Unadvised and blamed subsequent inability to provide benefits

The subject of the study is the continuation of the subject on the blameless and unguilty subsequent inability to provide services.[1].

After a preliminary definition of the concept of the inability to provide and its multiple forms, the following article discusses in detail the case of the successor inability to provide, for which no party is liable, and the impossibility of being blamed by the debtor.

The concepts and accompanying bodies are also described, essential for the overall nature of the study. Due to the principle of real execution of obligations adopted in Polish law, the obligation to pay is terminated as a result of the proper performance of the service promised by the debtor.

The study presents the following inability of the benefit which has its source in circumstances for which the debtor is not liable as well as those for which he is responsible. The rule on the normalisation of the effects of default from Article 471 Act on 23 April 1964 - Civil Code 2 (Next: k.c.).

1. Inability to benefit for which the debtor is not liable

1.1. Normalisation characteristics

Where the successor inability of the benefit has its source in circumstances for which the debtor is not liable, the obligation shall expire. The result is that the debtor is exempted from the obligation to provide and that compensation is excluded on his side. Ratio legis is based on two basic assumptions.

After first the benefit, if affected by impossibility, will no longer be fulfilled. Thus, according to the principle that impossibilium nulla obligatio est, the debtor cannot be further obliged to fulfil it.

After second, because the inability to provide is the result of circumstances for which the debtor is not liable, there is no reason to charge him with the negative consequences of the situation[3].

Moreover, the continuation of the obligation relationship, especially in the case of commitments, where both parties are both obliged and entitled to each other, if conceptually possible, would be far wrong in the real world. If, in fact, the hypothesis Article 475(1) k.c.

the obligation did not expire, there would be a situation in which the debtor, being himself exempt from the obligation to provide the benefit to the opposite party. It seems logical to say that the innocent inability to provide, unless it has negative effects on the debtor, should not lead to enrichment.[4].

As a general rule, the termination of the obligation resulting from the withdrawal from the mutual agreement shall take place ex tunc, from the moment the obligation arises. From now on, neither party may require the other party to provide the benefit. However, the impossibility must be permanent.

The transitory nature of the inability for which the debtor is not responsible only determines the postponement of the moment of the benefit. This will result in delay or delay of the debtor.

However, if a postponement would result in the loss of the importance of the service as contrary to the social and economic objective of the undertaking, such an obstacle should be regarded as permanent[5].

Where a party whose benefit has become impossible has received a benefit or part thereof, and the other party is required to return them as an undue benefit within the meaning of the provision Article 410(2) c. in relation to the collapse of the benefit base[6].

If the inability affects only part of the benefit and the benefit is divisible 7 , the undertaking expires only in respect of that part. However, if partial fulfilment of the benefit, due to the purpose of the obligation or the nature of the benefit, loses its importance for the creditor, the obligation will expire entirely.

It is true that the law strictly regulates this issue only with regard to obligations for the subject matter of the cross-service, and under Article 475 c.c. there is no mention of partial fulfillment. But generally both in the theory of law and practice, probably for reasons of rightfulness is used Article 495(2) k.c. also for commitments not having a mutual character.

The right to rely on the inability of the benefit shall be granted to both parties to the obligation relationship. The burden of proof falls according to the general rule to the affirmative.

In a situation where the debtor cites an inability for which he is not liable, the burden of demonstrating the circumstances which make the undertaking impossible shall always lie with him. It should be borne in mind that we will be faced with the impossibility of witnessing when the subject matter of the service is a matter of identity.

In accordance with the principle that the entire species does not die (genus perire non censatur) benefits having as their object a generic object are generally feasible.

However, it seems that the traditional thesis that a generic service must never become impossible to provide too far, and certainly does not refer to the so-called limited generic benefits[8] . The Civil Code does not state the circumstances for which the debtor is not liable.

However, it is known that this is a liability on the basis of guilt.

1.2. Obligation to return surrogates

According to Article 475(2) k.c. if the item in question has been disposed of, lost or damaged, the debtor must spend everything he has obtained in return for that item or as compensation for damage. The principle of surrogacy therefore applies.

It comes to the exclusion of things disposed of, lost or destroyed, from the debtor's property, optionally from another person's property, in cases where the debtor was obliged to provide another person's property, resulting in a certain entitlement on his side or, in the event of its implementation, a certain property benefit[9].

This means that unlike the regulation of section 1 that provision, the liability ratio does not expire – it continues, it changes only the subject matter of the benefit. Provision Article 475(2) k.c. should be treated as a special provision with respect to paragraph first This article.

Here it seems appropriate to clarify the meaning of the term ‘change in the subject matter of the benefit’. It is generally recognised that the subject matter of the benefit is the object to which the action or omission of the conduct of the debtor is intended to be in conformity with its obligation.

The contents of the debtor’s obligation shall be determined by the source of the specific obligation. Should the creditor exercise the right to request reimbursement of the surrogates, it is possible to two the ways of reason as to the consequences of this incident.

first, that due to the expiry of the obligation under the provision Article 475(1) k.c. and the submission of an appropriate declaration of intent by the creditor to return the surrogates, a new commitment arises[10].

second, that such an obligation does not expire, with a change in the subject-matter of the benefit on the side of which the benefit has become impossible. Behind the post first I'm sure it's literal. Article 475(1) k.c. and the fact that the old obligation usually expires in the event of a change in the subject matter of the benefit.

With support second the position is based on the fact that the legal relationship between the debtor and the creditor as a result of the declaration of intent to exercise the right to reimburse the creditor is very materially linked to the obligation existing between the parties prior to the moment when the benefit became impossible.

It is in this commitment that the legal basis for the obligation to reimburse surrogates should be found[11]. The author’s opinion is appropriate second concept. In the context Article 475(2) k.c.

is therefore a change in the subject matter of the benefit, which does not entail consequences in the form of a change in the source of the commitment itself and determines its continuity[12].

The debtor is obliged to issue all that he has obtained in return for the benefit of an insurance claim or in compensation from a person third. There are three possible situations as regards the ratio of the value of the original item of the benefit to the value of its equivalent that the debtor has received or is expected to receive.

first, when the value of the surrogate is higher than the value of the original benefit. second, where these values are equal, and third, in which the value of the original benefit will be a higher value. The right and right situation is second. It is also the most common in trading practice.

Usually, the equivalent that the debtor receives does not differ from the excess, loss or damage. This is in part due to the nature and purpose of the insurance contract and the institution responsible for damages to the property.

Others two However, cases are not irrelevant because their occurrences cannot be excluded and also have an indirect influence on the further relationship between the debtor whose performance has become impossible and the creditor.

Situation first, where the value of the surrogate exceeds the value of the original subject matter of the benefit, means the enrichment of the creditor. However, it is justified that the surplus in question comes directly from the object for which the service was originally intended.

The adoption of a solution consisting in the fact that the excess over the value of the item disposed of, lost or destroyed would stop the debtor would inevitably lead to its enrichment. Such enrichment would be unwarranted and unjust.

The situation seems more complicated. third, in which the equivalent value is less than the original value of the benefit. A creditor choosing to accept surrogates in such a dimension would be harmed. It is worth noting that the principle of surrogacy in situations falling within the scope Article 475(2) k.c.

applies only in cases where the subject matter of the benefit is a thing. The principle of surrogacy will not apply to other benefits. In particular, if we are dealing with the conclusion of a preliminary agreement.

The benefit in the pre-contractual agreement is to make a declaration of intent on the conclusion of the promised contract, it does not matter what would be the subject of such a declaration. The thing to be covered by the pre-contractual statement is not the subject of the contract and cannot be identified with it in any way.

1.3. Case of mutual commitment

Article 495 k.c. is a modification Article 475 k.c. and applies to mutual obligations. It states that a party to an obligation which has become impossible to perform cannot claim the opposite performance of the mutual benefit, and that, if so, it is obliged to return what it has obtained in accordance with the rules on unjust enrichment.

The same is true if the benefit one of the parties it became impossible only in part, this party loses the right to request part of the benefit of the opposing party.

The main difference is that where a partial fulfilment of the benefit due to the characteristics of the obligation or the intended purpose of the contract 13 loses to the opposite party in importance, it may withdraw from the contract. This provision is a natural consequence of the expiry of the obligation in this situation.

Further existence of a liability relationship, although conceptually not excluded, if impossible one the benefits for which neither party is responsible appear to be at least unjustified.

The commitment expires in full. This means that the obligation not only to meet the impossible but also to provide mutual benefits is lost to the actual situation. If otherwise, the party whose benefit has become impossible to perform, being exempt from the obligation, could claim the fulfilment of the mutual benefit.

Which would certainly lead to anything unwarranted enrichment. The obligation expires ex tunc. The obligation ratio is therefore nullified from the very beginning.

A party whose benefit has become impossible to fulfil not only has no reason to demand the fulfilment of the mutual benefit but should also return all that it has already received from second parties, whether it is all or part of the witnessing. The obligation to return is expressly provided for under Article 495(1) k.c.

and in accordance with its content, it should be assessed on the basis of provisions on unwarranted enrichment. Reciprocal benefit fulfilled before the expiry of the obligation due to the unwrought inability of the benefit, and the other party’s performance is therefore an undue benefit in the sense of Article 410(2) k.c.

With regard to the partial inability of mutual obligations, Article 495(2) ed. 1 the debtor whose performance has become impossible becomes free from the obligation to provide to the extent that the benefit is impossible. In the remainder, it should fulfil the benefit. The obligation therefore only partially expires.

Science and jurisprudence generally assumes that the rule in question, although expressis verbis expressed in the provision on strict mutual obligations, should also apply to commitments which do not have such a nature[14].

However, if, by nature, the mutual obligation, its competence or the intended purpose of the contract, the party known to whom the performance has become impossible would not have been partially implemented for second parties to the meaning, it may withdraw from the contract. This is also the case in the legislation Article 491(2) k.c.

Article 492 k.c. and Article 493(2) k.c., however, the difference is that in this case the outgoing party, due to the innocent nature of the impossibility, is not entitled to a compensation claim[15].

It would seem appropriate to provide a slightly closer presentation of the conditions for withdrawal from the mutual agreement, as mentioned under Article 495(2) k.c.

First, The question should be asked what the purpose of the agreement is and what the purpose of the agreement is not. Unable to describe the purpose of the hidden intent agreement one of the parties plans to implement[16]. Following S.

Grzybowski, the purpose of the legal act is also not the same for all activities of a given type of causam legal act. According to this author, the objective of the agreement should be identified with the socio-economic objective of a specific legal act[17].

The parties to legal acts shall, by concluding agreements among themselves, consider economic categories. This economic objective is primarily about the legal development of the obligation relationship. This is an individual objective and must be assessed separately for each contract.

It should be assumed that the purpose of the agreement is the specific economic objective to which the party has concluded the agreement and for which he wishes to receive from the opposing party the object of the mutual benefit[18].

It may turn out that it will simply not be possible to achieve the objective in question while partly fulfilling the benefit.

This will in particular be the case when the creditor's economic objective is to dispose of all the subject matter which he is obliged to provide to the other party, and the fact that the mutual benefit may be partially fulfilled is irrelevant[19].

As has already been said, the purpose of the agreement must be known to the party whose provision has become impossible.

The question is therefore to what extent, at the latest, the debtor should know of the individual purpose of the contract, so that the creditor can effectively rely on it, wishing to withdraw from the entire contract as a result of the loss of the meaning of the benefit by its partial impossibility.

Science has developed the view that a target designation in the content of the contract is considered sufficient, and if it has not been marked, it is sufficient that it was known to the party at the time the contract was concluded.[20].

1. Klein goes a little further on this point and defines as the intended objective any individual purpose of the creditor, which the debtor learned at the latest at the time the part of the benefit was fulfilled, but no later than when its provision became in part impossible to meet[21].

second the conditions for withdrawal from the mutual agreement, which have been exchanged under Article 495(2) k.c., is a situation where the partial execution of the mutual benefit is devoid of any relevance to the creditor due to the characteristics of the obligation.

It should be assumed that, citing the competence of the undertaking to justify withdrawal from the mutual agreement, the claim of indivisibility of the benefit may in particular be raised. It does not matter whether it is indivisible to provide the debtor or to provide the creditor.

The same situation will be the case if the creditor’s service is divisible, but not in such a way that it can be separated from the part or parts corresponding to that part of the debtor’s benefit which is still available for fulfilment[22].

As far as indivisibility of the benefit is concerned, the application a contrario of normal Article 379(2) k.c. we deal with it when we cannot meet the service in part without a significant change in its object or value. The formula of this definition consists of two parts.

first they concern the physical characteristics of the subject-matter of the benefit. For example, it is impossible to divide a living animal, agricultural machine or television without changing the essential properties of the object.

Part second the formula stresses the economic sphere of the benefit and requires account to be taken of the relationship between the value of the part of the benefit and the value of the whole.

It should be assumed that the benefit will be indivisible if the sum of the value of the benefits partially fulfilled would be less than the value of the benefit fully fulfilled.

In fact, therefore, the decisive factor in the distinction between benefits being divisible and indivisible will be the characteristics of the subject-matter of the benefit. Thus, the benefit will usually be divisible when the object is a generic object.

This is a consequence of the fact that such a benefit can normally be fulfilled in parts without changing its substance or affecting its value. The indivisible witness will always be the case if its object is an individual object or if the witness involves omission[23].

It must also be borne in mind that the benefit may become indivisible by the consent of the parties to the obligation relationship. Indivisibility of this type is identical in terms of legal effects with the impossibility described above.

It seems that, as regards the continuous obligations that are intended to satisfy the interests of the creditor over a certain period of time, there will not be any circumstances justifying the application of the provision. Article 495(2) k.c. If, on the other hand, a continuous commitment has not yet entered the implementation phase, there is no reason not to apply the right to withdraw from the entire contract, Article 495(2) k.c. 24 .

2. Inability to benefit for which the debtor is responsible

1. 1. Indemnification obligation resulting from Article 471 k.c.

Where the inability of the benefit is a consequence of circumstances for which the debtor is liable, the general rule k.c. applies concerning the normalisation of the effects of default from Article 471 k.c. 25 . This includes the grounds for liability, the burden of proof and the extent of claims against the creditor[26].

This appears to be the right solution and there is no need to create a separate regulation to regulate this issue.

This is due in particular to the fact that there is, in principle, no legally significant difference between the situation in which the debtor fails to fulfil the benefit and the situation in which he cannot comply with the obligation when acting in an impossible manner. Yeah.

In the first, and second the accident causes an effect in the form of an unexecuted contractual obligation lies in the proceedings of the debtor or the person responsible for the conduct of which he is responsible for as his own 27.

The basic right of the creditor in this case is to demand compensation for the resulting damage within the so-called positive interest of the contract. The creditor is supposed to find himself after the compensation has been paid in such a situation as he would have been in if the undertaking had been executed correctly. It must therefore cover all that the creditor could obtain through the performance of the undertaking[28].

1. 2. Rules governing the inability of benefits to Article 471 k.c.

Scope of the standard hypothesis under Article 471 k.c. is very broad and covers all possible forms of default or default. The provisions governing the inability of benefits concern only the effects one because of this failure.

It follows that the hypothesis of a specific standard contains all elements of the general standard and, in addition, its only appropriate components[29]. Any inability to provide, leading to default, falls within the hypothesis Article 471 k.c. The ratio in question is therefore the ratio of a specific standard to a general standard.

The consequences of such an assumption are as follows. After first, since the legislator has regulated in detail the effects of the inability to provide, in assessing issues relating to this particular institution, it is necessary to apply primarily and First, Regulations regulating it.

After second and, where it turns out that a specific regulation is insufficient for various reasons, it is to the provisions which standardise the non-execution of an obligation in general (Article 471 k.c. and n.) And yes, if Article 475 k.c.

normalises the effects of the inability of the benefit resulting from circumstances for which the debtor is not liable, thus it is excluded that the standard contained in the provision should be applied (even if necessary) Article 471 k.c. And if we're dealing with Article 493 k.c.

governing the effects of the inability to provide the debtor, but only in respect of mutual obligations, then if the obligation is not a mutual obligation and the impossibility is the result of circumstances for which the debtor is liable, the rule should be applied 471 k.c.

Broad hypothesis of the standard under Article 471 k.c. also includes those cases of liability due to the inability of the benefit, which are not regulated separately and clearly constitute non-execution of the obligation. It can be concluded that in terms of standardising the inability of benefits Article 471 k.c. is of a subsidiary nature in such a way that, in in detailed cases, it regulates the effects of inability to provide, provided that such inability leads to default[30].

2.3. Contract liability regime

It seems reasonable at this point to draw attention to the principles of the ex contract liability regime. The liability of the debtor for defaulting, relatively inadequate performance, is one from the basic institutions of contract law.

However, the rules governing this issue apply, not as the name would suggest only to contracts, but to all obligations, regardless of the origin of the[31]. The injured person and the responsible person must combine the liability ratio in which the damage occurred. No link in question excludes application Article 471 and n.

So will not be held liable by the contractual person third, which has caused or contributed to the default or breach of the obligation. Similarly, if a breach of the undertaking has caused injury to a person third, it cannot rely on a relationship that is not a party. It remains her vocation to Article 415 k.c.

on the assumption that the perpetrator has breached the general obligation to which each person must comply[32].

The exception to this rule is always the situation where the creditor is a person acting as an indirect substitute, as a contractor, freight forwarder, commissioner or agent, because it is not the person who suffers damage due to failure (inadequacy) to fulfil the obligation.

Usually the entity in which the damage arises is the person in whose account the contract was concluded[33]. Since that entity is not a party to a liability relationship whose infringement has led to damage to its assets, it is also not entitled to pursue a contractual compensation claim.

On the other hand, to that power do not have an indirect deputy, because he is unable to demonstrate damage to his assets. In such situations, the most reasonable solution appears to be to give the alternate indirect opportunity to seek compensation for damage suffered by the substitute.

Only later would the amount of compensation be transferred to the person replaced by another legal relationship[34].

There are three the essential grounds for liability of the debtor. These are non-execution or undue performance of the undertaking, damage on the part of the creditor and a causal link existing between the non-execution or improper execution of the undertaking and the resulting damage.

While investigating the birth of contractual responsibility, First, the question of whether there has been injury on the part of the creditor should be answered. Only if a positive response is given can it be verified that there are other conditions.

Therefore, the most important of the above is the condition of injury and will be discussed as first[35]. The concept of injury is not clearly defined in k.c. Against the background of other Codex provisions affecting to varying degrees of this concept, the content of such a definition can and should be established[36].

In particular, since the common meaning of the time-limit is not absolutely identical to the damage to which the provisions will arise, the obligation to remedy it[37].

In the Polish doctrine, according to the theory of difference, the damage is commonly referred to as a damage in legally protected goods, expressed in the difference between the state of the goods which existed and which it would possibly have produced and the state which caused the change in the present state of affairs and with which the legislature combines compensation liability[38].

It is important that this be an injury against the will of the victim. This principle distinguishes damage from any kind of depletion occurring according to the will of the person concerned[39].

The purposeful and intentional acts of the entity that decide to decrease and cannot be considered in the category of damage are, for example, voluntary disposal or consumption of goods or voluntary increase of liabilities.[40].

The rightholder's will also does not matter when it comes to the exclusion of the unlawfulness of another person's action, interfering in the sphere of the rightholder's property[41].

The damage is dynamic. Events that cause damage can and often cause damage not only to goods that are directly affected. Negative consequences extend to the other goods of the victim, affecting the entire sphere of his interests (e.g.

loss of interest) one only an exhibit of a given collection covering the entire series determines the loss of the value of a given exhibit, but also the decrease in the value of the entire collection, which has become incomplete. The damage can expand over time, some events cause more. A chain of adverse accidents can be very long.

Of course, not all negative consequences of an event with which the law binds liability will constitute the damage attributed to the person responsible[42].

Defining damage as any damage to legally protected goods is undoubtedly a very broad take. It also includes material and non-material damages. However, as regards the contractual liability regime, according to most doctrines, only monetary compensation for property damage is allowed.[43].

The debtor shall not be liable for the damage suffered by the creditor by default. The adoption of a different position would lead to the conclusion that compensation should always be paid to the creditor in the event of a breach of the debtor's obligation and, as a matter of fact, independently of compensation for damage to property.

It must be accepted that any breach of the content of the obligation, in the form of its improper execution, and in particular of the default of the debtor, has a detrimental and negative feeling on the part of the creditor.

By way of compensation for inability to obtain compensation for harm in this case, the benefit of the fact that is different from the liability of the delict of the burden of proof[44].

The damage to property is such a damage to goods and business that has a property value, i.e. a value that can be expressed in money. This also applies to situations where the very good of property value does not exist, but can only be restored to the previous state by financial outlays.

Also, when a direct infringement of the non-material good involves a violation of the property interests[45]. The determination of the difference between the current and the hypothetical state may occur in two ways.

After first, in a situation where the damage resulted from the perpetrator's action, it should be abstracted from a certain event that actually occurred and was the cause of the injury to make an account of the condition that is, and a condition that would hypothetically exist if the event had not been.

After second, where the damage is due to omission, the situation of the injured person should be reconsidered in a different way if he behaved as he should have behaved in accordance with the obligation[46].

According to Article 361(2) k.c. the damage to the victim may take two forms. This may be a loss determining the actual change in the status of the injured person by reducing his assets or increasing his liabilities ( damnum ergens ).

These may also be the benefits that the injured person has lost because of the damage caused by the failure to increase the active position of the injured person's property, which would have occurred if there had not been an event that caused the damage.

In no case should the benefits described above be confused with the so-called ‘possible damage’, i.e. the chance to obtain a certain asset benefit. The demarcation between these seemingly similar concepts should be carried out by means of a criterion of probability of fulfilment.

In the case of lucrum cessans, the hypothesis of loss of benefits certainly borders, and in the case of possible damage is much lower.

It is certainly much easier to determine the amount of loss itself than to determine the amount of loss. It's the hypothetical nature of these. second. In order to determine whether certain losses are compensated, it is appropriate to First, establish the extent to which the objective possibility of their implementation took place.

It is not a simple matter to indicate a clear boundary between losses and lost benefits within the framework one the facts. However, it should be borne in mind, as further explained in the article, that the applicable principle of full compensation may be subject to contractual restrictions between the parties or the law.

Then the problem becomes meaningful[47].

Polish civil law applies the principle of full compensation. It's a recipe. Article 361(2) k.c. The compensation in principle therefore covers both the loss suffered by the injured person (damnum emergens) and the benefits which he could have achieved if the damage had not been caused (lucrum cessans). The way this principle is expressed is not firm, because it allows two important exceptions.

After first, the principle is limited in the sense that an adequate causal link affects the extent of the compensation, reducing it and delimiting it. After second, the provision allows for the possibility of varying the scope of liability in the law or the will of the parties themselves in the contract.

As far as the law is concerned, the modification may consist in either specifying in the content of the standard a different scope of responsibility than that specified under Article 361(2) k.c. or at the discretion of the court to determine compensation[48].

According to the literal wording of the provision Article 471 k.c., the damage must be due to default or default. The Act therefore establishes a requirement that there is a causal link between the damage and the event in which the undertaking is breached. Provision Article 361 k.c.

provides for normal consequences of action or omission resulting in damage. This relationship must therefore be a normal relationship. It is worth mentioning that this criterion of normality should not be interpreted by considering it through the prism of prediction.

The question of the perpetrator's prediction of certain effects is determined by his guilt because he is closely linked to his knowledge. It seems to have nothing to do with the causal relationship itself.[49]. There are two factors determining the scope of normal consequences. first It's a fact of increasing probability.

second and the constant nature of the link between the appearance of the cause and the increase in probability. The degree of increase in probability of a specific consequence should be determined by comparison two types of situations.

One in which a particular cause occurs, with one in which, despite being identical in essential respects, there is no such cause. Following A. Kochem, the normal consequence of a given cause is usually its effect, the probability of which is always increased by the occurrence of the cause of the same type.

According to the literal sound Article 471 k.c., the damage must be due to a failure to execute the undertaking, which is relatively inadequate. The question is, what is this failure?

Failure to comply with the obligation occurs when the performance of the benefit has not been fulfilled and there are circumstances which exclude the possibility of performance in a later period.

The basic form of default is the permanent and total inability of the benefit. The transitional nature of the inability to provide benefits prejudges the need to qualify it, depending on whether the debtor is responsible for it or not, as delay or delay. In one only if the fulfilment of the benefit at a later date than the contract would render it less relevant to the creditor should the temporary impossibility be considered as final[50].

We are also dealing with non-execution in cases other than those related to the inability to provide, but due to the subject matter of the work they will be omitted here. The Polish legislature regulates the inability to provide benefits as a specific form of default. It also assumes that it is one of many possible reasons for default.

2.4. Entitlement to request surrogates instead of impossible service

There is no doubt that damage is caused each time by the inability to provide the debtor. Such a loss takes the form of failure to obtain a benefit because it has become impossible. The creditor shall be entitled to compensation corresponding to the value of the benefit.

There is a change in the content of such an obligation in the sense that the obligation to provide compensation. It should not be forgotten that, according to the general rule of the creditor, any other damage suffered by the undertaking has also to be recovered.

The question of whether, although the creditor’s interests are satisfied by the granting of compensation, the creditor still needs to be able to claim reimbursement of the benefits. The Civil Code does not provide for such a solution, or at least it does not do so explicitly.

The principle of surrogacy laid down in the provision Article 495(2) k.c. refers to the situation described in the preceding chapter, i.e. where the inability to provide is due to circumstances for which the debtor is not liable. This provision does not contain a reference or reference to its application in the event of an impossibility.

However, it should be noted that the way it is formulated does not exclude this possibility either[51].

However, the position of the Polish doctrine on this issue is consistent. It is widely accepted that a claim for surrogacy of the benefit is also granted to the creditor if the debtor is held liable for the inability of the benefit[52].

The basic argument by which the accuracy of such interpretation can be justified is the following, since the debtor is required by law to issue surrogates of the benefit at the creditor's request where the impossibility of the benefit was the result of circumstances for which the debtor is not liable, it is by application a maiori ad minus that obligation also where he is liable.

It is easy to imagine a situation in which the creditor asks the debtor to issue surrogates regardless of the compensation claim for failing to fulfil the obligation due to the inability to provide. In this case, however, it is necessary to reduce the amount of compensation by the value of the surrogates issued.

However, since the request for a surrogacy is only the creditor's right, the debtor may charge the surrogacy for compensation only if the creditor makes such claims.

The obligation to reduce compensation for the value of surrogates described above derives directly from the principle of compensatio lucri cum damno in force in civil law, according to which any benefit that the injured person may have gained from the event causing the damage must be counted as compensation.

In other words, if one and the same event caused damage and benefit to the injured person's property at the same time, it is ultimately necessary to take into account the situation resulting from the compensation of both values, but the condition that compensation should not exceed the damage actually suffered by the injured person[53].

Assuming that a surrogate in this situation would be the debtor's claim against persons third for the issue of goods or obtaining from persons third compensation, and the price or other equivalent obtained by the debtor for the disposal of goods to the person third, the compensation of the values obtained by the debtor of the surrogates with the compensation due to the creditor due to the impossibility of the benefit appears to be justified as much as possible.

In this case, the event which simultaneously causes damage and benefit is disposal, loss, or damage to the item in question. Typical in such situations due to the principle of full compensation is that the value of surrogates is lower than the amount of compensation due.

In a typical situation, therefore, if the debtor decides to exercise his right to claim reimbursement of the surrogates, Next, may request compensation to the extent that it has not been covered by the value of the surrogates.

However, the question should be asked whether, in view of the pre-described principle of compensatio lucri cum damno, the amount of compensation does not exceed the amount of damage actually suffered by the injured party, it is justified to issue all the surrogates also where their value exceeds the amount of compensation due[54].

Well, the positions on this issue are divided. Alfred Ohanowicz takes the view that the nature of the obligation to repay the surrogates is to conclude that it would be wrong if the creditor, bearing the risk of accidental inability to provide the benefit which the debtor enjoys for the same reason[55].

All the more so, when we are faced with an improbability. Author distinguishes two the types of benefit – one resulting from the loss of a thing and the benefit resulting from the so-called amortisation of the debtor.

In his opinion, allowing each debtor to retain part of such an advantage would result in developing a preventative activity at the expense of creditors' interests, which would be incompatible primarily with the principles of social coexistence (example by which the activity in question can be well illustrated is the case of the debtor deliberately selling the goods to a person third for a price higher than that agreed with the creditor).

This infringement is indisputable, especially in the case of the debtor's fault.

According to authors such as Roman Longchamps de Berier or Witold Czachórski, the principle of surrogacy should be limited to the benefits of an event causing the inability to provide (ex re benefit).

The advantage resulting from the sale of the goods to a person other than the creditor is an ex-negotiatione benefit and is not recoverable.

Despite the fact that the Act does not explicitly provide for the application of the principle of surrogacy in the event of a faulty inability to provide a service and in this context such an impossibility should be combined First, with a compensation obligation, and thus the principle of compensatio lucri cum damno apply rigorously, respecting all her demands, then the top should take the considerations of right.

In conclusion, it must be stated that the right to demand the granting of the surrogacy of an impossible benefit is also granted to the creditor when their value exceeds the amount of compensation due[56].

3. Final comments

This article describes an extremely important division of the inability of the benefit, carried out within the following impossible circumstances, i.e. the inability of the debtor and one for which he is not responsible. The key nature of this division is expressed in all the different consequences of these kinds of inability.

The provisions laid down in the non-enforceability of the service, resulting in the expiry of the obligation, shall cover situations where, upon the establishment of the undertaking, the condition of complete, permanent and objective inability of the debtor to act in a manner resulting from the content of the obligation arises.

In the second The principal right of the creditor will be to seek compensation for the resulting damage within the so-called positive interest of the contract. The creditor is supposed to find himself after the compensation has been paid in such a situation as he would have been in if the undertaking had been executed correctly.

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BIBLE

Book items

Błahuta F., Civil Code: comment, t. 1, Warsaw 1972, p. 1172.

Czachórski W., Commitments – outline of the lecture, Legal Publishing House LexisNexis, Warsaw 2007.

Domański L, Institutions of the Code of Obligations, General part, Warsaw 1936.

Grzybowski S., Civil Law System, Obligations Law – General Part, Vol. III – Part. 1, Ossolinski National Plant, Wrocław 1974.

Kitłowski E., Indigenous Surrogacy in Civil Law, Legal Publishing House, Warsaw 1969.

Klein A., Legal right of withdrawal from mutual agreement, Ossoliński National Plant, Wrocław 1964.

Koch A., A causal link as the basis for liability in civil law, PWN, Warsaw 1975.

Kruczalak K., Effects of inability to provide according to civil law, Legal Publishing House, Warsaw 1983.

Ohanovich A, Górski J., Contract of contract law, PWN, Warsaw 1970.

Pajor T., Liability of the debtor for defaulting, PWN, Warsaw 1982.

Petraniuk J., Withdrawal from contract in civil law, KUL Scientific Society, Lublin 2009.

Pietrzykowski K., Civil Code – Commentary, Vol. II, C.H. Beck Publishing House, Warsaw 2005.

Radwański Z, Olejniczak A., Obowiądzanie – general part, Wydawnictwo C. H. Beck, Warszawa 2008.

Wiśniewski T., Commentary on Civil Code – Book third. Commitments, t. 1, LexisNexis, Warsaw 2006.

Judgment

Resolution of the full composition of the Civil Chamber of SN from 19 December 1972, reference no. OSNCP 1973, No 3, item 37, point 3.

Judgment of the Supreme Court of 29 June 2005, reference no. V CK 105/2005, LexPolonica No. 1631149.

Judgment of the Supreme Court of 5 October 2006, reference no. IV CSK 157/2006, OSNC Directive 2007/7-8, item 114.

Judgment of the Supreme Court of 15 May 2007, reference no. V CSK 30/2007, LexPolonica No. 1765112.

Judgment of the SA in Katowice 3 July 2008, reference no. V ACa 199/2008, LexPolonica 2064146.

Magazine

Lewaszkiewicz-Petrykowska B., Inability to provide a successor, “Legal and Economic Studies”, Łódź 1970, t. IV.

Radwański Z., Notes on permanent liabilities against the background of the Civil Code, “Civil Studies” 1969, t. XIII–XIV. Romanowski M., Pity as a premise of contractual liability of the brokerage house, “Law Monitor” 1998, No 7.

Sinkiewicz A., Concept and types of damage in Polish civil law, “Rejent” nr. 2(82), February 1998.

Spunar A., Scope of the obligation to repair damage, ‘State and Law’ 1960, No 1, p. 30-31.

Wiśniewski T., Right of detention in the Civil Code – Part I, "Court Review" 1999, No 2.