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CONSEQENCES OF NONCOMPLIANCE WITH FORMAL REQUIREMENTS PRESCRIBED BY PARTIES' AGREEMENT (Skutki niedochowania formy czynnosci prawnej zastrzezonej wola stron)

100%

Grochowski M.

Kwartalnik Prawa Prywatnego

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2010

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tom 19

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nr 2

333-347

EN

The present paper examines one of the classical concepts of civil law: the agreement upon the form of statements of will (pactum de forma). According to the article 76 of the Polish Civil Code, parties to an agreement may stipulate that they will take legal actions (exactly: make statements of will) in a particular form (e.g. in writing or in notary form). Polish civil law also provides a general rule that an act which fails to comply with such a formal requirement 'produces no effect'. This expression, crucial for the proper understanding of the whole regulation, is, however, not explicit enough and leads to severe controversies. According to certain authors, such a contract is only ineffective, whereas according to others, it is null and void. The present article aims to find a solution to this problem by applying the theory of conventional acts. In the light of this theory, statements of will and other legal acts have to be done in compliance with the conventional rules imposed by legal provisions, similarly to other conventional acts, which should follow conventional rules of different nature (like some acts of social behaviour, e.g. the way people greet each other). If these requirements are not observed, the whole act cannot be recognized as an act of the particular type. Consequently, the form prescribed by the parties for their future agreements should also be considered a conventional rule which is a condition for validity of the entire contract. Such agreement is null and void, but not nonexistent, since the concept of 'nonexistent legal act' (negotium non existens), seems to be too vague and uncertain to be used to describe defectiveness of civil contracts.

2

Między dogmatyką i metodą. Polskie podręczniki do części ogólnej prawa cywilnego i ich ewolucja

100%

Grochowski M.

Kwartalnik Prawa Prywatnego

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2019

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tom 28

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nr 4

853-883

EN

The text addresses the evolution of Polish handbooks on the general part of private law, which were published in the interwar period and throughout the second half of the 20th century. It builds on the history of “Civil law. General part”, a handbook initially authored by Aleksander Wolter and subsequently amended and updated by Jerzy Ignatowicz and Krzysztof Stefaniuk. With its newest edition (of 2017), it is the longest-standing handbook on Polish private law, which has been in use for almost 70 years. The handbook has been used not only for academic teaching purposes, but also as a sophisticated and in-depth handbook on the general part of civil law (and the civil law as such). The text attempts to sketch an “intellectual biography” of the handbook, against the backdrop of legal literature of that era. In particular, it attempts to allocate A. Wolter’s handbook vis-à-vis the underlying question, whether and to what extent the handbooks on the general part of civil law should be shaped purely as teaching materials or as more substantial “research handbooks”, which present the core principles and the core conceptual and methodological premises of the discipline. In so doing, the text attempts to understand how the choice of a deeper and more elaborate structure of the handbook, made in mid-1950s by A. Wolter and preserved in the next editions of the book, was contingent on the specific way of the development of Polish civil law throughout the 20th century. Finally, the article attempts to map the current role of the handbook in the landscape of Polish civil law and to assess its topicality for the current developments in the methodology of research.

3

Nowe koncepcje regulacji wymogów formalnych w prawie polskim

100%

Grochowski M.

Kwartalnik Prawa Prywatnego

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2017

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tom 26

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nr 4

805-843

EN

The text addresses the foundational problems of the amendment to the Civil Code of Poland of 10 July 2015. It introduced significant alterations to the provisions on formal requirements, seeking to modernize them and provide higher degree of flexibility. The crux element of this reform has been the introduction of a new type of formal requirement – the documentary form (Article 772 of the Civil Code) – and of the definition of a document (Article 773 of the Civil Code). These new legislative concepts have been based on an assumption of diving regulatory tasks between the legislation and the practice (both conduct of the parties to juridical acts and the judiciary). They do not indicate exhaustively technical features that have to be met to observe particular formal requirement, but only frame them in a general way, indicating the core functional features (e.g. intelligibility of a document’s content and identifiability of its author). This is a novel approach, providing formal requirements with a higher degree of flexibility at the cost of precision and definitiveness of a formal requirement. Construed in this way, formal requirement has to supplemented by the parties to the particular juridical act (who can choose particular way of communication statements between them) or courts (which typically scrutinize ex post, if particular way of conveying information satisfied the formal requirement). The text expands on this foundational observation, framing the conceptual and practical features of the attitude adopted in the amendment. It tries also to analyze the newly-adopted solutions against the background of similar concepts in the European Union regulations and to integrate them with the already existing framework of domestic private law.

4

Skutki naruszenia wymogów formalnychw prawie prywatnym – proporcjonalność i sposoby jej zapewnienia

100%

Grochowski M.

Kwartalnik Prawa Prywatnego

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2015

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tom 24

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nr 4

785-816

EN

The question of proportionality is undoubtedly an overriding concern of forma requirements in the modern private law – approaching form as a functionally motivated regulatory tool (designed to reach particular economic and social goals). A the goals in question and particular goals for their fulfilment (both formalities itself, as well as the consequences prescribed for their non-observance) are set forth generally, regardless of any particular legal dealing already made, the interdependence between these two spheres (“goals” and “means”) is being predetermined in equally abstract terms. This peculiarity – proper both (yet in different shape) for the requirements enacted through statute and stipulated by the parties – entails the need of assessment, whether formalities and effects of their breach remain actually proportional against the particular circumstances arising in their application. In some instances the balance in question can be distorted due to the occurrences and conditions existing both at the time of decision making or prior to it, as well as arising later on. In these cases emerges the need for restoring proportionality – and, if recognized, incentivizes to seek for remedial tools. The text summarizes the most common ways of maintaining and restoring proportionality, developed by the judiciary (in discourse with the doctrine) and statutory law, supplemented by the parties’ dealings. Upon these observations it attempts to identify the more common structures and concepts underlying the issue of proportionality in the field of formal requirements.

5

Czynności notarialne online – podstawy de lege lata i uwagi de lege ferenda

51%

Rott-Pietrzyk E. , Zoll F. , Szostek D. , Grochowski M.

Forum Prawnicze

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2020

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nr 4 (60)

38-56

EN

The text attempts to conceptualize the possible reform of the procedure of making notarial deeds in Poland. It examines the feasibility of drafting and signing these deeds in the course of online communication between parties. The analysis builds on the significant constraints for the classic notarial procedure (based on paper documents and on the physical presence of a notary and parties) that were triggered by the COVID-19 pandemic. Its aim reaches, however, further beyond the present-day realities and seeks possible ways to generally modernize provisions on notarial deeds and to adjust them to the growing proliferation of online communication in the society. The text ascertains that the existing structure of provisions on notarial deeds already allows for making notarial deeds online, without profound legislative changes. It can be achieved predominantly by altering the attitude towards interpretation of these rules, especially through a more profound insight into the function of these provisions and the interrelation between their rationale and the features of the online communication. In the latter regards, the text makes an in-depth scrutiny of possible guarantees for communicational efficacy and for authenticity of notarial deeds that are provided by the advanced methods of transmitting and storing data online.