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1

Umowy przedwstępne do umów mających za przedmiot autorskie prawa majątkowe (przenoszących autorskie prawa majątkowe i licencyjnych)

100%
Bugajski M.
Kwartalnik Prawa Prywatnego
|
2022
|
vol. 31
|
issue 4
701-733
EN
The article addresses the issue of preliminary contracts in copyright trading and during licensing. The text justifies the admissibility of such contracts, taking into account the belonging of copyright law to civil law and the nature of preliminary agreements as a general institution of contract law. The analysis covers the required content of such a contract, in particular the obligation to indicate in it the fields of exploitation of the work, and the issues refering to concerning the form of the contract. The work also covers the consequences of a breach of a preliminary contract and the issue of damages. An analysis of the provisions of the Copyright Act in the context of preliminary contracts is also considered. An assessment is made as to whether the provisions on transfer of copyrights and license agreements also regulate preliminary contracts, and what effects a court’s judgment will have as a substitute for a promised agreement if the debtor evades its conclusion. The analysis will also deal with the possibility of a performance on account of the promised contract reserved in the preliminary contract. Particular attention will be paid to the issue whether copyrights may be subject to such consideration and to the rules of settlement of the parties if the promised agreement is not concluded. The matter of preliminary contracts will allow to consider the scope of cases covered by the special legal procedure in intellectual property cases recently introduced into the Polish legal system. The article will present the admissibility and the scope of application of preliminary agreements in copyright law and the usefulness of this institution.
2

Instytucja kar umownych w prawie francuskim

100%
Bugajski M.
Kwartalnik Prawa Prywatnego
|
2024
|
vol. 33
|
issue 1
31-57
EN
The article describes the French regulation of contractual penalties (liquidated damages) as given by the 2016 reform and the evolution of this institution in the light of case law and legal developments. It presents them as an instrument of contractual liability, which, however, is intended to fulfill different purposes. While, on the one hand, it constitutes a lump sum of damages, it is also intended to be an instrument that puts pressure on the debtor to perform their obligation and punishes them for failing to do so. These features make it possible to distinguish contractual penalties (liquidated damages) from other similar instruments commonly used under the French law. These differentiations are also presented in the paper. The article also analyses the institution of the judicial mitigation of contractual penalties, taking into account the practice of its application under the French law. The conditions of a grossly excessive and grossly low (derisory) contractual penalty (liquidated damages) and of partial performance of an obligation are described and analysed. Although the article is not a comparative study, the adapted functional approach has also made it possible to notice differences and similarities between French and Polish law to a certain extent.
3

Założenia retranspozycji dyrektywy 2019/771 do kodeksu cywilnego

51%
Zoll F., Południak-Gierz K., Bugajski M.
Kwartalnik Prawa Prywatnego
|
2024
|
vol. 33
|
issue 4
703-744
EN
With the impending transposition of Directive 2024/1799 and the re-establishment of the Civil Law Codification Commission in 2024, it is time to discuss re-implementation of Directive 2019/771 within the Civil Code. The article presents the main ideas that should be reflected in the new provisions governing the seller’s liability regime. We advocate for the unification of the seller’s liability regimes, introducing specific rules addressing liability for non-conformity with the contract in the case of the sale of animals, and limiting the period of the seller’s liability by a prescription period only. We propose rephrasing the following two concepts: the conformity requirements and the definition of legal defects. We highlight the most problematic issues which should be taken into consideration when drafting provisions regarding refurbished and substitute goods. We argue for supplementing the current legal framework with explicit regulation on the ‘right to reject’ and adding a new mechanism to increase the effectiveness of the update obligation
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