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Umowy przenoszące własność rzeczy przyszłych i oznaczonych co do gatunku a czynności prawne realne

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Zawadzka J.

Rejent

2024

issue 12 (404)

41-58

The interpretation of Article 155 § 2 of the Civil Code and the legal significance of the transfer of po-ssession for the transfer of ownership have been disputed since the Civil Code came into force. One of the issues subject to controversy is the qualification of contracts transferring ownership of things desi-gnated only as to their kind or future things as real contracts (contracts first executed when their object is handed over). The reason why these contracts are often included in the category of real contracts is the requirement of transfer of possession provided for in Article 155 § 2 of the Civil Code. The paper presents an argumentation aimed at proving that the exceptions provided for in Article 155 § 2 of the Civil Code to the principle of transfer of ownership solo consensu expressed in Article 155 § 1 of the Civil Code are exceptions in favour of the principle of tradition, and not in favour of the real nature of the contract. The principle of tradition, on the other hand, does not mean that an additional act publici-sing a change in the legal status of a thing is required for the execution of the legal act itself. It is a requirement needed for the legal effect to be produced by the legal act already executed. Contracts regu-lated by Article 155 § 2 of the Civil Code are therefore not real contracts. This provision does not refer to the real or consensual nature of contracts transferring ownership of things designated only as to their kind or future things.

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1 Rejent

1 Zawadzka J.

1 2024

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Umowy przenoszące własność rzeczy przyszłych i oznaczonych co do gatunku a czynności prawne realne