(Title in Polish - 'Zasady: dobrej wiary i uczciwego obrotu oraz swobody umów w kodeksie zobowiazan oraz Zasadach Europejskiego Prawa Umów'). The publication is devoted to the two of key principles in modern civil law studies: principle of good faith and fair dealing as well as the principle of freedom of contract. The presentation of those principles in light of two acts of law that vary in nature and time of creation allows for demonstrating how permanent they are and how essential to the civil law of the countries with free market economy. The two discussed principles have been present both in the code of obligations and in the Principles of European Contract Law (PECL). Their role in both acts was important and similar, though the code of obligations attached relatively smallest importance to the fair dealing principles clause. As concerns the principle of freedom of contract, the PECL have repeated the solution, the forerunners of which were, among others, the authors of the code of obligations, namely the regulation of the principles of freedom of contract with a positive approach. The principles of good faith (in case of the PECL - also the principles of fair dealing) are visible, both under the code of obligations and the PECL, in the entire duration of the obligation relationship between the parties, starting from the moment when the parties express their intentions to the interpretation of the statements of intent (contracts) to the performance of obligations (contractual obligations). The conducted analysis of the code of obligations and the PECL allowed the author to bring up several theses of vital importance to the idea of trans-national unification of private law and for the history of Polish law, which can be summed up in form of the following conclusions: 1. the principles lying at the foundations of the PECL have been present in the Polish law for at least several dozen years; 2.the principles of freedom of contract as well as good faith and fair dealing, particularly important to the modern civil law studies, have played an important role in the Polish pre-war legislation as well; 3. certain solutions, relatively innovative at the time when the code of obligations was adopted, subsequently found their regular place in the European civil law.
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').
At first the authoress explains the theory of the appearance as it is recognized by the French judge, to analyze, secondly, the applicability of this theory in the Polish legal system. In France, among the most prevalent examples of the application of the theory of the appearance are: the apparent ownership, the apparent mandate, the heir apparent and the simulation. The theory of the appearance should be understood as an independent basis for the creation of the legal consequences consistent with the legitimate expectations of the person who trusted the appearance created by another person. In the Polish law, there are few legal exceptions that allow, in specific situations, the acquisition of rights by the person who trusted the appearance, as for example, the acquisition of property on the basis of the Article 169 of the Polish Civil Code and the effectiveness of the apparent transaction in the benefit of the third party acting in good faith in case of simulation, as it is allowed on the basis of the Article 83 § 2 of the Civil Code. As for other cases, unforeseen by the legal rules, the authoress makes some proposals: the application by analogy of the Article 83 § 2 of the Polish Civil Code and the interpretation by the courts of the statements of intent within the spirit of protection of legitimate expectations. The authoress proposes as well legislative amendments that would seek the inclusion in the Civil Code of a general regulation to protect the good faith.
JavaScript jest wyłączony w Twojej przeglądarce internetowej. Włącz go, a następnie odśwież stronę, aby móc w pełni z niej korzystać.