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Kreowanie zobowiązań naturalnych w drodze umowy (uwagi o tzw. skutku silniejszym pactum de non petendo)

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Riedl K.
Kwartalnik Prawa Prywatnego
|
2019
|
vol. 28
|
issue 3
643-704
EN
The aim of this article is to determine whether we deal with natural obligations only where these are specified in statutes (numerus clausus), or whether the parties can assume such obligations in accordance with the principle of freedom of contract. This issue is closely linked with the question of whether it is possible to conclude a so-called pactum de non petendo with a stronger effect, which in fact results in a contractual exclusion of suability (enforceability) of claims covered by such agreement. The article discusses diverging views presented in Polish legal literature and case law on this issue, drawing at the same time from both German and Swiss jurisprudence. According to the thesis of the paper, the solution as regards Polish legal system will vary depending on when suability has been excluded. One should consider the original creation of natural obligations (being non-suable ab initio), which is admissible under the principle of freedom of contract. The freedom of the parties in this respect is, however, limited in a number of ways, as a result of binding imperative provisions of law designed to grant certain claims, the prohibitions against waivers of certain claims and provisions included in Article 58 § 2 and Article 3851 § 1 of the Polish Civil Code. On the other hand, any subsequent transformation of an existing claim into a natural claim runs, de lege lata, counter to Article 117 and Article 119 of the Polish Civil Code, as it results in a breach or circumvention of the prohibition against shortening the periods of prescription (or, in the case of claims not covered by the statutes of limitation, as it runs counter to their non-limitation), and is thus ineffective. The asserted liberalisation of the prohibition against shortening the periods of prescription may result in watering down of this conclusion. Ultimately, the considerations presented in the paper lead to the rejection of the assumption that the principle of numerus clausus of natural obligations applies in the Polish legal system; therefore it should be possible to distinguish between contractual and statutory natural obligations.
2

Dochodzenie roszczeń z zobowiązań naturalnych przed sądem polubownym

100%
Riedl K.
Kwartalnik Prawa Prywatnego
|
2018
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vol. 27
|
issue 4
969-1004
EN
This paper shall consider two questions: 1) can natural claims be pursued de lege lata in arbitration (the issue of arbitrability), 2) can awarding a natural claim in arbitration be a basis for setting aside of an award or for refusing recognition or enforcement of an award. On one hand, a definitional property of natural obligations (claims) is their unsuability, i.e. the incapability of being effectively pursued before a common court. On the other hand, a court proceeding is not the only way to resolve a legal dispute. Parties are able to subject their dispute to arbitration, whose award will obtain legal validity of a State court judgement after its recognition or enforcement. In this context there arises a question whether admissibility of pursuing natural claims in arbitration does not open a way to circumvent their unsuability. The paper focuses on two cases of natural obligations undisputable in Polish law: obligations where a creditor’s claim was barred by limitation and the so-called unclassified gaming and bets obligations. The analysis of current regulations presented in the paper leads to the conclusion that in both cases disputes concerning such claims are arbitrable. However – if an arbitral tribunal awards a natural claim – the possibilities of setting aside of such award or refusing recognition or enforcement thereof are very limited. In consequence, the regulations in force to a certain extent make it possible to circumvent the construction of a natural obligation by subjecting of a dispute concerning such obligation to arbitration, which is criticisable.
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Koncepcja pojęć zastanych w orzecznictwie Trybunału Konstytucyjnego

100%
Riedl K.
Przegląd Sejmowy
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2015
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issue 5(130)
83-98
EN
The Constitutional Tribunal recognizes some terms in the Constitution as so called “pre-existing notions”. That means that in case of absence of a clear defi nition of the notion within the Constitution, it may be assumed that the constitutional legislator intended this term to have the same meaning assigned to it by previous constitution, doctrine or legislation in force at the time of the entry of the 1997 Constitution. Such concept allows therefore to suppose that this notion has another (wider) meaning than a result of literal interpretation. The inspiration to write this article was judgment of 7th October 2013, K 31/12, wherein the issue of recognition the constitutional term “reading” of the bill as a pre-existing notion had decisive infl uence over the Tribunal’s decision. The article analyses the jurisprudence of the Constitutional Tribunal regarding the pre-existing notions. The main aim is to answer the question, whether such idea can be treated as a complete, useful and established concept of constitutional interpretation. The analysis gives a positive answer.
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