any reason, was in a state which prevents him/her from making a conscious or free decision and expressing his/her will is invalid. This applies in particular to mental illness, mental retardation or any other, even temporary, disorder of mental functions.
According to Article 83(1) of the Civil Code, a declaration of intent made to the other party with his consent to pretend is invalid. If such a declaration was made to conceal another legal action, the validity of the declaration shall be assessed according to the properties of that action. Pursuant to Article 83 § 2 of the Civil Code, the ostensibility of a declaration of will does not affect the effectiveness of a paid legal action made on the basis of an ostensible declaration if, as a result of that action, a third party acquires a right or is released from an obligation, unless he acted in bad faith.
Pursuant to Article 84(1) of the Civil Code, in the event of a mistake as to the content of a legal transaction, one may evade the legal effects of one’s declaration of will. However, if the declaration of will was made to another person, the legal effects of the declaration may be evaded only if the mistake was caused by that person, even if through no fault of his/her own, or if he/she knew about the mistake or could easily notice it; this restriction does not apply to a gratuitous legal transaction. Pursuant to Article 84(2) of the Civil Code, only an error justifying the assumption that, had the person making the declaration of will not acted under the influence of the error and assessed the case reasonably, he or she would not have made a declaration of that content (material error) may be invoked.
According to Article 85 of the Civil Code, the distortion of a declaration of intent by the person used to send it has the same effects as a mistake in making the declaration.
Pursuant to Article 86(1) of the Civil Code, if the mistake was induced by the other party deceitfully, the legal effects of a declaration of will made under the influence of the mistake may be evaded even if the mistake was not material, as well as if it did not concern the content of the legal transaction. According to Article 86 § 2 of the Civil Code, deceit on the part of a third party is tantamount to deceit on the part of a party if that party knew of the deceit and did not notify the other party of it, or if the legal act was gratuitous.
According to Article 87 of the Civil Code, a person who has made a declaration of intent under the influence of an unlawful threat by the other party or a third party may evade the legal effects of his declaration if it follows from the circumstances that he could have feared that he himself or another person is threatened with serious personal or material danger.
The procedure for evading the effects of a declaration of will made under the influence of an error (deceit) or a threat is described in Article 88 of the Civil Code. Pursuant to Article 88 § 1 of the Civil Code, evasion of the legal effects of a declaration of will made to another person under the influence of an error or threat shall be effected by a statement made to that person in writing. According to Article 88 § 2 of the Civil Code, the right to evade expires: in the case of an error – with the lapse of a year from its discovery, and in the case of a threat – with the lapse of a year from the moment when the state of fear ceased.
The legislator has also provided for a special defect in the declaration of will, which is exploitation. Pursuant to Article 388 § 1 of the Civil Code, if one of the parties, exploiting the other party’s forced position, infirmity, inexperience or lack of sufficient understanding of the subject of the agreement, in exchange for its benefit accepts or reserves for itself or for a third party a benefit whose value at the time the agreement is concluded exceeds to a gross degree the value of its own benefit, the other party may, at its choice, demand a reduction of its benefit or an increase of the benefit due to it, or cancellation of the agreement. According to Article 388 § 11 of the Civil Code, if the value of one party’s benefit at the time of the conclusion of the contract exceeds the value of the reciprocal benefit by at least two times, it is presumed that it exceeds it to a gross degree. Pursuant to Article 388 § 2 of the Civil Code, the rights specified in § 1 shall expire with the lapse of three years from the date of conclusion of the agreement, and if the party to the agreement is a consumer – with the lapse of six years.
Legal assistance consists of advice, opinions and representation in proceedings relating to the consequences of exceeding the scope of a power of attorney or proxy or acting without a power of attorney or proxy, as well as actions taken in such cases at the pre-court stage.
Pursuant to Article 103 § 1 of the Civil Code, if the person entering into the contract as a proxy lacks authority or exceeds its scope, the validity of the contract depends on its confirmation by the person on whose behalf the contract was concluded. Pursuant to Article 103 § 2 of the Civil Code, the other party may set a reasonable time limit for the person on whose behalf the contract was concluded to confirm the contract; it becomes free upon the ineffective expiry of the set time limit. Pursuant to Article 103 § 3 of the Civil Code, in the absence of confirmation, the one who has concluded the contract on behalf of another is obliged to return what he has received from the other party in the performance of the contract and to compensate for the damage that the other party has suffered due to the fact that he concluded the contract without knowing that he was not authorised or that he exceeded the scope of the authorisation.
In turn, according to Article 104 of the Civil Code, a unilateral legal act performed in someone else’s name without a power of attorney or in excess of its scope is invalid. However, when the one to whom the declaration of will was made on behalf of someone else agreed to act without a power of attorney, the provisions on entering into a contract without a power of attorney shall apply accordingly.
A separate regulation is introduced by Article 105 of the Civil Code. This provision stipulates that if the proxy, after the expiry of the power of attorney, performs a legal act on behalf of the principal within the limits of the original power of attorney, the legal act is valid, unless the other party knew of the expiry of the power of attorney or could easily find out about it.
The scope of a power of attorney is regulated by statute and generally includes the authority to perform all judicial and extrajudicial acts that are related to the running of an enterprise. According to Article 1091 § 2 of the Civil Code, a power of attorney may not be limited with effect vis-à-vis third parties, unless a special provision provides otherwise. However, according to Article 1093 of the Civil Code, a power of attorney for a particular action is required for the disposal of an enterprise, for the performance of a legal action based on which it is given for temporary use, and for the disposal and encumbrance of real estate. A proxy who performs the above actions without a previously granted power of attorney acts outside the scope of his/her authority.
Legal assistance consists in advice, negotiation, opinion and representation during the conclusion of agreements on the sale or acquisition (sale, donation, exchange, transfer) of a right in rem, i.e. ownership or other rights in rem (limited right in rem or perpetual usufruct). Legal assistance may also consist of representation in proceedings relating to disputes arising from agreements in rem.
Article 155 of the Civil Code provides as follows:
- 1. A contract of sale, exchange, donation, transfer of immovable property or any other contract obliging to transfer ownership of a thing designated in terms of identity shall transfer ownership to the purchaser, unless a special provision provides otherwise or the parties have agreed otherwise.
- 2. If the subject of a contract obliging the transfer of ownership are things designated only as to their kind, the transfer of possession of the thing is necessary for the transfer of ownership. The same shall apply if the subject of the contract obliging the transfer of ownership are future things.
In turn, according to Article 156 of the Civil Code, if the conclusion of a contract transferring ownership is made in performance of an obligation arising from a previously concluded contract obliging to transfer ownership, from an ordinary bequest, from unjust enrichment or from any other event, the validity of the contract transferring ownership depends on the existence of that obligation.
Pursuant to Article 157 § 1 of the Civil Code, ownership of real property cannot be transferred on condition or with reservation of time. In turn, according to Article 157 § 2 of the Civil Code, if a contract obliging to transfer ownership of real estate is concluded under a condition or with reservation of time, an additional agreement of the parties including their unconditional consent to the immediate transfer of ownership is required for the transfer of ownership
Pursuant to Article 158 of the Civil Code, a contract obliging to transfer ownership of real estate should be concluded in the form of a notarial deed. The same applies to a contract transferring ownership, which is concluded in order to fulfil a pre-existing obligation to transfer ownership of real estate; the obligation should be mentioned in the deed.
Pursuant to Article 237 of the Civil Code, the provisions on the transfer of perpetual usufruct shall apply mutatis mutandis to the transfer of real property.
The legislator has also defined in detail the prerequisites for the transfer of a limited right in rem. Pursuant to Article 2451 of the Civil Code, in order to transfer a limited right in rem on real estate, an agreement between the holder and the purchaser is required and, if the right is disclosed in the Land and Mortgage Register, an entry in the Land and Mortgage Register is required, unless a specific provision provides otherwise.
Legal assistance includes advice, drafting of opinions, negotiations and representation in proceedings related to the legal assessment of the effectiveness of the acquisition under the law of a movable property from an unauthorised person.
The legal basis for this claim is Article 169 of the Civil Code.
This provision states as follows:
- 1. If a person who is not entitled to dispose of a movable thing disposes of the thing and gives it to the purchaser, the purchaser acquires ownership from the moment he takes possession of the thing, unless he acts in bad faith.
- 2. However, when a thing lost, stolen or otherwise lost by the owner is disposed of before the expiry of three years from the time it was lost, stolen or lost, the purchaser may not obtain ownership until the expiry of the aforementioned three-year period. This restriction does not apply to bearer money and documents or to items acquired at an official public auction or in the course of enforcement proceedings.
- 3. The provisions of 1 and 2 shall not apply to an item entered in the National Register of Lost Cultural Property.
Legal assistance consists of advice, opinion, negotiation and representation in cases involving the acquisition of property rights by way of succession.
According to Article 172 § 1 of the Civil Code, a holder of real property who is not its owner acquires ownership if he has held the property continuously for twenty years as a spontaneous possessor, unless he obtained possession in bad faith (acquisitive possession). Pursuant to Article 172(2) of the Civil Code, after the expiry of thirty years, the possessor of real property acquires its ownership, even if he obtained possession in bad faith.
Pursuant to Article 173 of the Civil Code, if the owner of the real estate against whom the preservation order runs is a minor, the preservation order may not end earlier than two years after the owner comes of age.
According to Article 174 § 1 of the Civil Code, the possessor of a movable object who is not its owner acquires ownership if he has possessed the object continuously for three years as a spontaneous possessor, unless he has possession in bad faith. Pursuant to Article 174 § 2 of the Civil Code, the provision of § 1 shall not apply to an item entered in the national register of lost cultural property.
On the basis of Article 175 of the Civil Code, the provisions on the running of the statute of limitations for claims shall apply mutatis mutandis to the course of the prescription of claims.
The legislator makes it possible to add the time of possession of a thing by its predecessor in law to the course of the incumbency. Pursuant to Article 176(1) of the Civil Code, if possession has been transferred during the course of the incumbency, the current holder may add the time of possession of his predecessor to the time during which he himself has possession. However, if the previous holder obtained possession of the property in bad faith, the time of his possession may be added only if, together with the time of possession of the current holder, it amounts to at least thirty years. Pursuant to Article 176(2) of the Civil Code, the above provisions shall apply mutatis mutandis where the current holder is the heir of the previous holder.
Legal assistance consists of advice, opinions, negotiations and representation in matters relating to the establishment of separate ownership of premises.
In accordance with Article 7 of the Law of 24.06.1994 on the ownership of premises:
- Separate ownership of premises may be established by contract, as well as by a unilateral legal act of the owner of the property or by a court decision abolishing co-ownership.
- The agreement on the establishment of separate ownership of premises should be made in the form of a notarial deed; an entry in the land and mortgage register is necessary for the establishment of such ownership.
- In the event that separate ownership of premises is established without the certificate referred to in Article 2, paragraph 3, an action for the annulment of such establishment may also be brought by the head of the district authority competent for the location of the real estate.
The content of the agreement is specified in Article 8 of the aforementioned Act. The agreement on the establishment of separate ownership of premises should specify in particular: 1) the type, location and area of the premises and the premises belonging to it; 2) the size of the shares falling to the owners of the individual premises in the joint property. The co-owners may also specify in the agreement the manner of management of the joint property. The agreement on the establishment of separate ownership of premises may be concluded either by the co-owners of the real estate or by the owner of the real estate and the purchaser of the premises.
Separate ownership of premises may also arise in the performance of a contract obliging the owner of the land to construct a house on that land and to establish – upon completion of the construction – separate ownership of the premises and to transfer this right to the other party to the contract or to another person indicated in the contract. In order for this contract to be valid, it is necessary that the party undertaking the construction is the owner of the land on which the house is to be erected and that a building permit is obtained, and that the claim to establish separate ownership of premises and to transfer this right is disclosed in the land and mortgage register.
Another method of separating premises is through a unilateral legal act. Pursuant to Article 10 of the aforementioned Act, the owner of the real estate may establish separate ownership of premises for himself by means of a unilateral legal act. In such a case, the provisions on the establishment of separate ownership by contract shall apply accordingly.
Legal separation of premises may also take place by way of a court decision. According to Article 11 of the aforementioned Act, the provisions on the establishment of separate ownership of premises by agreement also apply mutatis mutandis to the legal separation of premises by virtue of a court decision abolishing co-ownership of real estate.
Legal assistance consists of advice, opinion, negotiation and representation in matters related to disputes between co-owners.
The manner of exercising the right to the common property is regulated by law. Pursuant to Article 199 of the Civil Code, the consent of all co-owners is required for the disposal of the common property and for other acts that exceed the scope of ordinary management. In the absence of such consent, co-owners whose shares amount to at least half may request the court to decide, taking into account the purpose of the intended action and the interests of all co-owners.
According to Article 200 of the Civil Code, each co-owner is obliged to participate in the management of the common thing.
Pursuant to Article 201 of the Civil Code, the consent of the majority of the co-owners is required for ordinary management of the joint property. In the absence of such consent, each co-owner may request a court authorisation to perform the action.
The legislator has also provided for the means of judicial resolution of disputes between co-owners. According to Article 202 of the Civil Code, if a majority of co-owners decides to perform an act that is flagrantly contrary to the principles of proper management of the thing in common, any of the other co-owners may request the court to decide.
In addition, pursuant to Article 203 of the Civil Code, any co-owner may apply to the court for the appointment of an administrator if the consent of the majority of the co-owners cannot be obtained in important matters of ordinary management or if the majority of the co-owners violates the principles of proper management or harms the minority.
According to Article 205 of the Civil Code, a co-owner who manages a thing in common may demand from the other co-owners a remuneration corresponding to his reasonable workload.
Pursuant to Article 206 of the Civil Code, each co-owner is entitled to co-possess and use the common property to the extent that is compatible with the co-possession and use of the property by the other co-owners.
Pursuant to Article 207 of the Civil Code, the benefits and other income from the common property accrue to the co-owners in proportion to the size of their shares; in the same proportion the co-owners bear the expenses and burdens of the common property.
According to Article 208 of the Civil Code, any co-owner who does not manage a thing in common may demand an account of the management within the appropriate time limits.
Legal assistance consists of advice, opinion, negotiation and representation in matters relating to the abolition of joint ownership of property.
Article 210 of the Civil Code provides as follows:
- 1. Each co-owner may request the dissolution of co-ownership. This right may be excluded by a legal act for a period not exceeding five years. However, in the last year before the expiry of the reserved period, an extension for a further five years is permitted; the extension may be renewed.
- 2. The abolition of joint ownership of an agricultural property and an agricultural holding within the meaning of the provisions of the Act referred to in Article 166 § 3 shall be carried out taking into account the provisions of that Act.
Pursuant to Article 211 of the Civil Code, each co-owner may demand that the dissolution of co-ownership be effected by way of division of the common property, unless the division would be contrary to the provisions of the law or to the social and economic purpose of the property, or would involve a substantial change in the property or a substantial diminution in its value.
A further regulation is introduced by Article 212 of the Civil Code, which states that:
- 1. If the dissolution of joint ownership is effected by court decision, the value of the individual shares may be equalized by monetary surcharges. In the division of land, the court may encumber the individual parts with the necessary easements.
- 2. A thing that cannot be divided may be awarded according to the circumstances to one of the co-owners with the obligation to repay the others or sold according to the provisions of the Code of Civil Procedure.
- 3. If surcharges or repayments have been determined, the court shall fix the date and manner of their payment, the amount and date of interest and, if necessary, the manner of securing them. If surcharges and repayments are arranged in instalments, the time limits for their payment may not exceed ten years in total. In cases deserving special consideration, the court may, at the request of the debtor, postpone the date for payment of instalments already due.
Legal assistance consists of advice, opinion, negotiation and representation in cases of compensation for non-contractual use of property.
Pursuant to Article 224(1) of the Civil Code, a bona fide spontaneous possessor is not obliged to pay compensation for the use of a thing and is not responsible either for its wear and tear or for its deterioration or loss. He acquires ownership of the natural benefits which have been detached from the thing during his possession and retains the civil benefits collected if they have become due at that time. Pursuant to Article 224(2) of the Civil Code, however, from the moment the bona fide holder of the property becomes aware of an action against him for its surrender, he is obliged to pay for the use of the property and is liable for its wear, deterioration or loss, unless the deterioration or loss occurred through no fault of his own. He shall be obliged to return the use he has taken since the aforementioned date and to pay the value of the use he has consumed.
Pursuant to Article 225 of the Civil Code, the obligations of a bad faith possessor towards the owner are the same as those of a good faith possessor from the moment the latter learns that an action for the surrender of the thing has been brought against him. However, the bad faith holder shall, in addition, be obliged to reimburse the value of the benefits which he has not obtained by reason of his bad faith and shall be liable for the deterioration and loss of the thing, unless the thing would also have deteriorated or been lost if it had been in the possession of the holder.
A special regulation applies to outlays made on a thing. Pursuant to Article 226 § 1 of the Civil Code, a bona fide holder of a property may claim reimbursement of necessary outlays to the extent that they are not covered by the benefits obtained from the property. He may claim reimbursement of other outlays to the extent that they increase the value of the thing at the time it is handed over to the owner. However, if the outlays were made after the moment when the bona fide holder of the property became aware that an action for the surrender of the property had been brought against him or her, he or she may claim reimbursement of only the necessary outlays. Pursuant to Article 226(2) of the Civil Code, the holder of the property in bad faith may only claim reimbursement of necessary outlays, and only to the extent that the owner would have been unjustly enriched at his expense.
The issue of combined objects is also separately regulated. Pursuant to Article 227(1) of the Civil Code, the sole possessor may, restoring the previous state of affairs, take away the objects which he has combined with the thing, even if they have become its constituent parts. Pursuant to Article 227(2) of the Civil Code, however, where the combination has been effected by the sole possessor in bad faith or by the sole possessor in good faith after the moment in which he became aware that an action for the surrender of the thing had been brought against him, the owner may retain the combined objects, reimbursing the sole possessor for their value and the cost of labour or a sum corresponding to the increase in value of the thing.
Pursuant to Article 228 of the Civil Code, the provisions defining the rights and obligations of the bona fide holder of an item from the moment he or she learns that an action for the surrender of the item has been brought against him or her shall also apply in the event that the holder of an item subject to state ownership has been summoned by a competent state authority to surrender the item.
On the other hand, Article 229 § 1 of the Civil Code regulates the statute of limitations of the owner’s claim against the sole possessor for remuneration for the use of the thing, for the return of benefits or for payment of their value, as well as the claim for compensation for damage due to deterioration of the thing, indicating that it occurs with the lapse of one year from the date of return of the thing. The same applies to the claims of the same holder against the owner for reimbursement of expenditures on the thing.
Legal aid consists of advice, opinion, negotiation and representation in cases for the surrender of property, i.e. in petitia proceedings.
Pursuant to Article 222(1) of the Civil Code, the owner may demand from a person who is in actual possession of his or her thing that the thing be delivered to him or her, unless that person has a right effective against the owner to dispose of the thing.
The active right holder, i.e. the person entitled to bring an action, is the owner of the thing who is not its owner. A passive right of action, i.e. a right of action on the part of the defendant, is an entity in actual possession of an object without a legal title, i.e. it is not its owner and does not have the right to use the object on the basis of a contract concluded with its owner, e.g. a lease or rental agreement.
According to Article 223 § 1 of the Civil Code, the owner’s claims provided for in the preceding article are not subject to the statute of limitations if they relate to real estate.
Legal assistance consists of advice, opinion, negotiation and representation in cases for restoration and cessation of infringements, i.e. cases that are initiated by bringing a negatory action.
Pursuant to Article 222(2) of the Civil Code, the owner has a claim against a person who infringes property otherwise than by depriving the owner of actual authority over the thing, to restore the thing to its lawful state and to desist from the infringement.
A negatory action is brought when the owner does not lose possession over his or her thing, but the exercise of his or her rights over the thing encounters a different kind of difficulty.
Pursuant to Article 223 § 1 of the Civil Code, the owner’s claims provided for in the preceding article are not time-barred if they relate to real estate.
Legal assistance consists of advice, opinion, negotiation and representation in cases for the protection of possession of property (possessory action).
Pursuant to Article 344 § 1 of the Civil Code, the possessor has a claim against the person who has wilfully infringed possession, as well as against the person in whose favour the infringement occurred, to restore the previous state of affairs and to desist from the infringement. This claim does not depend on the good faith of the possessor or on the legality of the possession, unless a final decision of a court or other state authority appointed to hear cases of this kind has established that the state of possession created by the infringement is lawful. This claim is limited by a short time limit. Pursuant to Article 344 § 2 of the Civil Code, the claim lapses if it is not asserted within one year of the infringement.
If possession is restored in accordance with Article 345 of the Civil Code, it shall be deemed to be uninterrupted.
However, the legislator introduces certain limitations. Pursuant to Article 346 of the Civil Code, a claim for the protection of possession does not arise between co-possessors of the same thing if the extent of co-possession cannot be established.
Legal assistance consists of advice, opinion, negotiation and representation in immission cases.
Pursuant to Article 144 of the Civil Code, the owner of a property should, in the exercise of his right, refrain from acts that would interfere with the use of neighbouring properties beyond the average measure resulting from the socio-economic use of the property and local relations.
Immissions may consist of, for example, undertaking activities on neighbouring property that cause noise in excess of what is acceptable in light of local relations and the socio-economic use of the property, planting plants on neighbouring property that excessively obstruct access to light, distributing particles of matter that adversely affect neighbouring property (e.g. sound waves or chemicals), or the penetration of particles of matter onto neighbouring property.
Immissions can not only cause discomfort to people, but also negatively affect things or animals.
If these criteria are violated, the owner of the neighbouring property is entitled to a negatory claim provided for in Article 222(2) of the Civil Code. This provision stipulates that a person who infringes property otherwise than by depriving the owner of actual authority over the thing is entitled to a claim against the owner for the restoration of the legal status and for cessation of the infringement.
Restoration of the lawful state of affairs in the case of an immission consists of allowing undisturbed possession of the thing and eliminating the unlawful interference by the owner of the neighbouring property.
Immissions may also result in the infringement of personal rights. In such situations, claims may be exercised on the basis of Article 24 of the Civil Code and, in the case of damage, also on the basis of Article 415 et seq. of the Civil Code.
Legal assistance consists of advice, opinion, negotiation and representation in cases involving the establishment of perpetual usufruct
Pursuant to Article 232 of the Civil Code, land owned by the State Treasury and located within the administrative boundaries of cities, and land owned by the State Treasury located outside those boundaries but included in a city’s spatial development plan and transferred for the performance of city management tasks, as well as land owned by local government units or their unions may be handed over for perpetual usufruct to natural persons and legal persons. In cases provided for in special regulations, other land owned by the State Treasury, local government units or their unions may also be subject to perpetual usufruct.
Pursuant to Article 233 of the Civil Code, within the limits specified by statutes and principles of social co-existence and by the agreement on the letting of land to the State Treasury or land belonging to local government units or their associations for perpetual usufruct, the usufructuary may use the land to the exclusion of others. Within the same limits, the perpetual usufructuary may dispose of its rights.
Pursuant to Article 234 of the Civil Code, the provisions on the transfer of ownership of real property apply mutatis mutandis to the granting of perpetual usufruct of land to the State Treasury or land belonging to local government units or their associations. It follows in particular from the reference to those provisions that an agreement on the establishment of perpetual usufruct requires the form of a notarial deed.
Legal assistance consists of advice, opinion, negotiation and representation in matters relating to the determination of perpetual usufruct fees.
Pursuant to Article 238 of the Civil Code, the perpetual usufructuary shall pay an annual fee for the duration of his right.
A detailed regulation concerning the principles of establishing and amount of the annual fee for perpetual usufruct is provided for in Article 72 et seq. of the Act of 21 August 1997 on real estate management.
According to this provision, the fees for perpetual usufruct are set at a percentage rate on the price of the land property determined in accordance with Article 67 of the above-mentioned Act. The percentage rate of the first fee for perpetual usufruct ranges from 15% to 25% of the price of the land property. The percentage rates of the annual fees for perpetual usufruct depend on the purpose for which the land property has been given away, as specified in the agreement, and amount to:
- for land property handed over for state defence and security purposes, including fire protection – 0.3% of the price;
- for land property for the construction of religious buildings with accompanying buildings, vicarages in diocesan and religious parishes, diocesan archives and museums, seminaries, religious houses and the headquarters of the chief authorities of churches and religious associations – 0.3% of the price;
- for landed property for charitable activities and non-profit making activities: welfare, cultural, medical, educational, upbringing, scientific or research and development – 0.3% of the price;
3a) for land given over for agricultural purposes – 1% of the price;
3b) for land property on which garages or parking spaces not used for business purposes are located or property designated for such purposes – 1% of the price;
- 1) for land given over for residential purposes, for the realisation of technical infrastructure facilities and other public purposes and for sports activities – 1% of the price;
4a) for land property for tourist activities – 2% of the price;
- for other land properties – 3% of the price.
The legislator also provides for a procedure for the termination of the fee. Pursuant to Article 78(1) of the aforementioned Act, the update of the annual fee is effected by the competent authority, giving notice in writing of the amount of the existing fee by 31 December of the preceding year and simultaneously sending an offer to accept the new amount of the annual fee. The notice of termination should indicate the method of calculation of the new amount of the annual fee and instruct the perpetual usufructuary on how to contest the notice. The termination notice shall be accompanied by information about the value of the real property referred to in Article 77(3) of the said Act and about the place where the appraisal report can be accessed. The provisions of the Code of Administrative Procedure shall apply to the service of the notice.
Pursuant to Article 78(2) of the aforementioned Act, the perpetual usufructuary may, within 30 days of the date of receipt of the notice of termination, file an application with the local government board of appeal competent for the place of location of the real property, hereinafter referred to as ‘the board’, for a determination that the revaluation of the annual fee is unjustified or justified or is justified in a different amount. The application shall be submitted through the competent authority. The application shall be filed against the owner of the real estate. The burden of proof that the grounds for updating the annual fee exist shall lie with the competent authority. The submission of an application shall not release the owner from the obligation to pay the annual fees at the current amount. If no application is filed, the new annual fee offered in the notice shall apply. The new amount of the annual fee, determined as a result of a valid decision of a college or as a result of a settlement agreement, shall be binding as of January 1st of the year following the year in which the previous fee was terminated.
The legislator also provides in Article 79 of the aforementioned Act for the possibility of filing an application for the determination of the perpetual usufruct fee. The application to the college shall be submitted in writing in two copies. In the event that the prerequisites specified in Article 89 § 2 of the Code of Administrative Procedure exist, the college shall immediately set a date for a hearing. The college should strive for an amicable settlement of the case by means of a settlement. If an amicable settlement is not reached, the college shall issue a ruling on the dismissal of the application or on the determination of a new amount of the fee. There is no appeal against the decision of the college. If the application is rejected, the amount of the fee offered in accordance with Article 78(1) shall apply. The provision of paragraph 5 shall apply mutatis mutandis. The new annual fee determined as a result of a valid ruling of the college or as a result of an amicable settlement shall be valid as of 1 January of the year following the year in which the previous fee was terminated. In its ruling, the college awards, at the request of the competent authority, the reimbursement of the costs of proceedings from the perpetual usufructuary if in its ruling it refuses the request referred to in section 1. If in its ruling the college decides that the request is justified, it awards, at the request of the perpetual usufructuary, the reimbursement of the costs from the competent authority. The provisions of the Code of Administrative Procedure on the exclusion of an employee and an authority, on the handling of cases, service, summonses, time limits and proceedings, with the exception of the provisions on appeals and complaints, shall apply accordingly to the proceedings before the college. The provisions on fees and costs shall also apply to the proceedings referred to above. A decision or settlement which has been declared enforceable by the college shall be enforceable by way of court enforcement.
An appeal procedure is also provided for in Article 80(1) of the above-mentioned Act, which states that the competent authority or the perpetual usufructuary may lodge an objection against the decision of the college within 14 days from the date of service of the decision. Filing an objection is tantamount to requesting that the case be referred to a common court with jurisdiction over the location of the property. Pursuant to Article 80(2) of the aforementioned Act, the college shall forward the case file together with the objection to the competent court. The application referred to in Article 78(2) replaces the lawsuit. Pursuant to Article 80(3) of the aforementioned Act, if an objection is filed within the time limit, the decision shall become null and void, even if the objection relates only to a part of the decision. Pursuant to Article 80(4) of the aforementioned Act, on the other hand, if the objection relates only to the costs of the proceedings, the provision of paragraph 3 shall not apply, and the competent court shall decide on the costs of the proceedings by an order in closed session.
The legislator has also provided for the right to request a fee reduction in Article 81 of the above-mentioned Act. Pursuant to Article 81(1) of the above-mentioned Act, the perpetual usufructuary may request an update of the annual fee if the value of the real property has changed and the competent authority has not undertaken an update. The demand should be served in writing by 31 December of the year preceding the annual fee update. In the event of a refusal to update the annual fee, the perpetual usufructuary may, within 30 days of receiving the refusal, refer the matter to the college. If the request is not considered within 30 days, the perpetual usufructuary may, within 90 days of the receipt of the request, refer the matter to the college. The provisions of Articles 77-80 shall apply accordingly. Pursuant to Article 81 Section 2 of the said Act, the burden of proof that the premises for updating the fee exist rests with the perpetual usufructuary. In the light of Article 81(3) of the aforementioned Act, in the case of dismissal of the application by the college, the existing fee shall apply. Pursuant to Article 81 clause 4 of the above Act, the new annual fee determined as a result of acceptance of the request referred to in clause 1 or as a result of a final decision of the college or conclusion of a settlement is binding as of 1 January of the year following the year in which the perpetual usufructuary requested its update. Pursuant to Paragraph 5 of Article 81 of the said Act, the provisions of Paragraphs 3 and 4 apply accordingly if the case has been settled by a final court judgement or a court settlement has been concluded following an objection.
Legal assistance consists of advice, opinion, negotiation and representation in cases involving the establishment of a limited right in rem.
According to Article 244 § 1 of the Civil Code, limited rights in rem are: usufruct, easement, pledge, co-operative ownership right to premises and mortgage. At the same time, pursuant to Article 244 § 2 of the Civil Code, co-operative ownership right to premises and mortgage are regulated by separate provisions. The legislator introduces the principle of numerus clausus of limited rights in rem, which means that both the catalogue of these rights and their content are strictly specified in the Act, and these provisions cannot be modified by the parties to the agreement by establishing a new limited right in rem or specifying its content in a manner that does not fall within the statutory regulation.
Pursuant to Article 245 of the Civil Code, subject to the exceptions provided for by law, the provisions on the transfer of ownership shall apply mutatis mutandis to the establishment of a limited right in rem. However, the provisions on the inadmissibility of a condition or term shall not apply to the establishment of a limited right in rem on real property. The form of a notarial deed is needed only for the declaration of the owner who establishes the right.
Legal assistance consists of advice, opinion, negotiation and representation in cases involving the establishment of an easement of way.
Pursuant to Article 145 § 1 of the Civil Code, if a property does not have adequate access to a public road or to the farm buildings belonging to that property, the owner may demand that the owners of the neighbouring land establish a necessary road easement (necessary road) against payment. According to Article 145 § 2 of the Civil Code, the necessary road shall be carried out taking into account the needs of the property with no access to a public road and with the least burden on the land through which the road is to run. If the need to establish a road is a consequence of the sale of land or another legal transaction, and no agreement is reached between the interested parties, the court shall order, as far as possible, that the road be run through the land that was the subject of that legal transaction. Pursuant to Article 145 § 3 of the Civil Code, in turn, the routing of a necessary road should take into account the socio-economic interest.
In the absence of the consent of the owner of the property that would be encumbered by the easement of the necessary road, an application may be made to the court for the establishment of this easement in a non-procedural procedure.
Legal assistance consists of advice, opinion, negotiation and representation in cases involving a change in the content of a limited right in rem.
A catalogue of limited rights in rem is provided for in Article 244 § 1 of the Civil Code. According to this provision, limited rights in rem are: usufruct, easement, pledge, co-operative ownership right to premises and mortgage. A change in the content of a limited right in rem may take place only within the limits specified by the law.
According to Article 248 § 1 of the Civil Code, an agreement between the right holder and the owner of the encumbered item is required to change the content of a limited right in rem, and if the right was disclosed in the land and mortgage register, an entry in that register is required. Pursuant to Article 248 § 2 of the Civil Code, if a change in the content of the right affects the rights of a third party, the consent of the third party is required for the change. The third party’s declaration should be made to one of the parties.
Legal assistance consists of advice, opinion, negotiation and representation in matters relating to the establishment and modification of the priority of a limited right in rem.
Determining the priority of a limited right in rem consists in indicating the order in which these rights are exercised in relation to the thing they encumber. By way of example, several mortgages may be established on one property.
According to Article 249 § 1 of the Civil Code, if several limited rights in rem encumber the same thing, the right created later may not be exercised to the detriment of the right created earlier (priority). However, according to Article 249 § 2 of the Civil Code, this provision is without prejudice to provisions that define priority differently.
Pursuant to Article 250 § 1 of the Civil Code, the priority of limited rights in rem may be changed. The change shall not affect rights having a priority lower than that of the receding priority right and higher than that of the right which acquires the priority of the receding right. According to Article 250 § 2 of the Civil Code, in order to change the priority of limited rights in rem, an agreement is required between the one whose right is to give way to priority and the one whose right is to obtain the priority of the receding right. If at least one of these rights is disclosed in the land and mortgage register, an entry in the land and mortgage register is also required. On the other hand, according to Article 250 § 3 of the Civil Code, a change in priority becomes ineffective upon the expiry of the right which has given way to priority.
Legal assistance consists of advice, opinion, negotiation and representation in matters relating to recourse claims between joint and several debtors.
The definition of solidarity of debtors (passive solidarity) is introduced by Article 366 § 1 of the Civil Code, according to which several debtors may be obliged in such a way that the creditor may demand the whole or part of the performance from all debtors jointly, from several of them or from each of them separately, and the satisfaction of the creditor by any one of the debtors releases the others (solidarity of debtors). According to Article 366 § 2 of the Civil Code, until the creditor is fully satisfied, all joint and several debtors remain liable.
Solidarity of debtors must have a clear legal basis. According to Article 369 of the Civil Code, an obligation is joint and several if it follows from the law or from a legal act.
One example of the statutory basis for passive solidarity is Article 370 of the Civil Code. According to this provision, if several persons have entered into an obligation concerning their common property, they are jointly and severally liable, unless otherwise agreed.
Joint and several liability of debtors (passive) is also provided for in Article 441 § 1 of the Civil Code, according to which if several persons are liable for damage caused by a tort, their liability is joint and several. According to Article 441 § 2 of the Civil Code, if the damage was the result of an act or omission of several persons, the one who repaired the damage may demand that the others repay an appropriate part depending on the circumstances, in particular the fault of the person concerned and the extent to which he or she contributed to the damage. Pursuant to Article 441 § 3 of the Civil Code, the one who has repaired the damage for which he or she is responsible despite being at fault has a recourse against the perpetrator if the damage was caused by the perpetrator’s fault.
The fulfilment of the entire benefit by one of the joint and several debtors opens the possibility of settlements between them. Pursuant to Article 376 § 1 of the Civil Code, if one of the joint and several debtors has fulfilled the benefit, the content of the legal relationship existing between the co-debtors determines whether and in which parts he may demand repayment from the co-debtors. If nothing else follows from the content of this relationship, the debtor who has fulfilled the service may demand repayment in equal parts. According to Article 376 § 2 of the Civil Code, the share attributable to the insolvent debtor shall be distributed among the co-debtors.
Legal assistance consists of advice, opinion, negotiation and representation in matters relating to recourse claims between joint and several creditors.
According to the statutory definition of solidarity of creditors (active solidarity), which is provided for in Article 367 § 1 of the Civil Code, several creditors may be entitled in such a way that the debtor may fulfil the entire performance to the hands of one of them, and by satisfying any of the creditors, the debt is extinguished against all of them (solidarity of creditors). According to Article 367 § 2 of the Civil Code, the debtor may perform the benefit, at his choice, to the hands of any of the joint and several creditors. However, if an action is brought by one of the creditors, the debtor should perform the service into his hands.
The legislator has defined in Article 378 of the Civil Code the rules of settlement between joint and several creditors in the event that one of them accepts the entire performance from the debtor. According to the above-mentioned provision, if one of the joint and several creditors has accepted the benefit, the content of the legal relationship existing between the joint creditors determines whether and in what parts he is liable to the joint creditors. If nothing else follows from the content of this relationship, the creditor who accepted the service shall be liable in equal parts.
Legal assistance consists of advice, opinion, negotiation and representation in cases involving the use of prohibited (abusive) clauses in contracts between businesses and consumers.
Unauthorised clauses appear in the models used by entrepreneurs in legal relations with consumers. The general rules of bindingness are set out in Article 384 § 1 of the Civil Code. Pursuant to this provision, a template agreement agreed by one of the parties, in particular the general terms and conditions, model agreement or regulations, is binding on the other party if it has been delivered to that party prior to the conclusion of the agreement. Pursuant to Article 384 § 2 of the Civil Code, if the use of a template agreement is customary in relations of a given type, it is also binding when the other party could easily learn about its content. However, this does not apply to contracts concluded with the participation of consumers, except for contracts commonly concluded in minor, everyday matters. Pursuant to Article 384 § 4 of the Civil Code, if one of the parties uses a template contract in electronic form, it should make it available to the other party prior to the conclusion of the contract in such a way that it could store and reproduce the template in the ordinary course of business.
Pursuant to Article 3841 of the Civil Code, a template issued during a continuous contractual relationship binds the other party if the requirements set out in Article 384 have been complied with and the party has not terminated the contract at the earliest notice.
Specific requirements are imposed on the trader when drafting templates. Pursuant to Article 385 § 2 of the Civil Code, a model contract should be formulated unambiguously and in an understandable manner. Ambiguous provisions shall be interpreted in favour of the consumer. The principle expressed in the preceding sentence shall not apply in the proceedings for recognition of the provisions of the template contract as prohibited.
Pursuant to Article 385 § 1 of the Civil Code, in the event of a contradiction between the content of the contract and the model contract, the parties are bound by the contract.
The definition of prohibited clauses is introduced by Article 3851 § 1 of the Civil Code. According to this provision, provisions of a contract concluded with a consumer which have not been individually negotiated are not binding on him if they shape his rights and obligations in a manner contrary to good practice, grossly infringing his interests (prohibited contractual provisions). This does not apply to provisions determining the main benefits of the parties, including the price or remuneration, if they have been formulated in an unambiguous manner. However, pursuant to Article 3851 § 2 of the Civil Code, if a provision of the contract pursuant to § 1 is not binding on the consumer, the parties are bound by the contract to the remaining extent.
The legislator specifies in Article 3851 § 3 of the Civil Code that the provisions of the agreement on the content of which the consumer had no real influence are not individually negotiated. In particular, this refers to the provisions of the contract taken from the model contract proposed to the consumer by the counterparty. Pursuant to Article 3851 § 4 of the Civil Code, the burden of proof that a provision has been individually agreed rests on the one who invokes it.
The criterion for assessing abusiveness is contained in Article 3852 of the Civil Code. The assessment of the compliance of a provision of a contract with good morals is performed according to the state at the time of the conclusion of the contract, taking into account its content, the circumstances of its conclusion and taking into account the contracts remaining in relation to the contract covering the provision being assessed.
In turn, Article 3853 k.c. provides that, in case of doubt, prohibited contractual provisions are deemed to be those which, in particular:
1) exclude or limit liability to the consumer for personal injury;
2) exclude or substantially limit the liability to the consumer for non-performance or improper performance of the obligation;
3) exclude or substantially limit the set-off of the consumer’s claim against the claim of the other party;
4) provide for terms with which the consumer has not had the opportunity to acquaint himself with prior to the conclusion of the contract;
5) allow the consumer’s counterparty to transfer rights and duties under the contract without the consumer’s consent;
6) make the conclusion of the contract subject to an undertaking by the consumer to enter into further contracts of a similar nature in the future;
7) make the conclusion, content or performance of the contract contingent on the conclusion of another contract not directly related to the contract containing the provision under assessment;
8) make performance subject to circumstances depending only on the will of the consumer’s counterparty;
9) grant the consumer’s counterparty the power to make a binding interpretation of the contract;
10) entitle the consumer’s counterparty to unilaterally amend the contract without a valid reason specified therein;
11) grant only to the consumer’s counterparty the power to determine the conformity of the performance with the contract;
12) exclude the obligation to reimburse the consumer for a performance not fulfilled in whole or in part if the consumer renounces the conclusion or performance of the contract;
13) provide for the loss of the right to claim reimbursement of the consumer’s performance rendered earlier than that of the counterparty when the parties terminate, dissolve or withdraw from the contract;
14) only deprive the consumer of the right to terminate, rescind or withdraw from the contract;
15) reserve to the consumer’s contractual counterparty the right to terminate a contract of indeterminate duration without stating valid reasons and an appropriate period of notice;
16) only impose an obligation on the consumer to pay a fixed sum in the event of cancellation of the conclusion or performance of the contract;
17) impose an obligation on a consumer who has not fulfilled an obligation or has withdrawn from a contract to pay an abnormally excessive contractual penalty or a distance;
18) provide that a contract concluded for a fixed period shall be extended unless the consumer, for whom an abnormally short period has been reserved, makes a contrary declaration;
19) provide exclusively for the consumer’s counterparty the unilateral right to change, without valid reasons, the essential characteristics of the performance;
20) provide for the consumer’s counterparty to be entitled to determine or increase the price or remuneration after the conclusion of the contract without granting the consumer a right of withdrawal;
21) make the liability of the consumer’s contractual counterparty conditional on the performance of his obligations by the persons through whom the consumer’s contractual counterparty concludes the contract or with whose assistance he performs his obligation, or make that liability conditional on the consumer’s compliance with excessively onerous formalities;
22) provide for an obligation on the consumer to perform despite the non-performance or improper performance of the consumer’s counterparty;
23) exclude the jurisdiction of Polish courts or submit the case to the jurisdiction of a Polish or foreign arbitration court or other authority, or impose that the case be heard by a court which according to the law has no local jurisdiction.
Article 3855 § 1 of the Civil Code extends the application of the provisions on prohibited contractual provisions. This article stipulates that the provisions concerning the consumer, contained in Article 3851 -3853 , shall be applied to an individual concluding a contract directly related to his/her business activity, when it follows from the content of this contract that it does not have a professional character for him/her, arising in particular from the subject of his/her business activity, made available on the basis of the provisions on the Central Register and Information on Business Activity.
Legal assistance consists of advice, opinion, negotiation and representation in matters relating to the preliminary agreement.
According to Article 389 § 1 of the Civil Code, an agreement by which one or both parties undertake to conclude a specified agreement (preliminary agreement) should specify the material provisions of the final agreement. According to Article 389 § 2 of the Civil Code, if the time limit within which the final agreement is to be concluded has not been specified, it should be concluded within an appropriate time limit set by the party entitled to demand the conclusion of the final agreement. If both parties are entitled to demand the conclusion of the final agreement and each of them has set a different time limit, the parties shall be bound by the time limit set by the party that made the declaration earlier. If no time limit for the conclusion of the final agreement has been set within one year of the conclusion of the preliminary agreement, the conclusion of the final agreement may not be demanded.
In the event of non-performance of the obligation to conclude the final agreement, the entitled party may be entitled to claims of two types. Firstly, pursuant to Article 390(1) of the Civil Code, if the party obliged to conclude the final agreement evades its conclusion, the other party may claim compensation for the damage it suffered by reason of the fact that it hoped to conclude the final agreement. The parties may define the scope of damages differently in the preliminary agreement. This sanction is referred to as a weaker breach of the obligation to conclude the promised agreement. Secondly, pursuant to Article 390 § 2 of the Civil Code, however, when the preliminary agreement satisfies the requirements on which the validity of the final agreement depends, in particular the requirements as to form, the entitled party may enforce the conclusion of the final agreement. Such consequences are referred to as a stronger sanction for non-compliance with the obligation to conclude the final agreement. In addition, the limitation period for claims for non-performance of the preliminary agreement is shortened compared to the general rules. Pursuant to Article 390 § 3 of the Civil Code, claims under a preliminary agreement become time-barred one year after the date on which the final agreement was to be concluded. If the court dismisses the demand to conclude the final agreement, claims under the preliminary agreement become time-barred one year from the date on which the ruling became final.
Legal aid consists of advice, opinion, negotiation and representation in matters relating to a contract for the benefit of a third party.
Pursuant to Article 393 § 1 of the Civil Code, if the contract stipulates that the debtor shall provide performance to a third party, that third party, in the absence of a provision to the contrary in the contract, may demand directly from the debtor to provide the stipulated performance. According to Article 393 § 2 of the Civil Code, a reservation as to the obligation to provide performance for the benefit of a third party may not be revoked or modified if the third party has declared to either party that it wishes to make use of the reservation. Pursuant to Article 393 § 3 of the Civil Code, the debtor may also raise contractual objections against a third party.
Legal aid consists of advice, opinion, negotiation and representation in matters relating to a third-party performance contract.
Pursuant to Article 391 of the Civil Code, if a contract stipulates that a third party will enter into a specific obligation or perform a specific service, the one who has made such a promise is liable for the damage that the other party incurs due to the fact that the third party refuses to enter into the obligation or fails to perform the service. However, he may exempt himself from the obligation to compensate for the damage by performing the promised performance, unless this is contrary to the contract or the nature of the performance.
Legal assistance consists of advice, opinion, negotiation and representation in matters relating to the reservation of a deposit.
Pursuant to Article 394 § 1 of the Civil Code, in the absence of a different contractual stipulation or custom, a deposit given at the conclusion of the contract has the meaning that, in the event of non-performance of the contract by one of the parties, the other party may, without setting an additional date, withdraw from the contract and keep the deposit received, and if it was given by the party itself, it may demand a sum twice as high. Pursuant to Article 394 § 2 of the Civil Code, in the event of performance of the contract, the deposit shall be counted towards the performance of the party who gave it; if such counting is not possible, the deposit shall be returned. Pursuant to Article 394 § 3 of the Civil Code, in the event of termination of the contract, the deposit shall be returned and the obligation to pay the doubled sum shall be waived. The same applies if the non-performance of the contract is due to circumstances for which neither party is responsible or for which both parties are responsible.
Legal assistance consists of advice, opinion, negotiation and representation in cases involving claims for unjust enrichment and undue benefit.
Pursuant to Article 405 of the Civil Code, whoever, without a legal basis, obtained a material benefit at the expense of another person, is obliged to hand over the benefit in kind, and if this is not possible, to return its value. As stipulated in Article 406 of the Civil Code, the obligation to surrender the benefit covers not only the benefit directly obtained, but also everything that, in the event of sale, loss or damage, was obtained in exchange for that benefit or as compensation for damage. According to Article 407 of the Civil Code, if the one who, without legal grounds, obtained a material benefit at the expense of another person, disposed of the benefit in favour of a third person free of charge, the obligation to surrender the benefit is transferred to that third person.
The legislator provides specific rules for the settlement of outlays made by the enriched person. Pursuant to Article 408 § 1 of the Civil Code, the person obliged to hand over the benefit may demand the return of necessary outlays to the extent that they have not been covered by the use which he made of them. He may demand the return of other outlays to the extent that they increase the value of the benefit at the time of its surrender; however, he may take these outlays away, restoring the previous state of affairs. Pursuant to Article 408 § 2 of the Civil Code, whoever, when making the outlay knew that the benefit was not due to him, may claim reimbursement of the outlay only to the extent that they increase the value of the benefit at the time of its release. Pursuant to Article 408 § 3 of the Civil Code, if the party claiming the benefit is obliged to return the outlays, the court may, instead of releasing the benefit in kind, order the return of its value in money, deducting the value of the outlays which the claimant would be obliged to return.
A claim for unjust enrichment may be extinguished in the situations specified in Article 409 of the Civil Code. Pursuant to this provision, the obligation to surrender the benefit or return its value expires if the one who obtained the benefit has used it or lost it in such a way that he or she is no longer enriched, unless by disposing of the benefit or using it he or she should have reckoned with the obligation to return it.
A special case of unjust enrichment is undue benefit. Pursuant to Article 410 § 1 of the Civil Code, the provisions of the preceding articles apply in particular to an undue benefit. Pursuant to Article 410(2) of the Civil Code, a benefit is undue if the one who rendered it was not under any obligation at all or was not under any obligation towards the person to whom he rendered the benefit, or if the basis for the benefit fell or the intended purpose of the benefit was not achieved, or if the legal act obliging to render the benefit was invalid and did not become valid after the benefit was rendered.
The legislator also provides exclusions to the claim for the return of an undue benefit. Pursuant to Article 411 of the Civil Code, the return of a benefit cannot be demanded:
- if the party making the performance knew that he was not obliged to make the performance, unless the performance was made subject to a reservation of return or in order to avoid compulsion or in the performance of an invalid legal act;
- if the performance satisfies the principles of comity;
- if the service has been rendered in satisfaction of a time-barred claim;
- if the service has been rendered before the claim has become due.
Legal assistance consists of advice, opinion, negotiation and representation in tort claims.
The legislator provides for more than a dozen cases of torts in the Civil Code. Torts are also regulated outside the Civil Code in a number of special laws. Torts, otherwise known as torts, are a type of obligation that arises by virtue of the law itself once the conditions set out therein are met. Torts are based on the principles of fault, risk or equity. Depending on the principle that governs the tort, the extent of damages to be compensated and the burden of proof are determined differently.
The Civil Code regulates the following cases of tort liability, i.e. for:
- self-inflicted damage – according to Article 415 of the Civil Code, whoever caused damage to another through his fault is obliged to compensate for it,
- damage caused by the fault of the body of a legal person – according to Article 416 of the Civil Code, a legal person is obliged to compensate for damage caused by the fault of its body,
- damage caused by unlawful exercise of public authority – according to Art. 417 § 1 of the Civil Code, the State Treasury or a local government unit or another legal person exercising such authority by force of law shall be liable for damage caused by an unlawful act or omission in the exercise of public authority; while according to Art. 417 § 2 of the Civil Code, if the performance of tasks in the sphere of public authority has been commissioned, on the basis of an agreement, to a local government unit or another legal person, joint and several liability for the damage caused shall be borne by their executor and the commissioning local government unit or the State Treasury,
- damage caused by the issuance of a normative act – according to Article 4171 § 1 of the Civil Code, if the damage was caused by the issuance of a normative act, its redress may be demanded after the incompatibility of this act with the Constitution, the ratified international agreement or the law is established in the relevant proceedings. Pursuant to Article 4171 § 2 of the Civil Code, if the damage was caused by the issuance of a final ruling or a final decision, its redress may be demanded after their unlawfulness is established in the relevant proceedings, unless separate provisions provide otherwise. This also applies to the case when a final judgment or a final decision has been issued on the basis of a normative act inconsistent with the Constitution, a ratified international agreement or a statute. Pursuant to Article 4171 § 3 of the Civil Code, if damage has been caused by failure to issue a ruling or a decision when the obligation to issue such a ruling or decision is provided for by law, its redress may be demanded after the non-issuance of the ruling or decision is found to be unlawful in relevant proceedings, unless separate provisions provide otherwise. On the other hand, pursuant to Article 4171 § 4 of the Civil Code, if the damage has been caused by failure to issue a normative act, the obligation to issue of which is provided for by a provision of law, the unlawfulness of the failure to issue such an act shall be established by the court hearing the case for redress of damage.
- damage caused by the lawful exercise of public authority – under Article 4172 of the Civil Code, if personal injury has been caused by the lawful exercise of public authority, the injured party may demand full or partial compensation for the injury, as well as monetary compensation for the harm suffered, when the circumstances, in particular the injured party’s inability to work or his or her grave material situation, indicate that equitable considerations so require,
- damage caused by an insane person or a minor (fault in supervision) – pursuant to Article 427 of the Civil Code, whoever, by virtue of the law or contract, is obliged to supervise a person who, due to age or mental or physical condition is not to blame, is obliged to compensate for the damage caused by such a person, unless he/she failed to fulfil the duty to supervise or the damage would also have occurred if supervision had been exercised diligently. This provision shall also apply to persons who, without a statutory or contractual obligation, exercise permanent supervision over a person who, owing to age or mental or physical condition, cannot be held responsible.
In addition, on the basis of Article 428 of the Civil Code, when the perpetrator is not responsible for the damage due to his/her age or mental or physical condition, and there are no persons obliged to supervise or when it is not possible to obtain compensation for the damage from them, the injured party may demand full or partial compensation for the damage from the perpetrator himself/herself, if the circumstances, and in particular the comparison of the financial condition of the injured party and the perpetrator, show that the principles of social co-existence require it.
- damage caused by the person to whom the performance of the activity was entrusted (fault in choice) – according to Article 429 of the Civil Code, whoever entrusts the performance of an activity to another is responsible for the damage caused by the perpetrator during the performance of the entrusted activity, unless he is not at fault in choice or he entrusted the performance of the activity to a person, company or establishment which in the scope of its professional activity engages in the performance of such activities,
- damage caused by a subordinate – according to Article 430 of the Civil Code, whoever, on his own account, entrusts the performance of an activity to a person who, in the performance of this activity, is subject to his direction and is obliged to follow his instructions, is responsible for damage caused by the fault of this person in the performance of the entrusted activity,
- damage caused by animals – according to Article 431 § 1 of the Civil Code, whoever keeps or uses an animal is obliged to compensate for damage caused by it, regardless of whether it was under his supervision or whether it strayed or ran away, unless neither he nor the person for whom he is responsible is at fault. According to Article 431 § 2 of the Civil Code, even if the person who keeps or handles the animal is not liable according to the provisions of the preceding paragraph, the injured party may demand from him to compensate for the damage in whole or in part, if it follows from the circumstances, and in particular from the comparison of the property status of the injured party and that person, that this is required by the principles of social co-existence,
- damage caused by throwing, spilling or falling of an object from the premises – on the basis of Article 433 of the Civil Code, the person occupying the premises is responsible for damage caused by the throwing, spilling or falling of any object from the premises, unless the damage was caused by force majeure or exclusively due to the fault of the injured party or a third person for whom the person occupying the premises is not responsible and whose action could not be prevented,
- damage caused by the collapse of the structure or detachment of a part of it – pursuant to Article 434 of the Civil Code, the owner of the structure is responsible for damage caused by the collapse of the structure or detachment of a part of it, unless the collapse of the structure or detachment of a part of it was caused neither by the lack of maintenance of the structure nor by a defect in construction,
- damage caused in relation to running an enterprise – pursuant to Article 435 § 1 of the Civil Code, an entrepreneur running an enterprise or an establishment run by means of natural forces (steam, gas, electricity, liquid fuels, etc.) on his own account is liable for damage to persons or property caused to anyone by the operation of the enterprise or establishment, unless the damage was caused by force majeure or exclusively through the fault of the injured party or a third person for whom he is not responsible. Pursuant to Article 435 § 2 of the Civil Code, the above provision applies mutatis mutandis to enterprises or establishments manufacturing or using explosive means,
- damage caused by the movement of a mechanical vehicle – pursuant to Article 436 § 1 of the Civil Code, the liability provided for in the preceding article shall also be borne by the spontaneous possessor of a mechanical means of communication moved by means of natural forces. However, when the spontaneous possessor has given the means of communication into dependent possession, the dependent possessor shall be liable. Pursuant to Article 436 § 2 of the Civil Code, in the event of a collision between mechanical means of transport moved by means of natural forces, the above-mentioned persons may mutually demand compensation for the damage sustained only under general rules. Also only on general principles, these persons are liable for damage caused to those whom they transport as a courtesy. Pursuant to Article 437 of the Civil Code, liability as defined in the two preceding articles cannot be excluded or limited in advance.
Legal assistance consists of advice, opinion, negotiation and representation in cases involving claims arising under dangerous product liability. According to the classical doctrinal division, dangerous product liability is the third regime of civil law liability in addition to contract and tort.
According to Article 4491 § 1 of the Civil Code, whoever manufactures a dangerous product within the scope of his business activity (manufacturer) is liable for damage caused to anyone by the product. According to Article 4491 § 2 of the Civil Code, a product is understood to be a movable thing, even if combined with another thing. Animals and electricity are also considered to be a product. Article 4491 § 3 of the Civil Code stipulates that a product that does not provide the safety that can be expected, taking into account the normal use of the product, is dangerous. Whether a product is safe is determined by the circumstances at the time it was placed on the market, in particular the way it was presented on the market and the information given to the consumer about the product’s characteristics. A product cannot be considered unsafe just because a similar improved product was later placed on the market.
According to Article 4492 of the Civil Code, the manufacturer is liable for damage to property only if the damaged or destroyed thing is one of the things ordinarily intended for personal use and that is primarily how it was used by the injured party.
Pursuant to Article 4493 § 1 of the Civil Code, the manufacturer is not liable for damage caused by a dangerous product if the product was not placed on the market or if the product was placed on the market outside the scope of its business activity. Pursuant to Article 4493 § 2 of the Civil Code, the manufacturer is also not liable if the hazardous properties of the product became apparent after it was placed on the market, unless they resulted from a cause previously inherent in the product. He is also not liable if the hazardous properties of the product could not have been foreseen, taking into account the state of science and technology at the time the product was placed on the market, or if these properties resulted from the application of the law.
The legislator introduces presumptions that result in a change in the distribution of the burden of proof. According to Article 4494 of the Civil Code, it is presumed that the dangerous product that caused the damage was manufactured and placed on the market within the scope of the producer’s business activity.
Certain entities are liable for damage caused by a dangerous product. According to Article 4495 § 1 of the Civil Code, the manufacturer of a material, raw material or component part of a product is liable like the manufacturer, unless the exclusive cause of the damage was a defective design of the product or the manufacturer’s instructions. According to Article 4495 § 2 of the Civil Code, whoever claims to be the manufacturer by placing his name, trademark or other distinctive sign on the product shall be liable as the manufacturer. In the same way, he who introduces a product of foreign origin into the domestic market within the scope of his business activity (importer) is liable. Pursuant to Article 4495 § 3 of the Civil Code, the manufacturer and the persons mentioned in the preceding paragraphs are jointly and severally liable. According to Article 4495 § 4 of the Civil Code, if it is not known who the manufacturer or the person specified in § 2 is, the person who sold the dangerous product within the scope of his business activity shall be liable, unless, within one month from the date of notification of damage, he indicates to the injured party the person and address of the manufacturer or the person specified in the first sentence of § 2, and in the case of imported goods, the person and address of the importer. In addition, according to Article 4495 § 5 of the Civil Code, if the seller of the product cannot indicate the producer or the persons specified in § 4, he shall be released from liability by indicating the person from whom he himself purchased the product.
The scope of liability for damages is set out in Article 4497 § 1 of the Civil Code. Compensation for damage to property does not include damage to the product itself or the benefits that the injured party could have achieved by using the product. Furthermore, according to Article 4497 § 2 of the Civil Code, compensation on the basis of Article 4491 is not available if the damage to property does not exceed an amount equivalent to 500 euros.
According to Article 4498 of the Civil Code, a claim for compensation for damage caused by a dangerous product is time-barred with the lapse of three years from the date on which the injured party learnt or, with due diligence, could have learnt of the damage and the person obliged to repair it. However, in any event, the claim shall be time-barred ten years after the product was placed on the market.
The statutory provisions are mandatory, which means that they cannot be modified by contract. According to Article 4499 of the Civil Code, liability for damage caused by a dangerous product cannot be excluded or limited.
In the event of concurrence of claims pursuant to Article 44910 of the Civil Code, the provisions on liability for damage caused by a dangerous product do not exclude liability for damage on general principles, for damage resulting from non-performance or improper performance of an obligation and liability under warranty for defects and quality guarantee.
Legal aid consists of advice, opinion, negotiation and representation in cases of common interest damages.
Pursuant to Article 438 of the Civil Code, whoever forcibly or even voluntarily suffered property damage in order to avert a threatened injury to another or to avert a common danger may claim compensation for the damage suffered in an appropriate ratio from those who benefited from it.
Legal aid consists of advice, opinion, negotiation and representation in property damage cases. Liability for pecuniary damage may have a basis in various provisions of civil law. It arises in liability for damage resulting from a tort, caused by a dangerous product, by improper performance or non-performance of a contract, as well as in other cases provided for by law.
The scope of liability for property damage is defined in Article 361 § 1 and 2 of the Civil Code. The differential method is used to calculate the amount of property damage. According to this provision, the liable party is liable only for the normal consequences of the act or omission from which the damage resulted. Within the aforementioned limits, in the absence of a provision of the law or a contractual provision to the contrary, compensation for the damage shall include the losses that the injured party has suffered and the benefits that he or she could have achieved if the damage had not been caused.
Article 363 § 1 of the Civil Code, on the other hand, defines the methods of repairing the damage. According to this provision, the damage should be repaired, at the option of the injured party, either by restoring the previous state of affairs or by paying an appropriate sum of money. However, if the restoration of the previous state of affairs is impossible or would entail excessive difficulties or costs for the obligor, the injured party’s claim is limited to the payment in money. Pursuant to Article 363(2) of the Civil Code, if the damage is to be repaired in money, the amount of compensation should be determined in accordance with the prices from the date of determining the compensation, unless special circumstances require that the prices existing at a different time be taken as the basis.
When determining the extent of the damage, Article 362 of the Civil Code is also taken into account. According to this legal standard, if the injured party has contributed to the occurrence or increase of the damage, the obligation to repair the damage is reduced accordingly according to the circumstances, especially the degree of fault of both parties.
Legal aid consists of advice, opinion, negotiation and representation in cases of non-pecuniary damage. This takes the form of non-material damage, i.e. negative psychological experiences. In the current state of the law, as a rule, it is only in the tort liability regime that non-material damage can be claimed.
Pursuant to Article 444 § 1 of the Civil Code, in the event of bodily injury or disorder of health, reparation of the damage shall cover all resulting costs. At the request of the injured party, the party liable to compensate for the damage should pay in advance the sum needed for the costs of medical treatment, and if the injured party has become disabled, also the sum needed for the costs of preparation for another profession. Pursuant to Article 444 § 2 of the Civil Code, if the injured person has totally or partially lost his/her earning capacity or if his/her needs have increased or his/her future prospects have decreased, he/she may demand an appropriate pension from the person liable for compensation for damage. Pursuant to Article 444 § 3 of the Civil Code, if the damage cannot be precisely determined at the time of the judgment, the injured party may be awarded a provisional pension.
Pursuant to Article 445 § 1 of the Civil Code, in the cases provided for in the preceding article, the court may award the injured party an appropriate sum as financial compensation for the harm suffered. Pursuant to Article 445(2) of the Civil Code, this provision also applies in the case of deprivation of liberty and in the case of inducement, by deception, rape or abuse of a relationship of dependence, to submit to an act of immorality. Pursuant to Article 445 § 3 of the Civil Code, a claim for compensation passes to the heirs only if it has been acknowledged in writing or if the action was brought during the life of the injured party.
According to Article 446 § 1 of the Civil Code, if as a result of bodily injury or infliction of disorder of health the death of the injured person occurred, the person obliged to compensate for the damage should reimburse the costs of treatment and funeral expenses to the person who incurred them. Pursuant to Article 446 § 2 of the Civil Code, a person in respect of whom the deceased had a statutory maintenance obligation may claim from the obligor to redress the damage an annuity calculated in accordance with the needs of the injured person and the earning and property capacity of the deceased for the probable duration of the maintenance obligation. The same pension may be claimed by other relatives to whom the deceased voluntarily and continuously provided maintenance if the circumstances show that the principles of social co-existence so require. Pursuant to Article 446 § 3 of the Civil Code, the court may furthermore award appropriate compensation to the closest members of the deceased’s family if, as a result of the deceased’s death, their life situation has significantly deteriorated. Moreover, pursuant to Article 446 § 4 of the Civil Code, the court may also award the closest members of the deceased’s family an appropriate sum as monetary compensation for the harm suffered.
Prenatal damages can also be the basis for claiming compensation. According to Article 4461 of the Civil Code, as soon as a child is born, he or she may claim compensation for damage suffered before birth.
Pursuant to Article 4462 of the Civil Code, in the event of serious and permanent bodily injury or infliction of a disorder of health resulting in the inability to establish or continue a family relationship, the court may award the closest members of the victim’s family an appropriate sum as monetary compensation for the harm suffered.
According to Article 447 of the Civil Code, for important reasons, the court may, at the request of the injured party, grant him one-off compensation instead of a pension or part thereof. This applies in particular if the injured person has become an invalid and the award of one-off compensation will make it easier for him to pursue a new profession.
Pursuant to Article 448 § 1 of the Civil Code, in the event of violation of a personal good, the court may award the person whose personal good has been violated an appropriate sum as financial compensation for the harm suffered, or award an appropriate sum of money for the social purpose indicated by him, irrespective of other measures required to remove the effects of the violation. According to Article 448 § 2 of the Civil Code, in the cases specified in Article 445 § 1 and 2 and Article 4462, the person whose personal good has been infringed may, in addition to pecuniary compensation, demand that an appropriate sum of money be awarded for the social purpose indicated by him. Pursuant to Article 448 § 3 of the Civil Code, the provision of Article 445 § 3 shall apply to the claims referred to in § 1 and 2.
Article 449 of the Civil Code, on the other hand, provides that the claims provided for in Articles 444 to 448 may not be assigned unless they are already due and unless they have been acknowledged in writing or granted by a final judgment.
Legal assistance consists of advice, opinions, negotiations and representation in claims arising from non-performance or improper performance of an obligation, i.e. under contractual liability.
Under Article 471 of the Civil Code, the debtor is obliged to compensate for damage resulting from non-performance or improper performance of an obligation, unless the non-performance or improper performance is a consequence of circumstances for which the debtor is not responsible.
According to Article 472 of the Civil Code, if nothing else stems from a specific statutory provision or a legal transaction, the debtor is liable for failure to exercise due care.
Pursuant to Article 473 § 1 of the Civil Code, a debtor may contractually accept liability for non-performance or improper performance of an obligation due to specified circumstances for which he is not liable under the law. Pursuant to Article 473 § 2 of the Civil Code, it is invalid to stipulate that the debtor shall not be liable for damage that he may intentionally cause to the creditor.
Pursuant to Article 474 of the Civil Code, the debtor is liable, as for its own act or omission, for the acts and omissions of persons with whose assistance it performs the obligation, as well as of persons to whom it entrusts performance of the obligation. The above provision also applies in the event that the obligation is performed by the debtor’s statutory representative.
Pursuant to Article 476 of the Civil Code, a debtor is in default if he fails to perform his obligation on time or, if the time limit is not fixed, if he fails to perform immediately after being summoned by the creditor. This does not apply if the delay in performance is due to circumstances for which the debtor is not responsible.
The consequences of delay are set out in Article 477 § 1 of the Civil Code. This provision stipulates that in the event of the debtor’s delay, the creditor may demand, irrespective of the performance of the obligation, compensation for the damage resulting from the delay. According to Article 477 § 2 of the Civil Code, however, when, as a result of the debtor’s delay, the service has lost all or most of its significance for the creditor, the creditor may not accept the service and claim compensation for the damage resulting from the non-performance of the obligation.
Pursuant to Article 478 of the Civil Code, if the object of performance is an item identified by identity, the debtor in default is liable for the loss of or damage to the object of performance, unless the loss or damage would also have occurred if the performance had been made in due time.
According to Article 479 of the Civil Code, if the subject matter of the performance is a certain quantity of things designated only as to their kind, the creditor may, in the event of the debtor’s delay, purchase at his expense an equal quantity of things of the same kind or demand payment of their value from the debtor, retaining in both cases a claim for compensation for damage resulting from the delay.
Pursuant to Article 481 § 1 of the Civil Code, if a debtor delays the fulfilment of a monetary service, the creditor may demand interest for the duration of the delay, even if he has not suffered any damage and even if the delay is a consequence of circumstances for which the debtor is not responsible. The legislator determines the statutory amount of interest. According to Article 481 § 2 of the Civil Code, if the rate of interest for delay was not specified, statutory interest for delay in the amount equal to the sum of the reference rate of the National Bank of Poland and 5.5 percentage points is due. However, when the claim bears interest at a higher rate, the creditor may demand interest for delay at that higher rate. At the same time, there is a maximum amount of interest for delay specified in Article 481 § 21 of the Civil Code, which cannot exceed twice the amount of the statutory interest for delay per annum (maximum interest for delay). The sanction for stipulating interest in a contract that is higher than the maximum is regulated in Article 481 § 22 c.c.. This provision states that if the amount of interest for delay exceeds the maximum interest for delay, the maximum interest for delay is due. Furthermore, according to Article 481 § 23 c.c., contractual provisions may not exclude or limit the provisions on maximum interest for delay, also in the case of the choice of foreign law. In such a case, the provisions of the law shall apply.
Capitalisation of interest is regulated in Article 482 § 1 of the Civil Code. This provision stipulates that interest on overdue interest can only be claimed from the time the action is brought for it, unless after the arrears have arisen the parties have agreed to add the overdue interest to the sum owed.
Legal assistance consists of advice, opinion, negotiation and representation in contractual penalty cases.
Pursuant to Article 483 § 1 of the Civil Code, it may be stipulated in a contract that compensation for damage resulting from non-performance or improper performance of a non-monetary obligation will be made by paying a specified sum (contractual penalty). According to Article 483 § 2 of the Civil Code, the debtor cannot, without the consent of the creditor, discharge himself from his obligation by paying a contractual penalty.
The amount of the contractual penalty is set out in Article 484 § 1 of the Civil Code. This provision stipulates that in the event of non-performance or improper performance of an obligation, the contractual penalty is due to the creditor in the amount reserved for that case, regardless of the amount of the damage suffered. A claim for damages exceeding the amount of the reserved penalty is not permissible, unless otherwise agreed by the parties. Pursuant to Article 484 § 2 of the Civil Code, if the obligation has been substantially performed, the debtor may demand a reduction of the contractual penalty; the same applies if the contractual penalty is grossly excessive.
The legislator has also provided for a regulation similar to contractual penalty. According to Article 485 of the Civil Code, if a specific provision stipulates that in the event of non-performance or improper performance of a non-pecuniary obligation, the debtor, even without a contractual reservation, is obliged to pay the creditor a specific sum, the provisions on contractual penalty shall apply accordingly.
Legal aid consists of advice, opinion, negotiation and representation in cases of substituted performance. The right to substitute performance is one of the sanctions provided for in contractual liability, i.e. for non-performance or improper performance of an obligation.
Pursuant to Article 480 § 1 of the Civil Code, if the debtor is in default in performing a performance obligation, the creditor may, retaining a claim for damages, demand that the court authorise the performance of the act at the debtor’s expense. According to 480 § 2 of the Civil Code, if the performance consists of an omission, the creditor may, while retaining a claim for damages, demand that the court authorise the removal at the debtor’s expense of everything that the debtor has done in breach of the obligation. Pursuant to Article 480 § 3 of the Civil Code, in cases of urgency, the creditor may, retaining a claim for damages, perform an act at the debtor’s expense without court authorisation or remove at the debtor’s expense whatever the debtor has done contrary to the obligation. Pursuant to Article 480 § 4 of the Civil Code, the provisions of § 1 and 3 do not apply to claims for a statement of appropriate content and form in connection with the violation of personal rights.
Legal assistance consists of advice, opinion, negotiation and representation in matters relating to the transfer (assignment) of receivables.
Pursuant to Article 509 § 1 of the Civil Code, a creditor may, without the consent of the debtor, transfer a claim to a third party (assignment), unless this would be contrary to the law, a contractual stipulation or the nature of the obligation. Article 509 § 2 of the Civil Code stipulates that all rights related to a claim are transferred to the transferee along with the claim, in particular a claim for overdue interest.
Pursuant to Article 510 § 1 of the Civil Code, an agreement for sale, exchange, donation or any other agreement obliging to transfer a claim transfers the claim to the purchaser, unless a specific provision provides otherwise or the parties have agreed otherwise. Pursuant to Article 510 § 2 of the Civil Code, if the conclusion of the transfer agreement is in performance of an obligation arising from a previously concluded agreement obliging to transfer a claim, from a simple bequest, from unjust enrichment or from any other event, the validity of the transfer agreement depends on the existence of that obligation.
According to Article 511 of the Civil Code, if a claim is stated in writing, the transfer of that claim should also be stated in writing.
As provided in Article 512 of the Civil Code, as long as the transferor has not notified the debtor of the transfer, the performance of the service to the previous creditor has effect with respect to the transferee, unless at the time of performance the debtor was aware of the transfer. This provision applies mutatis mutandis to other legal transactions made between the debtor and the previous creditor.
Pursuant to Article 513 § 1 of the Civil Code, the debtor is entitled against the debtor’s transferee to all allegations which the debtor had against the transferor at the time of becoming aware of the transfer. Pursuant to Article 513 § 2 of the Civil Code, the debtor may deduct from the transferred claim the claim to which he is entitled against the transferor, even if it became due only after the debtor received notice of the transfer. However, this does not apply if the claim owed to the seller became due later than the claim that is the subject of the transfer.
According to Article 514 of the Civil Code, if the debt is stated in writing, a contractual reservation that the transfer cannot take place without the debtor’s consent is only effective against the transferee if the writing contains a reference to this reservation, unless the transferee was aware of the reservation at the time of the transfer.
Pursuant to Article 515 of the Civil Code, if the debtor, who has received written notice of the transfer from the transferor, has performed the performance at the hands of the debtor’s transferee, the transferor may invoke against the debtor the invalidity of the transfer or the objections arising from its legal basis only if they were known to the debtor at the time of the performance. This provision shall apply mutatis mutandis to other legal transactions concluded between the debtor and the debtor’s acquirer.
According to Article 516 of the Civil Code, the transferor of the claim is liable to the transferee for the fact that the claim is due to him. He is liable for the solvency of the debtor at the time of the transfer only to the extent that he has assumed this liability.
Pursuant to Article 517 § 1 of the Civil Code, the provisions on transfer do not apply to claims related to a bearer document or to a document transferable by endorsement. Under Article 517 § 2 of the Civil Code, the transfer of a claim from a document to bearer is effected by transferring ownership of the document. In order to transfer ownership of a document, it is necessary to issue the document.
Legal assistance consists of advice, opinion, negotiation and representation in matters relating to the transfer of debt to another person.
According to Article 519 § 1 of the Civil Code, a third party may take the place of the debtor who is released from the debt (assumption of debt). According to Article 519 § 2 of the Civil Code, the assumption of a debt may take place:
- by an agreement between the creditor and a third party with the consent of the debtor; the debtor’s declaration may be made to either party;
- by an agreement between the debtor and a third party with the consent of the creditor; the creditor’s declaration may be made to either party; it is ineffective if the creditor did not know that the person assuming the debt was insolvent.
Pursuant to Article 520 of the Civil Code, either party to a contract for the assumption of a debt may set a reasonable period of time for the person whose consent is necessary for the assumption to be effective to give his consent; the ineffectual expiry of the set period is tantamount to a refusal of consent.
According to Article 521 § 1 of the Civil Code, if the effectiveness of an agreement to assume a debt depends on the consent of the debtor and the debtor has refused consent, the agreement is deemed not to have been concluded. According to Article 521 § 2 of the Civil Code, if the effectiveness of an agreement to assume a debt depends on the consent of the creditor and the creditor has refused consent, the party who, according to the agreement, was to assume the debt is liable to the debtor for the creditor’s failure to demand performance from him.
By virtue of Article 522 of the Civil Code, a contract for the assumption of a debt should be in writing under nullity. The same applies to the creditor’s consent to the assumption of the debt.
According to Article 523 of the Civil Code, if in the contract for the transfer of ownership of real estate the purchaser undertook to release the vendor from debts associated with the ownership, it shall be construed in case of doubt that the parties concluded an agreement for the purchaser to assume these debts.
Pursuant to Article 524 § 1 of the Civil Code, the assuming debtor is entitled to all charges against the creditor which the previous debtor had, with the exception of the charge of deduction from the previous debtor’s claim. Pursuant to Article 524 § 2 of the Civil Code, the transferee of a debt may not raise against the creditor any allegations arising from the legal relationship existing between the transferee of a debt and the previous debtor, which is the legal basis for the assumption of the debt; however, this does not apply to allegations of which the creditor was aware.
However, pursuant to Article 525 of the Civil Code, if a claim was secured by a surety or a limited right in rem established by a third party, the surety or limited right in rem expires upon assumption of the debt, unless the guarantor or third party agrees to the continuation of the security.
Legal assistance consists of advice, opinion, negotiation and representation in matters relating to the discharge of a debtor’s debt.
According to Article 508 of the Civil Code, an obligation is extinguished when the creditor releases the debtor from the debt and the debtor accepts the release.
Debt relief therefore takes the form of a contract between creditor and debtor.
Legal aid consists of advice, opinion, negotiation and representation in matters related to creditor protection in the event of debtor insolvency.
Pursuant to Article 527 § 1 of the Polish Civil Code, when, as a result of a legal act of the debtor performed to the detriment of creditors, a third party obtains a material benefit, each creditor may demand that the act be declared ineffective in relation to him, if the debtor acted with the awareness of harming creditors and the third party knew about it or could have found out about it by exercising due diligence. Pursuant to Article 527 § 2 of the Civil Code, a legal action of the debtor is performed to the detriment of creditors if, as a result of the action, the debtor became insolvent or became insolvent to a higher degree than he was before the action. Pursuant to Article 527 § 3 of the Polish Civil Code, if, as a result of a legal transaction conducted by the debtor to the detriment of creditors, a person who is in a close relationship with the debtor obtained a material benefit, it is presumed that such person knew that the debtor acted with the awareness of harming creditors. Pursuant to Article 527 § 4 of the Civil Code, if, as a result of a legal transaction performed by the debtor to the detriment of creditors, an entrepreneur who is in regular business relations with the debtor obtains a material benefit, it is presumed that the entrepreneur knew that the debtor acted with the awareness of harming creditors.
Pursuant to Article 528 of the Civil Code, if, as a result of a legal transaction performed by a debtor to the detriment of creditors, a third party obtained a material benefit free of charge, a creditor may demand that the transaction be declared ineffective, even if the third party does not know and, even with due diligence, could not have known that the debtor acted with the awareness of harming creditors.
Pursuant to Article 529 of the Civil Code, if the debtor was insolvent at the time of the donation, it is presumed that he acted with the intention of harming his creditors. The same applies if the debtor became insolvent as a result of the donation.
Pursuant to Article 530 of the Civil Code, the provisions of the preceding articles apply mutatis mutandis where the debtor acted with the intention of harming future creditors. However, if a third party has obtained a pecuniary benefit against payment, the creditor may demand that the action be declared ineffective only if the third party knew of the debtor’s intention.
Pursuant to Article 531 § 1, a legal act of a debtor performed to the detriment of creditors shall be declared ineffective by way of an action or plea against a third party who obtained a material benefit as a result of that act. Pursuant to Article 531 § 2 of the Civil Code, in the event that a third party has disposed of the benefit obtained, the creditor may proceed directly against the person for whose benefit the disposition was made, if that person knew about the circumstances justifying the recognition of the debtor’s action as ineffective or if the disposition was gratuitous.
Pursuant to Article 532 of the Civil Code, a creditor in relation to whom a legal action of the debtor has been declared ineffective may, with priority over the creditors of a third party, seek satisfaction from assets which, as a result of the action declared ineffective, have left the debtor’s assets or have not entered them.
Pursuant to Article 533 of the Civil Code, a third party who obtained a material benefit as a result of a legal action of a debtor performed to the detriment of creditors may be exempt from satisfying a claim of a creditor demanding that the action be declared ineffective if he satisfies that creditor or indicates him the property of the debtor sufficient to satisfy him.
Pursuant to Article 534 of the Civil Code, the recognition of a legal act done to the detriment of creditors as ineffective cannot be demanded after the lapse of five years from the date of the act.
Legal assistance consists of advice, opinion, negotiation and representation in matters relating to the conclusion of civil law contracts, in particular:
– sales contract,
– trial sales contracts,
– instalment sales contracts,
– agreements with a reserved right of pre-emption or repurchase,
– swap agreement,
– supply agreement,
– contracting agreements,
– work contracts,
– construction contracts,
– lease agreements,
– lease agreements,
– lease agreements,
– lending agreements,
– loan agreement,
– bank account agreement,
– commission agreements,
– agency agreement,
– commission agreement,
– transport contract,
– forwarding contracts,
– insurance contract,
– storage agreement,
– composition agreements,
– partnership agreement,
– surety agreement,
– donation agreement,
– property transfer agreements,
– annuity contracts,
– a life-tenancy contract,
– unnamed contracts.
Legal assistance consists of advice, opinion, negotiation and representation in securities matters.
Pursuant to Article 9216 of the Civil Code, if an obligation arises from an issued security, the debtor is obliged to perform against the return of the document or to make it available to the debtor in order to render the document null and void in the customary manner.
Pursuant to Article 9217 of the Civil Code, the fulfilment of a performance to the holder of a legitimate security releases the debtor, unless he acted in bad faith.
According to Article 9218 of the Civil Code, registered securities legitimise the person named in the contents of the document. The transfer of rights takes place by transfer combined with the issuance of the document.
Pursuant to Article 9219 § 1 of the Civil Code, securities to order legitimise the person named in the document and anyone to whom rights have been transferred by endorsement. According to Article 9219 § 2 of the Civil Code, an endorsement is a written statement placed on a security to order and containing at least the signature of the transferor, signifying the transfer of rights to another person. Article 9219 § 3 of the Civil Code, on the other hand, stipulates that in order to transfer the rights of a document, it is necessary that the document be issued and that there be an uninterrupted series of endorsements.
Pursuant to Article 92110 § 1 of the Civil Code, if the permission of a competent state authority is required to circulate a bearer document, a document issued without such permission is invalid. Pursuant to Article 92110 § 2 of the Civil Code, the debtor’s signature may be imprinted by mechanical means, unless specific provisions provide otherwise.
According to Article 92111 § 1 of the Civil Code, the debtor is not obliged to inquire whether the bearer is the owner of the document. However, in case of reasonable doubt as to whether the bearer of the document is the creditor, the debtor should deposit the object of the performance in a court depository. Pursuant to Article 92111 § 2 of the Civil Code, if the competent state authority has issued a prohibition on performance, the obligation is discharged by depositing the object of performance in a court depository.
Pursuant to Article 92112 of the Civil Code, the transfer of rights from a bearer document requires the surrender of that document.
According to Article 92113 of the Civil Code, the debtor may invoke against the creditor the objections which concern the validity of the document or which arise from its content or which serve him personally against the creditor. The debtor may also invoke charges that serve him against the previous creditor if the acquirer of the document acted knowingly to the detriment of the debtor.
On the basis of Article 92114 § 1 of the Civil Code, the redemption of securities is governed by special provisions. Pursuant to Article 92114 § 2 of the Civil Code, if a security has been validly redeemed, the debtor is obliged to deliver a new document to the person in whose favour the redemption took place, at his or her expense, and, if the claim is due, to pay the benefit.
According to Article 92115 § 1 of the Civil Code, the provisions on securities apply mutatis mutandis to legitimation marks stating an obligation to provide performance. According to Article 92115 § 2 of the Civil Code, in the event of the loss of a legitimation mark stating in its content an obligation to provide performance at the creditor’s request, the debtor may make performance conditional on the demonstration of entitlement by the person making such request. Pursuant to Article 92115 § 3 of the Civil Code, the provisions on bearer securities shall apply mutatis mutandis to a legitimation mark which does not specify by name the person entitled, unless special provisions indicate otherwise.
Legal assistance consists of advice, opinion, negotiation and representation in succession matters.
According to Article 922 § 1 of the Civil Code, the property rights and obligations of the deceased pass upon his death to one or more persons in accordance with the provisions of this book. According to Article 922 § 2 of the Civil Code, rights and obligations of the deceased closely related to his person, as well as rights which, upon his death, pass to designated persons regardless of whether they are heirs, do not belong to the estate. Pursuant to Article 922 § 3 of the Civil Code, inheritance debts also include the costs of the testator’s funeral to the extent that the funeral corresponds to the customs accepted in a given community, the costs of inheritance proceedings, the obligation to satisfy claims for a reserved share and the obligation to execute ordinary legacies and instructions, as well as other obligations provided for in the provisions of this book.
Pursuant to Article 931 § 1 of the Civil Code, the testator’s children and the testator’s spouse are first appointed to the inheritance by law; they inherit in equal shares. However, the spouse’s share may not be less than one quarter of the total inheritance. Pursuant to Article 931 § 2 of the Civil Code, if a child of the testator has not lived to see the opening of the inheritance, the share of the inheritance that would have fallen to him or her falls to his or her children in equal shares. This provision applies mutatis mutandis to further descendants.
Pursuant to Article 932 § 1 of the Civil Code, in the absence of the testator’s descendants, the testator’s spouse and parents are appointed to the inheritance by law. According to Article 932 § 2 of the Civil Code, the share of the inheritance of each parent who inherits jointly with the testator’s spouse is one-fourth of the total inheritance. If the parent’s paternity has not been established, the share of the testator’s mother inheriting jointly with the testator’s spouse is half of the inheritance. Pursuant to Article 932 § 3 of the Civil Code, in the absence of the testator’s descendants and spouse, the entire inheritance falls to the testator’s parents in equal shares. Pursuant to Article 932 § 4 of the Civil Code, if one of the testator’s parents did not live to see the opening of the inheritance, the share of the inheritance which would have fallen to them falls to the testator’s siblings in equal shares. Pursuant to Article 932 § 5 of the Civil Code, if any of the testator’s siblings did not live to see the opening of the inheritance, leaving descendants, the share of the inheritance which would have fallen to them falls to their descendants. This share is distributed according to the rules concerning distribution among the testator’s further descendants. Pursuant to Article 932 § 6 of the Civil Code, if one of the parents has not lived to see the opening of the inheritance and there are no siblings of the testator or their descendants, the share of the parent inheriting jointly with the testator’s spouse is half of the inheritance.
Pursuant to Article 933 § 1 of the Civil Code, the share of the inheritance of a spouse who inherits jointly with the testator’s parents, siblings and their descendants is half of the inheritance. Pursuant to Article 933 § 2 of the Civil Code, in the absence of the testator’s descendants, parents, siblings and their descendants, the entire inheritance falls to the testator’s spouse.
Pursuant to Article 934 § 1 of the Civil Code, in the absence of descendants, spouse, parents, siblings and descendants of the testator’s siblings, the entire inheritance falls to the testator’s grandparents; they inherit in equal shares. Pursuant to Article 934 § 2 of the Civil Code, if any of the testator’s grandparents did not live to see the opening of the inheritance, the share of the inheritance that would have fallen to them falls to their children in equal parts. Pursuant to Article 934 § 21 of the Civil Code, if a child of any of the testator’s grandparents did not live to see the opening of the inheritance, the share of the inheritance that would have accrued to him falls to his children in equal shares. Pursuant to Article 934 § 3 of the Civil Code, if there are no children or grandchildren of one of the grandparents who did not live to see the opening of the inheritance, the share of the inheritance that would have fallen to him falls to the other grandparents in equal shares.
Pursuant to Article 9341 of the Civil Code, in the absence of the testator’s spouse and relatives called to inherit by law, the inheritance falls in equal shares to those children of the testator’s spouse, neither of whose parents lived to see the inheritance open.
Pursuant to Article 935 of the Civil Code, in the absence of the testator’s spouse, relatives and children of the testator’s spouse called to inherit by law, the inheritance falls to the municipality of the testator’s last place of residence as a statutory heir. If the testator’s last place of residence in the Republic of Poland cannot be established or the testator’s last place of residence was abroad, the inheritance falls to the State Treasury as the legal heir.
Pursuant to Article 9351 of the Civil Code, the provisions on appointment to the succession by law do not apply to the spouse of the testator who is separated.
Statutory succession is applicable if the testator has not left behind a will. The legislator provides several rules as to the making of dispositions on death.
According to Article 941 of the Civil Code, property can only be disposed of in the event of death by will. Pursuant to Article 942 of the Civil Code, a will may contain the disposition of only one testator. Moreover, Article 943 provides that the testator may revoke both the entire will and its individual provisions at any time. Article 946 of the Civil Code provides that a will may be revoked either by the testator drawing up a new will, or by the testator destroying the will with the intention of revoking it or depriving it of the features on which its validity depends, or finally by the testator making changes to the will which imply the will’s intention to revoke its provisions. Pursuant to Article 947 of the Civil Code, if the testator draws up a new will without indicating in it that he revokes the previous will, only those provisions of the previous will which cannot be reconciled with the content of the new will are revoked.
According to Article 944 § 1 of the Civil Code, only a person with full legal capacity may make and revoke a will. According to Article 944 § 2 of the Civil Code, a will cannot be made or revoked by a representative.
Article 945 § 1 of the Civil Code lists the defects in a will that render it invalid. According to this provision, a will is invalid if it has been made:
- in a state which prevents him from making a conscious or free decision and expressing his will,
- under the influence of an error such as to give rise to the presumption that, had the testator not acted under the influence of the error, he would not have made a will of that content;
- under threat.
The legislator introduces a time limit within which the invalidity of a will may be claimed in Article 945 § 2 of the Civil Code. The invalidity of a will on the aforementioned grounds cannot be invoked after the lapse of three years from the date on which the person with an interest in the will became aware of the reason for the invalidity, and in any case after the lapse of ten years from the opening of the estate.
The legislature seeks to uphold testamentary dispositions. Pursuant to Article 948 § 1 of the Civil Code, a will should be interpreted in such a way as to ensure the fullest possible implementation of the testator’s will. According to Article 948 § 2 of the Civil Code, where a will may be interpreted differently, such an interpretation should be adopted as is capable of upholding the testator’s dispositions and giving them reasonable content.
Legal assistance consists of advice, opinion, negotiation and representation in matters relating to the conclusion of succession law agreements.
Inheritance contracts may, as a rule, be concluded after the testator’s death. Pursuant to Article 1047 of the Civil Code, subject to the exceptions provided for in this title, an agreement on the succession of a living person is void.
Exceptionally, Article 1048 § 1 of the Civil Code provides that a statutory heir may, by agreement with the future testator, renounce the succession to him. Such an agreement should be concluded in the form of a notarial deed. Pursuant to Article 1048 § 2 of the Civil Code, the waiver of inheritance may be limited to waiving only the right to a reserved share in whole or in part. According to Article 1048 § 3 of the Civil Code, on the other hand, a waiver of inheritance in favour of another person shall, in case of doubt, be deemed to be a waiver on the condition that this person will inherit.
The effects of an agreement on the renunciation of inheritance are provided for in Article 1049 § 1 of the Civil Code. According to this provision, the waiver of inheritance also covers the waivering person’s descendants, unless otherwise agreed. According to Article 1049 § 2 of the Civil Code, the waiver and his descendants who are covered by the waiver of inheritance are excluded from the inheritance as if they had not lived to see the opening of the inheritance.
The conclusion of an agreement to renounce the inheritance does not close the possibility of revoking it. Pursuant to Article 1050 of the Civil Code, an inheritance waiver may be revoked by an agreement between the one who waived the inheritance and the one from whom the inheritance was waived. The agreement should be concluded in the form of a notarial deed.
The second inheritance law contract that is often concluded in practice is the contract for the disposal of the inheritance. Pursuant to Article 1051 of the Civil Code, an heir who has accepted an inheritance may dispose of the inheritance in whole or in part. The same applies to the disposal of an inheritance share.
An agreement to dispose of an inheritance may have a binding, dispositive or binding-dispositive effect. According to Article 1052 § 1 of the Civil Code, a contract of sale, exchange, donation or any other contract obliging to dispose of an inheritance transfers the inheritance to the purchaser, unless the parties agreed otherwise. According to Article 1052 § 2 of the Civil Code, if the conclusion of an agreement transferring the inheritance is made in performance of an obligation arising from a previously concluded agreement obliging to transfer the inheritance, the validity of the agreement transferring the inheritance depends on the existence of this obligation.
The legislator has also specified the form of the agreement on the disposal of the inheritance. Pursuant to Article 1052 § 3 of the Civil Code, an agreement obliging to dispose of an inheritance should be concluded in the form of a notarial deed. The same applies to an agreement transferring an inheritance, which is concluded in order to fulfil a pre-existing obligation to dispose of an inheritance.
The effect of concluding an agreement to dispose of an inheritance in accordance with Article 1053 of the Civil Code is that the purchaser of the inheritance enters into the rights and obligations of the heir.
Pursuant to Article 1054 § 1 of the Civil Code, the transferor of the inheritance is obliged to hand over what, as a result of the disposal, loss or damage to the objects belonging to the inheritance, has been obtained in exchange for these objects or as compensation for damage, and if the disposal of the inheritance was for a consideration, also to compensate for the loss in value created by the wear and tear or disposal of the objects belonging to the inheritance free of charge. In addition, pursuant to Article 1054 § 2 of the Civil Code, the transferor may claim from the acquirer reimbursement of expenses and expenditures made on the inheritance.
According to Article 1055 § 1, the purchaser of the estate shall be liable for the debts of the estate to the same extent as the transferor. Their liability towards creditors is joint and several. Pursuant to Article 1055 § 2 of the Civil Code, in the absence of an agreement to the contrary, the purchaser is liable to the vendor for the fact that creditors will not require him to perform in satisfaction of the debts of the estate.
Pursuant to Article 1056 of the Civil Code, if the inheritance is disposed of, the heir is not liable under warranty for physical and legal defects of individual items belonging to the inheritance.
According to Article 1057 of the Civil Code, the benefits and burdens associated with the objects belonging to the inheritance, as well as the danger of their accidental loss or damage, are transferred to the purchaser upon conclusion of the agreement on the disposal of the inheritance, unless otherwise agreed.
Legal assistance consists of advice, opinion, negotiation and representation in matters relating to the ascertainment of inheritance.
Pursuant to Article 1025 § 1 of the Civil Code, the court, at the request of a person having an interest in it, certifies the acquisition of the inheritance by the heir. A notary public, on the terms specified in separate provisions, draws up a deed of succession certification. Pursuant to Article 1025 § 2 of the Civil Code, it is presumed that the person who has obtained a declaration of inheritance acquisition or a certificate of inheritance is an heir. Pursuant to Article 1025 § 3 of the Civil Code, the presumption arising from a declaration of inheritance acquisition cannot be invoked against the presumption arising from a registered act of certification of inheritance.
In view of Article 1026 of the Civil Code, the declaration of inheritance acquisition and the certification of inheritance cannot take place before the lapse of six months from the opening of the inheritance, unless all known heirs have already made declarations of acceptance or rejection of the inheritance.
The legislator limits the probative force as to the statement of inheritance acquisition to specific types of documents. Pursuant to Article 1027 of the Civil Code, vis-à-vis a third party who does not claim inheritance rights by virtue of inheritance, an heir may prove his inheritance rights only by a statement of inheritance acquisition or a registered deed of succession certification.
The evidentiary power of the above documents is linked to the protection of the acquirer. Pursuant to Article 1028 of the Civil Code, if a person who has obtained a declaration of inheritance or a certificate of inheritance, but is not an heir, disposes of a right belonging to the inheritance for the benefit of a third party, the person in whose favour the disposal takes place acquires the right or is released from the obligation, unless he acts in bad faith.
Using the above mentioned documents, the heir may pursue claims aimed at protecting the inheritance. Pursuant to Article 1029 § 1 of the Civil Code, the heir may demand that the person who has authority over the inheritance as heir but is not the heir delivers the inheritance to him. The same applies to individual items belonging to the estate. Pursuant to Article 1029(2) of the Civil Code, the provisions on claims between the owner and the sole possessor of an item apply mutatis mutandis to the claims of the heir for remuneration for the use of the items belonging to the inheritance, for reimbursement of benefits or for payment of their value, as well as for compensation for damage due to wear and tear, deterioration or loss of these items and claims against the heir for reimbursement of outlays. Pursuant to Article 1029(3) of the Civil Code, the above provisions shall apply mutatis mutandis in the event that a person in respect of whom a decision declaring him or her dead has been revoked demands the surrender of his or her property.
The status of a legatee in a succession is analogous to that of a statutory heir. Indeed, on the basis of Article 10291 of the Civil Code, the provisions of this title apply mutatis mutandis to the determination of the acquisition of the object of a legacy.
Legal aid consists of advice, opinion, negotiation and representation in cases involving the declaration of an heir unworthy of inheritance.
According to Article 928 § 1 of the Civil Code, an heir may be declared unworthy by the court if:
- committed an intentional grave offence against the testator;
- by deceit or threat, induced the testator to make or revoke a will, or in the same way prevented him/her from doing either;
- intentionally concealed or destroyed the testator’s will, forged or altered his or her will, or knowingly used a will forged or altered by another person;
- has persistently failed to fulfil a maintenance obligation towards the testator the amount of which has been established by a court decision or an agreement concluded before a court or another authority or another agreement;
- has persistently evaded the exercise of the testator’s duty of care, in particular arising from parental authority, guardianship, the exercise of the function of foster parent, the matrimonial duty of mutual assistance or the duty of mutual respect and support between parent and child.
The effect of being declared unworthy is, in accordance with Article 928 § 2 of the Civil Code, a legal fiction whereby the unworthy heir is excluded from the inheritance as if he had not lived to see the opening of the inheritance.
Pursuant to Article 929 of the Civil Code, declaring an heir unworthy may be demanded by anyone who has an interest therein. Such a request may be made within a year from the date on which he became aware of the reason for unworthiness, but no later than within three years from the opening of the inheritance.
The legislator has provided a negative premise for declaring an heir unworthy. According to Article 930 § 1 of the Civil Code, an heir cannot be declared unworthy if the testator has forgiven him. According to Article 930 § 2 of the Civil Code, if at the time of forgiveness the testator did not have legal capacity, the forgiveness is effective if it took place with sufficient discernment.
Legal aid consists of advice, opinion, negotiation and representation in matters relating to the exclusion of a spouse from inheritance.
Pursuant to Article 940 § 1 of the Civil Code, a spouse is excluded from the inheritance if the testator has requested a decree of divorce or separation due to his or her fault, and the request was justified. Pursuant to Article 940 § 2 of the Civil Code, a spouse is excluded from the inheritance by court decision. Exclusion may be claimed by any of the other statutory heirs called to inherit concurrently with the spouse; the time limit for bringing an action is six months from the date on which the heir became aware of the opening of the inheritance, but no more than one year from the opening of the inheritance.
Legal assistance consists of advice, opinion, negotiation and representation in matters relating to liability for inheritance debts.
According to Article 1030 of the Civil Code, until the acceptance of the estate, the heir is liable for the debts of the estate only from the estate. From the moment of acceptance of the inheritance, he is liable for these debts from his entire estate.
Pursuant to Article 1031 § 1 of the Civil Code, in the case of a simple acceptance of the inheritance, the heir is liable for the inheritance debts without limitation. Pursuant to Article 1031 § 2 of the Civil Code, in the case of accepting an inheritance with the benefit of inventory, an heir is liable for inherited debts only up to the value of the active state of the inheritance established in the inventory list or inventory. The above limitation of liability is waived if the heir deceitfully omits from the inventory list or deceitfully fails to include in the inventory items belonging to the estate or the objects of legacies or deceitfully includes in the inventory or deceitfully includes in the inventory non-existent debts.
Pursuant to Article 1032 § 1 of the Civil Code, an heir who accepted the inheritance with the benefit of inventory and paid certain inheritance debts and who did not know or, when exercising due diligence, could not have known of the existence of other inheritance debts, is liable for the unpaid inheritance debts only up to the difference between the value of the active state of the inheritance and the value of the services performed to satisfy the inheritance debts which he paid. According to Article 1032 § 2 of the Civil Code, an heir who has accepted the inheritance with the benefit of inventory and, while paying certain inheritance debts, knew or, exercising due diligence, could have learned of the existence of other inheritance debts, is liable for those debts over and above the value of the active state of the inheritance, but only to the extent that he would have been obliged to satisfy them if he had duly paid all the inheritance debts. This shall not apply to an heir lacking full legal capacity or to an heir in respect of whom there are grounds for his incapacitation.
Pursuant to Article 1033 of the Civil Code, the heir’s liability under ordinary legacies and instructions is limited to the value of the active estate.
The extent of liability for the debts of the estate depends on whether there has been a division of the estate. According to Article 1034 § 1 of the Civil Code, until the division of the estate, the heirs are jointly and severally liable for the debts of the estate. If one of the heirs has performed a benefit, he may claim reimbursement from the other heirs in the parts corresponding to the size of their shares. According to Article 1034 § 2 of the Civil Code, from the moment of the division of the estate, the heirs are liable for the debts of the estate in proportion to the size of their shares.
Moreover, pursuant to Article 10341 § 1 of the Civil Code, until the division of the inheritance, joint and several liability for the inheritance debts is borne, together with the heirs, also by the persons for whose benefit the bequeather made legacies. Pursuant to Article 10341 § 2 of the Civil Code, settlements between heirs and persons to whom legacies have been made are made in proportion to the value of the benefits received by them. The heirs shall be entitled to their share in the value of the active state of the inheritance established in the inventory list or the inventory.
Pursuant to Article 10342 of the Civil Code, from the moment of the division of the inheritance, the heirs and persons to whom legacies have been made are liable for the debts of the inheritance in proportion to the value of the gifts received by them.
Article 10343 of the Civil Code indicates that the liability of a person to whom a legacy has been made for the debts of the estate is limited to the value of the subject of the legacy according to the condition and prices at the time of the opening of the estate.
Legal assistance consists of advice, opinion, negotiation and representation in matters relating to the distribution of succession assets.
Pursuant to Article 1035 of the Civil Code, if the inheritance falls to several heirs, the provisions on joint ownership in fractional parts shall apply mutatis mutandis to the joint ownership of the inheritance and to the division of the inheritance, subject to the provisions of this title.
Pursuant to Article 1036 of the Civil Code, an heir may, with the consent of the other heirs, dispose of an interest in an item belonging to the estate. In the absence of the consent of any of the other heirs, the disposition is ineffective to the extent that it would violate the rights to which that heir is entitled under the provisions on division of the estate.
According to Article 1037 § 1 of the Civil Code, a division of the estate may take place either by agreement between all the heirs or by court decision at the request of any of the heirs.
Pursuant to Article 1037 § 2 of the Civil Code, if the estate includes real estate, the partition agreement should be concluded in the form of a notarial deed.
In turn, according to Article 1037 § 3 of the Civil Code, if an enterprise is part of the estate, an agreement on the division of the estate should be concluded in writing with notarised signatures. However, if the enterprise includes real estate or the enterprise is under succession administration, the agreement on the division of the inheritance should be concluded in the form of a notarial deed.
According to Article 1038 § 1 of the Civil Code, the judicial division of the estate should cover the entire estate. However, it may be limited to part of the inheritance for valid reasons. Pursuant to Article 1038 § 2 of the Civil Code, a contractual division of the estate may cover the entire estate or be limited to part of the estate. As stipulated in Article 1038 § 3 of the Civil Code, a judicial partial division of the inheritance may take place in particular for the reason that an enterprise is part of the inheritance.
According to Article 10381 of the Civil Code, when an enterprise is part of the inheritance, the division of the inheritance shall include this enterprise, taking into account the need to ensure the continuation of the economic activity carried out with its use, unless the heirs and the spouse of the testator who has a share in the enterprise have not reached an agreement on the continuation of this activity.
The legislator allows certain donations to be credited to the inheritance estate. Pursuant to Article 1039 § 1 of the Civil Code, if in the case of legal succession a division of the inheritance is made between descendants or between descendants and a spouse, these inheritors are mutually obliged to credit donations and legacies received from the testator to the inheritance estate, unless the testator’s declaration or the circumstances indicate that the donation or legacy was made in exemption from the obligation of credit. Pursuant to Article 1039 § 2 of the Civil Code, the testator may impose the obligation to count the donation or legacy as part of the estate also on a statutory heir not mentioned in the preceding paragraph. Pursuant to Article 1039 § 3 of the Civil Code, small donations customary in the given relations are not liable to be included in the succession estate.
According to Article 1040 of the Civil Code, if the value of the donation or legacy to be credited exceeds the value of the estate, the heir is not obliged to return the excess. In such a case, neither the donation or bequest nor the heir obliged to set them off shall be taken into account when dividing the estate.
As stipulated in Article 1041 of the Civil Code, a further descendant of the testator is obliged to count donations and legacies made by the testator to his ascendant towards the inheritance.
Pursuant to Article 1042 § 1 of the Civil Code, the inheritance is credited in such a way that the value of the donations or legacies subject to the credit is added to the inheritance or to the part of the inheritance which is subject to distribution among the heirs who are mutually liable for the credit, after which the inheritance estate of each of these heirs is calculated, and then each of them is credited with the value of the donation or legacy subject to the credit. Pursuant to Article 1042 § 2 of the Civil Code, the value of the subject of a donation shall be calculated according to the state at the time when it was made, and according to the prices at the time when the inheritance is divided. Pursuant to Article 1042 § 21 of the Civil Code, the value of the subject of a legacy shall be calculated according to the state at the time of the opening of the inheritance and according to the prices at the time of the division of the inheritance. Pursuant to Article 1042 § 3 of the Civil Code, however, when counting the benefits of the object of the donation or legacy bequest as part of the inheritance, no account is taken of them.
Pursuant to Article 1043 of the Civil Code, the provisions on the crediting of gifts to the estate shall apply mutatis mutandis to the costs of upbringing and general and professional education incurred by the testator for the benefit of a descendant, insofar as these costs exceed the average measure accepted in the given community.
According to Article 1044 of the Civil Code, at the request of two or more heirs, the court may allocate to them the inheritance estates in whole or in part in such a way as to grant them a certain object or objects belonging to the inheritance as co-ownership in certain fractional parts.
On the basis of Article 1045 of the Civil Code, the legal effects of an agreement on the division of inheritance concluded under the influence of an error may be evaded only if the error concerned a factual state which the parties considered to be undoubted.
According to Article 1046 of the Civil Code, after the division of the inheritance, the heirs are mutually obliged to provide a warranty for physical and legal defects according to the warranty provisions for sales. The warranty on inheritance claims also extends to the solvency of the debtor.
Legal assistance consists of advice, opinion, negotiation and representation in matters related to behaviour.
Pursuant to Article 991 § 1 of the Polish Civil Code, if a beneficiary is permanently incapacitated or if a beneficiary’s descendant is a minor – two thirds of the value of the inheritance share which would fall to them in the case of statutory inheritance, and in other cases – half of the value of the share (the reserved share) – the descendants, spouse and parents of the bequeather who would be called to the inheritance pursuant to the act. Pursuant to Article 991 § 2 of the Polish Civil Code, if an entitled person has not received the reserved share due to him/her either in the form of a donation made by the bequeather, or in the form of an appointment to the inheritance, or in the form of a bequest, or in the form of a benefit from a family foundation or property in connection with the dissolution of a family foundation, he/she is entitled to claim against the heir to pay the amount of money needed to cover the reserved share or to supplement it.
Pursuant to Article 992 of the Civil Code, when determining the share of the inheritance constituting the basis for calculating the reserved share, unworthy heirs and heirs who have rejected the inheritance are also taken into account, while heirs who have renounced the inheritance or have been disinherited are not taken into account.
Pursuant to Article 993 § 1 of the Civil Code, ordinary bequests and instructions are not taken into account when calculating the reserved portion of the estate, but donations and legacies made by the testator are added to the estate pursuant to the provisions below. Pursuant to Article 993 § 2 of the Civil Code, when calculating the reserved amount, the founding fund of a family foundation contributed by the testator is also added to the inheritance, pursuant to the provisions below, where the foundation is not established in the will. Pursuant to Article 993 § 3 of the Civil Code, property in connection with the dissolution of a family foundation with a value no greater than the amount of the founding fund of the family foundation contributed by the testator is also added to the estate when calculating the reserved portion of the estate, in accordance with the provisions below.
Pursuant to Article 994 § 1 of the Polish Civil Code, when calculating the amount of the reserved portion of the estate, small gifts customarily accepted in the given relations or gifts made more than ten years prior to the opening of the estate to persons who are not heirs or entitled to the reserved portion of the estate shall not be added to the estate. Pursuant to Article 994 § 2 of the Civil Code, gifts made by the testator at a time when he had no descendants shall not be added to the inheritance when calculating the reserved portion due to a descendant. However, this does not apply if the donation was made less than three hundred days before the descendant was born. Furthermore, pursuant to Article 994 § 3 of the Civil Code, donations made by the testator before his or her marriage to the spouse are not added to the inheritance when calculating the reserved portion due to the spouse.
Furthermore, according to Article 9941 § 1 of the Civil Code, the founding fund of a family foundation contributed more than ten years backwards from the opening of the inheritance shall not be added to the inheritance when calculating the reserved share, unless the family foundation is an heir. Pursuant to Article 9941 § 2 of the Civil Code, property in connection with the dissolution of a family foundation received by persons who are not heirs or persons entitled to a reserved share before more than ten years, counting backwards from the opening of the inheritance, is not added to the inheritance when calculating the reserved share. Pursuant to Article 9941 § 3 of the Civil Code, when calculating the reserved share due to a descendant, the founding fund of a family foundation and property in connection with the dissolution of a family foundation are not added to the inheritance if their transfer took place at a time when the testator had no descendants. However, this does not apply if the transfer took place less than three hundred days before the birth of a descendant. On the other hand, pursuant to Article 9941 § 4 of the Civil Code, the founding fund of a family foundation and property in connection with the dissolution of a family foundation transferred prior to marriage to the testator are not added to the inheritance when calculating the reserved portion due to the spouse.
Pursuant to Article 996 § 1 of the Civil Code, a legacy and a donation made by the testator in favour of a person entitled to a reserved share are counted towards the reserved share due to him. If the person entitled to the reserved portion of the estate is a further descendant of the testator, the legacy and donation made by the testator for the benefit of his ascendant are also counted towards the reserved portion of the estate due to him. Pursuant to Article 996 § 2 of the Civil Code, a benefit from a family foundation and property in connection with the dissolution of a family foundation donated to a person entitled to a reserved share shall be credited against the reserved share due to him. If a further descendant of the testator is the person entitled to a reserved share, the benefit from the family foundation and the property in connection with the dissolution of the family foundation transferred to his ascendant shall also be counted towards the reserved share due to him.
According to Article 997 § 1 of the Polish Civil Code, if a person entitled to a reserved share is a descendant of the bequeather, the costs of upbringing and general and vocational education incurred by the bequeather shall be credited to the reserved share to the extent that these costs exceed the average amount accepted in a given community. According to Article 997 § 2 of the Polish Civil Code, if a person entitled to the reserved portion of the estate is a descendant of the testator, the costs of the testator’s maintenance obligation incurred by the family foundation are counted towards the reserved portion of the estate, provided that these costs exceed the average amount accepted in a given community.
Under Article 999 of the Civil Code, if the heir obliged to pay the reserved share is himself entitled to the reserved share, his liability is limited only to the amount of the excess over his own reserved share.
Pursuant to Article 9991 § 1 of the Civil Code, if an entitled person cannot receive from an heir the due restitution, he may demand from a person for whose benefit a legacy of inheritance has been made added to the inheritance a sum of money needed to supplement the restitution. However, this person is obliged to pay the above sum only within the limits of the enrichment resulting from the legacy. Pursuant to Article 9991 § 2 of the Civil Code, if the person in whose favour a legacy of inheritance has been made is himself entitled to a reserved share, he is liable towards other persons entitled to a reserved share only up to the amount of the excess exceeding his own reserved share. Pursuant to Article 9991 § 3 of the Civil Code, a person in whose favour a legacy of inheritance has been made may exempt himself from the obligation to pay the amount needed to supplement the reserved amount by handing over the object of the legacy. According to Article 9991 § 4 of the Civil Code, if the testator has made legacies in favour of several persons, their liability towards the person entitled to the reserved property is joint and several. If one of the persons to whom the legacies have been made has rendered a benefit to the person entitled to the reserved share, he or she may claim from the other persons a share of the benefit proportional to the value of the legacies received.
Pursuant to Article 1,000 § 1 of the Civil Code, if an entitled person cannot receive the reserved amount due to him/her from an heir or a person to whom a legacy of inheritance has been made, he/she may demand from a person who received a donation from the testator added to the inheritance a sum of money needed to supplement the reserved amount. However, the benefactor is obliged to pay the above sum only within the limits of the enrichment resulting from the donation. Pursuant to Article 1000 § 2 of the Civil Code, if the benefactor is himself entitled to the reserved share, he is liable to other beneficiaries of the reserved share only up to the amount of the excess over his own reserved share. Pursuant to Article 1000 § 3 of the Civil Code, the benefactor may exempt himself from the obligation to pay the amount needed to supplement the reserved share by handing over the object of the gift. Pursuant to Article 1000 § 4 of the Civil Code, if an entitled person cannot receive the amount due to him/her from an heir or a person for whose benefit a legacy of inheritance was made, he/she may demand from the family foundation, whose founding fund was added to the inheritance, a sum of money needed to supplement the reserved amount. However, the family foundation is only obliged to pay the aforementioned sum within the limits of the enrichment resulting from the bequeathing of the foundation fund by the testator. Pursuant to Article 1,000 § 5 of the Civil Code, if the beneficiary cannot receive the reserved amount due to him/her from the heir or the person in whose favour the legacy was made, he/she may demand from the person who received property in connection with the dissolution of the family foundation added to the inheritance a sum of money needed to supplement the reserved amount. However, the person who received property in connection with the dissolution of the family foundation shall be obliged to pay the above sum only to the extent of the enrichment resulting from the receipt of property in connection with the dissolution of the family foundation. Pursuant to Article 1000 § 6 of the Civil Code, if the person who received property in connection with the dissolution of the family foundation is himself entitled to a reserved share, he is liable towards other beneficiaries of the reserved share only up to the amount of the excess over his own reserved share. According to Article 1000 § 7 of the Civil Code, a person who has received property in connection with the dissolution of a family foundation may exempt himself from the obligation to pay the amount needed to supplement the reserved share by surrendering the property.
As stipulated by Article 1001 § 1 of the Civil Code, from among several recipients, the recipient of an earlier gift is liable according to the provisions of the preceding article only if the person entitled to a reserved share cannot obtain a supplement to the reserved share from the person who was gifted later. According to Article 1001 § 2 of the Civil Code, from among the persons who received property in connection with the dissolution of a family foundation, the person receiving the property earlier shall be liable pursuant to the provisions of the preceding article only if the person entitled to a reserved share cannot obtain a supplement to the reserved share from the person who received the property later.
According to Article 1002 of the Civil Code, a claim for a reserved share passes to the heir of the person entitled to the reserved share only if that heir is one of the persons entitled to the reserved share after the first testator.
Pursuant to Article 1005 § 1 of the Civil Code, if the heir obliged to satisfy the claim for a reserved share is himself entitled to a reserved share, he may demand a reduction of the ordinary legacies and instructions to the extent that his own reserved share remains. According to Article 1005(2) of the Civil Code, if the legatee is himself entitled to a reserved share, the ordinary bequest made to him shall be reduced only to the extent of the excess over his own reserved share.
Pursuant to Article 1007 § 1 of the Civil Code, a claim by an entitled person in respect of a reserved share and a claim by heirs for the reduction of ordinary legacies and instructions is time-barred with the lapse of five years from the announcement of the will. Pursuant to Article 1007 § 2 of the Civil Code, a claim against a person obliged to supplement a reserved share on account of a legacy or gift received from the testator is time-barred with the lapse of five years from the opening of the inheritance. Pursuant to Article 1007 § 3 of the Civil Code, a claim against a family foundation obliged to supplement the reserved share on account of a foundation fund received from the testator is time-barred with the lapse of five years from the opening of the inheritance. Pursuant to Article 1007 § 4 of the Civil Code, a claim against a person obliged to supplement a reserved share on account of property received in connection with the dissolution of a family foundation is time-barred five years after the opening of the inheritance.
Legal aid consists of advice, opinion, negotiation and representation in cases arising from consumer disputes.
Consumer cases may include, among others, disputes relating to:
– warranty and guarantee at the time of sale,
– instalment sales,
– distance selling,
– sales outside the seller’s business premises,
– consumer credit,
– insurance,
– compensation or redress for wasted leave,
– an improperly performed or non-performed service to the consumer, in particular telecommunications, transport, courier or catering services.
Legal assistance consists of advice, opinion, negotiation and representation in franking credit cases.
Disputes arising against the background of loans indexed or denominated to CHF are so numerous that a consistent line of case law has managed to take shape, which was initiated by the 2019 CJEU judgment in the case of Kamil Dziubak and Justyna Dziubak v Raiffeisen Bank International AG (ref. C-260/18).
Borrowers may successfully claim the invalidity of agreements that have clauses that valorise the consideration to the CHF currency. The effect of allowing the action is to establish that the franking credit agreement is invalid, which entails the obligation to reimburse all monetary benefits paid by the borrowers in performance of the agreement, reduced, if the bank raises a relevant objection, by the nominal amount of the credit disbursed.
The legal basis for the action is the provisions on tortious clauses, as well as the provisions governing the invalidity of legal transactions.
