CLASSIC THEORIES OF FORCE MAJEURE IN THEIR CONTEMPORARY APPLICATION ('Klasyczne' teorie sily wyzszej w ich wspólczesnym zastosowaniu)
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This paper deals with the classic theories of force majeure: the subjective theory created by L. Goldschmidt and the objective theory created by Adolf Exner, and the contemporary application of these theories in Polish law. Crucial assumptions of both theories are presented and compared with the concept of force majeure worked out in Polish civil law doctrine and in the jurisdiction of Polish Supreme Court. The author comes to a general conclusion that neither of these theories is applied in its pure form, although the objective theory has wider recognition. In the jurisdiction of Polish Supreme Court the objective theory is combined with certain elements of the subjective theory. The author adheres to the A. Exner's conception. The fact that objective theory is not applied in its pure form is not reproachful because in the contemporary world there is a need of assessment of much more complex events than these traditionally regarded as force majeure. The theory of Exner is not free from drawbacks; especially very limited scope of events is qualified as force majeure. In result, more flexible approach is advised contemporary. However, the flexibility makes the criteria of assessment less clear than in Exner's theory. In the author's opinion even the drawbacks of Exner's theory do not justify the rejections of its basic assumptions due to the fact that they are still proper and useful in the assessment of more complex events. However, the application of objective theory in its contemporary form cannot be spoiled by wider recognition of subjective elements, particularly the diligence of a specific debtor in a specific situation. The author shares the point of view of Witold Warkallo that the adjective 'irresistible' can be used to describe the most important feature of force majeure in spite of the fact that this adjective was not used by A. Exner. The opinion that force majeure is an event that cannot be prevented by means of ordinary measures should be rejected. The requirement of unpredictability, which is in fact a very subjective criterion, should be replaced with extraordinary character of an event.
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