Polish Civil Code
by Ulrich Ernst
The Polish Civil Code (kodeks cywilny) of 1964 is the fruit of a codification work which connected experiences from the older continental codes with ideas from the first half of the 20th century. It follows the pandectist structure (Pandektensystem) and also contains rules traditionally seen as a part of commercial law.
1. History of the codification
a) The old Polish-Lithuanian Union and the time of partition (until 1918)
Only the re-foundation of the Polish state in 1918 provided the conditions for a modern national legislation. The former Polish-Lithuanian Rzeczpospolita Obojga Narodów (Commonwealth of Both Nations), having received a firm legal structure from the Union of Lublin of 1569, had totally vanished from the map by 1795, being divided between Austria, Prussia and Russia—just at the dawn of the age of modern civil law codifications. The institutions of the old Republic had given a framework to vast territories of the continent which granted ethnic, cultural and religious diversity; until present times they strongly influence the self-conscience and political culture of the modern nations of Poland, Belarus, Lithuania and Ukraine, which have been formed on its basis. But in private law, continuity had been interrupted. The partitioning powers had supplanted with their new codes the early modern feudal Polish-Lithuanian law. The latter may be characterized, as elsewhere, as a combination of state rules (among them the codification of the three Statutes of Lithuania from the 16th century, the official version in its Belarussian chancellery language, but also translated into Polish), town privileges following patterns of German-speaking territories, local customs and the practice of the learned laws (even though there was no general presumption of Roman law being in force).
Austria even used its part of Poland, which it called Galicia, for a field experiment concerning its Allgemeines Bürgerliches Gesetzbuch (ABGB) at the end of the 18th century. Later, Poles gained a far-reaching political and cultural autonomy. At Krakow and Lviv (German: Lemberg, Polish: Lwów) university research and teaching took place in the Polish language. Poles could influence the development of law as academics, judges and officials; in the final years of the monarchy they became more and more influential even on the imperial level. In the Prussian provinces the Allgemeines Landrecht für die Preußischen Staaten (ALR) was in force from 1794 (in this case too, the wish to get rid of peculiarities in former Polish territories was one of the motivations for introducing the new code for the whole kingdom) and then, beginning in 1900, the Bürgerliches Gesetzbuch (BGB). The German-Prussian and the Austrian part had in common the Allgemeines Deutsches Handelsgesetzbuch (ADHGB).
The situation looked somewhat different in the parts of the country which were subjected to the Czar. In the ‘Kingdom of Poland’, which existed from 1815 (the so-called Congress Poland, containing such cities as Warsaw, Lodz and Lublin), different legal institutions continued compared to the rest of the Russian Empire. They had been introduced by the Duchy of Warsaw, which was founded by Napoleon in 1807 and carried by national hopes. These institutions included the French Code civil and the Code de commerce, which were modified in the 1820s and 1830s by a new confessional matrimonial law (the main confessions being Catholicism and Orthodoxy as well as Judaism) and by the introduction of a distinct Law of Mortgages and Property Registers (main author: Antoni Wyczechowski, 1780–1844). Egalitarian French legislation caused a significant change in traditional feudal social structures. In the eastern territories of the former Commonwealth Russian legislation (Svod Zakonov, Russian Civil Code) was in force, preserving elements of former Polish-Lithuanian law. In the small territories of Spiš and Orava in the south, Hungarian law was applied.
b) A newly structured and independent legal system on a comparative base (1918–39)
At the beginning of what is termed the 2nd Republic in 1918, Polish lawyers were mainly experts of the Austrian, French, German and Russian systems. For the above-mentioned reasons a positive attitude could be found mainly towards French and Austrian law. On the other hand, the German BGB was the most modern code. Quickly, a consensus was reached that the common legal area was to be created not by extending the application of any of the particular laws over the whole state territory. Therefore, the new official Codification Commission first proposed new statutes on inter-local and international conflicts of laws (drafted in 1924, in force from 1926; main author: Fryderyk Zoll jun, 1865–1948, professor in Krakow. Before 1918 he had worked on the Austrian draft on private international law and the reform of the ABGB). The unification of substantive law was not to be undertaken rashly.
In substantive private law, two codes were passed in 1933 and set into force one year later: the Code of Obligations (kodeks zobоwiązań) and the Commercial Code (kodeks handlowy). The latter was a derivative of the German-Austrian model, also containing the provisions for corporate law; the former is seen as the most important achievement of modern Polish legislation. Among its authors one should mention in the first place: the Lviv professors Ernest Till (1848–1926) and Roman Longchamps de Berier (1883–1941, executed together with other academics after the German invasion of the city) and the Warsaw attorney Ludwik Domański (1877–1952, 1945–1948 professor in Lodz). They mainly took inspiration from the Austrian, French, German and Swiss codifications (Swiss Code of Obligations (OR)). Additionally, they took into account Russian law (including the draft civil code from 1913) as well as the French-Italian draft code of obligations of the Comité pour l‘union législative entre les nations alliées et amies from 1927 which, however, was perceived as insufficiently modern to be introduced in Poland. Ideas were also exchanged with scholars from the southern neighbouring central European countries. The Code of Obligations of 1933 was met with considerable interest and respect in international literature. The very detailed review in the journal Zeitschrift für ausländisches und internationales Privatrecht concluded with the words that ‘a characteristic and independent law has been created by a well considered mixture of what is proven and new’ which constituted a ‘very valuable contribution of Poland to the laws prevailing in Europe’.
Statutes on competition, patent and copyright law had already been passed in the 1920s. Drafts on parts of family law (criticized by circles close to the church) and property law had also been elaborated; furthermore, preparatory work continued on the regulation of succession law and a general part for private law. But these plans could not be realized before the German-Soviet attack on Poland in 1939.
c) Period of the ‘People’s democracy’ (1944–89)
The second period of legal development occurred in the years under Soviet dominance, 1944–89 (the ‘People’s Republic’). In a country shifted westwards on the map, by a government not bound by former institutional and cultural barriers, the unity of the legal system was achieved quickly on 1 January 1947 by passing separate decrees on the basis of the pre-war drafts.
As a symbol for the creation of a single law, the political leaders ordered the integration of the provisions into one coherent civil code. Three attempts were required to realize this project. The Ministry of Justice formed working groups, including members of the Codification Commission from the interwar period. An important role was played by Jan Wasiłkowski (1898–1977; before the war a professor in Warsaw, later member of Parliament, chairman of the Supreme Court and member of the Central Committee of the Communist Party). In 1949, only one year after the presentation of the first project, of which he was a co-author, he characterized it in a self-critical manner as a work ‘on a high level of legal technique in the style of modern bourgeois codifications’. The transformation of state, society and economy according to the ideology of Marxism-Leninism, which started in the 1940s, had rendered the work obsolete even before it was completed. The introduction of a planned economy and the nationalization of industry and commerce required a new economic law—the difference between public and private law was considered as having become obsolete, and thus the term ‘private law’ (socialist law) was no longer used. An essential characteristic was the distinction between several types of property (first-level categories: social and individual property). Since private property still existed, even concerning farm land, the traditional private law institutions kept their importance—more than in other states of the eastern-bloc. A second initiative took the new reality into account, containing in the drafts of 1955 and 1956 provisions both for private property and for a nationalized economy. These drafts were strongly criticized in scholarship and practice for their low level of technical refinement and lack of precision. Only the Polish liberalization after the end of Stalinism in 1956 made it possible to finalize the work. In 1960 a new draft was presented. It was based on the one of 1956, but had been carefully revised and made more precise. This finally led to the Civil Code, which was passed by Parliament in 1964 and came into force on 1 January 1965.
d) Return to market economy institutions, modernization and European integration (from 1989)
The European year of change, 1989, which had become possible to a great degree thanks to the Polish Solidarność trade union movement, meant for Poland the regaining of freedom and democracy. Renamed the ‘Republic of Poland’, it defined itself as a democratic state under the rule of law which granted freedom of entrepreneurship and private property. Consequently, the 1990s saw a renaissance of legal institutions which had previously only been used in respect of foreign trade relations. Thus, institutions such as corporate and insolvency law, which had remained in force during the era of the state economy, assumed greater importance and were further strengthened. This fact gave importance to the republished commentaries of the Lviv professor, attorney and member of the first Codification Commission, Maurycy Allerhand (1868–1942, killed in the German concentration camp Janowska in Lviv), which at this time probably even exceeded the impact which they already had exerted during the years directly preceding the outbreak of World War II. New bills first had to abolish the communist elements of the legal system and also adjust Polish law to the requirements of European Union Law, a process continued after Poland’s entry into the EU on 1 May 2004.
2. Characteristics and structure
a) Style and system of private law
Direct models for the Civil Code of 1964 were the Code of Obligations of 1933 and the unification decrees issued in the first years after World War II. While the old Codification Commission had published its drafts together with detailed explanations of its motives, the latter are missing from the post-War decrees and the final preparatory works on the code undertaken after 1956. This is, apart from their quality, a further reason why these materials from the period between the wars are frequently consulted for a better understanding of the current law.
The legislation of the 1920s and 1930s already evidenced an effort to use understandable language and avoid overly detailed provisions. The texts were written so as to ensure that case law would have the necessary room to keep pace with ongoing developments. The Civil Code followed this tendency by modernizing its terminology and reducing complexity in many respects—the latter, however, in connection with the loss of importance of sophisticated instruments of private autonomy for the organization of society and economy. It has been criticized that the amendments passed after 1990 often no longer correspond to good traditions—an unfavourable example now being provided by the European directives. Another characteristic taken over from the old Code of Obligations is its use of general clauses (‘abuse of right’, ‘good customs’, later called, according to Soviet model, ‘the principles of communal life’, clausula rebus sic stantibus, liability on the grounds of equitable principles in the law of delict). The courts made use of them only in a reluctant way, which might have been seen in the times of the communist dictatorship as a mechanism of protecting courts against political influences.
The structure and scope of application of the Polish Civil Code are similar to the pandectist model. At variance with the draft of 1960 and according to the Soviet model, family law was passed in 1964 as a code of its own, but it is generally treated as part of the Civil Code. In the 1960s it was decided that the traditional dualism between civil and commercial law should be overcome and that the category of merchant (kupiec), as the key to regulations concerning special transactions, should be given up. Therefore, the original version of the 1964 Code had already included rules on the legal name of businesses and on transactions which had formerly been included in the Commercial Code, in accordance with traditional continental models. This process came to an end in 2000, when a Code on Commercial Companies (kodeks spółek handlowych) was passed and when the last regulations from the Commercial Code of 1934, valid until then, had been moved to the Civil Code. The business register is now the object of a separate statute. Since the communist period, labour law has been seen as an independent branch of law. According to the Labour Code (kodeks pracy) of 1974, the rules of the Civil Code apply analogously at best.
b) Pandectist structure and characteristic rules
The first book of the Civil Code, the ‘general part’, starts with a few provisions on its scope of application, burden of proof, and abuse of rights. The following chapter on ‘persons’ is divided into rules about ‘natural persons’ and some very general rules about ‘legal persons’ (most of the provisions on the latter have been abolished as being relics from communist times) and, finally, on ‘entrepreneurs’ (mainly the legal names of businesses). Thereafter one can find rules on assets (especially things as material objects), juridical acts (in the pandectist sense of Rechtsgeschäfte), periods of time and prescription.
Characteristics of the second book ‘Property and other rights in rem’, viewed in comparison with the German Bürgerliches Gesetzbuch (BGB), are the common provisions about movable and immovable property and the formulation of general rules about limited rights in rem. Since at the time of the creation of the Civil Code the rules on mortgage and property register were seen as relics of the past which would soon vanish, they were placed in special statutes. The same applies to the registered pledge introduced in the 1990s, even though Polish courts accept the fiducia as a security right on movables. Polish law attributes real effects to transactions involving the transfer of property, such as sale or donation. Parties can, however, agree that the property will be transferred only after the conclusion of another ‘purely’ real contract, in which case the validity of the latter depends on that of the obligatory contract.
The third book on ‘Obligations’ does not entirely follow the clear structure of the Code of 1933, which contained in its general part rules about the several sources of obligations: obligations arising by contract or unilateral act, or by law, eg by negotiorum gestio, unjust enrichment or delict (a similar structure can be found in the Swiss Code of Obligations (OR) of 1911 and also in the Portuguese Civil Code of 1966). This was followed by the rules regarding individual types of contracts. Today one can still find delict and enrichment law among the general provisions whereas negotiorum gestio is dealt with in connection with the provisions on service contracts. Following the model of 1933, the law of delict contains a general clause on the obligation to compensate culpably and unlawfully caused damage as well as numerous provisions on strict liability. The provisions on breach of obligation are based on a general claim for the compensation of damage for which the debtor is responsible, providing also rights of termination in case of default and impossibility of performance; these remedies are supplemented by warranty claims for specific contracts. A chapter on the actio pauliana is located at the end of the general provisions. Among the special types of contract regulated in the code one can also find commercial agreements such as contracts for agency, commission, transport, forwarding or storage, and nowadays also for leasing.
Characteristic for the fourth book on ‘Successions’ was the small circle of heirs in instances of intestacy, which has been enlarged only in 2009. The original version of the code contained many rules regarding the succession concerning farm land, but they were held invalid as being unconstitutional by the Constitutional Court in 2001.
In the first version of the ‘Family and Guardianship Code’ the only accepted form of marriage was the civil one. After 1989 the possibility to give legal effect to a church wedding was added, provided there is an agreement on this between the state and the respective religious community. The matrimonial property system has been modified and significantly differentiated—but the normal system in terms of law and practice is still the community of property. In the 1990s the possibility of a legal separation was added to the Code. Divorce is not only possible on the basis of fault, but also in case of irreconcilable differences. To date, there are no rules regarding extramarital and homosexual partnerships.
This overview demonstrates that Polish law can be seen as an example of the Romanic-Germanic family of law, and that it would make little sense to qualify it as belonging to either of its sub-groups.
3. Influences of EU and internationally uniform law; perspectives
EU private law directives have been implemented by amending the Civil Code or by passing special legislation. A definition of the consumer has been added to the provisions for natural persons in the ‘general part’; the amended rules for the formation of a contract contain also regulations regarding electronic commerce. The rules for the inclusion of standard terms into a contract and scrutiny of their contractual content are to be found among the general rules for contracts within the law of obligations (according to the tradition of the Code of 1933). The liability for products has been included subsequent to the law of delict; the regulations regarding commercial agents were added to the already existing chapter in regard to this type of contract. Consumer rights to withdraw from doorstep and distance contracts are a matter of a separate statute. There are also statutes regarding late payment, consumer credit, time share and the sale of consumer goods. The last of these items, in particular, is criticized for ignoring the conventional systematics of the Civil Code and for treating the consumer worse than traditional sales provisions treat any buyer. A political reason for the decision to create individual statutes for these issues can be seen in the suggestion of the EU Commission to prepare ‘cut-and-paste’ implementations of the several directives in order to facilitate the assertion that Poland had fulfilled its requirements for EU entry.
In 1996 the act on the registered pledge was passed, which was strongly influenced by foreign consultants but fits sufficiently into the Polish legal environment. The amendment to the ‘general part’ of the Code of 2003 introduced rules on the formation of contracts inspired by the CISG.
The large number of amendments and special regulations for such areas as consumer contracts and property law may be a motivation for considering the preparation of a new civil code. A Green book issued by the chairman of the Codification Commission at the Ministry of Justice marked the start of such an effort, but at present the outcome remains uncertain. Nonetheless, the pandectist structure of the civil law is not to be questioned.
Udo Rukser, ‘Das neue polnische Obligationenrecht’ (1934) 8 ZEuP 342; Ludwik Domański, Instytucje kodeksu zobowiąza: Komentarz teoretyczno-praktyczny (1936); Roman Longchamps de Berier, Zobowiązania [Schuldverhältnisse] (2nd edn, 1939; reprinted 1999); Erhardt Gralla, ‘Das polnische Zivilgesetzbuch’  Osteuropa-Recht 81; Dominik Lasok, Polish Civil Law, vols 1–4 (1971–5); Stanisław Grodziski, ‘Prace nad kodyfikacją i unifikacją polskiego prawa prywatnego (1919–1947)’ [The works on the codification and unification of Polish Private Law (1919–1947)], 1st year  Kwartalnik Prawa Prywatnego 9; Józef Skąpski, ‘Kodeks cywilny z 1964 r: Błaski i cienia kodyfikacji oraz jej perspektywy’ [The Civil Code 1964: Light and shadow of the codification and its perspectives], 1st year  Kwartalnik Prawa Prywatnego 57; Claudia Kraft, Europa im Blick der polnischen Juristen: Rechtsordnung und juristische Profession in Polen im Spannungsfeld zwischen Nation und Europa, 1918–1939 (2002); Fryderyk Zoll, ‘The Impact of the Vienna Convention on the International Sale of Goods on Polish Law’ (2007) 71 RabelsZ 81.
R Longchamps de Berier in Komisja Kodyfikacyjna, Podkomisja Prawa o Zobowi zaniach, no 4–6, Uzasadnienie projektu kodeksu zobowiązań z uwzględnieniem ostatecznego tekstu kodesku [Motives of the draft Code of Obligations taking into acount the final text of the Code], Warszawa 1936; Projekt kodeksu cywilnego [Draft Civil Code], Demokratyczny Przegląd Prawniczy, 1947–8; Projekt kodeksu cywilnego Polskiej Rzeczypospolitej Ludowej [Draft Civil Code of Polish People’s Republic], Warszawa 1954; Projekt kodeksu cywilnego Polskiej Rzeczypospolitej Ludowej, Warszawa 1960; Zbigniew Radwański (ed), Zielona Księga—Optymalna wizja Kodeksu cywilnego w Rzeczypospolitej Polskiej [= Green Paper—An Optimal Vision of the Civil Code of the Republic of Poland] Warszawa 2006).