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Kodeks zobowiązań jako lekcja metody prawnoporównawczej

100%

Dajczak W.

Kwartalnik Prawa Prywatnego

2014

vol. 23

issue 4

829-854

Polish Code of Obligations which became binding law in 1934 has been called by Rannieri in 2009 the “first truly European codification of civil law”. This Code introduced to the Polish territories – in place of German, Austrian, French, Russian and Hungarian laws that were in force in different parts of the country – unified law of obligations. The method of comparative law was essential for the drafters of Polish Code of Obligations. Taking these facts into consideration two questions will be answered in the paper: - What does the experience of preparatory works of Polish Code of Obligations teach us about the method of comparative law; - How can this legal experience make Polish legal culture more attractive for the current European debate about the law of obligations. What is essential for this analysis is the rationale of the Code prepared by its main reporter in the Codifications Commission Roman Longchamps de Berier and foreign jurists opinions provoked by the promulgation of the Code ( e.g. Capitant, Mazeaud, Josserand). This paper focuses on three issues relevant for the method of comparative law on the basis of the rationale of the Code: relation between the method of comparative law and national identity of private law; the role of historical arguments for the method of comparative law and the impact of values on the method of comparative law. The successful unification of law of obligations in the interwar Poland and involving this experience in 20th century thirties into discussion about unification of private law in Slavonic countries can inspire modern legal debate in all these points. Firstly, the national identity of private law call for the distinguishing between national and international unification or modernization of the law of obligations. In the first case the identity of law is an argument supported the protection of interests of national economy. The best way for the international unification of law of obligations leads however through evolutionary growth of harmonization capability of national nation orders. Secondly, the role and style of historical arguments in the rationale of Polish Code of Obligations shows the weakness of the faith into the linear progress of law, argues for of the widening of historical reflection in the comparative debate beyond the codified law. Thirdly, the intuitive valuation is a natural feature of method of the comparative law. Reasonable choice of deeply analyzed local judicial practices supported by other historical arguments can make this method more transparent. The experience of Polish unification of the law of obligations, forgotten for decades, offers many specific solutions that clarify the three principles expressed above. By this reason the learning of this experience should be recommended as a good lecture for the participants of modern European debate about law of obligations.

Angielska doktryna promissory estoppel a polska klauzula nadużycia prawa

88%

Halberda J.

Krakowskie Studia z Historii Państwa i Prawa

2014

vol. 7

issue 2

395–404

The article discusses the problem of evolution and the premises used in applying the English concept known as promissory estoppel. The birth of this legal concept has been discussed on the example of the most important court cases, the so called leading cases, such as, among others, that of High Trees (1947) and Combe v. Combe (1951), in which it was lord Denning who adjudicated. In the article, the author also analyzes the general principles of invoking promissory estoppel. He indicates that in the course of a court trial it is necessary to prove the existence of a promise, on the basis of which the person who was promised something, while acting in accordance with the common sense, decided to withdraw and by undertaking certain definite steps ultimately suffered a loss, whereas withdrawal on the part of the person making a promise would be unjustified. The author of the paper made an effort to try to answer the question whether the abuse of right clause mentioned in Art. 5 of the Civil Code may be regarded as the Polish equivalent of promissory estoppel.

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1 Krakowskie Studia z Historii Państwa i Prawa

1 Kwartalnik Prawa Prywatnego

1 Dajczak W.

1 Halberda J.

2 2014

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Kodeks zobowiązań jako lekcja metody prawnoporównawczej

Angielska doktryna promissory estoppel a polska klauzula nadużycia prawa