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2008 | 17 | 3 | 713-740
Tytuł artykułu

THE SCOPE OF RIGHTS-TO-SHAPE ACQUIRED BY THE ASSIGNEE OF A CLAIM

Warianty tytułu
Języki publikacji
PL
Abstrakty
EN
Polish legal writers have not given much attention to the problem of the scope of rights being acquired by the assignee of a claim (Polish: wierzytelnosc). Statements regarding the issue are few and they concur in that the assignee, along with the claim, also acquires the rights-to-shape (Polish: prawa ksztaltujace). The author points out that such an approach ignores essential arguments raised by foreign legal writers. The article starts by putting forward criteria and ways which may be used to allocate the rights-to-shape between the assignor and the assignee, as proposed in foreign legal literature. The author supports the view that the first applicable criteria should be those laid down in express provisions of a contract underlying the assignment, and if there are none, it is necessary to use a complementary interpretation, in which typical interests of the parties to that contract are considered. In order to protect the obligor, who has no knowledge of the contractual distribution of rights-to-shape between the parties, nor of the type or contents of the legal relationship between the assignor and the assignee (see Article 512 of the Civil Code to be applied by analogy), it is required to present an objective model after which rights-to-shape should be distributed. Such a model should be based on criteria unaffected by the balance of interests inherent in the legal relationship underlying the assignment. Criteria inferred from the afor-mentioned legal relationship (the so-called subjective model) may be applied secondarily, i.e. if the obligor knows the type of legal relationship under which the assignment occurred. With the objective model, the most relevant is Article 509 § 2 of the Civil Code, which states that the distribution of rights-to-shape between the assignee and the assignor depends on whether a particular right-to-shape is connected to the claim. This connection may be perceived either from the point of view of legal consequences produced as a result of the right having been exercised, or from the point of view of how the prerequisites of the right-to-shape are related to the claim and/or the obligation (Polish: dlug). The author advocates the latter. Consequently, he suggests to distinguish between 1. rights-to-shape connected with the claim, 2. rights-to-shape connected with the obligation, 3. rights-to-shape connected with the claim and/or the obligation, and 4. neutral rights-to-shape. It is difficult to subsume the right to terminate a fixed legal relationship and the right to rescind a contract under just one of the afore-mentioned categories; these rights may be subsumed to all of them. These are two general categories of rights-to-shape, in which one can distinguish specific types of rights to terminate a fixed legal relationship and the right to rescind a contract, based on what facts had to occur for the rights to become exercisable. Subsuming those rights under a particular category is affected also by the scope of the claim being assigned, which complicates the picture.
Rocznik
Tom
17
Numer
3
Strony
713-740
Opis fizyczny
Rodzaj publikacji
ARTICLE
Twórcy
  • J. Kuropatwinski, Uniwersytet Mikolaja Kopernika w Toruniu, Katedra Prawa Cywilnego i Bankowego, ul. Fosa Staromiejska 1a, 87-100 Torun, Poland
Bibliografia
Typ dokumentu
Bibliografia
Identyfikatory
CEJSH db identifier
08PLAAAA05249950
Identyfikator YADDA
bwmeta1.element.8bb8b4b3-d7fc-3b8e-96d3-0df7365aad1c
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