Wokół rekodyfikacji prawa cywilnego. Prace jubileuszowe

Praca recenzowana / Peer-reviewed paperPrezentowana książka to głos w debacie nad stanem naszej kodyfikacji cywilnej. Jubileusz 50-lecia uchwalenia Kodeksu cywilnego, Kodeksu rodzinnego i opiekuńczego oraz Kodeksu postępowania cywilnego zbiega się z jubileuszem Profesora Janusza Szwai1. Profesor, wybitny cywilista, obchodzi swoje 80. urodziny, mija także 50 lat od obrony przez Niego doktoratu. Jest to doskonała okazja by przyjrzeć się propozycjom zmian prawa cywilnego płynących z różnych środowisk akademickich. Wszak dużą część swojego życia Profesor Szwaja poświęcił pracom legislacyjnym, ich komentowaniu czy krytykowaniu. Sam aktywnie w zmianach różnych kodyfikacji uczestniczył. Jego poglądy zawsze były wyważone. Dziś właśnie taki wyważony głos w dyskusji nad kształtem polskiego prawa cywilnego stał się niezbędny

Terminating contract due to its anticipatory breach

The paper examines the so called anticipatory breach doctrine under the Polish law. The need for taking a closer look at the doctrine is a consequence of the last amendment to the Polish Civil Code, which shed light on the hitherto ambiguous concept of anticipatory breach of contract. The analysis shows that a firm line should be drawn between the cases of express repudiation and those of anticipatory breach by conduct, as each of them results in different legal effects. The detailed discussion of those consequences is the main aim of this paper. It thus discusses the right to rescind the contract in the event of express repudiation or repudiation by conduct, as well as the issue of damages that are to be paid by the breaching party as a result of termination. By means of introduction, the problem of prerequisites that need to be met for the above-mentioned remedies to arise is presented

Liability for infringement of personal rights : liability arising from omissions

This article addresses the problem of liability for omissions resulting in infringements of personal rights. The question whether it is possible to infringe someone else's right by omission and whether such an infringement can give rise to liability is more and more up to date. It seems, however, that, the problem remains unsolved in the Polish legal doctrine. This article aims at solving it

Compensation of losses incurred by a buyer of a defective good : warranty claims and general regime of contractual liability

The aim of this article is to analyze selected problems of compensation of damages incurred by a buyer of a defective good. The Polish Civil Code among the warranty claims provides a claim for damages that are available to the buyer of a defected good. This 'special damages' claim is susceptible to cause interpretative problems, as it might not be entirely clear how the realization of this claim influences the right to compensation under the general regime of contractual liability, regulated in the so called general part of the Polish law of obligations. The article strives to ascertain the interplay between the warranty regime and the claims for compensation under the general regime of contractual liability. In order to do this, the primary question of prerequisites and the scope of compensation under the warranty regime requires to be addressed

Assignability of Claims for Personal Injuries Caused by Torts. Ratio Legis, Present and Future of the Regulation

The aim of the paper is to present an alternative interpretation of the article 449 of the Polish Civil Code. In contrast to the most common, literal interpretation thereof, the paper offers a purposive interpretation taking into account ratio legis of the provision at stake. This tool enables to cast away some interpretative doubts which are constantly raised in the literarure. For inastance, it leads to the conclusion that the acknowledgement of debt which (according to the article 449 of the Polish Civil Code) renders the claims for damages assignable shall be limited to the acknowledgement in the strict meaning of the term, that is to the acknowledgement understood as a contract between creditor and debtor, and shall determine a sum of the acknowledged claim. The paper concludes that the article 449 of the Polish Civil Code, thanks to its purposive interpretation, may effectively protect assignors from assigning their claims for damages for the price which is far lower than the value of damages to which the assignor was entitled. This conclusion put in the context of ongoing works on the new law regulating the compensation agencies makes the article 9 of this law (which exludes the possibility of assignement of claims for damages) redundant

The proposal for the rebus sic stantibus clause regulation preapared by the Jagiellonian Univesity Civil Law scholars : a critical analysis

Over the past years the Polish Ministry of Justice, supported by the civil law scholars has been working on a new Polish Civil Code. Among many drafts prepared so far, an important role is played by the project of the law of obligations (entitled "Performance and Remedies for Non-Performance of Obligations"), delivered by the Jagiellonian University scholars, as it significantly deviates from the current law of obligations. The provision originally presented in the abovementioned project has been modified in the course of the works on the new Civil Code. The article deals with the provision on the so called rebus sic stantibus clause and discusses both versions of the regulation. However, not all the questions that might arise while analysing this problem are covered. Since the prerequisites of application of the rebus sic stantibus clause seemed to be the most problematic matter under the current regulation, the article focuses on the conditions that have to be met in order to apply the clause. A general overview as to the effects of rebus sic stantibus clause application is also to be found. Thus, it addresses the scope of the circumstances that might trigger the court's intervention in the legal relationship between the parties to a contract. Moreover, the condition, under which the change of circumstances must be the one that could not reasonably have been taken into account at the time of the conclusion of the contract, is analysed. Finally, it is argued that the applicability of the clause should not necessarily be limited to cases when the change of circumstances has occurred once the contract has been entered into. The comparison of the proposed regulation to the current one leads to the conclusion that the original version of the proposal is more comprehensive. Moreover it is in line with the current tendencies in the European private law. The same does not entirely hold true for the modified version