On 8 November 2019 The Supreme Court adopted a resolution according to which the spouse of the personal debtor is a debtor who bears liability to the creditor limited to the assets of the joint spouses.
This resolution was adopted in response to the legal question put forward as follows: “or the granting under Article 41 a family and caring code to a creditor whose personal debtor is one from the spouses, the possibility of demanding satisfaction from the common assets causes that second becomes a debtor in the sense of material law, with a limitation of his liability to property covered by the common interest, or is it merely the duty of such a spouse to abolish execution from the common property? “
Assessment of liability of the debtor’s spouse for incurred debt
At this point it is worth pointing out that according to Article 41 k.r.o., concerning the liability of spouses for commitments entered into by one of which if the spouse has entered into an undertaking with consent second the spouse, the creditor may also demand the satisfaction of the property of the spouse. On the other hand, if the spouse made a commitment without consent second spouse or commitment one the spouses do not result from a legal act, the creditor may require the satisfaction of the debtor's personal assets, the remuneration for the work or income obtained by the debtor from other gainful activities, as well as the benefits obtained from his rights in question under Article 33(9), and if the claim has been established in connection with the running of the undertaking, also with the assets of the undertaking.
Provisions Article 41 k.r.o. therefore concerns a situation where the debtor is one married. In the case of a debt entered into by both spouses, the property regime to which the debtor’s spouses are subject is irrelevant. By law Article 41 k.r.o. may be distinguished by the following commitments:
- 1) received with the consent of the spouse;
- 2) enlisted without the consent of the spouse;
- 3) arising before the birth of the partnership or concerning the personal property of the spouse;
- 4) the company.
This division was carried out on the basis of the criterion that the creditor could satisfy himself with the common assets. When assessing the liability of the debtor’s spouse for commitments entered into by the other spouse; it should therefore be determined whether the undertaking was entered into with his consent.
The positive response implies the possibility of satisfying oneself without restriction from the common assets and the negative satisfaction only of certain common assets, including, in particular, remuneration for work and income generated from the business activity.
Previous Supreme Court case law
In its previous case-law, the Supreme Court stressed that the consent to the undertaking does not make the consenting spouse a party to the contract. According to the SN judgment, 11 June 1999, II CKN 390/98 , LexPolonica No.
337868: „the spouse, when agreeing to grant a loan by the spouse having a legal activity exceeding the ordinary management of common assets, does not become a party to the loan agreement.
Therefore, there is no necessary co-participation between the spouses in the case of a spouse seeking repayment of the loan.’ This argument must be fully divided. The legislator clearly distinguishes the consent of the person third from a statement of will that is a constitutional element of legal activity.
The recognition that the debtor's spouse would become a party to the legal act would lead to a breach one from the principles of civil law, which is the autonomy of will, which is manifested in the freedom of choice of the counterparty. Therefore, imposing a contract on the parties as a counterparty would be contrary to this principle.
At the same time, it should be noted that, as a general rule, each spouse manages its own property. If the party is one of spouses, there is no basis to believe that second they also become a contracting party. The consequence of distinguishing a material debtor from an enforced debtor is the need to sue only this first.
Passive procedural clearance, i.e. the ability to appear in a specific trial as a defendant, shall be granted to a debtor spouse rather than a debtor spouse. The liability of the debtor’s spouse is the subject of the court’s cognizance in the procedure for granting a feasibility clause in accordance with Article 787 k.p.c.
In addition, it should be pointed out that according to the current thesis in the Supreme Court judgment, dated 17 June 2016, IV CSK 654/15 – „granting to a creditor whose personal debtor is only one from spouses, the possibility of demanding the satisfaction of their common assets, does not result in the other spouse becoming a debtor in the sense of material law, and so on when the declaration of enforceability is issued against them.
The spouse, who was not a party to a legal act generating an obligation to provide to the creditor, does not therefore become a co-debtor, and the duty of such a spouse is merely to abolish the enforcement of the common assets.’ The possibility of satisfying the creditor with the assets of the spouses on the basis of Article 41(1) k.r.o.
does not mean that the spouse of a personal debtor himself becomes the debtor of that creditor (SN judgment) dated 4 November 2010, IV CSK 141/10 , non-publ.; judgment of SN dated 24 June 2005, V CSK 799/04 non-publ.; justification for the resolution of the SN dated 24 October 2003, III CZP 72/03 , TSO Directive 2004/9/116; resolution of SN dated 27 September 2000, V CKN 1506/00 , nopubl.).
According to the caselaw cited, therefore, there is no possibility for the creditor to bring proceedings against both his personal debtor and his spouse.
This issue, even though it became the subject of the Supreme Court resolution, still seems to raise doubts about the status of the debtor's spouse.
Based on the signature case III CZP 36/19.
Author: Michał Wasilenko
Lawyer, Senior Associate in the Legal Department, member of the Bar Association in Lublin, graduate of the Faculty of Law and Administration at Maria Curie-Skłodowska University in Lublin. He specializes in commercial and civil law law.