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

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

XVII International Congress of Comparative Law in Utrecht – Complete Polish Reports

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“Polish Private Law” publishes the next collection of Polish reports – from the XVII Congress of Comparative Law in Utrecht (2006). The reports provide information on various aspects of the Polish legal system – including problems of private law and civil procedure – relevant from the comparative perspective. We are thankful to the Łódź University Press for their steady and kind cooperation in this respect.

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Posted on by Mateusz Grochowski in General Issues

The Judgment of Paris

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Not taking into consideration faulty verdicts and irrational politics in the judicial system, especially inconsiderate cadre decisions and rash judge nominations, has catastrophic consequences for the judicial system, as well as for the whole country. It’s a shame, that the same mistakes are repeated so many years later. The opinion that because people do not have divine perfection, they want to be closer to gods so they repeat their mistakes does not seem to be appropriate.

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Posted on by ACUS in Civil Procedure, General Issues

In search for a remedy to facilitate the work of a judge: “electronic” judicial opinion

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The ability to issue an electronic judicial opinion was introduced to the Polish legal order by an amendment to the Code of Civil Proceedings (herein: CCP) – of 29 August 2014, which has been binding since 27 October 2014. The new way of providing grounds for judicial decisions was created by two articles: Article 328 § 11 and Article 331 § 2 CCP. According to the first of them, if the court’s session is recorded using electronic means, the judicial opinion can be delivered after announcing the verdict, and recorded along with the other elements of proceedings in the courtroom. In that case, the judge is no longer obliged to give brief oral reasons for his or her decision (which would be required if the traditional written motives were to be produced as the “main” opinion). Due to the second provision, if the e-motives have been produced, the parties obtain the judgment along with the transcript of the opinion – which is considered to be legally equal to the delivery of the written justification in the traditional model of giving the judicial opinion.

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Posted on by Iwona Rzucidło-Grochowska in Civil Procedure, General Issues

Banking Enforcement Titles non-constitutional and derogated from the Polish legal system

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On 14 April 2015, the Polish Constitutional Tribunal rendered a ruling that triggered a great commotion on the Polish market of banking services. The Tribunal declared Article 96 sec. 1 and Article 97 sec. 1 of the Banking Act – regulations constituting Banking Enforcement Title – as contrary to the principle of equality (case No P 45/12). In response to the judgment, the state legislator derogated this instrument from the Polish legal system with effect from 27 November 2015.

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Posted on by Aleksandra Bolibok in Civil Procedure, Consumer Law, General Issues