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Skutki naruszenia wymogów formalnychw prawie prywatnym – proporcjonalność i sposoby jej zapewnienia

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Grochowski M.

Kwartalnik Prawa Prywatnego

2015

vol. 24

issue 4

785-816

The question of proportionality is undoubtedly an overriding concern of forma requirements in the modern private law – approaching form as a functionally motivated regulatory tool (designed to reach particular economic and social goals). A the goals in question and particular goals for their fulfilment (both formalities itself, as well as the consequences prescribed for their non-observance) are set forth generally, regardless of any particular legal dealing already made, the interdependence between these two spheres (“goals” and “means”) is being predetermined in equally abstract terms. This peculiarity – proper both (yet in different shape) for the requirements enacted through statute and stipulated by the parties – entails the need of assessment, whether formalities and effects of their breach remain actually proportional against the particular circumstances arising in their application. In some instances the balance in question can be distorted due to the occurrences and conditions existing both at the time of decision making or prior to it, as well as arising later on. In these cases emerges the need for restoring proportionality – and, if recognized, incentivizes to seek for remedial tools. The text summarizes the most common ways of maintaining and restoring proportionality, developed by the judiciary (in discourse with the doctrine) and statutory law, supplemented by the parties’ dealings. Upon these observations it attempts to identify the more common structures and concepts underlying the issue of proportionality in the field of formal requirements.

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1 Kwartalnik Prawa Prywatnego

1 Grochowski M.

1 2015

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Skutki naruszenia wymogów formalnychw prawie prywatnym – proporcjonalność i sposoby jej zapewnienia