RULES OF SOCIAL COEXISTENCE, GOOD MORALS OR GOOD FAITH? DILEMMAS OF AMENDING OF GENERAL CLAUSES OF POLISH CIVIL LAW FROM THE EUROPEAN PERSPECTIVE
Since the very moment of the democratic turn-over of 1989 and 1990, Polish legal authors have been discussing profound amendments to the Polish Civil Code. Though much has already been done in this field, some vital questions - and the general clauses in particular - still remain untouched. The notion of the 'zasady wspólzycia spolecznego' (rules of social coexistence), which was invented under the Communist rule to wipe out the 'bourgeois' general clauses like e.g. good faith and fair dealing, seems to have dominated the whole Code for next dozens of years. The main purpose of the present paper is to justify the need for the abolition of the mentioned clause from the modern Polish private law. The author makes references not only to its 'wrong parentage', but also to the improper way in which such rules of law are perceived and applied in the legal practice (esp. by the judiciary). The State Codification Commission for the Civil Law tends to replace 'rules of social coexistence' with a traditional notion of 'good morals' (boni mores). It is so particularly in the field of the pre-contractual liability (Art. 72 (2) Civil Code) and abusive consumer contracts (Art. 385-1 (1) Civil Code). The paper suggests the necessity for some deeper studies on the principle of good faith, which is historically known to the Polish law and constitutes undoubtedly the cornerstone of the European legal heritage. Its usage in Art. 72 (2) Civ. Code would guarantee better correspondence with the court's obligation of the individualized assessment of the trust and confidence that one of the parties had in the future conclusion of the contract being ineffectively negotiated. It is the clause of good faith which appears in Art. 2:301 (2) and (3) PECL, being the pattern for the above mentioned rule of the Polish Code. Turning to Art. 385-1 (1) Civil Code, the postulate for the replacement of 'good morals' with 'good faith' is underpinned by the necessary cohesion of its interpretation and application with Art. 3 (1) of the Directive 93/13/EEC on abusive consumer contract clauses. It is worth pointing out that the Supreme Court has recently criticized the way in which the latter provision was implemented into the Polish law (see Case I CK 297/05 'Cable TV Rules').
CEJSH db identifier