Actio de effusis vel deiectis – the boundaries of flexibility


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.

This deeply ingrained concept of stricter liability gives rise to only one significant doubt as to the specific – yet very often met in practice – case of one flat being flooded with water (or some other liquid) pouring from another flat. Cases of this kind pose the inevitable question, whether the flow of the water can be considered as “effusum vel deiectum”, entailing stricter liability, and more easily available to the ‘victim’ than under the general provision of Article 415 CC. Resolving this problem has caused an elementary dissention between the judiciary of the Supreme Court and the doctrine. Whereas the former, since 1981, has taken a constant stand that Article 433 CC does not cover such cases, the latter, in the majority, opts for a more flexible interpretation of this provision.

An undoubted milestone in this discussion was passed by two subsequent resolutions of the Supreme Court (upon two, independent legal inquiries): of 18 July 2012 (III CZP 41/12, OSNC 2013, issue 3, item 28) and a resolution of an extended bench of seven judges of 19 February 2013 (III CZP 63/12, OSNC 2013, issue 7-8, item 81). Both of them adopted the standpoint that Article 433 of the Code should be interpreted within its classical boundaries, excluding cases of flooding.

Since the “risk basis” introduces the exception to general “fault” standard and is limited in the legislation only to precisely specified cases, it may not be considered excessively (exceptiones non sunt extendae) – entailing more tightened liability.

Delivering these resolutions, and confirming thereby its prior tenacious view, the Court gave several different arguments. Primarily, it considered Article 433 CC as an incarnation of the effusum vel deiectum construction within its very classical borders, as the current legislation does not provide any hints on abandoning this standpoint. What is more, according to the Court the provision maintains its original function (which dates back to Roman times), assuring an easier way of receiving compensation for damages caused outside the building, when in many instances it is impossible to prove the real cause. Lastly, the Court referred also to functional reasons, pointing out that approving the application of such provisions could be too rigorous for the residents, making them liable for occurrences beyond their control. This argument has also been reinforced with a more elementary observation as to the hierarchy of types of tort liability. Since the “risk basis” introduces the exception to general “fault” standard and is limited in the legislation only to precisely specified cases, it may not be considered excessively (exceptiones non sunt extendae) – entailing more tightened liability.

Both resolutions were received rather sceptically in the doctrine, which expressed some criticism of the Supreme Court’s approach, arguing in favour of a more extensive interpretation. Sometime in the future, the entire dispute is likely to be resolved by legislation. The draft of the new rules on obligations by the Polish Civil Law Codification Commission provides an express disposition as to the issue of water flow. The draft in question has been also mentioned as a potential resolution by the Supreme Court in the grounds of the foregoing resolution of 18 July 2012. Due to the draft (as of June 2012), the liability in this respect is to be borne by the resident, unless they can demonstrate lack of fault. From a conceptual point of view, this mechanism introduces the “alleged fault” premise, rather than the “risk basis” in its classical shape. Nonetheless, it tends visibly to more rigid liability, arising from the concept of effusum vel deiectum.

Posted on by Mateusz Grochowski in Contract Law

About the author

Mateusz Grochowski
Mateusz Grochowski

Ph.D., assistant professor in the Institute of Legal Studies of the Polish Academy of Sciences and in the Institute of Justice, assistant in the Civil Chamber of the Supreme Court of the Republic of Poland, holder of scholarships of the Foundation for Polish Science and of the National Science Centre, previously visiting scholar at the Università degli Studi di Trento.