The consumer’s right to have goods restored to a condition consistent with the agreement

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In the opinion of the Regional Court in Elbląg (judgement of 15 April 2015, I Ca 68/15), allowing the seller to rely in proceedings on the defence based on the pleading of the non-existence of the claim in case the seller fails to reply to a demand from the consumer (buyer) to have the good restored to the condition stipulated by the agreement, and as a result this demand being deemed justified, would mean the limitation in exercising consumer rights. The failure to react to the consumer’s demands within the prescribed term creates the fiction of allowing the claim, which means the seller in general accepts the pleading that the good is inconsistent with the agreement from the moment of the handover thereof.

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Posted on by Krzysztof Riedl in Consumer Law, Contract Law, General Issues

Promissory note enforcement vs. an ex officio review of unfair terms (Profi Credit Polska: C-176/17)

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On 17 February 2017, the District Court in Siemianowice Śląskie (the “Court”) referred to the CJEU a preliminary question (C-176/17), asking whether the provisions of Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, especially Article  6(1) and Article 7(1), and the provisions of Directive 2008/48/EC of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC, especially Article 17(1) and Article 22(1), are to be interpreted as precluding the entrepreneur (the lender) from pursuing a claim against the consumer (the borrower), where the claim is acknowledged by a duly completed promissory note, by way of payment order proceedings specified in Article 485 § 2 and subsequent provisions of the Polish Civil Procedure Code, in relation to Article 41 of the Act on Consumer Credit of 12 May 2011, which limit the national court solely to examining the validity of the promissory note obligation with regard to the formal requirements of the promissory note, excluding examining the basic relation (the loan agreement).

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Posted on by Krzysztof Riedl in Civil Procedure, Consumer Law, Contract Law, General Issues

Promissory note enforcement vs. an ex officio review of unfair terms

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In the opinion of the District Court in Siemianowice Śląskie (judgement of 15 September 2016, I C 741/16), on the one hand the legislation provides for instruments making it possible to protect the consumer against unfair market practices, but on the other hand there functions a procedure of pursuing claims (in this case: payment order proceedings on the basis of a promissory note), which makes it possible to considerably weaken, in the consumer trade practice, the application of instruments of consumer protection. The Court, by limiting itself to an assessment of whether a promissory note has been issued correctly, does not need to examine whether a consumer loan agreement contains any abusive clauses, or whether the information obligations of the lender have been fulfilled, etc. Therefore, the provisions on payment order proceedings constitute a clear intrusion into the system of protecting the consumer against unfair market practices, which are described in Article 76 of the Constitution.

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Posted on by Krzysztof Riedl in Consumer Law, Contract Law, General Issues

Toward Effective Justice in Consumer Protection (the Supreme Court, 20 June 2017)

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The Institute of Law Studies of the Polish Academy of Sciences sincerely invites to the Seminar “Toward Effective Justice in Consumer Protection”, taking place in the  Supreme Court of the Republic of Poland on 20 June 2017. The conference is organized as a part of the project “Roadmap to European effective Justice (RE-Jus): judicial training ensuring effective redress to fundamental rights violations (co-funded by the European Commission). The conference is organized in the building of the Supreme Court, hall “A”.

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Posted on by Mateusz Grochowski in General Issues

Judgment of CJEU C-119/15 (Biuro Podróży Partner): the ratione personae scope of abusiveness in the abstract review

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In its judgment of 21 December 2016, C-119/15 (Biuro Podróży Partner), the Court of Justice of the EU addressed the question of whether a judgment declaring, in abstracto, a contract clause to be abusive can be effective against every business party who uses the same clause. The judgment comes after a resolution of the Supreme Court of Poland of 20 November 2015 (III CZP 17/15), dealing with almost the same issue of the ratione personae scope of a judicial declaration of abusiveness. Both judgments remain formally independent, but are obviously closely interconnected from the perspective of domestic law. The CJEU’s decision concludes a long dispute over the consequences of declaring a contract clause abusive in abstracto – which was reported on previously on “Polish Private Law”:

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Posted on by Karolina Rokita-Kornasiewicz in Civil Procedure, Consumer Law

The effects of abstract review of contract clauses – the resolution of the Supreme Court (III CZP 17/15)

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In the resolution of seven judges of 20 November 2015 (III CZP 17/15) the Supreme Court faced the question of the precise scope of erga omnes effect of in abstracto abusiveness of contract clauses. Under Art. 47943 of the Code of Civil Procedure the judgment that declares abusiveness of a clause is “effective towards third persons”, from the day of listing this clause in the public register administered by the President of the Office of Protection of Competition and Consumers. Although the provisions in question have been repelled from the Polish legal system in April 2016 (and replaced with in abstracto administrative review of clauses), the resolution in question still have a profound significance for framing the underlying premises of abusiveness control in the EU, as well as the interplay between consumer protection and fundamental rights sphere.

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Posted on by Mateusz Grochowski in Civil Procedure, Consumer Law

The effects of abstract review of contract clauses – legislative and judicial framework

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In the resolution of seven judges of 20 November 2015 (III CZP 17/15) the Supreme Court faced the question of the precise scope of erga omnes effect of in abstracto abusiveness of contract clauses. Under Art. 47943 of the Code of Civil Procedure the judgment declaring (abstract) abusiveness of a clause is “effective towards third persons”, from the day of listing this clause in the public register administered by the President of the Office of Protection of Competition and Consumers. Although the provisions in question have been repelled from the Polish legal system in April 2016 (and replaced with in abstracto administrative review of clauses), the resolution in question still have a profound significance for framing the underlying premises of abusiveness control in the EU, as well as the interplay between consumer protection and fundamental rights sphere.

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Posted on by Karolina Rokita-Kornasiewicz in Civil Procedure, Consumer Law

Remedies in the case of death

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Article 446 of the Polish Civil Code (CC) provides for specific remedies in a situation where personal injuries lead to the death of a person. This provision does not apply in all cases of personal injuries, but only when death is a result of a bodily injury or a health disorder. The death can occur immediately, or as a result of further complications from the injury over time. Article 446 CC does not constitute a form of tort itself, but it provides specific remediesif all the prerequisites of a particular liability, specified in whichever provision is applicable in that case, are fulfilled. The scope of remedies available in the case of death is specified in separate sections of Article 446 and depends on the pecuniary (§ 1 – 3) or non-pecuniary (§ 4) status of the damage.

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Posted on by Nina Baranowska in Contract Law

Personal Injuries in Polish Private Law

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Depending on the object of infringement, Polish tort law distinguishes property damage and personal injuries. This distinction is of key importance in two aspects. Firstly, while the compensation of property damage can cover only pecuniary damage, the compensation of personal injuries can redress both pecuniary and non-pecuniary damage. Secondly, personal injury claims cannot be transferred (unless they are already due and payable and have been recognized in writing or awarded in a final and unappealable court decision).

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Posted on by Nina Baranowska in Contract Law, General Issues

XVI International Congress of Comparative Law in Brisbane – Complete Polish Reports

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Continuing publication of Polish Reports from International Congresses of Comparative Law, we present the materials from the XVIII Congress, organized in 2002 in Brisbane. The publication has been prepared by the outstanding Polish scholars, providing details on a variety of topics listed below. They concern also numerous problems of Polish private law, both substantial and procedural. As for the previous reports, also the current publication has been prepared due to kindness of the Łódź University Press.

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Posted on by Mateusz Grochowski in General Issues