Wyniki wyszukiwania - Biblioteka Nauki

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Zapis windykacyjny jako rozrządzenie o skutku zobowiązująco-rozporządzającym

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Górniak K.

Kwartalnik Prawa Prywatnego

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2021

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tom 30

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nr 2

271-308

EN

Legatum per vindicationem was introduced into Polish law in 2011. The majority of legal scholars treat it as the type of a testamentary disposition that solely results in the acquisition of ownership by a legatee. It has, therefore, only ‘real’ effect and is not a source of any obligation between an heir and a legatee. The aim of this article is to prove the opposite. The main thesis is that legatum per vindicationem also results in the obligation to transfer ownership and take over a thing that is due to a legatee by an heir. It is, thus, a testamentary disposition, which can be regarded as legatum per damnationem (the so-called ‘ordinary’ legacy) combined with an additional ‘real’ effect, namely, the automatic acquisition of ownership of a thing bequeathed by a legatee. This theoretical assumption can be supported by at least three arguments. Firstly, by the wording of Article 9816 of the Polish Civil Code (the PCC) which provides that the provisions on legatum per damnationem apply accordingly to legatum per vindicationem (to all the aspects not dealt with differently). Secondly, by the findings of the jurisprudence as regards unjustified enrichment. The additional ‘obligational’ effect of legatum per vindicationem seems to properly ‘justify” the fact that it is through the legacy that a legatee becomes enriched. The material benefit gained by a legatee is, in this way, ‘justified’ in the light of the unjustified enrichment regime. Thirdly, the view presented in this article corresponds with the way in which ownership is transferred in Polish law inter vivos. Polish law has adopted a consensual model of the transfer of ownership (that is based on French law) which presumes the ‘double’ effect of a contract. Similarly, legatum per vindicationem can be regarded as a disposition with ‘double’ effect. The article reveals practical consequences of the presented thesis. Perhaps the most important of them is the following one: due to the fact that it has the ‘obligational’ effect, legatum per vindicationem should be governed by the provisions on the performance of obligations and the effects of non-performance (Articles 450–486 of the PCC), as well as by the provisions on legatum per damnationem providing for the time limit of the performance (Article 970 of the PCC) and the responsibility for defects in the thing bequeathed (Article 978 of the PCC).

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Glosa do uchwały Sądu Najwyższego z 25.07.2019 r., III CZP 12/19 (częściowo aprobująca)

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Górniak K.

Rejent

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2021

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nr 5 (361)

69-96

3

Mandat na wypadek śmierci w prawie francuskim

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Górniak K.

Kwartalnik Prawa Prywatnego

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2019

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tom 28

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nr 4

919-939

EN

The article describes a legal solution, which was introduced to French inheritance law in 2006 and which is referred to as the mandat á effet posthume (the power of attorney with posthumous effect). It is a specific contract, under which an agent administers the estate or a part thereof after the death of a principal. The author analyses the provisions of the French civil code on the mandat á effet posthume (offering their translation into Polish), as well as the case law and scholars’ views on this solution and its legal background. In consequence, readers are provided with a complete overview of the mandat á effet posthume, as it was regulated and as it actually operates in France.

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Trust w prawie kontynentalnym

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Górniak K.

Kwartalnik Prawa Prywatnego

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2022

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tom 31

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nr 2

275-348

EN

Trust is a legal device that has been developed by English courts of equity and is traditionally viewed as distinctive for common law jurisdictions. Comparative studies on trusts proved, however, that trusts do not require equity (understood as a separate system of law). The examples of mixed jurisdictions, such as Scotland, South Africa, Quebec, or Louisiana, illustrate that even the legal system with predominantly civilian property law can accept trusts. This puts the question if it is possible to transplant trust to a civil law jurisdiction. There are countries that have already decided to do so, some cautiously, with many limitations (as France which adopted le fiducie in 2007), and other more bravely (as Czechia or Hungary). Therefore, the article addresses the question whether a trust could be implemented to Polish law. As the study shows, our jurisprudence recognizes legal concepts which taken together can describe the way in which a trust operates. It involves such theoretical concepts as separate patrimony, doctrine of subrogation, real obligations (obligations propter rem), claims with real effects, and contract of mandate. That is perhaps the most exact way of describing trusts in civilian terminology. There exists, however, a simpler way of conceptualizing the trust. It can be also regarded as an obligation to manage somebody else’s assets, combined with authorization of a trustee to dispose of these assets and to acquire other assets in their place. In this model, the ownership of trust fund rests with the beneficiary. The trustee is not the owner of trust assets, but he is only authorized to manage them (on his own behalf, although with direct effect in the beneficiary’s patrimony). If one agrees to acknowledge, from a functional point of view, that this kind of device has all consequences associated with trusts (e.g. in case of bankruptcy or breach of the trust), then some legal solutions present in Polish law could be viewed as trust- like. As the article claims, the newly adopted (in 2019) succession management (zarząd sukcesyjny) is one of them.