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ELEMENTS OF LAW

Paulina Kubera

ELEMENTS OF LAW

Materiały dydaktyczne dzięki dofinansowaniu ze środków

Europejskiego Funduszu Społecznego dystrybuowane są bezpłatnie

Elements of law

Table of Contents:

I. LECTURES:

1. Introduction to Polish law

2. Constitutional Law. Hierarchical conformity of legal norms

3. Other sources of the Polish law. Legislative process

4. The sources of the EU law. The relation between the EU law and national law

5. The court system in Poland

6. Civil procedure. Its modes and fundamental principles

7. Civil procedure. The examination proceedings

8. Civil procedure. The enforcement proceedings. The

procedure to secure claims

9. E- court. Arbitration

10. Administrative law – its features and sources. Structural

administrative law

11. Procedural Administrative law

12. Criminal law. Principles of criminal liability

13. Circumstances excluding criminal liability. Statutory limits

of punishment

14. Labour relationship. Types and the substance of a labour

contract

15. Working time. Employee leave. Employees’ rights connected

with parenthood

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II. EXERCICES

1) Subjects of civil law. Legal capacity and capacity for acts in

law

2) Power of attorney

3) Legal actions - introduction

4) Forms of acts in law

5) Defects of declaration of intent

6) Limitation of claims

7) Proprietary rights – the general characteristics. Things

8) Substance and the scope of the ownership right

9) Transferring the ownership right.

10) Land and mortgage registers

11) Obligations – the general characteristics. Performance

12) Civil law contracts: a contract of mandate and a contract of

specific work versus a labour contract

13) The law of succession

14) The matrimonial property regimes

15) Repetition

Literature:

1) Introduction to Polish Law, ed.S.Frankowski, Kluwer Law

International, 2005

2) Introduction to Polish Law, ed. A.Wyrozumska, Łódź University

Press, 2005

3) Handbook of Polish Law, PWN 2011

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LECTURES

1. INTRODUCTION TO POLISH LAW

Key words: legal norm, hypothesis, disposition, sanction, legal provision, application of law, interpretation of law

The concept of law

Law is a set of norms of conduct, issued by the state (or acknowledged by the state) and ensured by state coercion. These norms of conduct are generally binding rules intended for the regulation of social relations.

Legal norm

A legal norm is a single norm of conduct, which is issued or acknowledged by the state and ensured by state coercion. It consists of three parts:

a) the hypothesis, which sets forth the conditions under which a person should be guided by the given legal norm; in other words it describes the conditions under which the legal norm enters into effect, it indicates the circumstances and the addressee;

b) the disposition, which describes the behaviour that under the circumstances envisioned in the hypothesis is for the addressee forbidden, ordered or permitted;

c) the sanction, which defines the negative consequences for deviating from the desired behaviour. A sanction may not necessary be a repressive measure, it can be the impossibility to take advantage of those benefits which the legislator establishes for those who follow the legal prescription (e.g. sanction of nullity of a legal act).

A different approach to the composition of a legal norm is also presented, according to which, a legal norm consists of only two elements: the hypothesis and the disposition., but there are two kinds of norms that go in pairs: a sanctioned norm and a sanctioning norm.

Types of legal norms

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a) absolutely binding norms (ius cogens) – their application cannot be excluded or limited by the will of the interested parties; their mandatory nature prohibit interesting parties from contractually shaping their relations as they see fit;

b) relatively binding norm (ius dispositivum) - apply to a given relationship only to the extent that the parties involved have not agreed to regulate it differently.

Interpretation of law

Interpretation of law includes activities which consists in reconstruction of legal norms from legal provisions. The process leads to determining: who, in what circumstances, how should behave.

Legal provisions are editorial units of a legal act in the form of sentences in a grammar meaning, such as: articles, paragraphs. Not always one legal norm is encoded in one legal provision., but in several of them. Moreover, the process of interpretation requires not only to delve into the text of normative act but also into other sources.

The linguistic rules are fundamental, but they are not the only rules of interpretation. The systematic and functional rules also play an important role and are used in a successive way. It can be distinguished:

a) linguistic interpretation - involves the use of semantic and structural rules of law and natural language,

b) systematic interpretation – takes into account a location of the normative act in the law system,

c) functional and teleological interpretation – which is based on taking into account conditions in which the norm has to be operated.

Collision of legal norms

Where two or more legal norms cannot be applied consistently , the collision is solved on the basis of the following principles:

a) lex superior derogate inferiori – legal norms higher in the hierarchy (e.g. a regulation in relation to a statute) prevails over legal norms lower in the hierarchy

b) lex posteriori derogate priori – more recent norms prevails over an inconsistent earlier norms,

c) lex specialis derogate generali – specific norms prevails over general norms.

Discussion Questions:

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1) What is a normative act? 2) What kinds of relationships are regulated predominantly by relatively

binding norms? Discuss the scope of the freedom of the interested parties to shape contractually their legal relationships as they see fit.

3) What does it mean that the abidance of legal norms is guaranteed by the state coercion?

4) What rules are applied in the process of the interpretation of law?

2. CONSTITUTIONAL LAW. HIERARCHICAL CONFORMITY OF LEGAL NORMS

Key words: the Constitution, the Constitutional Tribunal, hierarchical conformity of legal norms, constitutional complaint,

Generally binding sources of law bind all entities within the Polish jurisdiction. The Constitution of the RP enumerates them in Article 87 :

a) the Constitution b) statutes c) ratified international agreements d) regulations e) acts of local law.

In the case of international agreements ratified with the prior consent of the

Parliament – they take precedence over ordinary statutes.

The Constitution

The Constitution as a primary source of law in the Republic of Poland has priority over all other legal acts of the State, which must not contradict with it. ( It is adopted and amended in a different way from ordinary acts).

Matters regulated by the Constitution: the basic principles of the Poland's political, social and economic system, the fundamental rights, freedoms and obligations of Polish citizens, the other sources of law, the most important State bodies, their competence, method of appointment and dismissal, their inter-relationships, as well as extraordinary measures which may be adopted in the state

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of war, emergency or a state of natural disaster and the procedure to amend the Constitution.

Functions of the Constitutional Tribunal. The hierarchical conformity of legal norms

The primary function of the Constitutional Tribunal is the control of hierarchical conformity of legal norms, i.e. adjudicating on the conformity of legal norms of lower rank to those considered superior (especially the Constitution) and eliminating the norms inconsistent with the system of law in force. Therefore, the Tribunal is sometimes referred to as the "negative legislator", as it eliminates the provisions of unconstitutional statutes from the system of law.

Judgements of the Constitutional Tribunal are final and universally binding. The decision on nonconformity has an erga omnes effect resulting in abolishing the normative act.

Acts and decisions made previously on the grounds of this norm are not subject to automatic annulment. Every interested party may demand the re-opening of proceedings in their case.

Constitutional complaint

Under the article 79 of the Constitution, everyone whose constitutional freedoms or rights have been infringed, has the right to appeal to the Constitutional Tribunal for its judgment on the conformity to the Constitution of a statute or another normative act upon which basis a court or organ of public administration has made a final decision on their freedoms or rights or on their obligations specified in the Constitution.

The admissibility criteria of the constitutional complaint:

a) The violation of the complainant’s constitutional rights and freedoms must be a result of an individual act of applying the law.

b) The decision must be final. The constitutional complaint can only be submitted after the complainant has exhausted the available remedies before common, or administrative courts,

c) It must be prepared by an advocate or a legal adviser (within 3 months from the day they had obtained the final decision in their case).

Practice:Discussion hold on the basis of the verdict of the Constitutional Tribunal: Judgment of 11th April 2006, SK 57/04


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1) May the Constitution be directly applicable? 2) Can an ordinary citizen initiate the proceedings before the Constitutional

Tribunal?3) Under what circumstances the constitutional complaint is admissible?4) Discuss the difference between the constitutional complaint submitted to the

Constitutional Tribunal and the cassation complaint submitted to the Supreme Court.

3. OTHER SOURCES OF POLISH LAW. THE LEGISLATIVE PROCESS

Key words: a statute, a ratified international agreements, a regulation, acts of local law, a legislative initiative

A statute is a legal act of general and abstract nature and unlimited scope. It is adopted by the Sejm and the Senat in a constitutionally described procedure.

The right to introduce legislation belongs to:

a) deputies (15 or the Sejm Committee)b) the Senate, c) the President d) the Council of Ministers.e) a group of at least 100,000 citizens having the right to vote in

elections to the Sejm.

The legislative process

First step – The Sejm considers the draft statute in the course of three readings. Statutes are adopted by a simple majority voting, in the presence of at least half of the statutory number of deputies. The statute is then forwarded to the Senat.

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Second step – the Senat within 30 days of submission of a draft statute, may:

- adopt it without amendment,

- adopt amendments or

- resolve upon its complete rejection.

If, within 30 days following the submission of the draft statute, the Senate fails to adopt an appropriate resolution, the statute is considered to be adopted according to the wording submitted by the Sejm.

A resolution of the Senate rejecting a statute, or an amendment proposed in the Senate's resolution, must be rejected by the Sejm by an absolute majority voting in the presence of at least half of the statutory number of the senators. Then a statute is forwarded to the President.

Third step – the President, may:

- sign the proposed statute ,

- refer it to the Constitutional Tribunal for an adjudication upon its conformity to the Constitution, (The President cannot refuse to sign a statute which has been judged by the Constitutional Tribunal as conforming to the Constitution),

- refer it, with reasons given, to the Sejm for its reconsideration (veto).

The Sejm can override the Presidential veto by a three-fifths majority voting. After signing the President orders its promulgation in the Journal of Laws of the Republic of Poland.

Practice:

Find a consolidated version of the Act of 23 April 1964 The Civil Code (Dziennik Ustaw 1964, No.16, item 93 with subsequent amendments). Use the Internet systems of Legal acts – ISAP by Chancellery of the Polish Sejm.

Ratified international agreement

The treaty ratification is the competence of the President.

After promulgation in the Journal of Laws, a ratified international agreement constitutes part of the domestic legal order and is applied directly, unless its application depends on the enactment of a statute.

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However, the ratification of the most important treaties requires consent granted by the Parliament,. This refers to the agreements which concern:

a) peace, alliances, political or military treaties;b) freedoms, rights or obligations of citizens, as specified in the

Constitution;c) the Republic of Poland's membership in an international organization;d) considerable financial responsibilities imposed on the state;e) matters regulated by statute or those in respect of which the

constitution requires the form of a statute.

Importantly, the treaties ratified with the prior consent of the Parliament have precedence over statutes if the cannot be reconciled with provisions of such statutes, (article 91 of the Constitution).

The Constitutional Tribunal reviews the conformity of statutes with such treaties. On the other hand, the constitution provides for preventive constitutional review of the conformity of ratified treaties with the constitution. (Article 133 of the Constitution allows the President to request a ruling, thereon, from the Constitutional Tribunal).

Regulations are issued for the purpose of implementation of the statutes.

In the hierarchy of legal acts they are ranked below statutes.

Bodies entitled to issue regulations: the President, the Council of Ministers, the President of the Council of Ministers, ministers, presidents of the statutorily regulated committees, nominated as members of the Council of Ministers, the National Council for Radio Broadcasting and Television.

These bodies may issue regulations on the basis of specific authorisation incorporated in the statutes.

Acts of local law are enacted by organs of local government and territorial organs of government administration (the councils of gmina, the councils of powiat, the assemblies of voivodship, governors) and are binding within the jurisdiction of organs that enacted them.

They are adopted on the basis of and within limits specified by a statute and are published in wojewódzkie dzienniki urzędowe.

(see:www.dziennikiurzedowe.gov.pl)

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1) Is the Sejm and the Senat put on equal footing in the legislative process?

2) What is quorum?3) What is the difference between the simple majority voting and absolute

majority voting?

4. THE SOURCES OF THE EU LAW. THE RELATION BETWEEN THE EU LAW AND NATIONAL LAW

Key words: primary legislation, supplementary legislation, secondary legislation, the EU directive, the EU regulation

The EU Member States have given the EU the right to exercise some of their sovereign powers.

Article 90 The Constitution of the Republic of Poland

The Republic of Poland may, by virtue of international agreements, delegate to an international organization or international institution the competence of organs of State authority in relation to certain matters.

Primary legislation consists of the EU founding Treaties with the annexes, protocols attached to them as well as later amendments. They contain the basic provisions on the EU’s objectives, organisation and modus operandi, and parts of its economic law. They are legal instruments created directly by the member states.

Secondary legislation is made by the EU institutions, through exercising the powers conferred on them in the Treaties. These are, in particular:

- regulations, - directives,

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- decisions as well as- recommendations and opinions.

The EU regulations are:

- binding in their entirety,- directly applicable in member states.

As soon as they are passed, they have binding legal force throughout every member state. National governments do not have to take action themselves to implement EU regulations.

Contrary to the regulations, the directives lay down certain end results that must be achieved in every member state. National authorities have to adapt their laws to meet these goals, but are free to decide how to do so. Each directive specifies the date by which the national laws must be adapted - giving national authorities the room for manoeuvre within the deadlines necessary to take account of differing national situations. (The directives are directly applicable only under particular circumstances).

The decisions are binding on those to whom they are addressed. (e.g. a member state or an individual). They can be characterised by being of an individual application of law. The decisions are binding in their entirety and are directly applicable to those to whom they are addressed.

The EU soft law refers to those legal acts which are not binding. In recommendations, the party to whom they are addressed is called on, but not placed under any legal obligation, to behave in a particular way. Opinions are issued by the EU institutions when giving an assessment of a given situation or development in the EU or individual member states. The real significance of recommendations and opinions is political and moral.

Supplementary legislation is used by the EU Court of Justice as rules of law in cases where the primary and secondary legislation do not settle the issue. They include general principles common to all the national legal systems of the member states and rules of public international law which are compatible with the EU objectives.

Fundamental rights, which have long been seen by the Court of Justice as general principles of law, are gradually becoming elements of primary legislation.

The principle of the primacy of the EU law over the national law means the obligation to comply with the European Union law by the member states, regardless of national law.

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1) Where to place the international agreements concluded by the EU in the hierarchy of the EU sources of law?

2) Does the principle of the primacy of the EU law over national law go so far as to be applicable to national constitutions?

3) In what matters the EU has a competence to adopt legally binding acts?

5. THE COURT SYSTEM IN POLAND

Key words: the Supreme Court, the common courts, the administrative courts

According to the article 45 of the Constitution: Everyone shall has a right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.

Court proceedings shall have at least two stages (instances) (art. 176 Const.).

The following courts constitute the court system in Poland: the Supreme Court, the common courts, administrative courts and military courts.

The Supreme Court is a judicial body appointed to perform the following tasks:

a) ensures, as part of its supervisory duties, compliance with the law and uniformity of judicial decisions of common (and military courts) by hearing extraordinary appeals (cassation);

b) adopts resolutions to adjudicate questions of law; (if judges, who consider a matter, have serious doubts concerning the question of law both in criminal and civil procedure, the court of second instance is entitled to submit this question to the Supreme Court; importantly, such a resolution is binding in a given case only);

c) hears electoral petitions and ascertains the validity of the elections to the Sejm and Senate, the European Parliament, the election of the

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President of the Republic of Poland as well as the validity of the national and constitutional referendum;

d) gives opinions on draft laws and other normative acts of law which form the basis for rendering decisions by the courts and their operations as well as other laws to the extent that it deems advisable. (source: www.sn.pl/en/about/SitePages/Legal%20basis.aspx)

The administrative courts exercise justice by reviewing the activities of public administration and resolving disputes as to competence and jurisdiction between local government authorities, appellate boards of local government, and between these authorities and government administration authorities. The review of the activity of public administration is about conformity with the law. It also includes judgments on the conformity with the law the resolutions of organs of local government authorities and normative acts of territorial bodies of government administration.

Exercising control over the performance of public administration, administrative courts assess the activity (action or omission) of an organ of public authority. Therefore, administrative courts do not replace public administration organs and do not take over their competence to the final settlement of the matter and making decision. Judgments of administrative courts, in case of allowance of the claim, rule on the revocation or annulment of the contested act or oblige an organ of public administration to a specific behaviour in the course of further settlement of an administrative case. (source: www.nsa.gov.pl/en.php).

There are two levels of administrative courts:

1) the voivodship administrative courts (wojewódzkie sądy administracyjne)– the courts of first instance,

2) the Supreme Administrative Court (Naczelny Sąd Administracyjny)- the court of second instance seated in Warsaw.

The common courts - administer justice in all matters, with an exception of matters which are reserved, by law, to the competence of other courts.( It means that they adjudicate in the majority of legal cases, inter alia, in civil disputes and criminal cases).

There are three levels of common courts, however, the court proceedings consists of two instances only):

1) the regional courts (sądy rejonowe)2) the district courts (sądy okręgowe) - established for the area of jurisdiction

of at least two regional courts,3) the appeal courts (sądy apelacyjne) -established for the area of jurisdiction

of at least two district courts).

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Currently, there are 376 common courts in Poland – 11 appeal courts, 45 district courts and 321 regional courts.

Judges are appointed by the President of the Republic of Poland at the motion of the National Judiciary Council for an unspecified period of time. Judges in Poland are independent, they are governed solely by the Constitutions and statutes. They hold an immunity and may not be dismissed from their jobs, which means that the employment relationship is dissolved by force of law when a judge resigns. (source: www.ms.gov.pl/en/the-judicary-in-poland).


1) Give examples of cases heard by the administrative courts.2) Outline the formal procedure to be followed when you are not satisfied

with the administrative decision.3) In what cases the district courts act as courts of first instance?

6. CIVIL PROCEDURE. ITS MODES AND FUNDAMENTAL PRINCIPLES

Key words: civil case, examination proceedings, trial, non-trial proceedings, a plaintiff, a defendant, the fundamental principles of civil procedure

Notion of the ‘civil case’

Civil courts examines cases arising under civil law, family and guardianship law, labour and social security law and other categories of suits referred to civil litigation by statute as well as any claim regarding financial liability arising from an administrative decision (CK – SK 12/99).

Types of proceedings in civil cases:

a) examination proceedings - to examine the case and decide on the merits; it is conducted according to two procedural modes: trial, which is the principal method for resolving civil cases and non-trial;

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b) enforcement proceedings – employed for compulsory enforcement of a judgement;

c) subsidiary proceedings - to enable the court to conduct examination and enforcement proceedings properly (e.g. dealing with lost or destroyed files; proceedings to secure claims).

Trial versus non-trial proceedings

In the trial there are two opposing parties who are in a dispute: a plaintiff, a person who initiates a lawsuit before the court and a defendant, a person against whom a claim is brought in a court. The existence of opposing parties is a prerequisite for a trial.

In the non-trial proceedings, in turn, the number of parties may vary depending on how many persons have an interest in the outcome of the proceedings. This mode of proceedings is employed to decide such matters as personal status (e.g. declaring a person legally incompetent), adoption and guardianship or division of probate estate (inheritance). A court hearing is not common and the court has more powers to act ex officio.

The fundamental principles of the civil procedure

The following principles can be described as fundamental for the civil procedure:

a) the principle of the parties’ autonomy (the principle of procedural initiative of the parties)

b) the principle of adversarial proceedings c) the principle of equality of the partiesd) the principle of directness and oral proceedingse) the principle of public proceedings

These are guiding ideas or assumptions that relate to all aspects of the civil procedure. They determine the very nature of civil proceedings and are of special importance in the interpretation of the provisions governing civil proceedings [Ereciński T, ‘Civil Procedure’ in: Introduction to Polish Law, ed. by S.Frankowski, Wolterskluwer 2005]

The principle of the parties’ autonomy

The plaintiff determines the subject-matter and the scope of the case before the court in their suit. The court is bound by the plaintiff’s application and cannot adjudicate anything else beyond what is included.

During the trial parties are entitled to the following acts:- the suit may be withdrawn by the plaintiff,

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- the claim may be recognized by the defendant,- parties may conclude a settlement before the court.

These acts are admissible in the 1st as well as in the 2nd instance. The courts are bound by these acts and obliged to discontinue the proceedings, (unless the facts clearly indicate that the parties’ actions are intended to circumvent the law or are either contrary to the law or the principles of social coexistence.

The principle of adversarial proceedings

In trial proceedings, the plaintiff should indicate the facts and evidence supporting their claims and motion. The burden of proof is on the person who infers legal effects from a given fact. (However, in certain cases, esp. in family law the court may undertake ex officio actions to supplement the material provided by the parties.)

The principle of equality of the parties

The parties should have an equal opportunity to explain and justify their arguments on controversial issues in a dispute. To this end, the right to defence is ensured. The case may be decided on its merits only after the opposing party has been given the chance to express their opinion.

The principle of directness and oral proceedings

Establishing facts and proving them are concluded directly before the adjudicating court. Generally, parties submit their opinion orally to the court during its sitting and the court orally examines witnesses, experts and parties.

The principle of public proceedings

The court examines every case during an open hearing unless indicated otherwise in specific provisions (e.g. if there is a possibility of disclosing the state or official secrets or details of somebody’s family life).


1) Discuss the difference between the principle of substantive true and the principle of formal true. Which one is adopted in the Polish civil procedure?

2) What is done in order to ensure the principle of equality of the parties not only from the formal point of view but also in practice?

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3) Discuss the idea and the scope of the principle of free evaluation of evidence by the judges in civil procedure.

7. CIVIL PROCEDURE. THE EXAMINATION PROCEEDINGS

Key words: the trial, a suit, the value of the litigation object, jurisdiction of courts, appellate measures

The trial

The trial is initiated by filing a suit by a person who claim that their rights were infringed or endangered. (Sometimes other entities are also entitled to start civil proceedings i.e the public prosecutor, the Commissioner for Citizens’ Rights and in few instances non-governmental organizations, on behalf of a specific person).

A suit is a petition to a court requesting a legal remedy. It should be in writing ( only in exceptional cases it is admissible to file a suit orally) and should contain:

- the name of the court - names of the parties, their attorneys and statutory agents as well as

addresses of the parties (the number PESEL/NIP/ or KRS of the plaintiff)

- the statutory title of the pleadings- the value of the litigation object- the essence of the claim/request and evidence providing that facts

described in the document are true,- the signature of a party, his or her attorney or statutory agent- the enumeration of annexes;

The value of the litigation object is the value of the object of dispute excluding interests, fruits and costs demanded beside the main claim. When a plaintiff pursue in a single suit a couple of claims, they should be sum up. In the case of periodically repeated claims, the value of the litigation object is equal to one year of payment, unless, a disputable period is less than one year. (The value of the litigation object influences: which court is of a first instance in the case and the amount of court fee.)

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Jurisdiction of courts

Generally, regional courts (sądy rejonowe) are the first instance courts, with the exception of the following cases, where the district courts (sądy okręgowe) act as first instance courts:

a) non property rights (such as divorce) and related claims other than the following: establishment or contestation of a child's parentage, renunciation of parenthood or dissolution of adoption;

b) protection of copyright and related rights and rights concerning inventions, utility models, designs, trademarks, geographical indications and topographies of integrated circuits, protection of other rights involving intangible goods;

c) claims under the Press Act;d) property rights cases in which value of the object of dispute

exceeds PLN 75 000, except in cases concerning: alimony, ownership disputes, liquidation of matrimonial property between spouses, alignment of the contents of the land register with the law as it stands; cases heard by an e-court

e) the issue of a ruling replacing a resolution on the division of a cooperative;

f) the annulment, declaration of invalidity or establishment of the null and void status of resolutions issued by legal persons or by organisations which are not legal persons but which have been granted legal personality by law;

g) the prevention of, and measures to eradicate, unfair competitionh) cases for compensation for damage sustained by the final unlawful

court ruling.

Territorial courts’ jurisdiction

The Polish Code of Civil Procedure refers to four types of court jurisdiction:

- general,- concurrent,- exclusive and - special.

General jurisdiction is determined by the defendant’s domicile or a registered seat in the case of legal entities.

Concurrent jurisdiction means that in some cases plaintiff can choose the court in which they institute proceedings: in the court with general jurisdiction or

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in one of the other courts indicated in Articles 32 37 of the Code of Civil Procedure.

Example: In the case of the property claims connected to the defendant's business

activities, proceedings can be instituted before the court with jurisdiction over the place in which the defendant's establishment or branch is located, if the claim is connected to the activities carried out by that establishment or branch.

Exclusive jurisdiction means that the case must be heard by the court indicated in the special provision.

Example:A suit concerning real estate cases may be filed only with jurisdiction over

the area in which a given real estate is located

Special (contract) jurisdictionThe parties may agree in writing to submit an existing dispute which has

arisen from a given legal relationship or potential future disputes to a court of first instance which does not have local jurisdiction under the law. However, the parties may not change exclusive jurisdiction.

Agreements on court jurisdiction must be in writing and may form part of a legal agreement (prorogation clause) or be drawn up as a separate agreement.

Parties are entitled to represent themselves and conduct the proceedings in person in the first and second instance.

There is no exhaustive catalogue of evidentiary means provided by the statutory law. These can be, in particular, documents ( ordinary and special, private and official), witnesses, expert opinions, visual inspections, hearing of the parties and others (e.g. from blood examination).

Generally, the court may not adjudicate matters that are not subject of the claim, because it is the plaintiff who decides the scope of the claim.

The basic rule of cost and fee allocation in civil proceedings is based on the principle of liability of a party for the result of the proceedings.

In civil cases are two kinds of the appellate measures:

- ordinary – appeal - extraordinary - cassation complaint (skarga kasacyjna); action on

legality of final judgment (skarga o stwierdzenie niezgodności z prawem prawomocnego orzeczenia) brought to the Supreme Court; action for reopening of proceedings (skaraga o wnowienie

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postępowania) brought to the court which considered the case in previous proceedings.


1) What are the possible composition of courts?2) Discuss the potential costs of the proceedings and the rules of bearing

them by the parties.3) Discuss the scope of proceedings before the second instance court.4) What are the grounds for the cassation complaint as an extraordinary

appellate measure?

8. CIVIL PROCEDURE. THE PROCEEDINGS TO SECURE CLAIMS. THE ENFORCEMENT PROCEEDINGS

Key words: the proceedings to secure claims, the so-called clause procedure, an enforcement clause, the enforcement title, the enforcement document, the proper enforcement procedure

Examining a civil law case takes time. It may be that legal protection was granted too late, and therefore failed to serve its purpose. The parties’ procedural situation may be changed rendering the court judgment unenforceable or preventing it from having intended legal consequences. The proceedings to secure claims are auxiliary proceedings that ensure the guarantee of immediate and temporary protection for the eligible entities.

The proceedings aims at securing the subsequent enforcement of a judgment in a civil law case which has not been decided on yet or where no enforceable document has been issued yet.

A party or other participant is entitled to initiate this procedure if:- their claim is credible and- has a legal interest in the protection (the protection is needed for future enforcement of the judgment, the lack of a protective measure will make it impossible or will seriously hinder the execution of a ruling delivered in a given case).

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While choosing a protective measure to secure a claim, the court is obliged to take into account the interests of parties or participants in proceedings, to the extent this guarantees proper legal protection to the eligible party, and on the other hand, does not excessively burden the party on which the obligation is imposed. Generally, a security measure should not lead to satisfying a claim. The Code of Civil procedure (art.747 and 755) provides for a closed list of security measures available for safeguarding pecuniary and non-pecuniary claims; e.g. seizure of movable property, compulsory mortgage.

The enforcement proceedings are employed to effectuate civil judgments rendered by courts. In the majority of instances this procedure constitutes the stage subsequent to the completion of examination proceedings. Certainly, if a debtor voluntarily fulfils the obligations imposed upon them by a court judgment, the enforcement procedure is not needed.

The enforcement proceedings consist of two parts:

a) the so-called clause procedure and b) proper enforcement procedure.

The so-called clause proceedings

The basis for the proper enforcement procedure constitutes the enforcement title (tytuł egzekucyjny) appended with an enforcement clause; then it is called the enforcement document (tytuł wykonawczy).

We can distinguish the following enforcement titles:

- valid and final judgment of the court,- immediately enforceable judgments of the court,- settlements concluded before the court,- judgments of an arbitration court and agreements concluded before

such a court,- bank enforcement titles which may be issued by banks and their

content is determined by Banking Law,- notarial deeds by virtue of which the debtor submits themselves to

execution.

The enforcement clause, confirms the admissibility of the execution on the basis of a specific execution title. It is a legal institution that prevents invalid or untimely application of coercive measures. It usually appears as a stamp with special expression including permission for enforcement, put on the enforcement title. If necessary, it also marks its limitations.

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Generally, the enforcement clause is appended against the persons indicated in the enforcement title. However it is admissible to append the enforcement clause against certain other persons; e.g. if an enforcement title is issued against a married person, the court may attach to it an enforceability clause against that person’s spouse ( the spouse liability is limited to common property).

The enforcement clause is appended by the first instance court composed by one judge at the request of the creditor.

The proper enforcement procedure is conducted by two enforcement bodies:

a) the regional court,b) the enforcement officer, who is subject to judicial supervision.

The enforcement proceedings are initiated by filing an application by the creditor.

The Code of Civil procedure indicates the enforcement methods, which are, inter alia, collection from movable property, bank accounts, immovable, see vessels and wages. For instance, an enforcement officer collects the debts from movable property by its seizure and sale, usually by public action. However, certain items are exempt from seizure, such as household items, food supplies or tools necessary for the debtor’s work. While collecting the debts from debtor’s wages, the enforcement officer orders the employer to transfer a part of the debtor’s wages directly to them or the creditor. While collecting the debts from the debtor’s bank account, the enforcement officer notifies the bank of the attachment order. If a bank does not comply with the provisions on enforcement , it may be held liable for the damage incurred to the creditor.

A debtor may be also required to disclose their property.


1) What is the purpose of the so-called clause procedure? Is it an unnecessary bureaucratic burden for a creditor?

2) How to initiate the enforcement proceedings?3) What enforcement methods do you know?

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9. E-COURT. ARBITRATION

Key words: e-court, a writ of payment, the arbitration tribunal, the arbitration agreement

The e-court (the electronic court) is an alternative to the traditional proceedings before state courts. It considers cases under electronic writ of payment proceedings (electronic order for payment proceedings).

The jurisdiction of the e-court covers the whole territory of Poland regardless of the defendant’s domicile or seat.

It is competent to examine civil pecuniary claims. The cases are considered under electronic writ of payment proceedings irrespective of the total amount of the dispute. However, the Court lacks competence over non-pecuniary claims and family law claims.

The claimant (party who brings the action) communicates with the Court exclusively electronically by means of a system dedicated to the electronic writ of payment proceedings. Once registered on the platform http://www.e-sad.gov.pl, the claimant can edit and send the claim form and further pleadings to the e –court.

However, the defendant can choose either the electronic or the traditional way (pleadings in writing posted to the court) to communicate with the e-court.

The most common type of decision taken in the e-court is the payment order (writ of payment). The court official (referendarz) conducts an examination of the well-foundness of the claim as set forth in the lawsuit.

If the official concludes that the claim is well-grounded, the payment order (writ of payment) is automatically served on the claimant by means of the electronic system whereas the service of the lawsuit and the order on the defendant takes place in the traditional way (by post). In the event where the claim appears groundless, no payment order (writ of payment) follows, and the case is transferred to the competent court for detailed consideration.

The defendant can submit a statement of opposition in writing to the payment order within two – weeks’ time counted from the date of the effective service of the order. The effective submission of the statement of opposition by the defendant annuls the payment order and results in the case being transferred for consideration to the competent court.

If the defendant refrains from submitting the statement of opposition – the payment order (writ of payment) becomes final and the enforcement clause is issued in the electronic system by the court official. The resulting writ of

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execution, upon the claimant’s motion, enables the court executive officer to start execution proceedings. (source: www.e-sad.gov.pl/Subpage.aspx?page_id=35)

Arbitration courts

Arbitration is an alternative way to solve a civil dispute by a non-state organ.

Arbitration courts/tribunals may be:

a) ad hoc arbitral tribunals appointed to resolve a particular dispute orb) a permanent arbitration courts.

Main arbitration organisations in Poland are: the Arbitration Court at the Polish Chamber of Commerce (Sąd Arbitrażowy przy Krajowej Izbie Gospodarczej), the Arbitration Court at the Polish-German Chamber of Commerce (Stały Sąd Arbitrażowy przy Polsko-Niemieckiej Izbie Przemysłowo-Handlowej), or the Arbitration Court at the Polish Conference of Private Employers LEWIATAN - Arbitration Court at PKPP Lewiatan (Sąd Arbitrażowy przy Polskiej Konfederacji Pracodawców Prywatnych LEWIATAN).

An arbitration agreement

The parties may submit to arbitration disputes regarding property rights and non-property rights which may be subject to a judicial settlement, excluding cases for alimony.

The parties should define the subject of the dispute or the legal relationship under which the dispute has arisen or may arise. (An arbitration agreement concerning disputes involving labour law may be made only after the dispute has arisen).

The arbitration agreement should be in writing.

The procedure

The arbitral tribunal may hear witnesses, examine documentary evidence and make inspections, as well as examine any other necessary evidence, but it may not apply coercive measures.

The arbitral tribunal may apply to the regional court (sąd rejonowy) for the area in which evidence is to be taken or other action performed to take evidence or perform other action which the arbitral tribunal is unable to perform.

The arbitral award

An arbitral award or a settlement entered into before an arbitral tribunal has legal effect equal to a court judgment or a settlement entered into before a court,. upon recognition or enforcement thereof by the court.

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The court refuses recognition or enforcement of an arbitral award only if:

a) in accordance with statute the dispute cannot be resolved by an arbitral tribunal, or

b) recognition or enforcement of the arbitral award would be contrary to fundamental principles of the legal order of the Republic of Poland (public order clause).

c)The Code of Civil Procedure provides also grounds to demand by the party

to set arbitral award aside (skarga o unieważnienie wyroku sądu polubownego).


1) What cases can be examined by the e-court?2) What cases can be examined by the arbitration tribunal?3) What are the general advantages and disadvantages of arbitration

compared to traditional state court proceedings?4) For an arbitration agreement to be valid, what requirements must be

satisfied?5) Who can be an arbitrator?

10. ADMINISTRATIVE LAW – ITS FEATURES AND SOURCES. STRUCTURAL ADMINISTRATIVE LAW

Key words: public administration, administrative law, the administrative law relationship

The term ‘administration’ stems from Latin word administro, administrare, which means to serve, conduct or manage.

Public administration, which is the principal object of the administrative law, may be understood as to be ‘overtaken by the state and realized by its pending bodies and also by the bodies of local self-government fulfilling collective and individual needs of citizens, resulting from the peoples’ coexistence in communities’ [ Boć J., ed. , Prawo administracyjne, Wrocław 2003, p.16, za:

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M.Możdżeń-Marcinkowski, Introduction to Polish Adinistrative Law, C.H.Beck 2012, p.4].

Administrative law is a branch of law which establishes a legal framework for the activity and organization of public administration.

On one hand, it determines the scope of obligations of the administrative bodies which makes it possible to compel the administration to carry out its duties. On the other hand, it determines the limits for the public administration, thus protects individuals from arbitrary actions of public authorities.

Public administration bodies are statutorily empowered authorities, which may use coercive measures secured in binding law.

Administrative legal relationship is characterized by inequality of the parties. At least at one side we have an administrative body who is entitled to shape unilaterally the legal situation of the other party. (However, it does not mean that administrative organs enter only administrative law relationships).

Public administration is based on law and acts within the limits of law. As a consequence, the public administrative organs cannot act without specific authorization. The limits of such authorisation must be observed.

It can be said, that administrative law is one of the most complex body of law since it has a broad scope and is very dynamic. Administrative legal norms are inserted in acts of different rank, enacted by various organs, in different periods of time; (eg. building law, education law, protection of health law, environmental law, energy or telecommunication law, law counteracting unemployment)

Administrative law can be divided into:

a) structural administration law – regulates the organization, structure, competence and operating rules of public administration (who is acting?)

b) procedural administrative law – regulates the procedures for settling individual cases before public administration authorities (how are they acting?)

c) substantive administrative law - regulates the scope of administration’ s activity

STRUCTURAL ADMINISTRATION LAW: central and territorial administration

Central administration organs:

- the President - the Council of Ministers - the Prime Minister - the Ministers

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- other central organs, including governmental agencies or special funds set up to fulfil the respective tasks of public administration throughout the entire country, e.g. the State Committee for Scientific Research (Komitet Badań Naukowych), the National Broadcasting Council (Krajowa Rada Radiofonii i Telewizji.

Organs of government territorial administration

1) Organs of unified government administration -voivode and other organs which act under authority of the voivode (heads of services, inspection and safety guards);

A voivode is a representative of the Council of Ministers in particular voivodship, has general competencies in the field of governmental administration at regional level. He is a senior official of the unified government administration, he coordinates these organs, provides the conditions for their effective operation and bears responsibility for results of their activity in a given voivodship; (e.g. Provincial Police Headquarters, Provincial Headquaters of State Service).

2) Organs of ununified administration (previously called special administration)- are not under authority of the voivode, but a given ministry or other state central organ; e.g. Director of the Tax Chamber. Director of the Statistics Office, Director of the Marine Office.

3 LEVELS CONSITUTIVE (LEGISLATIVE) ORGANS

EXECUTIVE ORGANS

gmina The gmina council (rada gminy)

The gmina administrative officer (wójt), the Mayor of the town (burmistrz) or a town President

powiat The powiat council The managing board (zarząd powiatu) with a chief officer- starosta

voivodship The assembly of voivodship (sejmik)

The managing board with its head – the Marshal (marszałek)

Territorial Self- government

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Gmina is a basic unit of local authority, which performs all tasks of local self-government not reserved to other units of local self-government.

Membership in the community is universal and obligatory (inhibitants constitute by law a self-government community).

Units of local self-government possess legal personality; they have right of ownership and other property rights. They participate in the exercise of public power and perform considerable number of public tasks in their own name and under their own responsibility.


1) What is the difference between civil law relationship and administrative law relationship?

2) What are the sources of the administrative law?3) Discuss the powers of the central administration organs.4) Discuss the main features and organisation of the territorial self-

government.5) What organs exercise review over the activity of units of territorial self-

government? What is subject to review?

11. PROCEDURAL ADMINISTRATIVE LAW

Key words: general principles of administrative procedure, an administrative act

The principle of legality, which is the fundamental principle governing the functioning of public administration, provides that public authority bodies must operate only on the basis of law and strictly within its bonds. This means that every action undertaken by public administration has to be explicitly authorized by law.

Legal forms in which public administration operates:

- normative acts - administrative acts

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- orders of a superior- administrative agreements - civil contracts - material-technical acts - activities organizing the community- others.

These forms may be external or internal, authoritative, non- authoritative or mixed (e.g. administrative settlements), may constitute legal actions or actual actions, etc.

An administrative act is made in the exercise of public authority (it is an unilateral, authorative act), directed to a concrete addressee and referring to a concrete matter.

The principle of taking into account the public interest and just interestsof citizens ex oficio, is the next general principle of administrative procedure. It impose an obligation on public administration units to take into consideration the interest of both individuals and the society as a whole while conducting the proceedings. In the case of the conflict between them in a particular situation, public administration bodes should aim at reconciling them, that is to balance them.

The principle of objective truth

The principle of deepening the trust of citizens to the state authorities

The principle of providing factual and legal information to parties and to other participants of proceedings

The principle of parties’ active participation in administrative proceedings

The principle of convincing imposes an obligation on public administration bodies to explain to the party that the decision addressed to them is grounded on rational premises and is legitimate.

The principle of speed and simplicity of procedure ( the principle of efficient proceedings)

The principle of settlement of disputes by agreement

The principle of written form in proceedings

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Importantly, administrative procedure are of two instances. The party, which is the addressee of the decision, has the right to their matter being considered twice, as regards its merits, by two administrative bodies of different authority.

Moreover, administrative decisions are subject to judicial review. This review is limited to the conformity of actions taken by public administration bodies to the law.


1) What is the difference between an administrative act and normative act?2) What are the components of an administrative decision?3) Discuss the general principles of administrative procedure. How they are

observed in practice?

12. CRIMINAL LAW. PRINCIPLES OF CRIMINAL LIABILITY

Key words: an offence, felony, misdemeanour, culpability, social harm, perpetrator, criminal liability,

Principles of criminal liability

An offence/a crime is a human conduct, prohibited by a statute under penalty, culpable, whose social consequences are significant.

The principle is that only the natural person can be held criminally liable, because the prerequisite of criminal liability is the fault that can only be put on a natural person. However, this principle does not, constitute any obstacle for holding the collective entities liable for offences committed by certain natural person as the consequence of natural person’s liability (see: The Act of 28th October 2002 on theLiability of Collective Entities for Acts Prohibited under Penalty).

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Moreover, only the one who was engaged in conduct prohibited by a statute in force at the time of its commission may incur criminal liability (the nullum crimen sine lege principle). This is one of the most essential principles of the contemporary criminal law and the important component of the concept of state of law, since it protects individuals against unlawful and arbitrary action of the state.

There is no criminal liability without culpability, guilt, which is understood as a personal accusation attributed to the perpetrator. It can be said that one can be found guilty, if they could have behaved without violating substantive penal law.

Finally, an act whose ‘social harm’ is minimal does not constitute a crime. In assessing the level of social consequences of an act, the court takes into account, inter alia, the type and nature of the infringed interest, the dimension of the damage caused, the method and circumstances of perpetrating the act, the form of intent and motivation of the perpetrator.

Classification of prohibited acts

The offence is either a felony or a misdemeanour.

Felonies are prohibited acts subject to penalty of imprisonment of not less than 3 years or to a more severe penalty.

Misdemeanours are prohibited acts subject to penalty of a fine exceeding 30 daily fine units, the penalty of restriction of liberty or penalty of deprivation of liberty exceeding one month.

A felony may be committed only with intent. The misdemeanour, in turn, may also be committed without intent, if the law so stipulates.

Perpetrator

Only those who have attained the age of 17 can be held criminally liable.

Exemptions:If certain conditions (related primarily to the minor’s maturity and their

personal traits) are met, then a minor who has attained the age of 15 and committed one of the serious enumerated felonies (e.g. an attack on the life of the President, aggravated intentional homicide) may also be held liable on the same footing as an adult.

With regard to the perpetrator who commits a prohibited act after having attained 17 years of age but before having reached the age of 18 years, the court, instead of a penalty, adopts educational, therapeutic, or corrective measures prescribed for juveniles, if the circumstances of the case and the mental state of development of the perpetrator, their characteristics and personal situation warrant it.

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Gradual forms of an offence:

a) preparationb) attemptc) commission

Forms of cooperation in commission of an offence:

a) co-perpetrationb) instigationc) aiding and abetting


1) Can a crime be committed only by action or also by omission?2) Can an offence be committed unintentionally?3) What is decisive in determining whether an offence is a felony or a

misdemeanour?4) What does it mean that there is no ‘intentional’ or ‘unintentional guilt?5) Does penalty for preparation and attempt differ from a penalty foreseen

for commission of a crime?6) Can a person who induces another person to commit a prohibited act

be held liable? What about criminal liability of a person who facilitates commission of a prohibited act by another person?

13. CIRCUMSTANCES EXCLUDING CRIMINAL LIABILITY. STATUTORY LIMITS OF PUNISHMENT

Key words: necessary defence, higher necessity, penalties, penal measures

There are circumstances that exclude unlawfulness of the formally prohibited act (e.g. necessary defence, higher necessity) and circumstances that

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exclude an offender’s culpability ( e.g. insanity, an excusable mistake as to a circumstance constituting a definitional element of a prohibited act).

The first category is based on the assumption that in the case of a collision between two legally protected interests , it is sometimes socially beneficial to allow a person to perpetrate a formally prohibited act rather than abstain from it.

Necessary defence

Whoever in necessary defence repels a direct illegal attack on any interest protected by law, is not deemed to have committed an offence (art.25 of the Criminal Code).

The prerequisites of the necessary defence’s admissibility:

- a person acts to avert an impending danger - a source of the danger is another person (assailant)- an attack is illegal - a person uses a means of defence proportionate to the danger and

intensity of the attack.

However, in the event that the limits of necessary defence have been exceeded, in particular when the perpetrator has used a means of defence disproportionate to the danger of the attack, the court may apply extraordinary mitigation of the penalty and even renounce its imposition. Moreover, the court renounces the imposition of the punishment if exceeding the limits of necessary defence resulted from fright or emotional distress, as justified by the circumstances of the attack.

Higher necessity

Whoever acts with the purpose of averting an immediate danger threatening any interest protected by law, if the danger cannot otherwise be avoided but the interest sacrificed has a lower value than that of the interest rescued, is deemed to have not committed an offence (art.26 par.1 of the Criminal Code).

The prerequisites of the higher defence’s admissibility:

- a person acts to avert an impending danger,- a source of the danger – another person, animals, forces of nature, - the danger cannot be avoided otherwise (the subsidiarity

principle)- the interest sacrificed must represent a lower value than the interest

sought to be preserved ( the proportionality principle).

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If a person sacrifices an interest of higher value, although not ‘manifestly’ higher, than the interest sought to be protected, a person is also deemed to have not committed an offence, although on different grounds. In this stance, because of the exclusion of the actor’s culpability (not an exclusion of the unlawfulness of an act).

In the case of the following situations:- a danger was not direct or ceased to exist,- there was a possibility of avoiding danger otherwise,- the significance of a sacrificed good was manifestly superior to the

one of a rescued good,depending on the circumstances, the court may apply extraordinary mitigation to the penalty or even waive its imposition.

Statutory limits of punishment

Polish criminal law distinguishes: penalties and penal measures. Penalties are viewed as principal crime control measures and are geared more toward repression. These are: fine, restriction of liberty, deprivation of liberty, deprivation of liberty for 25 years and deprivation of liberty for life. Penal measures are supplementary although they may be also imposed instead of a penalty. They aim more at crime prevention or redressing the damage caused by an offence. These are, inter alia, deprivation of public rights, interdiction preventing the occupation of specific posts, the exercise of specific professions or to engage in specific economic activities, obligation to refrain from being in certain environments or places, a ban on contact with certain people, interdiction on driving vehicles, or forfeiture of items.

The court imposes the punishment according to its own discretion, within the limits prescribed by law bearing in mind that its harshness should not exceed the degree of guilt, be proportionate to social harm of the act, and taking into account the preventive and educational objectives which the punishment has to attain with regard to the sentenced person, as well as the need to develop a legal conscience among the public.

Discussion questions:

1) Compare the situations when the person acts in necessary defence and in the higher necessity.

2) What are the consequences of exceeding the limits of necessary defence, in particular, when a person uses a means of defence disproportionate to the danger and intensity of the attack ?

3) Give examples of acting in higher necessity.

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4) What factors are taken into account while sentencing in criminal cases?

14. LABOUR RELATIONSHIP. TYPES AND THE SUBSTANCE OF A LABOUR CONTRACT

Key words: an employee, an employer, the labour relationship, termination of the labour contract

Labour relationship

By the establishment of a labour (an employment) relationship:

- the employee is obliged himself or herself to perform specific work for the employer, under his or her supervision, at the place and time specified by the employer,

and - the employer – to employ the employee for remuneration.

Labour law provisions and social security regulations must not by bypassed by civil law contracts.

Types of a labour contract:

a) for a trial period b) for a definite period, (including contracts to substitute for another

employee during their absence from work)c) for a period of completion of a specific task d) for an indefinite period.

Substance of the labour contract

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A contract of employment must define parties, the type of the contract and the working and payment conditions, including, in particular: the type of work to be performed, the place of performance of work, the remuneration for work (and its components), the amount of working time (e.g. full or part time) work commencement date.

The parties enjoy freedom of contract unless contract provisions place the employee in a worse situation than under the applicable statutory provisions. If contractual provisions are less beneficial than the relevant provisions of law they are deemed invalid and are automatically replaced by the relevant provisions of statutory labour law.

An employment contract should be concluded in writing. If not, the employer has an obligation, no later than on the date of employee’s admission to work, confirm to the employee in writing the arrangements concerning the parties to the contract, the type of the contract and the conditions thereof. Therefore, contracts that have been concluded orally or by implication (e.g. by admission of an employee to work) are also deemed valid. ( If the employment agreement has not been executed in writing and the employer does not confirm the terms of employment, it will constitute a breach of the rights of the employee which may result in the employer being penalized with a fine).

Moreover, the employer should inform the employee in writing, no later than within 7 days from the date of conclusion of the employment contract, of:

- the daily and weekly working-time standards applicable to the employee;- the frequency of payment of remuneration for work;- the length of vacation leave the employee is entitled to;- the duration of an employment contract notice period applicable to the

employee;- the collective labour agreement the employee is governed by,

and if the employer employs less than 20 persons, and is not obliged to introduce working regulations, they should also notify the employee about night period, location, date and time of remuneration payment, procedure of confirming arrival and presence at work, and justifying absence from work.

Termination of the labour contract

The ways in which a labour contract can be terminated depends, in particular, on the type of a labour contract. We can distinguish:

a) termination by agreement of the both parties b) termination by notice c) termination without noticed) termination by expiration (lapse of time, completion of a job or due to

other occurrences other than legal actions).

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1) Who can be an employee?2) Discuss the difference between the labour contract for a period of completion of a specific task and the civil contract of specific work.3) What are prerequisites for the admissibility of a labour contract for a trial period?4) Can all labour contracts be terminated by notice?5) When it is admissible to terminate the labour contract without notice?

15. WORKING TIME. EMPLOYEE LEAVE. EMPLOYEES’ RIGHTS CONNECTED WITH PARENTHOOD

Key words: working time, overtime work, vocational leave, maternity leave, fraternity leave, paternity leave, employment rights of parents

Working time

Work time may not exceed 8 hours per day, and an average of 40 hours in a 5-day week within the adopted accounting period not longer than 4 months; ( in some cases the accounting period may be longer, e.g. in agriculture).

Weekly work time together with overtime may not exceed 48 hours in theadopted accounting period.

The employee is entitled to at least 11 hours of undisturbed rest per each dayand at least 35 hours of undisturbed rest in a week.

Any work performed beyond the working-time standards applicable to the employee as well as work performed longer than extended amount of working time based on the working time system and schedule applicable to the employee, constitutes overtime work.

The amount of overtime cannot exceed 150 hours annually and 5 hours daily per employee, unless it is rescue action or breakdown recovery.

For overtime work an employee is entitled to an overtime allowance or time-off.

Working time of managers

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Employees managing the employment establishment do not need to register their working hours and generally are not entitled to receive additional payment for overtime working.

Employee leave

An employee is entitled to the first vacation leave after one month of work, (1/12 of the length of leave due to him or her after working for one year).

The vocational leave is as follows:- 20 working days if employee has been employed for less than 10 years;

and- 26 working days if employee has been employed for more than 10 years.

Employment periods for previous employers are included. Moreover, the periods of education are also taken into consideration.

The schedule of leaves are determined by the employer taking into account any requests of the employees and the need to ensure the normal working practices. However, the employer is obliged to give the employee 4 days- off on demand. Such demend may be submitted to the employer even on the day of commencing such vacation.

The employee are entitled to additional paid leave in the case, for instance, of employee marriage, birth of a child, death and funeral of the employees’ child, spouse, parent, or step-parent (2 days), in case of child’s marriage, death and funeral of sister or brother, parents-in-law, grandparents, or other persons under the worker’s direct care (1 day), or when the employee has a child under the age of 14 (2 days per year).

Employees’ rights connected with parenthood

In the case of a pregnant employee:- an employer may not employ her on overtime work or during the nights,

and required her to work outside the regular workplace without her consent,

- if she is employed on the basis of a labour contract for a definite period, for a period of completion of a specific task or for a trial period exceeding one month, that would terminate after the third month of the pregnancy, the contract is extended until the date of childbirth (unless she is a substitute employee).

After giving birth to a child an employee is entitled to:

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- paid maternity leave (20-37 weeks depending on number of children born during one birth; at least six weeks of maternity leave may be taken before the predicted date of childbirth);

- additional paid maternity leave granted upon the written request by an employee directly after maternity leave (6 – 8 weeks).

After 14 weeks the remaining part of a maternity leave or additional maternity leave may be taken by a father.

While still on maternity leave an employee may return to work on a part-time basis.

- parental leave (urlop rodzicielski) – granted upon a request of an employee ( a mother or a father or both at the same time) immediately after finishing the additional maternity ( up to 26 weeks all together – regardless of the number of children delivered at one childbirth).

- fraternity leave (urlop ojcowski) – granted upon a written request of a father bringing up a child (2 weeks), may be taken at any time until the child reaches the age of 12 months.

During the period of maternity leave, additional maternity leave and fraternity leave, an employee receives benefit in the amount of 100% of the basis of the benefit. In the case of a parental leave , it is 60% of the basis of the benefit.

Moreover, an employee employed for at least 6 months has the right to unpaid upbringing leave (urlop wychowawczy) up to 36 months to provide personal care to his or her child, however not longer than until the child’s fifth birthday.

Discussion Questions:1) Is it an employee obligation to work overtime?2) When an employee after giving birth to a child may return to work at the

soonest time possible?3) What are the employments rights of fathers?4) Is it admissible to combine additional maternity leave and parental leave

with work?

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EXERCISES

1. SUBJECTS OF CIVIL LAW. LEGAL CAPACITY AND CAPACITY FOR ACTS IN LAW

Civil law regulates relationships between natural persons and legal persons as well as organizational units not being legal persons which have been granted the legal capacity by virtue of statutory law.

Natural persons are human beings.

Legal persons are the State Treasury and those organizational entities upon which special provisions of law confer legal personality (normative theory of legal persons); e.g. the Polish Academy of Science, the National Bank of Poland, a limited liability company, a joint-stock company).

Natural and legal persons can be characterised by their legal capacity and capacity for acts in law.

Legal capacity is the property consisting in capability to be the subject of rights and obligations of civil law. It should be distinguished from the capacity for acts in law which denotes the capability to acquire civil law rights and obligations by personal actions.

Every human being has legal capacity from the moment of birth until their death. (Protection of the interests of a child conceived but not yet born).

The capacity for acts in law of a natural person depends on:

a) person’s ageb) competency.

Persons under 13, and those who have been declared incompetent are incapable of performing legal actions (no capacity for acts in law).

Persons between the ages of 13 and 18 as well as those who have been declared partially incompetent have limited capacity for acts in law ( limited capacity for acts in law).

The official declaration of full or partial incompetency should take the form of a court judgement.

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With exceptions provided for by statutory law, the validity of an act in law, whereby a person limited in his capacity for acts in law contracts an obligation or disposes of a right requires the consent of his statutory representative, e.g. a parent, a curator.

Persons who have attained the age of 18 have full capacity for acts in law (full capacity for acts in law). However, a minor who enters into the marriage before the age of 18 also obtains full capacity for acts in law.

A legal person acquires legal capacity after having made an entry in the appropriate register, unless special provisions state otherwise.

Legal persons act through their organs.

Practice: Case study 1

Mateusz C. decided to make a gratuitous performance for the benefit of his fourteen-year-old granddaughter. The subject of the planned donation is a townhouse in the centre of Poznań. However, the girl’s parents do not consent for this donation.

Assess the situation.


17- year- old Michał bought a scooter for the money earned on the strawberries’ plantation in Norway. After three weeks Krystian’s parents demanded money refund. They claimed that the contract of sale is, according to the Civil code, null and void.

Is their opinion correct?


1) May a six-month old baby or a mentally retarded person be an owner of an immovable property?

2) Is it possible to acquire full capacity for acts in law before attaining the age of 18?

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3) May a child conceived but not born at the moment of opening the inheritance be an heir?

2. POWER OF ATTORNEY

Barring the exceptions specified in statutory law or resulting from the character of a given act in law, natural and legal persons do not have to undertake legal actions in person but may avail themselves of the assistance of a representative/an agent.

An act in law performed by a representative within the limits of the authorization has direct effects for the person represented.

The authorization to act on behalf of another person may be based on:

a) statutory law (statutory representation), e.g. parents are their children’s statutory representatives

b) on the declaration by the person represented (power of attorney).

Procuration (commercial proxy) - a power of attorney granted by an entrepreneur obligated to be entered in the register of entrepreneurs, such power including the authorization to perform court acts and out-of-court acts connected with the running of an enterprise.

Power of attorney may be granted in any form. However, there are several exceptions:

a) If the act in law with respect to which the power of attorney is granted requires a special form for its validity, then the power of attorney must be granted in the same form (article 99 CC); e.g. authorisation to transfer of immovable property.

b) If the specific type of power of attorney requires a special form; e.g.the general power of attorney requires a written form; the same applies to the procuration.

Types of power of attorney:

a) general power of attorney - confers authorization to perform acts of ordinary management;

b) power of attorney specifying a kind of legal actions c) power of attorney for a particular act.

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The rule is that if an act in law is undertaken by a representative without power of attorney or outside its scope, such an act does not produce any legal consequences for the principal. However, there are several exemptions to ensure the safety of economic transactions and for the sake of the third party acting in good faith.

In the case of the contract concluded by a purported agent the validity of the contract depends on its ratification by the principal, within time limit specified by the third party. (In the case of the unilateral act in law performed on behalf of another person without authorization or with the exceeding of its scope such act is always null and void).

If a purported agent acts after the expiration of the power of attorney the contract is binding on the principal, unless a third party acted in bad faith (i.e. third party was aware of the expiry of the authorization or could have easily acquired such knowledge).

A power of attorney expires after the lapse of time for which it was granted and upon revocation or the death of the principal or the representative.

Practice: case study 1

Paweł C. plans to sell his immovable property. He wants to grant power of attorney to his son Marek C. Shall the power of attorney be in a form of a notarial deed since transferring the ownership of immovable property requires a notarial deed?

Should the power of attorney authorizing to the performance of the given legal action, be granted in the same form?


The Housing Association „Better future” granted a limited liability company „Warm corner” power of attorney to buy boilers of central heating for the price not exceeding 50 000 PLN. The company bought the boilers for 65 000 PLN.

What are the consequences of exceeding the scope of authorisation by the representative?

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3. LEGAL ACTIONS - INTRODUCTION

Civil law rights and obligations stem from legal events.

Legal events are events the occurrence of which produces certain legal consequences by establishing, transforming or terminating a legal relation. These are:

- legal actions/acts in law – a human conduct which produces certain legal consequences, by making a declaration of intent;

However it is a legal norm which determines if this human conduct cause the effect intended by the actor. The legal norm must associate a given legal consequence with such a human conduct; (legal action is a conventional action).

- other events – which can take a form of a human conduct (e.g. a driver accidentally splashes mud on a pedestrian); a court ruling or an administrative decision (e.g. issuing a divorce decree); lapse of time resulting in a claim preclusion etc.

The declaration of intent is the most important component of each legal action.

In the case of a contract – at least two concordant declarations of intent are required.

An act in law has not only the effects expressed in it but also those which follow from statutory law, the principles of community life, and the established customs.

Types of legal actions (1):

a) Consensual legal actions are completed via consensus; they are biding and enforceable on the basis of mere agreement (declaration of intent);

b) Real legal actions involve (apart from consensus – the declaration of intent) transfer of property/release of property;

e.g. ordinary pledge (contractual pledge) – is created by a contract between the owner of the property and the creditor (two concordant declarations) plus a release

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of property on which a pledge has been established to the creditor or third party agreed upon by the contracting parties.

However, in the case of some legal actions- entry in the special register is required in order to perform a legal action;

e.g mortage – created upon entry in the land and mortgage register; such an entry is of a constitutive nature.


a) Bilateral/multilateral legal actions (contracts) b) Unilateral legal actions (e.g. granting power of attorney, public

promise; renouncing the contract)

In the case of contracts, the congruent intention of the parties and the purpose of the contract, rather than relying on its literal wording, must be established.


a) Obliging legal actions – one or two parties is obliged to perform; the act in law does not influence the assets that are in possession of a party to the contract;

b) Disposing legal actions – cause change in proprietary subjective rights of the party; e.g. legal actions which are undertaken to fulfil an obligation arising from a tort)

With regard to the contracts that oblige the party to dispose of the subjective right the Polish law adopted a “double effect” concept. The concept refers to a single obliging contract that causes both “obliging effect” and “disposing effect”, unless a special provision or the parties have decided otherwise; e.g. a contract of sale of a thing defined as to its identity. [Z Radwański “Prawo cywilne-część ogólna”, CH Beck 2008, P.Machnikowski, J.Balcarczyk, M.Drela, “Contract Law in Poland”, Wolters Kluwer 2011].


a) Legal actions for consideration– both parties obtain financial benefit (e.g. a contract of sale)

b) Gratuitous legal actions – the party who is obliged to perform obtains no financial benefit (e.g. donation)

The benefit gained in a gratuitous manner is less protected by Polish law than a benefit that was gained for relevant remuneration.

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Example:

In the case of an error as to the contents of an act in law, one may evade the legal effects of one’s declaration of intent. However, if the declaration of intent was made to another person, the avoidance of its legal effects is admissible only if the error was caused by that person, even if he was not at fault, or if he was aware of the error or could have easily noticed it; this restriction shall not apply to a gratuitous act in law. ( Article 84 CC)


1) Is the outbreak of fire in insured property a legal action?2) What are the consequences when the parties interpret the contract

differently?3) On what basis the content of the act in law is reconstructed?

4. FORMS OF ACTS IN LAW

Apart from certain statutory exemptions, a declaration of intent may be made in any form, as long as the intent of the person performing the given legal action is manifested sufficiently clear by such person’s conduct (article 60 cc).

Special forms of acts in law (statutory exemptions):

a) written form ( a declaration of intent made in electronic form and provided with an advanced electronic signature verifiable by means of a valid qualified certificate is equivalent to a declaration of intent made in writing),

b) written form with official certification of the date,

c) written form with official certification of the signature,

d) notarial deed.

Written form – content of the declaration of intent should be preserved and supplied with a hand-written signature.

Written form with official certification of the date – may occur in two ways:

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a) a date may be authenticated (by the public notary) when a legal act was performed, or

b) on the basis of some other documents/facts it may be implied that the legal act was performed at the latest at a time when these documents were drawn up or facts took place. This category encompasses the following cases:

- the death of one of the persons who signed the document, the date that person placed his signature thereon is considered to be authenticated from the date of that person’s death (operating on the assumption that none could sign a document after their death),

- the performance of the act in law is confirmed in any official document – the date is considered to be authenticated from the date of the official document;

- any statement is made by a State authority, an authority of a unit of territorial self-government or by a notary on the document pertaining to that act in law – the date is considered to be authenticated from the date of that statement.

Written form with official certification of the signature – a public notary stipulates on the document a clause that states that the signature included in the document is made by a person whose identity is confirmed by the notary.

Notarial deed – an act is drafted by the public notary, who reads the document aloud to the persons performing the legal action. Upon reading of a notarial deed, the notary should ensure that the persons participating in the action clearly understand the content and meaning of the deed, and that the content of the deed is in accordance with their will.

Each of the subsequent special forms, mentioned above, has features that are characteristic for any previous form and therefore can replace them.


Kazimierz W. assumed suretyship for the loan taken out by his neighbor Henryk D. Due to the insolvency of Henryk D., the bank wants to carry out an execution from the surety’s property. In the letter sent to the bank – Kaziemierz W. stated that the contract of suretyship is null and void. As a justification of his statement he invoked the article 876 cc, according to which, the surety’s declaration shall be under the pain of nullity in a written form. Kazimierz W. indicated that the parties have concluded a contract in a written form with official certification of the date. Is Kazimierz W. right? Does this fact constitute grounds for invalidity of this act?

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Failure to observe a requirement of a special form may cause the following three kinds of legal consequences:

a) invalidity (ad solemnitatem)b) certain evidentiary restrictions (ad probationem)c) non – occurrence of a specific additional effect (ad eventum).

When a form is reserved under pain of nullity, in case of failure to comply with the prescribed form the legal action is absolutely invalid. The ordinary written form is reserved under pain of nullity only when the law explicitly stipulates so. Other special forms (a written form with official certification of the date, a written form with official certification of the signature and a notarial deed) are reserved under pain of nullity, unless the law stipulates otherwise.

In the case of non-observance of the form required under the pain of certain evidentiary restrictions, when there is a dispute, the evidence by witnesses and the evidence in the form of statement by the parties concerning the performance of the act is not admissible. This negative consequence does no take place:

-if both parties consent to carry out the evidence,

- if a consumer so demands in a dispute with an entrepreneur, or

- if the fact of the performance of the act in law is made plausible in writing.

The provisions on the written form required for evidentiary purposes (ad probationem) is stipulated only in the case of an ordinary written form and do not apply to acts in law in relations between entrepreneurs.

The failure to observe the form required under the pain of non-occurrence of a specific additional effect (ad eventum) does not cause the legal action to be null and void (invalid) nor does it impose evidentiary restrictions, but results in the absence of one of the legal additional effects of the act in law.

Example:

The contract of lease of an immovable property or premises for a period longer than one year shall be concluded in writing. In the case of non-observance of that form the contract shall be deemed to have been concluded for indefinite time. (article 660 CC).


1. Can we perform legal action orally? What about performing legal actions non-verbally?

2. Does failure to observe the form requirements always result in invalidity?

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3. May a special form for concluding a contract be stipulated by the parties or only by the statutory law?

5. DEFECTS OF DECLARATION OF INTENT

Polish law distinguishes 4 defects of declaration of intent. These are:

a) lack of awareness or freedom b) appearance (apparent declaration of intent) c) mistake (error) d) threat

Lack of awareness or freedom –a person making a declaration of intent is for any reasons in a state precluding a conscious or free making of a decision and declaration of intent. It refers to: a mental disease, mental retardation, or other, even transient, disturbance of mental functions.

Appearance – the declaration of intent is made to another party with its approval for the sake of appearances only. It refers to a situation when the parties agreed secretly that the declaration of intent revealed to third party will not have legal effects.

However, the ostensible nature of a declaration of intent has no influence upon the effectiveness of the act in law performed on the strength of an ostensible declaration of intent involving a third party, if:

- a third party is in good faith (i.e. doesn’t know and exercising due diligence couldn’t have known about the secret agreement between the parties), and

- act in law is for consideration.

For the defect to arise – a mistake must be:

- as to the substance of a legal action, and

- essential.

Mistake is essential when it justifies the supposition that if the person making the declaration of intent did not act under the influence of the mistake and had judged the case reasonably he would not have made such declaration of intent.

When the declaration of intent was made to another person – we should take into account the interest of this person when the act in law is for consideration. The avoidance of its legal effects shall be admissible only if:

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- the error was caused by that person, (even if he/she was not at fault), or

- he/she was aware of the error or

- he/she could have easily noticed it.

However, if the mistake is caused by the other party deceitfully, one can invoke the mistake even if it was not as to the content of an act in law and was not essential.

The deceit by the third party is deemed identical to the deceit by a party concerned, if the latter was aware of the deceit and did not notify the other party about it, or the act in law was gratuitous. (Deceit also takes place if someone deliberately does not provide the information to which was obligated).

A mistake does not cause that the legal action is null and void but gives grounds to evade the legal effects of one’s declaration of intent.

For the defect to arise, threat must be:

- illegal, and- serious.

Anyone who made a declaration of intent under the influence of an illegal threat posed by the other party or a third party may evade the legal effects of his declaration if it follows from the circumstances that he had reason to fear that he or another person was in serious danger with respect to their persons or property.


In order to hide his assets from creditors Krzysztof D. gave his precious painting to his nephew Mateusz C. ( a contract of donation was concluded in writing).At the same time the parties agreed secretly that the ownership right would not be transferred to Mateusz C. Yet, several days later, Mateusz C, who was in the possession of the painting gave it to his new girlfriend Monika T. Did Monika T acquire the ownership of the painting?

Defects of declaration of intent result in:

- absolute invalidity (the case of the lack of awareness or freedom and apparent declaration of intent),

-- conditional invalidity (the case of a mistake and a threat).

Conditional invalidity makes a legal action voidable. It means valid until successfully challenged. Therefore an interested party must undertake an action if

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they want to avoid legal consequences of a declaration of intent made under the threat, or when there was a mistake. A party must present a written declaration to the person to whom the declaration of intent was addressed, which states the intent of avoidance of the legal effects of the declaration, within one year from discovering the mistake or disappearance of the threat. If the person entitled to avoid the consequences of his declaration of intent fails to file the appropriate declaration within time limit – legal action in question is deemed valid.


1. Do all defects in declaration of intent result in invalidity?2. What action should be taken in order to avoid legal consequences of the

defective declaration of intent? If any?3. Does the gratuitous nature of a legal action influence the consequences of

the defects of declaration on intent?

6. LIMITATION OF CLAIMS

Generally, civil law property claims are subject to statutory periods of limitation, which means that after a prescribed period of time a debtor is entitled to avoid satisfaction of the claim. Importantly, the court considers barring a claim by limitation only upon the debtor’s motion. If the debtor does not request that a claim be declared time-barred, the court may rule in favour of the creditor, even after the period of limitation has passed. Therefore, it may be said that a limitation period is the amount of time a person has to ”sue” another person (to bring a claim or start an action in court for injury, loss or damage caused by someone’s wrongful actions or failure).

Limitation periods are prescribed by statute and depends on the type of claim involved. Unless a special provision states otherwise, the period of limitation is ten years and for claims pertaining to periodical performances and claims resulting from an economic activity - three years. However, a claim certified by a valid pronouncement of a court or other authority entitled to hear cases of a given kind, or by a pronouncement of a conciliatory court, and also a claim certified by a settlement made before the court or the conciliatory court or by a settlement made before a mediator and approved by the court, is barred by limitation of ten years even if the period of limitation for claims of that kind were shorter. ( If the claim established in this way includes periodical performances the claim of periodical performances due in the future is barred by limitation of three years.)

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The period of limitation begins to run on the day on which the claim has become enforceable.

The time limit for fulfilment of a performance may be specified in the legal action or may be follow from the nature of an obligation. If not, the performance shall be made immediately upon demand. In this instance the statute of limitation starts on the date on which the claim would be enforceable had the entitled person demanded performance at the earliest possible date; e.g. a claim for damages becomes enforceable at the moment damage occurs.


In summer 2001 Zbigniew C. borrowed from his brother in law Józef T. ten sacks of flour which he was to return in June 16th , but he didn’t. While many visits failed to give the desired result, in June 2009 Józef T. brought the case in court. In response Zbigniew C. requested the claim to be declared time-barred. He stated that the parties agreed that the period of limitation of claims would amount 5 years. This period has elapsed in 2006 and with this moment, in his opinion, Józef T has no right to claim the return the sacks of flour. Is his request legitimate?

According to Artcle 119 CC: The periods of limitation cannot be reduced or extended by an act in law, which means that the parties are not free to shape this aspect of their legal relationship contractually. The rules specifying periods of limitation are absolutely binding norms. They are of an overriding character. Their application cannot be excluded or limited by the will of the parties. Provisions of a contract inconsistent with absolutely binding norms are null and void.


In 2005 Janina K. then a second-year student of economics borrowed from her colleague Jan J.a textbook to prepare for the exam in microeconomics. They decided that the return would take place in September the same year. After passing the exam Janina forgot to return the book. Two years later in September 2007 Janina K married Jan J. Unfortunately, the spouses so often quarrelled with each other that in December 2015 they decided to divorce. Immediately after getting divorced Jan brought a case to court to get the book back. In response Janina J. raised the defence of limitation. In her opinion Jan’s claim expired a few months earlier. Is she right?

The period of limitation does not begin to run, and if begun it is subject to suspension in the following situations:

a) for claims by children against parents – for the duration of parental authority;

b) for claims by persons who have no full capacity for acts in law against person who exercise guardianship or curatorship – for the period during which that guardianship or curatorship is exercised;

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c) for claims of one spouse against the other – for the duration of the marriage;

d) for all claims if due to a force majeure the person entitled cannot vindicate them before a court or other authority empowered to hear cases of a given kind – for the duration of the obstacle.

The period of limitation is interrupted in the following situations:

a) by any act before the court or other authority entitled to hear cases or enforce claims of a given kind or before the conciliatory court, performed directly either to vindicate or to establish, or to satisfy or to secure a claim; (filing a suit )

b) by the acknowledgement of the claim by the person against whom the claim is made; (acknowledgement of a debt)

c) by the initiation of mediation.


1. What are the consequences of barring a claim by limitation?2. Can the periods of limitation be modified in the contract?3. What is the difference between the suspension and interruption of the

period of limitation? 4. In what situations the period of limitation is subject to suspension and

when it is interrupted?

7. PROPRIETARY RIGHTS – THE GENERAL CHARACTERISTICS. THINGS

The features of the proprietary rights:

1) A thing is the basic subject of proprietary rights. (However, a right itself may be the subject of proprietary rights but only in exceptional situations provided by law).

2) Proprietary rights are of an erga omnes nature, which means that they bind all entities subjected to a given legal regime. As a consequence, the subjects of civil law must refrain from any actions that would interfere with the rights of other

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persons. (However, there are obligational rights (inter parties) which under specific provision have gained an enhanced effectiveness, e.g. lease of premises).

Since Polish law contains an exhaustive list of propriety rights, interested parties may establish only such propriety rights that are expressly provided by statute. Moreover, they have very limited power to modify the substance of their mutual proprietary rights by contract.

Contrary to obligational rights, which are regulated by mandatory rules only in small part. Many of the obligational rights and obligations of parties to a legal relationship are formulated with the understanding that they become relevant only when parties fail to govern certain situations by contract.

The exhaustive list of propriety rights:

1) ownership right

2) perpetual usufruct

3) limited proprietary rights:

- usufruct

- servitude

- pledge

- real estate mortgage

- cooperative member’s ownership right to residential quarters.

The ownership right confers the broadest scope of authorization and is given constitutional protection (article 64 of the Polish Constitution). Second comes perpetual usufruct – its duration and the scope of the usufructuary’s rights make it almost equal to ownership, (the usufructuary may dispose of his or her right). Other proprietary rights are rights to things owned by another person (limited proprietary rights) and confer an expressly defined scope of rights to a thing.

The basic subject of proprietary rights is a thing. According to article 44 of the civil code, a thing is only a material object. Moreover, it must be separable part of the earth’s surface, in their original state or processed state, regardless of its value.

We can distinguish the following two types of the things:

a) movables b) immovable ( lands, in certain situations also buildings and

apartments).

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Things which are not immovables are movables.

The land is a part of the earth’s surface which constitute a separate object of ownership. Anything that is permanently attached to the land is a component therof.

Exceptions: buildings erected on state-owned or communal land by the perpetual usufructuary of such land or separate apartments owned by different persons.

A component part of a thing - is anything that cannot be separated from it without damaging or essentially changing the whole or the object separated, e.g. window in a building.

A component part of a thing cannot be a separate object of ownership and other property rights.

An appurtenance is a movable thing required to make use of another thing (the principal thing) in accordance with its designation if it has a factual link with the latter corresponding to that purpose; e.g. furniture in the apartment

A thing which does not belong to the owner of the principal thing cannot be an appurtenance.

An act in law whose object is the principal thing has its effect also with respect to an appurtenance unless something else follows from the contents of the act or special provisions.

Practice 1

Analyse the appropriateness of various contracts concluded to confer the right to use a thing owned by another person. Consider the contract of usufruct, lease and tenancy.


1. Can interested parties contractually shape their mutual property relations as they see fit?

2. What is the difference between an appurtenance and a component part of a thing? Give examples.

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8. SUBSTANCE AND SCOPE OF THE OWNERSHIP RIGHT

The owner may, within the limits specified by statutory law and the principles of community life and to the exclusion of other persons, use a thing in accordance with the socioeconomic purpose of his right, and in particular may collect the fruits and other incomes from that thing. He may dispose of that thing within the same limits.

Based on this provision, it can be said that the owner has three basic rights:

a) the right to possess a thing,b) the right to use a thing, which may involve collecting fruits and other

incomes from the thing

There are:

- natural fruits of a thing, which are its produce and its other component parts separated from it if in accordance with the principles of proper management they are the normal income from the thing.

- civil fruits of a thing are the revenues which a thing brings as a result of a legal relationship

c) the right to dispose of the thing (e.g. sell the thing or encumber it).

The ownership right confers the broadest scope of authorization, however, does not give an absolute freedom to the owner.

Limitations on the ownership right:

a) statutory rules e.g. neighborhood properties regulations – that restrict the extent to which one property may affect neighbouring properties, administrative law, including, construction law;

b) the principles of community life/ the principles of social coexistence c) the socioeconomic purpose of the right

Practice 1

Discuss the role of the so-called general clauses in law.

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A general clause, from the theoretical point of view, is an editorial unit of a legal act or a legal regulation or its extract comprising the reference to the norms and values which are beyond the scope of the text and whose basic constructive element is expressed by the under-defined expression. It aims to give elasticity to the law application.

e.g. the principles of community life


1) Is possession and ownership the same?2) What are the sources of limitations on the ownership right?

9. TRANSFERRING THE OWNERSHIP RIGHT. LAND AND MORTGAGE REGISTER

Ownership may be acquired in: - a primary manner or - a derivative manner.

The latter one (a derivative manner) is the most common. It refers to the situation, when the ownership right is transferred from one owner to another following their mutual declarations of intent (e.g. in the form of a contract). We can distinguish here a predecessor –in-law and the successor-in-law.

In the case of the primary acquisition the acquirer does not derive his right from another person. It involves i.a. adverse possession and expropriation. The acquisition is without any encumbering.

Transfer of ownership – the double-effect principle

A contract of sale, exchange, donation, conveyance of immovable property or another contract obliging to transfer the ownership of a thing defined as to its identity transfers the ownership to an acquirer unless a special provision or the parties have decided otherwise.

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The effects of this type of a contract is twofold: the creation of an obligation and the transfer of the thing. The transfer of the ownership right is effectuated exclusively by virtue of the contract, at the moment when the parties make their mutual declaration of intent.

Exception:An immovable property is a thing defined as to its identity. However, it

cannot be transferred conditionally or with a reservation of a time limit. In this situations two contracts are needed to complete a transfer of ownership.

If the object of a contract obliging to transfer the ownership are things designated only as to their kind, the transfer of the ownership requires the transfer of the possession of those things. The same applies to the case in which the object of the contract obliging to transfer the ownership are future things.

Acquisition of ownership right from an unauthorized person

The rule is that no one may transfer more rights than actually has. However, in certain cases the bona fide acquirer of a thing is granted more extensive protection than that accorded to the rightful owner.

According to the article 169 CC: If a person not authorized to dispose of a movable thing transfers it and releases it to the acquirer, the latter acquires the ownership at the moment of obtaining the possession of the thing unless he acts in bad faith. However, if a thing which has been lost, stolen or otherwise forfeited by the owner is transferred before the lapse of three years from the moment of loss, theft, or forfeiture, the acquirer may acquire ownership only after the lapse of the said three years. (This limitation does not apply to money or bearer documents or things acquired at an official public auction or in execution proceedings).

The conditions that must be fulfilled to acquire the ownership:

a) the disposal was carried out by an legal action (a contract),b) the subject of the disposal is a movable, c) the thing has been transferred and released to the acquirer,d) the acquirer is in good faith (that is he or she did not know, and even with

showing due diligence could not have learned that the transferor is an unauthorised person to dispose of the property in question).

and the lapse of three years if a thing has been lost, stolen or otherwise forfeited by the owner (from the moment of loss, theft, or forfeiture).

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Other methods of acquiring ownership right. Usucaption

Usucaption involves acquiring a proprietary right (ownership) following the long-term use of a thing .

The possessor of an immovable property who is not its owner acquires ownership if he or she possesses that immovable property uninterruptedly for twenty years as an autonomous possessor unless he or she had acquired possession in bad faith, then the possession must last thirty years.

The autonomous possessor is a person, who has actual control of a thing, exactly as the owner. Therefore, a holder of an object secured by a pledge, lessee, tenant is considered only as a dependent possessor, not as an autonomous possessor.

The possessor of a movable thing who is not its owner acquires the ownership if he or she possesses that thing uninterruptedly for three years as an autonomous possessor unless he or she possesses it in bad faith.


Julisz B. on 1 August, 2000 stole a car whose owner was Zenon C. In 2005 Zenon C. found out that the perpetrator of theft was Julisz B. and filed a suit against him. Julisz B. refused to satisfy the claim. He stated that he acquired the ownership of the car by usucaption. Is Julisz B. right?


Kazimierz K. bought a car. When he wanted to register it, it transpired that the car was stolen and the documents have been forged very skilfully. The vehicle bore no signs of manipulation. The rightful owner of the car demanded from Kazmimierz the return of the vehicle. Should Kazmierz K. return the car or has he acquired its ownership?


Benedykt R. on 30 June, 2002 stole the car, whose owner was Jarosław M. In July 2005 Benedykt R. sold the car to Zygmunt R. In August 2005 Jarosław M. found out that the perpetrator of theft was Benedykt R. and demanded the return of the car. Benedykt R. informed that he had sold the car to Zygmunt R. , so Jarosław M. filed a suit against Zygmunt M. Should Zygmunt M. . return the car or has he acquired its ownership?

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Discussion questions: 1) Is it possible to acquire the ownership from the non- owner or a person

authorised to sell it?2) What does it mean that someone is in good faith?3) Can the lessee acquire the ownership of a rented thing after prescribed

period of time?4) Is good faith needed in order to acquire ownership by usucaption?

10. LAND AND MORTGAGE REGISTERS

Land and mortgage registers are kept in order to document and disclose the legal status of immovable property.

They are freely accessible. Importantly, no one may plead ignorance of entries in a land and mortgage register, nor of applications which have been noted therein.

Such registers, however, are not only kept for evidentiary purposes (to document proprietary rights, e.g. who is the owner of a given immovable). In fact, the entries result in substantive legal consequences (e.g. are necessary prerequisite for the creation of a property right – mortgage).

It is the competence of regional courts (sądy rejonowe) to keep these registers. An entry is made upon, and within the scope of, a motion or ex officio but only when special rules so provide. (Usually it is a public notary who file an application when an ownership of an immovable property is transferred).

Each single immovable property has a separate land and mortgage register kept for it, (unless special provisions provide otherwise).

The land and mortgage register has four sections, of which:

a) Section One contains entries on the designation of the property and rights attached to it (e.g. real servitudes)

b) Section Two contains the entries specifying the owner and , if applicable, the perpetual usufructuary;

c) Section Three is intended for entries concerning limited rights in rem, except for mortgages,

d) Section Four is intended for entries concerning mortgages.

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‘Public faith guarantee’

Thanks to the ‘public faith guarantee’ of land and mortgage registers, if there is any discrepancy between the legal status of a property indicated in the appropriate register and the property’s actual legal status, the status indicated in the register prevail for the benefit of the person who acquired the ownership or another propriety right attached to a given property.

However, the public faith guarantee’ does not protect gratuitous dispositions or those made in favour of the acquirer acting in bad faith.

A person is deemed to be acting in bad faith if he or she knows that the contents of the land and mortgage register are inconsistent with the real legal state, or if a person could easily have learnt this fact.

The land and mortgage registers’ public credibility warranty is excluded by a note on filing for entry, lodging a complaint against the decision of the court registrar, appeal or cassation or by a warning in respect of the legal state evidenced in the land and mortgage register having been inconsistent with the real legal state of the immovable property.

Moreover, the ‘public faith guarantee’ does not act against:

- a right encumbering an immovable property by virtue of law, irrespective of it having been entered or not in the register;

- a right of annuity; - a servitude established subject to a decision of a relevant state

administration authority; - a servitude of necessary way or another servitude established in connection

with trespassing the boundary during construction of a building or another facility;

- servitudes of conveyance.


Maria N. bought the immovable property from Tadeusz W on the basis of a contract in the form of a notarial deed. 10 days after making an entry in the land and mortgage register concerning the transfer of ownership, she found out that Tadeusz W could not sell the property, because he was incapacitated. Who is the owner of the respective immovable?

Discussion questions: 1) Is it possible to acquire the ownership right of an immovable from an

unauthorised person?2) What land and mortgage registers are kept for?

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11. OBLIGATIONS – THE GENERAL CHARACTERISTICS. PERFORMANCE

The features of obligational rights:

1) Obligations are of inter partes nature, which means that they bind only specific entities

2) They consist mainly of relatively binding norms (ius dispositivum), which apply to a given legal relationship only to the extent that the parties involved have not agreed to regulate differently. The fundamental principle in the field of the law of obligation is the principle of the freedom of contract.

An obligation is a relationship between persons, where one person (the creditor) may demand a performance from another person (the debtor) who is obliged to provide it. The creditor’s right to demand the performance constitutes a receivable, whereas the debtor’s obligation to provide that performance constitutes a debt.

Plurality of debtors and creditors

Several debtors may be liable in such manner that the creditor may claim the whole performance or a part thereof from all debtors jointly, from several of them or all of them severally, and the satisfaction of the creditor by any of the debtors frees the remaining ones (joint and several liability of debtors).

Several creditors may be entitled in such manner that the debtor may make the whole performance to one of them and by his satisfying any of the creditors the debt expires with respect to all of them (joint and several entitlement of creditors).

An obligation is joint and several if that follows from statutory law or from an act in law.

The principle of the freedom of contract allows the interested parties to shape their legal relationship as they deem proper, as long as its substance or objectives are not contrary to:- the nature of the legal relationship, - mandatory statutory law, or- the principles of social coexistence.

Elements of law

Obligations may arise from:- legal actions (in particular obligational contracts),- torts,- unjust enrichment,- administrative acts,- court verdicts of a constitutive nature,- management of another person’s affairs without mandate.

There are two types of the debtor’s liability:a) personal liability,b) liability secured by specific property.

Personal liability means that a creditor may seek satisfaction from the whole property of a debtor (current and future).

Liability secured by specific property means that a creditor has a right to seek satisfaction only from the specified object of value that served as the collateral for the receivable but irrespective of its current owner and with priority over that owner’s personal creditor (e.g. a pledge or a mortgage).

Discussion questions: 1) What are the limits of the freedom of contract?2) What are the differences between obligational rights and proprietary

rights?3) What does it mean that the debtors are liable jointly and severally? Give

examples when joint and several liability follow from statutory law.4) Discuss the problem of non-performance and improper performance of

obligations

12. CIVIL LAW CONTRACTS: A CONTRACT OF MANDATE AND A CONTRACT OF SPECIFIC WORK

VERSUS LABOUR CONTRACT

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By a contract of mandate, the mandatary assumes the obligation to perform a definite act in law for the mandator; (The provisions on mandate apply respectively to contracts on performance of services).

As a result of a contract of specific work, the person accepting the order assumes the obligation to make a specified work, and the orderer, to pay the remuneration to him.

The civil contracts can be characterised by, (in contrast to the labour contract):

- more freedom to shape the content of the contract,- independent organisation of work, - freedom in setting the time and place of work performing, - lack of the obligation to determine the daily and weekly working

time limits,- lack of the minimum wage requirement, (a contract of mandate

may be gratuitous )- freedom of introduction of paid sick leaves and holidays,- the possibility of replacing the mandatary/ person accepting the

order by a third party.

It is inadmissible to replace the labour contract with a civil law contract while maintaining the conditions of performance characteristic for the employment contract.

Practice Fill in the table to find out the similarities and differences between a labour contract, a contract of mandate and a contract of specific work.

Labour contract contract of mandate contract of specific work

1. Who can be a party of the contract?

2. What kind of legal norms govern the contract and what does it mean for the parties?

3. How can you describe the relationship between the parties (in terms of equality, subordination)?

4. What type of a contract it is (a due diligence contract, a contract of result)?

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5. Is there an obligation of personal performance of work?

6. Is the contract only for consideration? (involves remuneration)

7. What are the obligations in the field of social insurance contribution arising from the contract?

Can you add more differences/similarities of the referred contracts?

Discussion questions: 1) Can several persons entrust or accept a mandate jointly? What about the

liability of these parties in the case of non-performance or improper performance of the contract?

2) Is it admissible to conclude a contract of mandate with your employee? If yes, under what circumstances?

3) Is a contract of mandate and a contract of a specific work interchangeable?

13. THE LAW OF SUCCESSION

When a natural person dies their rights and obligations, as a rule, do not expire, they devolve to other persons.

The inheritance (estate) includes not only all the decedent’s property rights but also obligations, except those that are personal in nature.

Testamentary succession v. statutory succession

The right to succession may be based either on a testament (last will) or on specific statutory provisions. Statutory succession takes place only if the decedent died intestate or the persons named in the testament may not or do not want to inherit.

The principle of testamentary freedom

There are no restrictions on testamentary succession and the entire inheritance may be divided in accordance with the decedent’s wishes. (However,–

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there is a claim resulting from a legitim ( a forced share) –some persons who would have been appointed to inherit by virtue of statutory law may demand from testamentary heirs some part of their shares).

The most important is the intent of the decedent person as expressed in the testament. When there are doubts regarding the interpretation of a testament, every attempt is made to comply with the testator’s wishes.

Testamentary succession

Only a person who has the full capacity for acts in law may draw and revoke their testament. Moreover, it must be prepared personally. A testament can neither be drawn nor revoked by a representative.

If the testator drew up a new testament without mentioning in it that they revoked the previous testament, only those provisions of the previous testament which are inconsistent with the contents of the new testament are subject to revocation.

Forms of testament

There are two basic forms of testaments:

a) ordinary – may be drawn up at any time;- holographic testament - in the form of a notarial deed- allograpic testament ( a public one).

b) special – may be prepared only under extraordinary circumstances specified by law. The special testament becomes invalid six months from the date of the disappearance of the circumstances that allowed for its preparation;

- oral testament- testament prepared by those travelling on a polish ship or plane- military testament

Practice: Case study 1Marian D. died in the age of 68, leaving his all property to a newly acquainted woman, 26 years old Tatiana. His wife and an adult son are appalled at this fact. What they can do about it?

Statutory succession

Heirs are dived into classes. In the absence of the family members appointed to succession in one class, next class is taken into consideration.

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I class – the decedent’s spouse and children in equal parts. However, the spousal share must amount to at least one-fourth of the inheritance.

If a child dies before the parent , that’s child’s children (the decedent’s grandchildren) are entitled to inherit. They jointly receive the share to which their deceased parent would have been entitled.

If there is no spouse (he/she dies before or there was an divorce) – only children or their descendants.

If the decedent did not have children or other descendants – II class: the spouse and the parents, the siblings or their descendants.

The share in the inheritance of each parent who inherits concurrently with the deceased’s spouse amounts to one fourth of the entire inheritance.

In the absence of descendants and the spouse of the deceased the entire inheritance goes to their parents in equal parts.

If one of the parents of the deceased died before opening of the inheritance, that share in the estate which would have gone to them passes to the siblings of the deceased in equal parts.

If any of the deceased’s siblings died before opening of the inheritance but has left descendants, that share in the estate which would have gone to them passes to his descendants.

The share in the estate of the spouse who inherits concurrently with the deceased’s parents, siblings and descendants of the deceased’s siblings amounts to one half of the estate.

In the absence of the deceased’s descendants, parents, siblings or the siblings’ descendants, the entire estate goes to the deceased’s spouse.

In the absence of the deceased’s descendants, spouse, parents, siblings or the siblings’ descendants - III class - the deceased’s grandparents or their descendants.

The deceased’s grandparents inherit in equal parts.If any of the deceased’s grandparents died before opening the inheritance,

that share in the estate which would have gone to them passes to his descendants.In the absence of descendants of the grandparent who died before opening

the inheritance, the share in the estate that would have gone to them passes to the remaining grandparents in equal parts.

In the absence of the deceased’s spouse and above mentioned relatives–IV class: the children of the deceased’s spouse.

The estate goes in equal parts to those children of the deceased’s spouse both of whose parents died before opening the inheritance.

In the absence of the spouse of the deceased, their relatives and children of the deceased’s spouse, appointed to succession by virtue of statutory law, V class: the inheritance falls to the gmina, where the deceased’s last place of residence was, as the statutory heir. If the last place of residence of a deceased in the

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Republic of Poland cannot be established, or if the last place of residence of a deceased was abroad, the inheritance falls to the State Treasury as the statutory heir.

Acquisition of the inheritance

An heir may:a) accept the inheritance without the limitation of the liability for

debts (simple acceptance), b) with the limitation of such liability (acceptance with the benefit

of inventory), c) may reject the inheritance.

The simple acceptance does not require the completion of any formalities. They are required in the case of acceptance the inheritance with the benefit of inventory and rejection of the inheritance. The declaration may be filed within six months from the day on which the heir learned about the title under which he or she was appointed to inherit.

Discussion questions:1) Who can be an heir?2) What is a legacy? What is the difference between ordinary and vindicatory

legacy?3) In what situation an heir may be adjudged unworthy?

14. MATRIMONIAL PROPERTY REGIMES

Matrimonial property regimes are systems of property ownership between the spouses. They determine the presence or absence of a joint property, what items are included in that property, how and by whom it is managed and how it will be divided at the end of the marriage.

We can distinguish the following regimes:

1) statutory property regime – arises between spouses, by operation of law, at the time of the marrage (getting married) if spouses do not conclude an agreement on martial property;

2) contractual property regimes – arise through an agreement on martial property concluded between spouses in a notarial deed; they can:

- expand statutory joint property regime

Elements of law

- limit statutory joint property regime- establish a separation of property- establish a separation of property with a compensation for

possessions gained

Statutory property regime arises by operation of law at the time of the marriage and covers property acquired by both spouses or by either one of them while the marriage lasts, in particular:

a) remuneration received for work and income from other gainful activities of each spouses,

b) income from joint property as well as the personal property of each of the spouses;

c) amounts collected in an account or an employee pension fund for either of the spouses.

The personal property of each of the spouses includes:

1) property acquired before the statutory joint property regime arose;2) property acquired by inheritance or donation, unless the bequeather or

donor decides otherwise; (exception: ordinary household items for the use of both spouses);

3) joint property rights that are fully covered under separate provisions;4) property that is used exclusively to satisfy the personal needs of one of

the spouses;5) rights that cannot be transferred and may only be exercised by one of the

spouses;6) items received as damages for bodily injury or triggering a health

disorder, or a compensation for harm suffered;7) debts concerning remuneration or other gainful activities by one of the

spouses;8) property received as a prize for individual achievement by one of the

spouses;9) the copyrights and related rights, industrial property rights and other

rights as a creator;10) property acquired in exchange for elements of personal assets.

Management of joint property

Both spouses are required to co-operate in the management of joint property, in particular to share information on the status of joint property, about the management of joint property and the responsibilities involved. The rule is that each spouse is free to manage the joint property. However, in order to protect the joint property from frivolous and unthrifty actions taken by one of the spouses:

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1) each spouse may object to the management of joint property intended by the other spouse; an objection is effective towards third parties if they could have become aware of it before performing the legal action (except for everyday matters or matters intended to meet the ordinary needs of the family and matters undertaken as part of gainful activity;

2) certain legal activity concerning the joint property require the consent of the other spouse; these are:

- any legal actions leading to the disposal, the encumbrance or the purchase of immovable or the right of perpetual usufruct, as well as leading to immovable being given for use or for exploitation,

- any legal actions leading to disposal, , the encumbrance or the purchase of proprietary rights concerning a building or premises,

- any legal actions leading to disposal, the encumbrance or the purchase or tenancy of a farm or an enterprise;

- any donations of joint property, except for small donations normally accepted.

Liability for the spouse’s debts

If one spouse takes on obligation:

1) with the consent of the other spouse, the creditor may demand satisfaction from the joint property of the spouses;

2) without the consent of the other spouse, or the obligation does not result from a legal transaction, the creditor may demand satisfaction from the debtor’s personal assets and from:

- wages or income earned by the debtor from other gainful activities,- the benefits derived from the debtor’s copyrights, industrial property

rights and other rights of a creator,- if the claim arises from conducting business – from the debtor’s

property assets in the company.

If it is not enough to satisfy the claim, the creditor of one of the spouses ma demand that the court establish the distribution of property (division of the joint of property).

Practice: case study 1Mr Adam is an owner of the apartment, which he acquired before the marriage. On the basis of a contract of lease he receives a monthly rent which amounts 1 000 PLN. Does this rent contribute to personal property or joint property?


Elements of law

Maria W. and Bogdan W. are subject to a joint property regime. Unfortunately, Bogdan abuses alcohol and does not contribute towards meeting the needs of the family founded by the marriage. He is also not willing to conclude an agreement on the separation of property. What Maria W can do about it? Is a divorce or separation the only way to protect from frivolous conduct of her husband?

Contractual property regimes

Spouses may, through an agreement concluded in a notarial deed, limit or expand the statutory joint regime, or establish a separation of property, or a separation of property with a compensation for possessions gained; (the possessions gained by each of the spouses means the increase in the value of their property after concluding an agreement on property; a compensation is made upon the motion).

Importantly, spouses may bring claims against other parties on an agreement on martial property, if its conclusion and nature were known to the parties.

Discussion questions:1) What about if one of the spouses refuses his or her consent to carry out an

legal activity concerning a joint property (where it is required)?2) What are the rules governing the request to compensate the possessions

gained?

15. REPETITION

Test yourself! Tick True (T) or False (F) next to each of these statements.

STATEMENTS T F1. Legal capacity does not depend on the age of a natural

person.2. A child conceived but not born at the moment of opening

the inheritance may not be an heir.3. A person limited in their capacity for acts in law may

without the consent of the statutory representative dispose

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of their earnings.4. The power of attorney to sell the immovable property

requires the form of a notarial deed.5. Exceeding the scope of the power of attorney always

result in invalidity of the legal action undertaken by a representative.

6. Procuration may not be limited with the effect to third parties.

7. In the case of contracts, the congruent intention of the parties and the purpose of the contract, rather than relying on its literal wording, must be established.

8. Apart from certain statutory exemptions, a declaration of intent may be made in any form.

9. The non-observance of a required form of a legal action always results in invalidity.

10. The provisions on a written form required for evidentiary purposes do not apply in relations to entrepreneurs.

11. The parties may conclude a contract in the form of a notarial deed instead of an ordinary written form provided by statutory law.

12. A mistake as a defect of the declaration of intent does not result in invalidity of a legal action but only gives grounds to evade the legal effects of the respective action.

13. The gratuitous nature of a legal action is irrelevant for the consequences of the defects of declaration on intent.

14. The court considers barring a claim by limitation only upon the debtor’s motion.

15. For claims resulting from economic activity the period of limitation is two years.

16. A claim certified by a valid pronouncement of a court is not subject to periods of limitation.

17. Proprietary rights are of an erga omnes nature, which means that they bind all entities subjected to a given legal regime

18. Interested parties may establish only such propriety rights that are expressly provided by statutory law.

19. Tenancy is a proprietary right.20. Generally, buildings and other facilities permanently

connected with the lands as well as trees and other plants from the moment of having been planted or sown, are considered component parts of the land.

21. A general clause is an ambiguity in a legal system that is unintended by the legislator and therefore should be eliminated.

22. A rent collected by the owner on the basis of a contract of

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lease is an example of a civil fruit of a thing.23. An immovable property is a thing defined as to its

identity.24. If the object of a contract obliging to transfer the

ownership are things designated only as to their kind, the transfer of the ownership requires the transfer of the possession of those things.

25. Under no circumstances one may transfer more rights than actually has.

26. No one may plead ignorance of entries in a land and mortgage register.

27. Entries in a land and mortgage register is accessible only for parties who prove a justifiable or legal interest in it.

28. The land and mortgage registers’ public credibility warranty is not excluded even in the case of rights encumbering an immovable property by virtue of law.

29. Joint and several liability of debtors means that they are held liable for a debt in equal parts.

30. Civil obligations may arise from administrative decisions.31. Personal liability means that a creditor may seek

satisfaction from the debtor’s property that they had at the moment of incurring the obligation from which a debt arose.

32. It is inadmissible to replace the labour contract with a civil law contract while maintaining the conditions of performance characteristic for the employment contract.

33. A contract of mandate is a contract of result.34. Under no circumstances may an employer conclude a

contract of a specific work with his employee.35. The testament generally takes precedence over the

statutory provisions.36. If the a deceased does not include their relatives in the

testament, the relatives cannot do anything about it.37. Children are hold liable for their parents’ debts after their

death unless the court decides otherwise.38. If spouses do not conclude an agreement on martial

property they are in a joint property regime.39. Property acquired before the marriage enters joint

property at the time of the marriage unless the spouses decide otherwise in an agreement on martial property.

40. Property acquired by inheritance or donation during the marriage are covered by statutory co-ownership.

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