Non-compliance

A typical way of terminating the obligation relationship is by fulfilling it in due time and place of the benefit promised by the debtor. This is due to the principle of real execution of commitments adopted in Polish law.

However, there are situations in which, for various reasons, the subject matter of the benefit and others will be impossible for the debtor in nature.

The purpose of this Article is to present a specific form or, more precisely, the reason for the default, which is the consequent inability to provide services, and to describe the legal implications of this issue.

There is no doubt that the problem of subsequent inability to provide is one from the basic institutions of the law of commitments – due, among other things, to the theoretical, but also to the practical importance of economic relations and consumer trade.

Introduction

The subject of the study is a comprehensive discussion of the institution's successor inability to provide services. The analysis was also subject to these concepts and accompanying bodies, the omission of which would undermine the overall nature of the article.

First, the concepts closely related to the subject matter of this work have been identified as fundamental to the law of commitments. The scientific methods of dividing the notion of the impossibility of benefits into sub-types, with the definition of criteria for classification, have been described.

The following part of the article discusses the issues of inability not being blamed by the debtor and of inability to blame.

1. Types of inability to provide, classification criteria and explanation of basic concepts
2. 1. Commitments, benefits, impossibility

The concept of commitment is a key concept for the science of civil law. It seems necessary to define the obligations and accompanying concepts before proceeding to describe the issues covered by this work.

By Sound Article 353 Act on 23 April 1964 - Civil Code 1 ((c) the commitment is a legal relationship in which one of the parties may request the other parties to the benefit to be fulfilled. The concept of commitment consists of three Basic elements. These are the parties to the obligation relationship, its subject matter and content.

The parties to the contractual relationship are civil law entities. A rightholder is referred to as a creditor, a debtor. The rights of the creditor are called claims and the obligations of the debtor are called debt.

The claims and debts as powers and obligations of the parties to the obligation relationship shall be the content of each obligation. The subject of the obligation is a benefit which according to Article 353(2) k.c. may rely on action or omission[2].

The relative nature of the obligation relationship is determined by the individual identification of its entities. Normally, the parties to the undertaking have been known since its inception, but nothing stands in the way of the designation being made when the benefit is fulfilled. A commitment is usually a bilateral relationship.

Multiplicity one of the parties does not undermine the bilateral nature of the commitment. Multilateral obligations are also known to civil law 3 , But these are few cases.

As already stated, the subject of each obligation is the benefit, namely that the debtor behaves in accordance with the obligation, which is to make good the legitimate interests of the creditor. This behavior may take on active (action) or passive (doing – refraining) character[4].

The benefit, each time it involves the conduct of an undertaking, must be clearly distinguished from that of the material or intangible asset concerned. The benefit shall be the subject of a compulsory relationship.

The subject matter of the benefit is material or intangible property to which the conduct in accordance with the obligation relates[5]. These concepts are very closely related for obvious reasons. However, they are not identical concepts, and in order to be precise, it is necessary to respect their alternate application.

This is particularly important with regard to the notion of inability to provide, as it can be decided by considerations relating to both the benefit itself and its object. The Civil Code regulates the legal implications of the impossibility of providing, and as regards the statutory definition of the concept itself, this does not exist.

Therefore, when trying to define this concept, the word "impossible" must be removed from the outside of the law. The Polish dictionary defines the term “impossible” as “impossible”. The common meaning of the word is rather ambiguous, it is impossible to negate the possible.

Speaking of the inability of any action, we usually mean its impracticability. However, the notion of impracticability is also not one of the sharp ones. Something may be impracticable in the sense that due to external circumstances it will not be possible to implement certain actions.

We will also have to deal with the inability to perform something in a situation where the lack of adequate qualifications or predispositions on the part of a particular person determines the impracticability. In the common sense of the term, there are also cases where an act or omission is prohibited or prohibited by law.

It appears that, by moving the above-mentioned comments to the legal ground, it can be concluded that it is impossible to provide impossible, in a situational and available sense, as well as a service prohibited by the applicable legal order.[6]. However, it should be remembered that the Act through its dispositions and specific structures can affect the extralegal meaning of a certain term, modifying it according to its needs.

However, there is no doubt that the concept of non-reliability must be interpreted by looking at the provisions governing the execution of obligations, in particular those concerning the consequences of their failure. As is commonly known, the inability to benefit is a particularly standardised case of default.

It should be stressed, in conclusion of this issue, that the legal and non-legal understanding of the notion of inability does not combine the relationship of superiority or inferiority. It can be concluded that the meanings of the term impossible in its legal and non-legal sense cross and interact.

1.2. Objective and subjective nature of the inability to provide

The distinction on objective and subjective inability can be made on the basis of two competing criteria. first of these is the so-called criterion of universal impracticability, second and the reasons for impossibility[7].

If applicable first from the above criteria, we will face an objectively impossible benefit in a situation where not only the debtor is unable to meet the benefits but no one else can.

Accordingly, such a benefit should be considered subjective, which, in fact, the debtor is unable to fulfil, but there are such entities, in addition to the debtor that could provide. This leads to the conclusion that the benefit will remain subjective as long as it does exist. one a person able to meet them[8].

In adopting the criterion on reasons of impossibility, it should be objectively impossible to consider such a benefit, the cause of which lies entirely outside the sphere of the obliged person.

A benefit that is not subjectively possible will be a benefit that is impossible due to reasons in the debtor’s sphere, more specifically, concerning his person or activity[9].

The scope of decisions for objective or subjective inability according to the criterion adopted is converging, but this is not a convergence one-hundred-percent. One can imagine a reality in which, depending on the chosen criterion, another will be the answer to the question of what impossibility we are dealing with.

A good example to illustrate the situation described is the case of a commitment in which one of the parties is a painter who committed himself to painting the portrait of the creditor himself, but as a result of the accident he lost the hand he used to paint.

In applying the criterion of universal impracticability, while assuming that the service was of a personal nature and the creditor chose to have this particular painter because of his talent, it should be considered that, since in the present situation there is no one left to paint such a painting, the service is objectively impossible.

Using these In the second the order of the criterion concerning the nature of the reasons for the impossibility, it must be stated that these reasons are clearly on the part of the obliged person and are closely linked to his or her activities. Such an impossibility should therefore be considered subjective.

This means that you should choose to one of the above criteria. Otherwise, there may be misunderstandings and divergent qualifications of the same facts.

The position of doctrine on the selection of the criterion of eligibility as objective or subjective is uniform. It is widely accepted that there is a situation where the service is impossible for the debtor, but another person can do it.

The inability to provide will retain its subjective character as long as there is a person able to provide[10].

As an example to illustrate such a situation, a debtor's indisposition may be established, resulting in him not being able to perform the obligation, while at the same time supposing that the content of the obligation itself, the law and the nature of the obligation relationship do not imply that the debtor was to perform the performance in person.

In the case of objective inability, it should be understood as a condition in which the performance of the service is impossible both by the debtor and by any potential entity, e.g. where the subject matter of the benefit was a thing identified as having been destroyed.

The limits of objective inability to provide services are determined by the current level of development of science. There is no doubt that the state of objective impossibility should therefore be assessed in accordance with the state of technical progress at the time of assessment.

The Polish legislator did not introduce in the Code a distinction between objective inability and subjective inability to provide. However, it seems that this would be an unnecessary procedure, because the consequences of the inability to provide, whether in its objective or subjective version, in particular the liability of the debtor, depend on whether the state of impossibility is caused by the circumstances for which the debtor is liable or not.

1.3. Actual and legal inability to benefit

The catalogue of reasons for inability to provide is undoubtedly very wide. This is due to the many facts in which we are dealing with such an impossibility. These causes can be divided into physical and natural obstacles and legal obstacles, e.g. the statutory ban on the performance of a particular benefit.

Impossible by first a set of reasons is referred to as a factual impossibility, an impossibility resulting from legal obstacles, a legal impossibility. Louis Domański defines the actual impossibility of performance as its inability to determine the object of performance, or the physical incompatibility of performance of the contract.[11].

It is worth noting that in Polish science the concept of actual impossibility is not limited to cases where we face physical and natural obstacles. This concept is often presented as the opposite of legal impossibility.

It is important to remember, when speaking of the fact that the fact that witnessing is impossible today does not mean that it will continue. The development of science and continued technological progress have consistently narrowed down the scope of impossible activities.

Nevertheless, certain laws of nature continue to make it impossible to perform a service that would conflict with them or rely on overcoming them. And so the witnessing of a thing that does not exist and never exists or that cannot be produced at present level of science development.

In addition, it should be considered impossible for physical reasons to have a benefit which is an object of identity which has been destroyed or simply ceases to exist as such (e.g. a horse has died)[12].

Also often improbable natural phenomena such as tornadoes, hurricanes, floods, storms, fires and others, due to their destructive being, can and often decide the impossibility of benefits.

This is done not only by the destruction of the subject of the benefit as a result of the above occurrence, but also by preventing the performance of the service in another way (e.g.

interruption of the communication period, thus preventing the debtor from testifying at the designated place or mutilation of the debtor causing the inability to perform the personal benefit)[13].

The actual impossibility of a benefit is therefore that, in view of certain laws of nature, the benefit cannot be fulfilled. The impossibility of this type is usually objective, because it depends on natural causes, which are not to be overcome only by the debtor himself, but also by other persons.

It should be noted that both Polish and foreign doctrines agree on the issue of equalization of physical and natural inability to provide with the so-called practical inability to provide. Practical impossibility occurs when the object of the witnessing does not exist and has not been destroyed, but it is nevertheless unavailable.

An example that illustrates situations of this type is the case of a benefit with an object marked as an identity ring, which was inadvertently placed on the seabed[14].

The practical inability to provide benefits is also due to such natural external circumstances, which, even if they do not constitute an absolute failure to meet a particular benefit, approach it.

Legal inability to provide is that the benefit can be fulfilled in the sense that it is possible for physical reasons, but the legal considerations decide that it cannot be fulfilled. In other words, the benefit is feasible, but its fulfilment will remain in conflict with the current state of the law.

This will be the case in particular when the subject matter of the benefit is removed from the market.

In principle, the need to distinguish the legal impossibility of providing in a technical sense is not disputed in Polish literature. However, the view is also completely different that the legal impossibility of a benefit as such does not exist, since the cases covered by it are not de facto impossible.

If the benefit can be fulfilled, it is not impossible to fulfil. The fact that this benefit will have consequences in connection with a conflict with the law is a side issue. A benefit contrary to the applicable law should be linked more to the question of invalidity of a legal act and not to provisions of inability to provide[15].

According to this theory, it must be assumed that, when referring to the ‘legal impossibility of providing’, it should not be considered to be impossible in a technical sense, but only a service which is possible to satisfy, which, as a result of the conflict with the law, is invalid[16].

Doubtless, it is necessary to agree with the claim that legally impossible witnessing is usually physically feasible. Similarly, it is acceptable to conclude that legal inability to provide benefits in contractual relations and generally only in these relations will lead to the annulment of legal acts.

However, these considerations do not appear to prejudge the inadmissibility of legal separation of the impossibility of providing as a separate category[17].

In order to resolve this issue definitively, it is necessary to answer the question: in the light of the legal provisions in force, is the impossibility which rules of a legal nature always entail the nullity of a legal act and should therefore be considered in the context of the provisions on the nullity of a legal act or in accordance with the provisions on the impossibility of a benefit?

18 . A positive answer to such a question could only be given if any legal inability to provide a service resulted in automatic sanctions in the form of annulment of a legal act. Of course it's not.

A good example of a situation where the legal impossibility of a benefit does not necessarily result in the nullity of a legal act is a case where the impossibility is the result of an administrative decision.

This view is supported by the principle established in Polish civilism that the administrative act does not exert itself by itself and in a way automatic civil-law effects, unless there is another explicit legislative disposition.

In conclusion, it appears that the exclusion of the legal impossibility of a service from the conceptual and statutory categories of non-performance would be an unsuccessful and totally unjustified procedure.

The provisions on the inability of benefits should be linked not only to the physical and natural reasons for the inability of the debtor to fulfil the benefits, but also to legal reasons.

Legal reasons can and often cause the same effects as actual inability to provide. If these reasons are to provide against the prohibition of the law, it will apply Article 58(1) k.c., according to which the legal act contrary to or intended to circumvent the law is invalid. The same will apply to the benefits of acting contrary to the principles of social coexistence, since according to Article 58(2) k.c. the legal acts which are contrary to the principles of social coexistence are also invalid.

There also appears to be no contraindications to the use of the standard Article 58 k.c. also to cases of such a kind that a statutory prohibition or one resulting from the principles of social coexistence already existed at the time of the legal act[19].

Consequently, because of the above-mentioned circumstances, the inability to benefit will have to be assessed according to the provision Article 58 k.c. in confluence with a provision standardising the primary inability to provide.

If the ban did not exist at the time of the conclusion of the contract and only after that, the effects of such an impossibility should be considered solely on the basis of Article 471 k.c. and not in accordance with the provisions on the annulment of a legal act[20].

As already mentioned above, the prohibition on the performance of a certain benefit, if it arises from an administrative act, does not result in the unconditional annulment of a legal act carried out contrary to that prohibition.

This is because an administrative act cannot itself produce effects in the area of civil law, except where the law provides for this[21].

1.4. The permanent and transient nature of the inability to provide services

The permanent nature of the inability to provide is a constitutional feature of this institution. The principle that the inability to provide, to be legally relevant, must be permanent, is widely accepted in both national and foreign doctrines[22].

An obstacle to the performance of the benefit and as a result of the performance of the obligation, if temporary, does not constitute an impossibility. A benefit which cannot be fulfilled at a given moment, but it is known that it will be possible to do so later – even in literal terms – is not impossible to fulfill.

The obstacles in question do not lead to inability to provide, but only to delay or delay. The question determining the classification of a specific factual situation as delay or delay is the debtor’s fault[23]. Consequently, the temporary inability of the benefit should be examined.

First, in terms of provisions on delay and delay, and later only in accordance with provisions on non-availability of benefits[24]. The practical demarcation of the impossibility of permanent character from the impossibility of passing in the lion's share of cases will be a simple matter.

The persistence of inability resulting from physical and natural circumstances can be measured by life experience or empirically. With the inability of reasons of legal nature, basic knowledge in the field of law will be needed, which involves a certain factual state.

A situation which is different and seems to be an exception to the principle established at the beginning of the deliberations that the transient inability to provide the benefit is not a technical and legal concept is such that the fulfilment of the benefit, as a result of a temporary obstacle, loses all meaning for the creditor and that the performance of the benefit after a time-limit is contrary to the objective of the undertaking[25].

In the above cases, there is a temporary inability to benefit. In other words, when the benefit due to delay loses its importance to the creditor, and when, due to the time limit exceeded, it opposes the purpose of the obligation, the temporary impossibility must be treated as if it were permanent.[26].

Justification for such a solution, a particular type of temporary inability to provide, requires recourse to a provision Article 493(2) k.c.

This provision concerns the partial inability of the mutual benefit and grants the creditor the right to withdraw from the contract if the partial execution would not have been for the other parties to the meaning, because of the characteristics of the obligation or the purpose of the contract intended by the party.

Since, therefore, the legislator grants the party to the mutual agreement the right to withdraw from the contract in the cases referred to above, there is no reason not to consider the benefit impossible within the meaning of the Act and with the consequences for them when, as a result of the temporary impossibility, the economic and economic objective of the provision falls out[27].

A similar conclusion comes from reading Article 491(2) k.c. and Article 492 c. concerning the body. A temporary inability in a situation where we do not treat it as permanent inability is not a technical and legal term and should be dealt with by the prism of provisions on delay and delay.

In conclusion, the permanent inability of the benefit occurs when the benefit is impracticable and there are no indications that the obstacles causing this impossibility will be removed.

In cases of permanent impossibility, it is also appropriate to consider situations where the post-term performance of a liability relationship is irrelevant to the party because of its intended purpose of the contract.

1.5. Prior and subsequent inability to benefit

The inability of the original (previous) is always the case when the witnessing from the very beginning is impossible. It is important that the state of impossibility exists before a commitment arises. Otherwise, if the state of impossibility arose after the time the undertaking was created, the impossibility would be a successor.

Thus, the criterion by which the demarcation between the original and subsequent impossibility should be introduced is the time when the undertaking is created.

It is worth mentioning that in commitments limited by a condition or deadline, the impossibility will be a follow-up if it occurs after the commitment has been created, but even before the condition or deadline has been fulfilled.

The issue of primary inability of the benefit is regulated Article 387 k.c. This provision implements in Polish Roman law the maximum impossibillium nulla obligatio, according to which no one can be obliged to do what is impossible[28]. According to the above-mentioned article, the service contract is not valid.

However, nullity is not the only result of the conclusion of the service contract. It also results in compensation liability one parties to second For knowing that witnessing was impossible, she did not lead the opposite party out of error.

Liability is limited to damage which the other party has suffered because it has concluded a contract without being aware of the impossibility of the benefit[29].

A separate problem is the answer to whether regulation Article 387 k.c. applies to all cases of service contracts impossible or not.

More specifically, whether the legal effects expressed in that provision relate to the inability to provide both in its objective and subjective issue, or whether the scope of the provision is limited to contracts for the provision objectively impossible, and contracts in which the provision is subjectively impossible should be considered in terms of provisions Article 471 k.c.

and n. 30 .

The position of the Polish doctrine on this issue is clear, according to it, the legal effects of the agreement to provide the impossible are dependent on the nature of the impossibility of the provision. Provision Article 387 k.c. regulates only the effects of an agreement to provide the impossible objectively[31].

In contrast, the effects of the contract of performance which are subjectively impossible should be assessed in relation to the provisions governing the execution of the undertaking and the consequences of its failure.

However, this view is extremely difficult to prove both on the basis of literal and systemic interpretation. According to the applicable lege non distinguente principle, it could even be concluded that the provision Article 387 k.c. concerns both objective and subjective inability.

The view that the provision Article 387 k.c. only applies to cases of objective impossibility, however, can be justified by reasons of safety and certainty of trade. Adoption of the solution that the provision Article 387 k.c. should be applied to cases of inability as objective as subjective would inevitably undermine this principle.

For every time, in the event of an impossibility arising from reasons attributable to the person responsible for the provision, the contract would become invalid.

This would be so detrimental to the creditor that when negotiating or otherwise seeking to conclude a contract, the creditor is not obliged to check each time whether the opposing party is able to fulfil the benefit it undertakes or not.

It is generally accepted that the parties, in seeking to conclude a contract, are aware of their options in the context of the fulfilment of benefits. However, if it were found that the debtor intentionally had the keys and being aware of the subjective impossibility of concluding the contract, the compensation due to the creditor should be full rather than limited to the negative interest of the contract, as foreseen by this Article 387(2) k.c.

It should therefore be considered, for reasons of fairness, that the scope of the provision Article 387 c.c. is limited to cases where prior inability to provide one of the parties are objective.

It should also be noted that, in order to eliminate interpretation difficulties, a revision of the drafting provision should be proposed to de lege ferenda 387 k.c. in the form of a clear indication of the impossibility of the service. It is the time of its inception that determines the qualification of impossibility.

The subsequent inability of the benefit is one that occurred after the establishment of the obligation relationship.

1.6. Dispositive nature of the rules on non-performance

Civil law can be divided into mandatory (ius cogens) and relatively binding (ius dispositivum). third the category which is, as it were, next to the dichotomic distribution, is semi-imperative provisions.

Semi-imperative provisions are intended to protect interests one of the parties to the obligation relationship in such a way that they set a limit to a certain minimum of that protection.

The provisions of the semi-imperative rule can therefore be repealed by the will of the parties only if the amendment takes place in favour of the protected party. The division in question is extremely important and legally important.

The ius cogens standards exclude the parties' contractual freedom, semiimperative rules restrict it to some extent, and the provisions of a dispositive nature do not delimit this principle at all. Moreover, the existence of the principle of freedom of contract in c.c.[32].

In reference to the above considerations on the question of the rules governing the liability of the debtor for the inability of the benefit, it must be stated that, if they were of a dispositive nature, the parties could freely extend and narrow the scope of that liability under their autonomy.

They could also exclude such responsibility and determine the consequences of the change and termination of the obligation relationship in which one of benefits made impossible[33]. Doubts dispel reading a recipe Article 473 k.c.

According to section 1 This Article, the parties may, by means of consistent declarations of will, exacerbate the debtor's liability for failing to perform or for failing to execute the obligation by extending the scope of the circumstances for which the debtor is liable.

The debtor may, for example, assume liability for damages caused for reasons not attributable to him, taking as a principle of liability the principle of risk[34]. This kind of agreement can also work in second page and cause the debtor's liability to be relaxed.

The debtor may, for example, undertake to bear liability only for intentional fault, where according to the general rule standard Article 471k.c. also responsible for negligence[35].

Provision Article 473(2)) However, it makes a quite significant reservation as to the possibility of modifying the debtor's liability in the event of default or inadequate performance. It states that it is not important to say that the debtor will not be liable for the damage which he can intentionally do to the creditor.

This solution seems to constitute the minimum statutory protection one of the parties to the relationship, in this case the creditor. It therefore constitutes a semiimperative standard. According to K.

Kruczalak, it is, however, primarily an expression of the statutory disapproval of the extremely reprehensible behaviour of the debtor, which would consist in intentionally damaging the[36]. Following K.

Kruczalak, the adoption of a different position would contradict the functions of civil law in society, in particular the preventive and educational function.

1.7. Final comments

The purpose of this article was to present the subsequent inability to provide services as institutions of civil law, to illustrate its functioning in Polish civil law, and to describe the legal effects of the Act on its occurrence.

To the extent appropriate, the side institutions were also described, without which the subject could not be exhausted.

If the legal relevancy of the institution's divisions of non-enforceability can be graduated into different forms, it appears that first the place should be broken down by prior and subsequent impossibility, based on the criterion of the moment of insurability as compared to the moment of the commitment.

second An extremely important division, which is already carried out within the framework of the irresponsibility, is the division into the inability of the debtor and one for which he is not responsible. The key nature of these divisions is expressed in all the different effects of the foregoing.

In view of the limited framework of this Article, the question of the so-called economic impossibility of benefits has been left out in full. In addition, the introduction of a novel with 28 July 1990 a general rebus clause sic stantibus, which undoubtedly limited the meaning of this concept.

The legal situation that is in place is undoubtedly correct. However, it seems that in order to obtain a clearer picture of the successor institution, it would be desirable to specify the inability to provide services in Polish civil law two lines. After first, Such a editorial change would help Article 493 k.c., from which it would clearly be possible to request the reimbursement of benefits from the debtor.

After second, The law should provide for an excess of the surrogacy over the actual damage to the creditor's assets due to default due to the impossibility of providing. The proposed changes, in the light of the considerations made in this study, would improve the functioning of the institution in legal trade.

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