The Act Amending the Civil Code and Several Other Acts of 18 March 2011 (Dz.U. No 85, item 458) introduced the construction of a specific bequest to Polish law. This institution – based on the Roman law concept of legatum per vindicationem – was not regulated in the Civil Code of the Republic of Poland of 23 April 1964 (the Polish Civil Code, CC) nor in the Decree of 8 October 1946 – the Law of Succession (Dz.U. No 60, item 328 as amended), due to the fact that the Polish Codification Commission decided to give stronger protection to creditors of the deceased than to legatees. The Polish legislator, when deciding to introduce the construction of a specific bequest into the Civil Code, also passed on the opportunity to explicitly regulate deathbed donations (donatio mortis causa) or the testamentary division of the inheritance.
Adopting the construction of a specific bequest resulted in a need to find solutions protecting the position of creditors of the estate. Therefore, the Polish legislator decided that the liability of legatees of specific bequests for the estate debts would be modelled on the liability of heirs. The general principles of this liability are laid down in Articles 10341–10343 CC. Article 10341 § 1 CC sets out the principle that, until the division of the estate, the legatees of specific bequests are, along with the heirs, jointly and severally liable for the estate debts. After the division of the estate, the heirs and legatees of a specific bequest will be liable for the estate debts in proportion to the value of their gains (Article 10342 CC).
The Polish regulation is unique in the sense that, in other legal systems that know the institution of the specific bequest the legatees of the specific bequest are not, in general, liable for the estate debts. This is to prevent a situation where the Polish testator, by disposing of the estate through specific bequests, acts to the detriment of his creditors. This general solution needs to be considered a courageous one, and worthy of acceptance from the point of view the Polish law of succession axiology. This solution has even encouraged some authors to express the view that the new regulation enhances the position of the estate creditors – with respect to the previous legal status – since it increases the number of debtors that are jointly and severally liable for the estate obligations.
It should be pointed out that the estate debts do not devolve upon the legatees of a specific bequest, and they are not universal successors of the deceased (bequeather). This is due to the fact that Article 922 § 1 CC provides expressly that: “The property rights and obligations of the deceased shall devolve upon his death on one or several persons.” At the same time, Article 922 § 2 CC indicates that the inheritance does not involve the rights and obligations of the deceased, which, upon his death, devolve onto designated persons regardless of whether or not they are the heirs. According to Article 9811 § 1 CC, legatees of a specific bequest must be recognised as “designated persons” upon whom the statutory rights and obligations devolve upon the decedent’s death. Despite the fact that the debts do not devolve upon the legatee of a specific bequest, even proportionally to the value of the specific bequest in relation to the value of the entire property, the legislator established the legatees’ liability for such debts (this is an example of liability for someone else’s debt).
The liability of a legatee of a specific bequest for the estate debts is always limited to the value of the object of the specific bequest, pursuant to its state and prices set as at the moment of opening the inheritance (the pro viribus patrimonii liability – Article 10343 CC). It means that later changes in the value of an object (for example its destruction or increase in value) will not affect the scope of liability.
In the event that a legatee of a specific bequest has paid the estate debts, the settlement between him, the heirs and the other legatees of a special bequest comes into being in proportion to the value of gains received by them (Article 10341 § 2 CC). The Polish legislator has not explicitly specified what moment is conclusive for this value to make these settlements. It should be assumed that the amount of gains that a legatee of a special bequest received, in relation to the value of gains received by the heirs, should be assessed at the moment of opening the inheritance.
In introducing the institution of a specific bequest in Polish law, the legislator failed to avoid controversial solutions that give rise to axiological doubts. The most controversial of these, and the most important exception to the rule of joint and several liability of a legatee of a specific request and heirs for the estate debts,is the liability of a legatee of a specific bequest for a reserved portion. This liability has been regulated by the legislator as subsidiary liability (Article 9991 § 1 CC). Under this provision, if the entitled person cannot receive a reserved portion from an heir, then he may demand a pecuniary sum needed to supplement a reserved portion from a legatee of a specific bequest. The liability for a reserved portion of a legatee of a specific bequest goes before the liability of persons who received a donation from the deceased (Article 1000 § 1 CC).
The legislator regulated the liability of legatees of a specific bequest for a reserved portion similarly to the way the liability of persons who received a donation has been regulated, regardless of the fact that this weakens the position of those entitled to a reserved portion when compared to a situation when the liability of a legatee of a specific bequest would be based on general principles.
First of all, the liability of a legatee of a specific bequest towards a person entitled to a reserved portion is always limited by the scope of the current enrichment resulting from a specific bequest (Article 9991 § 1 sentence 2 CC). This may lead to results that are contradictory to the ratio legis of the regulations concerning the reserved portion. If, between the moment of a legatee obtaining an object of a specific bequest and the moment of closing a trial where a person entitled to a reserved portion pursued a claim for it, the legatee of a specific bequest consumes or loses the object of a specific bequest in a manner whereby he is no longer enriched, then his liability will expire (Art. 409 CC in conjunction with Art. 405 CC and in conjunction with Art. 9991 § 1 sentence 2 CC). At the same time, he will still be jointly and severally liable with the heirs and other legatees of a specific bequest for the remaining estate debts.
In Article 9991 § 4 sentence 2 CC, the Polish legislator foresaw a recourse of a legatee of a specific bequest who paid the reserved portion to all other legatees of a specific bequest. It should be pointed out that, according to this regulation, the legatee of a specific bequest who paid the reserved portion of an entitled person cannot have recourses to both heirs and recipients of a donation from the donor. In addition, heirs who paid the reserved portion have no such recourse to legatees of a specific bequest. The existence of such recourses would contradict the solely subsidiary nature of the liability of legatees of a specific bequest for a reserved portion. However, it is hard to justify why an heir has recourse to legatees of a specific bequest if he pays other obligations of the deceased (for example, will execute ordinary bequests and instructions), and yet he does not have it if he satisfies the claims pursued from him on account of a reserved portion.
For that reason, many Polish scholars have accurately postulated to abolish the special rules regarding the liability of a legatee of a specific bequest for a reserved portion.
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