FAQ

  • Why did the court, in commercial proceedings, disregard evidence I submitted during the second open hearing?
  • Proceedings in business cases contain numerous factors making them different from 'ordinary' civil proceedings. The most important differences include time bars on evidence as provided in Articles 47912 and 49414 of the Code of Civil Proceedings (Polish: KPC). Under these provisions parties have a duty to submit all evidentiary motions in the first submission made in the case. Evidentiary motions filed later may be admitted basically only by way of exception. Hence, it is important to entrust the litigation to professionals, as it is not enough to be in the right but one needs to be able to fit it in the framework of the court process.

  • Is it true that, as a partner having only just joined a registered partnership, I am liable without limitation for debts owed so far?
  • Pursuant to the provision of Article 32 of the Code of Commercial Companies (Polish: KSH), a person joining a registered partnership is liable for all of the latter's debts regardless when those debts came into existence. Such a solution may sometimes appear to be unjust; however, the purpose of it is to protect, to the furthest extent possible, the interests of entities entering into contractual relationships with a registered partnership that need not have any property. It is no mystery that the legal make up of a registered partnership brings about a number of hazards to the partners, which is reflected by the observation that a registered partnership is a 'community of destiny' for the partners. Hence, it is so important for business people to obtain professional advice in the area of company law.

  • Can I make a contract for management of stock portfolio of listed companies orally?
  • Pursuant to the provision of Article 75 of the Act on Trading in Financial Instruments, a contract under which a professional entity shall, on the client's account, make operations in the regulated market with regard to trading in brokerage instruments, including stock as per Article 2 section 2 of the Act, may only be made in writing, under the pain of nullity. One ought to bear in mind that such type of a professional entity, referred to by the Act as an investment firm, may only be an entity fulfilling all of the conditions defined in Article 3 point 33 of the Act on Trading in Financial Instruments, and therefore a brokerage house, a bank conducting brokerage operations, a foreign investment firm operating in the territory of the Republic of Poland, or a foreign legal person with its legal seat within the territory of an OECD or TWO country, conducting brokerage operations in the territory of the Republic of Poland.

  • When a so called developer contract was made in the notarial deed form, can I pursue its conclusion under Article 390 of the Civil Code?
  • Unfortunately, that is not possible. As it shows from the Supreme Court ruling of 9 July 2003 (IV CKN 305/01), the so-called developer contract is not a preliminary contract. The consequence of this holding is the impossibility for a party to such a contract to bring a claim to conclude the contract under Article 390 § 2 of the Civil Code. In such type of situations, however, one ought to keep in mind the opportunities opened by other acts, the application of which may, in practice, give results similar to judicial execution of a contract on the basis of a preliminary contract made in the notarial deed form.

  • My housing community has gone to court with claims relating to defects of the community part of the building, and lost. How does one prevent such a situation from taking place?
  • First of all one needs to note that a housing community lacks the standing to sue in such type of cases and all suits brought by it will be dismissed, regardless of any substantive findings made by the court. This is the consequence of the Supreme Court ruling of 23 September 2004 (III CZP 48/04). Hence, it is necessary to give a proper shape to the litigation relationship so that claimants are entities with the standing to sue. In such type of proceedings, also an incredibly important part is neutralising any assertions of statute of limitations on claims being advanced, which requires adept use of available institutions of civil law.

  • Why was a promissory note issued by my debtor and affixed with payable until 8 May 2007 clause found null and void and I was unable to recover successfully under it?
  • A promissory note is a debt document characterised by particularly strong formal rigour. Even a slight deficiency can make it totally useless. In keeping with the provision of Article 33 of the Act of 28 April 1936—Promissory Note Law, a promissory note may be payable at sight, some time after sight, some time after a date or on a set day. At the same time, promissory notes with other payment deadlines or with multiple consecutive deadlines are null and void. Hence, one should be exceptionally diligent while receiving promissory notes.

  • I am the majority shareholder of a limited liability company. My two minority shareholders keep making the management of the company difficult, they require the meeting to be called all the time, they bring a very bad atmosphere in the company. What can I
  • The situation you described may warrant the application of shareholder dissociation as regulated by Article 266 of the Code of Commercial Companies. In the situation at hand one must first determine whether the association agreement contains a provision enabling the dissociation of shareholders when not all of the remaining shareholders are advancing such a claim. If the answer is affirmative, one must bring a claim to the court to remove the inconvenient people from the company.

  • My deceased father, in his very advanced age, married a significantly younger woman. On her instigation, he made a notarial will in which he bequeathed all his estate to her. My father's estate comprised real property and significant savings.
  • The only solution to such a difficult situation is to claim the legitime from the deceased father's wife. According to the provision of Article 991 of the Civil Code (Polish: KC), descendants, spouses and parents of the deceased, who would be entitled to inherit under the statute, are entitled, if permanently unable to work or if the descendant is a minor, to two thirds of the portion of the estate that would fall to them if inheriting under the statute, and, in other cases, to a half of that portion. Therefore, in each specific instance one must carefully examine the 'family situation' of the entitled person in order to calculate the benefits due. The next step will of course be conducting civil proceedings to receive the appropriate monetary amount.

  • I have caught one of my company's employees drinking alcohol during work hours. I submitted him to a breathalyser examination and subsequently terminated him under Article 52 of the Labour Code. The employee, however, appealed to the Labour Court, asserti
  • The Supreme Court has already addressed such type of situations in its jurisprudence. And so, in its ruling of 22 September 2004, case I PK 576/03, the Supreme Court found that the employer's use of a unattested device for examination of alcohol content does not preclude charging the employee with showing up for work after consuming alcohol if other circumstances support that and the employee did not pursue the opportunity given to the employee to verify the results of the examination. At the same time one has to bear in mind that consuming alcohol at work is pretty much a textbook case of material breach of basic employee obligations as referred to in Article 52 of the Labour Code (Polish: KP), which has found reflection in numerous holdings of the Supreme Court (I PKN 462/99, I PKN 344/99). For this reason, the best method of protection against the employee's claims will be, other than submitting the results of the breathalyser examination, to provide witness testimony to confirm the consumption of alcohol by that employee.

  • With my co-operator, I entered into a contract for supply of components made of high-grade steel as needed for the execution of final products. In the contract, I stipulated a contractual penalty for delay in the supply. Unfortunately, in the contract of
  • In that specific situation everything depends on the provisions of the contract made with the co-operator. This is because according to the Supreme Court judgment of 7 April 1981 (IV CR 91/81), it is not allowed to claim damages exceeding the stipulated contractual penalty if neither the contract nor the law regulating that particular kind of obligation provide for the possibility of claiming damages up to the full extent of the loss sustained. Hence, in this instant situation,with inadequately formulated contractual provisions, there may prove to be no efficient avenues to force the co-operator to remedy the loss.

  • Is it possible, in the light of the currency principle set out in Article 358 § 1 of the Civil Code, to enforce claims expressed in foreign currency in Polish courts?ady walutowości przedstawionej w art. 358 § 1 k.c. można dochodzić przed polskimi sądami
  • Currently, academic works lean decidedly in favour of the view that provisions of currency law, enabling obligations to be incurred in foreign currency, are exceptions in the understanding of Article 358 § 1 of the Civil Code.

    In Article 3 section 2 point 3 of the Currency Law of 2002, the legislator clearly introduced an exception from the currency principle, mandating that restrictions concerning, among others, determination of dues in foreign currencies, do not apply where such a determination is made by a public authority in criminal, civil or administrative proceedings, including interim relief or collection proceedings.

    Therefore, in the light of the above, it is to be noted that, in respect of foreign exchange, it is possible—as an exception from the currency principle defined in Article 358 § 1 of the Civil Code—to award claims in foreign currencies. Moreover, the currency principle referred to in Article 358 § 1 of the Civil Code, provides no obstacle to expressing the amount of the claim in a foreign currency both in the statement of claim and in the judgment awarding the claim.

  • Does the upkeep of a balcony (overhauls, repairs) appurtenant to housing premises burden the housing community or the owner of the premises directly?
  • In accordance with the latest holding of the Supreme Court, it is the owner of housing premises on whom the burden falls of expenses associated with maintenance in good repair of a balcony constituting an auxiliary space intended exclusively for satisfying the housing needs of persons residing in those premises. Expenses for repairs and current maintenance of those parts of the building which are part of the balcony's construction permanently joined with the building, are incumbent on the housing community.

  • In order to withdraw from a mutual contract, in the event of one party's failure to meet the deadline for performance, is a statement of will of the other party to withdraw from the contract sufficient?
  • In the light of current regulation by the Civil Code, if one of the parties defaults in performance of a mutual contract, the other party, intending to withdraw from the contract, must set a deadline for the other party for the performance of the obligation, with the stipulation that, with the futile lapse of the deadline, the party stipulating the deadline shall be entitled to withdraw from the contract. Moreover, if the benefits to be rendered by both parties are divisible and one of the parties defaults only in respect of part of the benefit, the other party's entitlement to withdraw from the contract is subject to a limitation, i.e. according to its choice, either to that part or to the whole rest of the benefit not rendered. That party may withdraw from the contract in entirety if partial performance would be meaningless to the party due to the characteristics of the obligation or due to the goal of the contract as intended by the party and known to the defaulting party.

  • What are the formal legal requirements of bringing a claim in a business matter?
  • Bringing an action in a business case, the claimant must pay particular attention to the effects of the so called evidence preclusion, in accordance with which the claimant has a duty to state in the statement of claim all the claimant's assertions and evidence supporting them under the pain of losing the right to rely on them in the proceedings. Calling, during already pending proceedings, new facts and evidence, is allowed only if the claimant shows that calling such facts or evidence in the statement of claim was not possible or that the need to call them arose later. In such a case, further assertions and evidence to support them should be called within a deadline of two weeks from the day it became possible to call them or the need arose. Moreover, particular attention must be paid to the requirement for the claimant to enclose with the statement of claim a copy of the complaint or of a call to satisfy the claim voluntarily, along with a proof of service or proof of dispatching to the respondent via registered mail, and copies of letters attesting to an attempt to clear the contentious issues by negotiation. The consequence of not filing the copy of a call to satisfy the claim voluntarily, or of a complaint, together with proof of service or dispatch to the respondent via registered mail, will be returning the statement of claim to the claimant.

  • What principles govern the administration of a jointly owned thing?
  • First it must be noted that each co-owner has a duty actively to participate in administering the jointly owned thing. In respect of administering a jointly owned thing, the Civil Code, without providing detailed definitions, differentiates between ordinary administration and activities exceeding the scope of ordinary administration. Ordinary administration activities require the consent of a majority of co-owners. In the absence of such consent, each of the co-owners may demand judicial authorisation to perform the activities. In turn, disposal of the jointly owned thing, and other activities exceeding the scope of ordinary administration, require the consent of all co-owners. Absent such consent, co-owners whose shares constitute at least a half may demand adjudication by a court, which will rule according to the goal of the intended activity and the interests of all co-owners.