Polish PIL - Law Polish PIL - Law ApplicableApplicable

to: Juridical Acts,to: Juridical Acts,Representation, PowersRepresentation, Powers

of Attorney,of Attorney,Limitation and Limitation and PrescriptionPrescriptionDr. Mateusz PilichDr. Mateusz Pilich

Chair in Int’l Private and Trade Law,Chair in Int’l Private and Trade Law,University of WarsawUniversity of Warsaw

Law applicableLaw applicableto juridical actsto juridical acts

(substance and form)(substance and form)

Basic notionsBasic notions

‘‘Juridical act’Juridical act’:: notion at odds with the traditional English legal vocabulary but notion at odds with the traditional English legal vocabulary but currently in use, conf. Article II.1:101 currently in use, conf. Article II.1:101 Draft Common Frame of Reference Draft Common Frame of Reference [DCFR]:[DCFR]:

… … any statement or agreement, whether express or implied from conduct, which is any statement or agreement, whether express or implied from conduct, which is intended to have legal effects as suchintended to have legal effects as such

The „declaration of intention directed toward legal effects that the legal order The „declaration of intention directed toward legal effects that the legal order recognises and guarantees”recognises and guarantees” (J. H. Merryman, R. Pérez-Perdomo, (J. H. Merryman, R. Pérez-Perdomo, The Civil Law The Civil Law Tradition, Tradition, Stanford 2007, p. 77)Stanford 2007, p. 77)

Scholarly definitions are in most cases imprecise because the declaration of Scholarly definitions are in most cases imprecise because the declaration of intention does not exhaust the whole matter of what may be called a juridical act intention does not exhaust the whole matter of what may be called a juridical act (there may be some acts and formalities connected thereto, e.g. registration (there may be some acts and formalities connected thereto, e.g. registration requirements or a notarial certification necessary in order to produce binding requirements or a notarial certification necessary in order to produce binding legal effects)legal effects)

Equivalents in other European languagesEquivalents in other European languages: : die Rechtsgeschäft die Rechtsgeschäft (German), (German), el el negocio jurídico negocio jurídico ((SpanishSpanish)), , un acte juridique un acte juridique (French)(French)

Juridical acts may be uni- or bilateral, private or authenticJuridical acts may be uni- or bilateral, private or authentic

Scope of applicabilityScope of applicabilityof the law governingof the law governing

the form and substancethe form and substance No single conflicts rule on the law applicable to juridical acts as suchNo single conflicts rule on the law applicable to juridical acts as such See the new 2011 Act on PIL, Articles 24 and 25See the new 2011 Act on PIL, Articles 24 and 25 „„Substance”:Substance”:

admissibility of a certain juridical actadmissibility of a certain juridical act (whether it can be effected at all), (whether it can be effected at all), the the legal conditions for the declarations of parties’ intention legal conditions for the declarations of parties’ intention to be boundto be bound the the effects createdeffects created by the given transaction (the creation, shaping, or dissolution of a legal by the given transaction (the creation, shaping, or dissolution of a legal

relationship)relationship)

„„Form” stands for everything which can be seen „from the outside”:Form” stands for everything which can be seen „from the outside”: Whether there is any Whether there is any need for a special form at allneed for a special form at all (i.e. (i.e. the scope of the principle of freedom the scope of the principle of freedom

from the formalities to express one’s intentionfrom the formalities to express one’s intention)) What kind of What kind of a special form for parties’ declarationsa special form for parties’ declarations is required (e.g. whether it has to be just is required (e.g. whether it has to be just

in written or in a more strict, solemn formin written or in a more strict, solemn form – before a notary, a court clerk, etc.) – before a notary, a court clerk, etc.) Whether it’s Whether it’s only the partiesonly the parties themselves themselves who has to be present at the performing of the who has to be present at the performing of the

juridical act juridical act or whether or whether the witnesses as wellthe witnesses as well are needed are needed It’s believed in Poland that It’s believed in Poland that the the registration of the juridical actregistration of the juridical act is the question of form as well is the question of form as well

(questionable because the registration in general is a public-law question – i.e. the registration (questionable because the registration in general is a public-law question – i.e. the registration of certain rights, of one’s personal status, etc.)of certain rights, of one’s personal status, etc.)

Substance vs formSubstance vs form(some practical examples)(some practical examples)

1.1. Jan G., living in Poznan, negotiates a distribution contract with a Jan G., living in Poznan, negotiates a distribution contract with a German producer of German producer of roof tilesroof tiles (ES: (ES: tejastejas/D: /D: FliesenFliesen/F: /F: tuilestuiles). The ). The parties have already agreed on the whole contract, except for the parties have already agreed on the whole contract, except for the period of time for which it shall be concluded. A draft contract has period of time for which it shall be concluded. A draft contract has been prepared by the Pole and sent to the German partner for been prepared by the Pole and sent to the German partner for revision; as the latter gives no feedback, Jan G. finally calls them and revision; as the latter gives no feedback, Jan G. finally calls them and gets to know that the other party intends to withdraw from the gets to know that the other party intends to withdraw from the transaction. Sued by the Pole for damages, the German company transaction. Sued by the Pole for damages, the German company claims that no contract was made because it did not sign any claims that no contract was made because it did not sign any document. [Supr.C.,document. [Supr.C.,II CSK 126/05, unpublished]II CSK 126/05, unpublished]

2.2. Two Poles conclude in South Africa a contract for the sale of a parcel Two Poles conclude in South Africa a contract for the sale of a parcel of land placed near Warsaw. Their signatures under the private of land placed near Warsaw. Their signatures under the private document have been authenticated by the notary public in Pretoria. document have been authenticated by the notary public in Pretoria. After coming back to Warsaw, the buyer lodges an application to the After coming back to Warsaw, the buyer lodges an application to the District Court (District Court (Sąd RejonowySąd Rejonowy) keeping the Land Register () keeping the Land Register (księgi księgi wieczystewieczyste) for entering him as an owner of the real estate. [see ) for entering him as an owner of the real estate. [see Supr.C. I CK 39/03, OSNC 2005/2/33]Supr.C. I CK 39/03, OSNC 2005/2/33]

Examples – short commentsExamples – short comments

1.1. The problem in the Case #1 does not concern the form The problem in the Case #1 does not concern the form

but the but the consent of both partiesconsent of both parties (conf. English concept of (conf. English concept of

meeting of the mindsmeeting of the minds) – so the question of substance. The ) – so the question of substance. The

applicable law shall be specified by the rules of Art. 10 applicable law shall be specified by the rules of Art. 10

Rome I. The form will probably be considered later if the Rome I. The form will probably be considered later if the

court finds the contract to be valid and binding.court finds the contract to be valid and binding.

2.2. On the contrary, in the Case #2 we can see clearly a On the contrary, in the Case #2 we can see clearly a

question of the form of both the contract and transfer of question of the form of both the contract and transfer of

property. Applicable law shall be specified by Articles 11 property. Applicable law shall be specified by Articles 11

Rome I (contract) and Article 25 PIL 2011 (transfer of title Rome I (contract) and Article 25 PIL 2011 (transfer of title

in remin rem).).

Substance of Juridical ActsSubstance of Juridical Acts

Article 24 Article 24 ((11)) PIL PILAA) ) provides for a self-evident (and provides for a self-evident (and maybe superfluous) maybe superfluous) rulerule

TThe ‘law applicable to the juridical act itself’he ‘law applicable to the juridical act itself’ LLaw governing the legal relationship aw governing the legal relationship arising of, shaped or arising of, shaped or

dissolved by, a dissolved by, a given juridical actgiven juridical act ExamplesExamples

Contract - Contract - law applicable to contractual obligationslaw applicable to contractual obligations ( (lex lex voluntatis voluntatis etc.)etc.)

Transfer of the title (ownership and the like) – Transfer of the title (ownership and the like) – lawlaw applicable to applicable to the transferred the transferred property rightsproperty rights ( (lex rei sitaelex rei sitae))

Marital property agreement – Marital property agreement – lawlaw applicable to the marital applicable to the marital property (property (lex patriae lex patriae of the spouses of the spouses etc.etc.))

Form of Juridical ActsForm of Juridical Acts(National Conflicts Provisions)(National Conflicts Provisions) Historically basic criterion of connecting factor was the place where the Historically basic criterion of connecting factor was the place where the

juridical act was effected (see the Latin medieval principle by Guillelmus de juridical act was effected (see the Latin medieval principle by Guillelmus de Cuneo: Cuneo: locus regit formam actuslocus regit formam actus))

Squeezed out by the Squeezed out by the lex causae lex causae principle principle stating that the form should stating that the form should comply with the law applicable to the substance of the juridical act comply with the law applicable to the substance of the juridical act concernedconcerned

The general structure of connecting factors in Article 25 PIL 2011The general structure of connecting factors in Article 25 PIL 2011

Basic connection:Basic connection:

Law governingLaw governingthe the juridical act itselfjuridical act itself((lex causaelex causae))

If necessary for keepingthe act valid

Subsidiary connection:Subsidiary connection:eithereither

law where the law where the act effectedact effected

oror

law where law where any party is presentany party is present

Time element in the point of connection: Time element in the point of connection: the time of effecting the juridical actthe time of effecting the juridical act

Form of Contracts (Rome I)Form of Contracts (Rome I)

Article 11 Rome I: connecting factors Article 11 Rome I: connecting factors fully fully alternativealternative, no ‘main’ and ‘subsidiary’ point of , no ‘main’ and ‘subsidiary’ point of connectionconnection

Distance contracts (Distance contracts (inter absentesinter absentes) - law of the ) - law of the country where either party or her representative country where either party or her representative is staying may apply (Art. 11 (2) Rome I)is staying may apply (Art. 11 (2) Rome I)

The law of the place of situation of an immovable The law of the place of situation of an immovable applies necessarily only if so provided by the applies necessarily only if so provided by the local law (in Poland: see Article 25(2) PIL)local law (in Poland: see Article 25(2) PIL)

Judgment of the Supr. CourtJudgment of the Supr. Court20.1.1998,20.1.1998, I CKN 345/97,I CKN 345/97,

Supr.C.Rep.-Civ. [OSNC] 1998/9/137Supr.C.Rep.-Civ. [OSNC] 1998/9/137 Owner of an immovable residing in the USA authorized another person to Owner of an immovable residing in the USA authorized another person to

sell his sell his real real property in Poland – Local form of the deed (property in Poland – Local form of the deed (New York New York notary notary public authenticated the principal’s signature) – Application for public authenticated the principal’s signature) – Application for entryentry in the in the Land Register dismissed on the grounds that the form of the Land Register dismissed on the grounds that the form of the authorization authorization deed was not in accordance with Article 99 of Polish Civil Code deed was not in accordance with Article 99 of Polish Civil Code (requirement of a notarial deed where such a form shall be required for the (requirement of a notarial deed where such a form shall be required for the authorized juridical act itself)authorized juridical act itself)

Supreme CourtSupreme Court ruled in favour of the appealing buyer ruled in favour of the appealing buyer The authority to The authority to sell sell on one’s behalf not the same thingon one’s behalf not the same thing as the contract as the contract

itselfitself TThe same concerns the he same concerns the formform TThe powerhe powerss to sell an immovable should be subject to the law of the to sell an immovable should be subject to the law of the

country country where the immovable is situatedwhere the immovable is situated TThe form, however, is he form, however, is anotheranother issue – Article 12 of the Law as a general issue – Article 12 of the Law as a general

rule which rule which covers covers all the juridical acts, unless otherwise statedall the juridical acts, unless otherwise stated NNo exceptions for the sale of, and transfer of a title o exceptions for the sale of, and transfer of a title toto, the immovable , the immovable

property – the law applicable to form specified by property – the law applicable to form specified by Article 12 PIL 1965Article 12 PIL 1965

Judgment of the Supr. CourtJudgment of the Supr. Court2.12.2004, V CK 323/04,2.12.2004, V CK 323/04,

Supr.C.Rep.-Civ. [OSNC] 2005/12/209Supr.C.Rep.-Civ. [OSNC] 2005/12/209 An extra-marital child of Polish nationality (as the both parents) born in An extra-marital child of Polish nationality (as the both parents) born in

Germany – her father acknowledged the newborn before a German Germany – her father acknowledged the newborn before a German administrative body –administrative body – court proceedings for annulment of the court proceedings for annulment of the acknowledgementacknowledgement – plaintiff’s contention that – plaintiff’s contention that child child acknowledgement acknowledgement abroad abroad may be effected only before the Polish consul (Artmay be effected only before the Polish consul (Articleicle 73(4) of the 73(4) of the Family and Guardianship Code) – Family and Guardianship Code) – CCourts judging the caseourts judging the case found the found the litigious acknowledgement validlitigious acknowledgement valid

Extraordinary appeal dismissedExtraordinary appeal dismissed The child acknowledgement is a kind of the juridical act – its form subject The child acknowledgement is a kind of the juridical act – its form subject

to Article 12 PIL 1965 to Article 12 PIL 1965 – now Article 25 PIL 2011– now Article 25 PIL 2011 Issue of the authority competent to take an affidavitIssue of the authority competent to take an affidavit is not the is not the

question of substance but question of substance but of the formof the form EEither the law of ither the law of child’s child’s nationality or the law of the country in which the nationality or the law of the country in which the

act itself is effectedact itself is effected applies to the form of a applies to the form of acknowledgement abroacknowledgement abroadd The rule on the consular form of acknowledgement is not an obligation but The rule on the consular form of acknowledgement is not an obligation but

only a facilitation for the Poles who reside in a foreign country only a facilitation for the Poles who reside in a foreign country

Judgment of the Supr. CourtJudgment of the Supr. Court17.10.2008, I CSK 153/08,17.10.2008, I CSK 153/08,

http://www.ppm.mateuszpilich.edh.pl/ Polish national residing in the country and his sister living for years in Polish national residing in the country and his sister living for years in

Sweden inherited an immovable property in Warsaw – the applicant’s sister Sweden inherited an immovable property in Warsaw – the applicant’s sister decided to renounce her rights and to donate her share in the inherited decided to renounce her rights and to donate her share in the inherited immovable to her brother – the deed of gift in the form of private (not immovable to her brother – the deed of gift in the form of private (not authentic) document signed by the donor in Sweden and by the donee in authentic) document signed by the donor in Sweden and by the donee in Poland – effects of the act questioned by one of the successors – the Poland – effects of the act questioned by one of the successors – the ordinary courts found the gift deed valid under Swedish law, irrespective of ordinary courts found the gift deed valid under Swedish law, irrespective of the reservation of notarial act in Article 890 Civ.c. the reservation of notarial act in Article 890 Civ.c.

Extraordinary appeal effective: the judgment of the lower court overruled Extraordinary appeal effective: the judgment of the lower court overruled and the case remandedand the case remanded

The juridical act as a whole was The juridical act as a whole was effected not in Sweden effected not in Sweden but in Poland but in Poland The The rule of rule of lex loci actuslex loci actus does not fit the distance contracts does not fit the distance contracts ( (inter absentesinter absentes

= between the parties staying in different countries at the moment of its = between the parties staying in different countries at the moment of its conclusion), the form of which must be always in accordance with the law conclusion), the form of which must be always in accordance with the law applicable to the substance (applicable to the substance (lex causaelex causae))

ResolutionResolution of the Supr. Court of the Supr. Court13.4.2007, III CZP 21/07,13.4.2007, III CZP 21/07,

Supr.C.Rep.-Civ. [OSNC] 2008/3/34Supr.C.Rep.-Civ. [OSNC] 2008/3/34 Polish resident bought a house in Poland from a person acting by procuration of an owner, Polish resident bought a house in Poland from a person acting by procuration of an owner,

who was permanently resident in Israel – powers of attorney in the form of notarial deed who was permanently resident in Israel – powers of attorney in the form of notarial deed made before the Israeli notary, to which the so-called “apostille” clause (see Exh. No. 5) made before the Israeli notary, to which the so-called “apostille” clause (see Exh. No. 5) was affixed in accordance with the 1961 Hague Convention Abolishing the Requirement of was affixed in accordance with the 1961 Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents (Poland is the party as from 2004) – doubts as Legalization for Foreign Public Documents (Poland is the party as from 2004) – doubts as to the need for the legalization of documents concerning the alienation of title to the need for the legalization of documents concerning the alienation of title toto immovables according to Article 1138 of the Civil Procedure Code immovables according to Article 1138 of the Civil Procedure Code (see (see the the ExhibitExhibitss))

Legal question referred to the Supreme Court: Legal question referred to the Supreme Court: ““Does the contract for the sale of the Does the contract for the sale of the immovable property in Poland, concluded in the form of notarial deed in immovable property in Poland, concluded in the form of notarial deed in accordance with to Article 158 of the Civil Code by the seller’s representative accordance with to Article 158 of the Civil Code by the seller’s representative authorized in a foreign country in a document provided with the clause of authorized in a foreign country in a document provided with the clause of ‘apostille’ , constitute a sufficient ground for entering into the Land Register?”‘apostille’ , constitute a sufficient ground for entering into the Land Register?” . .

The Court’s answer: The Court’s answer: ““After Poland’s accession to the Convention Abolishing the After Poland’s accession to the Convention Abolishing the Requirement of Legalization for Foreign Public Documents […] the only act Requirement of Legalization for Foreign Public Documents […] the only act required in order to authenticate the signature, to prove the character in which required in order to authenticate the signature, to prove the character in which the person signed in the document acted, and, if necessary, the authenticity of the person signed in the document acted, and, if necessary, the authenticity of a stamp which was affixed to the document, is to enclose the a stamp which was affixed to the document, is to enclose the ‘apostille’ ‘apostille’ mentioned in Article 4 of the Conventionmentioned in Article 4 of the Convention. It . It does notdoes not, however, , however, exempt the exempt the court from the obligation of examining whether the document provided with the court from the obligation of examining whether the document provided with the apostille fulfils legal requirements as to the form of a given juridical act in the apostille fulfils legal requirements as to the form of a given juridical act in the country in which it was issuedcountry in which it was issued.”.”

Judgment of the Supr. CourtJudgment of the Supr. Court1515..77.200.20055, , IIV CK V CK 2020/0/055,,

Supr.C.Rep.-Civ. [OSNC] 200Supr.C.Rep.-Civ. [OSNC] 20066//66//106106 Polish citizen died in Germany, where he was permanently resident – His Polish citizen died in Germany, where he was permanently resident – His

under-ageunder-age son (Polish and German national) inherited the whole estate – son (Polish and German national) inherited the whole estate – His legal representative at first accepted the inheritance His legal representative at first accepted the inheritance sine benefitio sine benefitio inventariiinventarii before the Polish court but after getting to know the state of before the Polish court but after getting to know the state of debts, commenced proceedings in Germany on withdrawal of her debts, commenced proceedings in Germany on withdrawal of her declaration of acceptance – positive decision of German court – the declaration of acceptance – positive decision of German court – the proceedings in Poland on ascertainment of rights to inheritance – the son proceedings in Poland on ascertainment of rights to inheritance – the son of the dead finally recognized as successor – objection of the family of the of the dead finally recognized as successor – objection of the family of the deaddead

Extraordinary appeal based on the grounds that the withdrawal of Extraordinary appeal based on the grounds that the withdrawal of acceptance of inheritance was ineffective because it was subject to acceptance of inheritance was ineffective because it was subject to German and not to Polish law which forbade the legal representative to German and not to Polish law which forbade the legal representative to reject the inheritance once it had been acceptedreject the inheritance once it had been accepted

The Supreme Court dismissed the appealThe Supreme Court dismissed the appeal Requirement of obtaining the leave of the Family Court to reject the Requirement of obtaining the leave of the Family Court to reject the

inheritance on behalf of the juvenile child under the parental authority inheritance on behalf of the juvenile child under the parental authority does not belongdoes not belong to the scope of the notion of „form” within the meaning of to the scope of the notion of „form” within the meaning of Article 12 PIL 1965.Article 12 PIL 1965.

Law applicableLaw applicableto the legal representationto the legal representation

((incl. the statutory representationincl. the statutory representationand and powers of attorneypowers of attorney

Statutory and voluntary Statutory and voluntary representationrepresentation

Problematic issue – Polish concept is based on purely Problematic issue – Polish concept is based on purely „Continental” (practically speaking: German) idea of ‘direct „Continental” (practically speaking: German) idea of ‘direct representation’ (=> representation’ (=> unmittelbare/direkte Vertretungunmittelbare/direkte Vertretung))

AAdmittedly, dmittedly, tthe representative acts in the name of his or her own he representative acts in the name of his or her own but on but on the accountthe account of someone else of someone else,, and th and thusus the legal effects of the legal effects of his or her act are attributed to the represented, who him- or his or her act are attributed to the represented, who him- or herself becomes the party to the legal bondherself becomes the party to the legal bond

The representation may be The representation may be statutorystatutory (e.g. legal representation (e.g. legal representation of children by their parents) or of children by their parents) or voluntary voluntary (= (= by by the the act of act of authorizationauthorization, called in , called in common law common law countries the ‘powers of countries the ‘powers of attorney’)attorney’)

No particular conflict rule under the 1965 PIL – cNo particular conflict rule under the 1965 PIL – conf. Article 22 PIL onf. Article 22 PIL 2011 2011 (Exhibit No. 6)(Exhibit No. 6)

Legal relationships between the Legal relationships between the representative, his principalrepresentative, his principal

and the third personand the third person

Principal(represented person)

Representative(attorney-in-fact)

Third person

Basic (i

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rela

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(e.g

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The so-called ‘external relationship’

The main transaction

Statutory representationStatutory representation

For instance – the representation of a child under age by his/her parents, For instance – the representation of a child under age by his/her parents, representation between spouses, etc.representation between spouses, etc.

See Article 22 PIL 2011 – See Article 22 PIL 2011 – Statutory representation / Direct agency Statutory representation / Direct agency shall be subject to the shall be subject to the law applicable to the legal relationshiplaw applicable to the legal relationship resulting in the authorization to act on behalf of another person.resulting in the authorization to act on behalf of another person.

The concept has never been questioned by scholars and the The concept has never been questioned by scholars and the jurisprudence of the Supr. Court (see the above-cited judg. 15.7.2005, IV jurisprudence of the Supr. Court (see the above-cited judg. 15.7.2005, IV CK 20/05).CK 20/05).

For instance:For instance: The representation of the child by his/her parents comes within the scope of The representation of the child by his/her parents comes within the scope of

Article 56 PIL 2011 - see Article 56 PIL 2011 - see the 1996 Hague Convention on Jurisdiction, the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of ChildrenParental Responsibility and Measures for the Protection of Children))

The representation between the spouses – see Art. 17 PIL 1965 = Art. 51 PIL The representation between the spouses – see Art. 17 PIL 1965 = Art. 51 PIL 2011.2011.

Voluntary Voluntary representation/agencyrepresentation/agency(powers of attorney)(powers of attorney)

There should be a clear differentiation between the law applicable to the There should be a clear differentiation between the law applicable to the basic (internal) relationship – as for instance a contract of mandate – and basic (internal) relationship – as for instance a contract of mandate – and to the authorization to the authorization (powers) (powers) itself.itself.

Authorization as a unilateral act is Authorization as a unilateral act is primarily subject to the primarily subject to the law chosen by law chosen by the principalthe principal ((Article 2Article 23(1)3(1) PIL 2011 PIL 2011), quite independently of that which ), quite independently of that which law applies to the internal relationship, upon the foundation of which the law applies to the internal relationship, upon the foundation of which the authorization itself ‘is working’authorization itself ‘is working’

Had the law applicable not been chosen, the law specified in Had the law applicable not been chosen, the law specified in Article 23 Article 23 (2) PIL 2011(2) PIL 2011 applies: applies:

The law of the The law of the representative’s seatrepresentative’s seat (in the case of „professional” (in the case of „professional” representatives)representatives)

The law of the country of the The law of the country of the principal’s seatprincipal’s seat (obviously provided (obviously provided there’s a closer link between both parties, e.g. the representative there’s a closer link between both parties, e.g. the representative works for the principal as his employee, etc.)works for the principal as his employee, etc.)

The law of the The law of the country of the representative actingcountry of the representative acting (where he or (where he or she actually made or should have made use of his or her authorization, she actually made or should have made use of his or her authorization, unless none of the previous options shall apply)unless none of the previous options shall apply)

Scope of applicable lawScope of applicable law

Following questions shall be assessed according to the law specified Following questions shall be assessed according to the law specified by the rules of conflict concerning the representation:by the rules of conflict concerning the representation:

whether the given powers of attorney is valid and legally effective;whether the given powers of attorney is valid and legally effective; what kinds or the powers are available (i.e. general or special powers)what kinds or the powers are available (i.e. general or special powers) what is a consequence of the lack of authorisation or its insufficient scopewhat is a consequence of the lack of authorisation or its insufficient scope

Questions not covered:Questions not covered: whether the authorisation to represent another person is the whether the authorisation to represent another person is the

consequence of a particular ‘basic’ relationshipconsequence of a particular ‘basic’ relationship (e.g. under Polish law (e.g. under Polish law there is an implied authorisation of the employee acting in his/her employer’s seat in regard to the there is an implied authorisation of the employee acting in his/her employer’s seat in regard to the clients of the undertaking; the same concerns the contract of mandate, where e.g. the attorney clients of the undertaking; the same concerns the contract of mandate, where e.g. the attorney has implied powers from his/her mandant to enter into the agreement with the opposite party to has implied powers from his/her mandant to enter into the agreement with the opposite party to the proceedings)the proceedings) => the law applicable to this latter relationship applies=> the law applicable to this latter relationship applies

whether the given juridical act may be effected by the whether the given juridical act may be effected by the representative and not by the party himselfrepresentative and not by the party himself (e.g. conclusion of marriage by (e.g. conclusion of marriage by

the representative is in fact not the question of representation but that of the validity of marriage)the representative is in fact not the question of representation but that of the validity of marriage) => the law applicable to the external relationship (between the principal => the law applicable to the external relationship (between the principal and the third person) appliesand the third person) applies

Law applicableLaw applicableto the to the prescription of claimsprescription of claims

(limitation periods)(limitation periods)

CharacterizationCharacterization

Difference between Difference between civil civil and and common law common law countries regarding the countries regarding the character of prescription of claims:character of prescription of claims:

Civil law Civil law – the institution of the substantive law: the right still exists – the institution of the substantive law: the right still exists but due to the lapse of time, its content undergoes a change; the but due to the lapse of time, its content undergoes a change; the obligor (debtor) may decline to perform by raising the defense before obligor (debtor) may decline to perform by raising the defense before the court, yet still, the obligation remains the court, yet still, the obligation remains suablesuable..

Common law Common law distinguishes basically two kinds of prescription distinguishes basically two kinds of prescription (limitation): those which merely bar a remedy (procedural) and those (limitation): those which merely bar a remedy (procedural) and those which extinguish a right (substantial). The Continental which extinguish a right (substantial). The Continental prescription of prescription of claims claims then more or less corresponds to the common-law then more or less corresponds to the common-law limitation of limitation of action,action, the latter being procedural. the latter being procedural.

How to characterize?How to characterize? Lex fori processualis Lex fori processualis principle (principle (quoad litis ordinem inspicitur locus quoad litis ordinem inspicitur locus

iudiciiiudicii)) Possible results – see the famous case of the „Tennessee promissory Possible results – see the famous case of the „Tennessee promissory

note” (note” (Tennessee-WechselTennessee-Wechsel) before German Court of the Empire ) before German Court of the Empire ((ReichsgerichtReichsgericht) 4.1.1882, I 636/81, RGZ 7, 21 ff ) 4.1.1882, I 636/81, RGZ 7, 21 ff (Exh. No. 7)(Exh. No. 7)

May (or should) the court not take into account the characterisation of May (or should) the court not take into account the characterisation of the prescription of claims under foreign substantial law?the prescription of claims under foreign substantial law?

Connecting factorConnecting factor

Ancillary connection of the prescription of claims Ancillary connection of the prescription of claims

(=> no independent connecting factor) according (=> no independent connecting factor) according

to Polish municipal Private International Law:to Polish municipal Private International Law:

Article 13 PIL 1965: pArticle 13 PIL 1965: prescription shall be rescription shall be

governed by the governed by the law applicable to the claim law applicable to the claim

itselfitself..

Article 26-27 PIL 2011Article 26-27 PIL 2011

Scope of the law applicable to Scope of the law applicable to prescription - practical prescription - practical

examplesexamples The car stolen in Germany, bought by a person acting The car stolen in Germany, bought by a person acting bona fide bona fide in Poland, after 3 in Poland, after 3

years the action for the vindication lodged by the German owner, the plea of the years the action for the vindication lodged by the German owner, the plea of the

limitation of the claim for giving back a movable => limitation of the claim for giving back a movable => the law applicable shall be the law applicable shall be

specified in Article 24 (1) PIL 1965 specified in Article 24 (1) PIL 1965 ((lex rei sitae lex rei sitae – the – the law of the country in which the law of the country in which the

car is situated car is situated – – governsgoverns the length of period of the prescription of claim for the length of period of the prescription of claim for

vindication and possible exception from the rule that even such claims are time-vindication and possible exception from the rule that even such claims are time-

barredbarred

Polish State sued for the effects of nationalisation of the immovable owned by the Polish State sued for the effects of nationalisation of the immovable owned by the

national of a third State after the 2nd World War – national of a third State after the 2nd World War – thethe law applicable is law applicable is that of the that of the

country under the law country under the law under which under which the State authority acted (civil responsibility for the State authority acted (civil responsibility for

actum iure imperiiactum iure imperii)) => Polish law => Polish law. This law indicates e.g. the commencement of . This law indicates e.g. the commencement of

prescription of claims period, e.g. the date of the damage or the date of the prescription of claims period, e.g. the date of the damage or the date of the final final

administrative act on the annulment of the administrative act on the annulment of the act of act of nationalizationnationalization

Rome I/IIRome I/II No particular conflicts rule on prescription of No particular conflicts rule on prescription of

claimsclaims Result the same as under Polish municipal PILResult the same as under Polish municipal PIL Conf. Art. 15 (1)(h) Rome II:Conf. Art. 15 (1)(h) Rome II:

„„The law applicable to non-contractual obligations […] The law applicable to non-contractual obligations […] shall govern in particular: […] the manner in which an shall govern in particular: […] the manner in which an obligation may be extinguished and obligation may be extinguished and rules of prescription rules of prescription and limitation, including rules relating to the and limitation, including rules relating to the commencement, interruption and suspension of a period commencement, interruption and suspension of a period of prescription or limitation.of prescription or limitation.””

Art. 12 (1)(d) Rome I:Art. 12 (1)(d) Rome I: „„The law applicable to a contract […] shall govern in The law applicable to a contract […] shall govern in

particular: […] the various ways of extinguishing particular: […] the various ways of extinguishing obligations, and obligations, and prescription and limitation of actionsprescription and limitation of actions.”.”

Particular problemsParticular problems

Judgment of the Court of Appeal in Katowice, I ACa 1823/04 Judgment of the Court of Appeal in Katowice, I ACa 1823/04

(unpublished):(unpublished): Two traders: from Poland and the Czech Republic entered into the contract for Two traders: from Poland and the Czech Republic entered into the contract for

sale of certain goods. Polish buyer did not pay but finally obliged himself in sale of certain goods. Polish buyer did not pay but finally obliged himself in

writing to do so. After more than 2 years from the contract conclusion, the writing to do so. After more than 2 years from the contract conclusion, the

Czech seller sued his partner for the price to be paid. The Pole defended Czech seller sued his partner for the price to be paid. The Pole defended

himself raising the plea of limitation of action (=prescription of claim for himself raising the plea of limitation of action (=prescription of claim for

performance). The court dismissed the action of the buyer taking into account performance). The court dismissed the action of the buyer taking into account

the 2-year limitation period under Article 552 of Civ. Code. On the claimant’s the 2-year limitation period under Article 552 of Civ. Code. On the claimant’s

appeal, the case was remanded on the ground that the Czech (instead of the appeal, the case was remanded on the ground that the Czech (instead of the

Polish) Civil Code should have been applied. True or false?Polish) Civil Code should have been applied. True or false?

Of course false – it would have been true only Of course false – it would have been true only if the Czech Republic had if the Czech Republic had

not beennot been the party to the party to the 1974 UN Convention on the Limitation the 1974 UN Convention on the Limitation

Period in the International Sale of Goods Period in the International Sale of Goods (see the Exhibits)(see the Exhibits)

UN Convention on the UN Convention on the Limitation Period in the Int’l Limitation Period in the Int’l

Sale of GoodsSale of Goods The first work of the United Nations Commission for International The first work of the United Nations Commission for International

Trade Law (UNCITRAL)Trade Law (UNCITRAL) Parties: 28 States to the unamended text, 21 States to the text as Parties: 28 States to the unamended text, 21 States to the text as

amended by the 1980 Protocolamended by the 1980 Protocol Basic data:Basic data:

Contains uniform substantive rules for the limitation in the international Contains uniform substantive rules for the limitation in the international sale of goodssale of goods

Applies if: (a) both parties have their places of business in different Applies if: (a) both parties have their places of business in different Contracting States, or (b) the law applicable to the contract of sale is the Contracting States, or (b) the law applicable to the contract of sale is the law of the Contracting State (Article 2 and 3 of the Convention)law of the Contracting State (Article 2 and 3 of the Convention)

Limitation period – 4 years (Article 8)Limitation period – 4 years (Article 8) Counted from the date specified in Article 10 (e.g. the limitation period for Counted from the date specified in Article 10 (e.g. the limitation period for

the claim arising from breach of contract shall commence on the date on the claim arising from breach of contract shall commence on the date on which the breach occured)which the breach occured)

Thanks for your Thanks for your attention!attention!