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

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

Current Problems of Due Diligence & M&A – Prof. Klaus J. Hopt

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Civil Law Department at the Faculty of Law and Administration of the University of Warsaw invites everyone interested in private and company law to the open lecture of Prof. Klaus J. Hopt

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Posted on by Karolina Pasko in Company Law, Contract Law, General Issues

Actio de effusis vel deiectis – the boundaries of flexibility

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Article 433 of the Polish Civil Code embraces the classical construction of liability for damages caused by objects or liquids falling out from a room. Following the classical pattern of the Roman actio de effusis vel deiectis, the Code tightens considerably the liability in comparison to Article 415 CC, setting out a general obligation to compensate for damage caused by an unlawful deed, as long as the culprit remains in the wrong. The peculiar tort in question, on the other hand, awards the right to claim compensation from every person who occupies the room, regardless of their fault (which clearly rates this provision in the Polish doctrine under what is known as “liability upon the risk basis”). Among the relieving circumstances, the statute rates only force majeure, the exclusive fault of the victim or a third party for whose deeds the resident does not bear liability. Read more

Posted on by Mateusz Grochowski in Contract Law