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Rozliczenia między stronami związków partnerskich na podstawie przepisów o bezpodstawnym wzbogaceniu

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Sobczyk M.

Kwartalnik Prawa Prywatnego

2015

vol. 24

issue 2

381-408

This article is devoted to the complex and difficult problem of pecuniary settlements between cohabitants or parties in similar relationships. One party often contributes to the partner’s property significantly, especially finances construction of a house on the partner’s land or gives him or her money to buy such a house, where they plan to live together. The party makes such patrimonial sacrifices because of the relationship existing between them and with the clear purpose of its continuation. Therefore this financial support can be regarded as a performance rendered in contemplation of continuation of their relationship. However, after several years they split up and the giver seeks restitution of the performance, so the question arises on what ground? Cohabitation is not regulated in Polish law, which is why the courts must search for the proper provisions to solve the dispute. One of the solutions is the application of the concept of performance rendered for an intended purpose that has not been achieved. It can be said that due to the fact that the relationship is finished the purpose of the performance is subverted. This concept, codified in art. 410 § 2 of the Polish civil code, has roots in Roman law in condictio causa data causa non secuta. It is applied also in foreign legal systems, which enables us to make some comparisons. In this paper I analyze judicial decisions and views of doctrine concerning the claim for restitution and its preconditions. I come to final conclusion that the concept of condictio causa data causa non secuta is applicable where other remedies cannot be applied or are very inconvenient. Its application requires the existence of a special kind of agreement described as the “legal basis of the performance”, which, however, is not a contract. One party confers a benefit to another to achieve a purpose which is at least recognizable for the recipient and approved by him at least per facta conludentia. This purpose usually refers to the further continuation of their relationship. Condictio is applied rather in exceptional cases where the amount of the contribution to the partner’s property is significant and constitutes a valuable and lasting benefit.

CLASSIC THEORIES OF FORCE MAJEURE IN THEIR CONTEMPORARY APPLICATION ('Klasyczne' teorie sily wyzszej w ich wspólczesnym zastosowaniu)

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Sobczyk M.

Kwartalnik Prawa Prywatnego

2010

vol. 19

issue 3

757-790

This paper deals with the classic theories of force majeure: the subjective theory created by L. Goldschmidt and the objective theory created by Adolf Exner, and the contemporary application of these theories in Polish law. Crucial assumptions of both theories are presented and compared with the concept of force majeure worked out in Polish civil law doctrine and in the jurisdiction of Polish Supreme Court. The author comes to a general conclusion that neither of these theories is applied in its pure form, although the objective theory has wider recognition. In the jurisdiction of Polish Supreme Court the objective theory is combined with certain elements of the subjective theory. The author adheres to the A. Exner's conception. The fact that objective theory is not applied in its pure form is not reproachful because in the contemporary world there is a need of assessment of much more complex events than these traditionally regarded as force majeure. The theory of Exner is not free from drawbacks; especially very limited scope of events is qualified as force majeure. In result, more flexible approach is advised contemporary. However, the flexibility makes the criteria of assessment less clear than in Exner's theory. In the author's opinion even the drawbacks of Exner's theory do not justify the rejections of its basic assumptions due to the fact that they are still proper and useful in the assessment of more complex events. However, the application of objective theory in its contemporary form cannot be spoiled by wider recognition of subjective elements, particularly the diligence of a specific debtor in a specific situation. The author shares the point of view of Witold Warkallo that the adjective 'irresistible' can be used to describe the most important feature of force majeure in spite of the fact that this adjective was not used by A. Exner. The opinion that force majeure is an event that cannot be prevented by means of ordinary measures should be rejected. The requirement of unpredictability, which is in fact a very subjective criterion, should be replaced with extraordinary character of an event.

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2 Kwartalnik Prawa Prywatnego

2 Sobczyk M.

1 2015

1 2010

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Rozliczenia między stronami związków partnerskich na podstawie przepisów o bezpodstawnym wzbogaceniu

CLASSIC THEORIES OF FORCE MAJEURE IN THEIR CONTEMPORARY APPLICATION ('Klasyczne' teorie sily wyzszej w ich wspólczesnym zastosowaniu)