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Pojęcie wierzytelności stwierdzonej pismem w przepisach o przelewie wierzytelności

100%

Katner P.

Kwartalnik Prawa Prywatnego

2021

vol. 30

issue 1

79-104

Assignment is a basic and commonly used method for transferring claims. The article addresses the practical problem of how to understand the term “a claim evidenced in writing”, which is referred to in Article 511 and Article 514 of the Polish Civil Code that govern the assignment. The issue is particularly important in the light of the latter provision, since it establishes an exception to the effectiveness against the assignee of a stipulation contained in the creditor’s agreement with the debtor on the exclusion or limitation of the assignment (pactum de non cedendo) provided for in Article 509 § 1 of the Polish Civil Code. The term under consideration is understood differently in the academic legal writings and the matter is quite often only briefly dealt with by the authors, while the case-law raises some doubts and presents certain differences and inconsistencies. In the course of the analysis, following an outline of the views presented in the case-law and by the legal scholars, it was separately examined whether the term “a claim evidenced in writing” should be understood identically in the light of both provisions in which it can be found; what should be understood as a claim that is evidenced in writing and who should do it. In conclusion, it was established that, in the Polish Civil Code, the term “a claim evidenced in writing” should be understood as a signed document (bearing a qualified electronic signature where it is in the electronic form) that a reasonable person can regard without any doubt as covering the entire content of the claim. The circle of subjects who should sign it is not identical under Article 511 and Article 514 of the Polish Civil Code, as – in the case of the former article – it is broader under certain conditions, while – in the case of the latter article – the document should always be signed or approved in writing by the debtor. On the basis of the considerations made, the question that is disputed in the literature was then examined, namely whether a VAT invoice should be regarded as a claim evidenced in writing within the meaning of Article 511 and Article 514 of the Polish Civil Code. To this question a negative answer was actually given.

Istota i formy ilościowych przekształceń przedmiotowych w polskim procesie cywilnym

61%

Wiśniewska A.

Studia Iuridica

2018

vol. 75

237-247

The Polish Code of Civil Procedure (CCP) does regulate the amendments of the subject of claim in Art. 193. It must be observed that the Code (similar to the former Code of Civil Procedure of 1932) does not supply a statutory definition of the amendment of claim, leaving this matter to the theory of civil procedure; the regulation is only concerned with the admissibility of a change. Speaking in most general terms, an amendment of a claim is a procedural act which results in transformation of particular elements of the claim, thus directly influencing the proceedings. However, the continuity of the proceedings before and after the amendment must be preserved, in the sense that earlier procedural acts of the parties and evidence collected remain at least partially pertinent. The claimant’s act amending the claim may as well limit as extend the subject matter of the proceedings. It can also, obviously, contain as well an amendment of the requested remedy as the factual basis of the claim. A separate amendment of only one of those elements seems also possible. As a quantitative amendment of the claim must also be considered the introduction of a new claim besides the original one (a cumulative amendment). Such an amendment is expressly provided by Art. 193 § 2 CCP. It must be stressed that, as a matter of fact, the extension of the claim in a cumulative form, as regulated in Art. 193§ 2 CPC, shall produce the identical result as if the claimant already in the statement of claim availed of a possibility provided in Art. 191 CCP, namely to cumulate more than one substantive law claim in one statement of claim against the same respondent. The claimant’s procedural acts aimed at the quantitative amendment of the claim include also the limitation of the claim, thus resulting in the limitation of the subject matter of the proceedings. Undoubtedly, the limitation of the claim is a party’s procedural act bearing upon the court’s decision.

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1 Kwartalnik Prawa Prywatnego

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1 Katner P.

1 Wiśniewska A.

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Pojęcie wierzytelności stwierdzonej pismem w przepisach o przelewie wierzytelności

Istota i formy ilościowych przekształceń przedmiotowych w polskim procesie cywilnym