The problem of evasion to the conclusion of the promised agreement has been standardised in Article 390 KC. In accordance with its wording, if a party obliged to conclude a contract promised to withdraw from its conclusion, the other party may claim compensation for damage suffered by having hoped to conclude the contract promised.
A waiver from the conclusion of the promised contract is an example of a default if the debtor fails to meet, for reasons attributable to him, a benefit from a valid pre-contractual arrangement. Absence from the conclusion of the promised agreement is a lack of readiness to conclude the agreement, or a lack of willingness to conclude it. We are therefore talking about a conscious action or omission aimed at the unfounded absence of a promised agreement. This is not only a refusal to conclude a contract, but also any negligence preventing the conclusion of a contract promised in accordance with a preliminary agreement. Examples of evasion are:
- unfair inactivity of the debtor,
- not justified by the lack of adequate power of attorney,
- failure to organise the documents required for the conclusion of the promised agreement,
- failure to exempt the subject matter of the benefit from the burden on it,
- the absence of a legal title to the subject matter of the benefit from the promised contract, in particular where the promised contract would have a double effect,
- no interaction required for the conclusion of the contract[1].
The implementation of the compensation claim requires the deadline for the conclusion of the promised contract and for the debtor to evade the conclusion of the promised contract.
It should be noted that the provision Article 390 The KC is not applicable in the case of the subsequent inability to provide benefits for reasons beyond the control of the debtor. Absence from the conclusion of a contract should be understood only as unfounded refusal.
Thus, we will not be faced with evasion of the conclusion of a contract promised when the debtor does not enter into such an agreement due to the circumstances for which the other party is responsible.
Consequently, a party obliged to conclude a contract promised may derogate from its conclusion where the conclusion of the contract promised has been subject to the fulfilment of certain benefits by the other party and that party does not fulfil the agreed benefits.
The parties may, in a preliminary agreement, determine differently the extent of the compensation by extending or narrowing the scope of the compensation. It is worth pointing out that the debtor may be exempted from payment of compensation by the execution of a preliminary contract.
Claims from a preliminary contract shall expire one year from the date on which the contract was to be concluded. However, it should be borne in mind that the application for the conclusion of the contract does not interrupt or suspend the limitation of the compensation claim.