Z. Nagorski, Codification of Civil Law in Poland 1918-1939, in: Studies in Polish and comparative law: a symposium of twelve articles, London 1945, 44-69
author: Z. Nagorsk; Nagórski, Zygmunt
source date: 1945
availability: non indiqué

﻿44 CODIFICATION OF CIVIL LAW IN POLAND (1918—1939) Member of the Polish Bar Poland, reborn in 1918 after the final settlement of her political frontiers, inherited from the countries which had partitioned her at the end of the eighteenth century various systems of civil law. The ancient Polish law, dating from before the partition of the Polish Republic in 1795, had been suppressed by the partitioning powers and its development consequently interrupted, and foreign law had been forcibly imposed in its stead. When, after the end of the First World War, the Poles resumed their independent national life, they found the territory of the Polish State divided into four different legal areas, viz.— 1. Western Poland, which had been incorporated first into Prussia and then into the German Reich. In this area the German Civil Code (Deutsches Buergerliches Gesetzbuch), together with all the German and Prussian Acts which supplemented or developed that Code, was in force from 1900; the German Commercial Code (Deutsches Handelsgesetzbuch) was also in force. 2. Southern Poland, which had been occupied by Austria and had at that time been given the name of Kingdom of Galicia and Lodomeria. The Austrian Civil Code of 1811 (Allgemeines Zivil-Gesetzbuch) was in force in this area, together with the Austrian Commercial Code and other Acts relating to these two branches of law. 3. Central Poland. In 1807, out of a part of the ancient Republic of Poland, Napoleon created the Duchy of Warsaw and introduced there the Civil Code bearing his name, the French Commercial Code and the French Civil Procedure. The Congress of Vienna transformed in 1815 the Duchy of Warsaw into Kingdom of Poland reshaping at the same time its area and uniting it by a personal union with the Russian Empire on the basis of constitutional self-government.

﻿CODIFICATION OF CIVIL LAW IN POLAND (1918—1939) 45 It was called by the Poles “ Congress Kingdom.” In this area French laws remained in force. The Polish Legislative Assembly or Diet made, however, important amendments to the Code Napoleon by passing the following two Acts. (a) The Act of April 26th, 1818, enacting the law of real property and mortgages, amended by the Act of June 13th, 1825, repealed the whole Chapter XVIII, Book III, of the Code Napoleon and substituted, in its place, laws which regulated these matters in a manner very different from the French system. (b) In 1825, the Polish Diet decided on a complete abrogation of the Code Napoleon and to replace the French Civil Law by a purely Polish system. This project, however, was realised only in part, because the Bill passed by the Diet and entitled “ The Civil Code of the Kingdom of Poland ” was limited to matters regulated by Book I of the Code Napoleon. Finally, after the abolition of the Polish Diet by Russia in 1831 the provisions of the Code Napoleon and of the Polish Civil Code of 1825 relating to marriage were repealed by a decree of the Russian Emperor and replaced by the Marriage Law of 1836. This law abolished civil marriages and civil jurisdiction in matrimonial cases; made religious marriage obligatory; prohibited marriages between Christian and non-Christians, and transferred matrimonial cases (divorce and judicial separation) to the exclusive jurisdiction of ecclesiastical Courts of various denominations. As the foregoing statements show, the French law relating to real property and mortgages, persons and personal relations, and marriage and divorce and applying to Central Poland was either superseded or amended. 4. Eastern Poland, which had been annexed by Russia and enjoyed no autonomous rights. Russian Civil Law, as contained in Part I, Volume X, of the Russian Code of Laws (Zwod Zakonow) was in force in this area. To assist the British reader it should perhaps be mentioned that in Polish jurisprudence the expression “ Civil Law comprises all those branches of private law which, according to Continental notions, are contained in “ codes ” of the various Continental countries; e.g., the provisions relating to persons and personal relations; marriage and divorce; contracts and torts; property; possession; mortgages;

﻿46 CODIFICATION OF CIVIL LAW IN POLAND (1918—1939) and wills and inheritance—testamentary and intestate succession. COMMISSION FOR THE CODIFICATION OF THE LAW Immediately after the rebirth of the Polish State in 1918, it was realised that one of the fundamental conditions of national resurrection and of the reunion of all the provinces must be the unification of the various legal systems and particularly of the Civil and Criminal Law. It was also realised that the achievement of this purpose and the evolution of a uniform system of Civil Law for the whole country was a most complex problem, the solution of which would demand much time and effort. It was known and remembered that in Germany—which before 1900 was split into a great many provinces each possessing a different system of private law—thirty years in a peaceful world and in a period of economic prosperity were needed to prepare the new German Civil Code. Similarly in Switzerland, where each canton had its own civil legislation, it required many years to prepare and draft the new Civil Code which was published in 1907 and became law in 1912. In this connection it must be emphasised that both Germany and Switzerland enjoyed an uninterrupted existence as States and legal entities with an ancient and continuous national tradition in the administration of justice and in university teaching. Poland was in a much more difficult position. The continuity of Polish legal traditions had been ruthlessly severed. With the exception of those branches of Civil Law applying to Central Poland and which, at the beginning of the nineteenth century, were amended by the last Parliament of a Poland maimed by the decisions of the Vienna Congress, all of the four different systems of law introduced in Poland were of foreign origin. These systems not only disregarded particular Polish needs and customs and overlooked the economic and social exigencies and the general views of the Polish nation, but were often—especially under Prussian and Russian rule —deliberately directed against Poland and her people. National solidarity and the instinctive urge for political unity of all parts of ancient Poland were, however, so strong that, once freedom was regained, not even a hundred years or more of domination by three different foreign powers

﻿CODIFICATION OF CIVIL LAW IN POLAND (1918—1939) 47 could prevent the immediate removal of all traces of slavery. The four different legal systems were the most burdensome heritage of this period of slavery. The four years of military operations of the First World War had wrought great devastation on Polish territory and made much more difficult the task of unifying the law. The people of Poland, scattered all over Europe, gradually returned to their own homes. First it was necessary to organise State administration, to open Polish Courts, rebuild roads and railways, and resume work on the land and in the towns. Despite this state of affairs and the enormous work which lay ahead in all spheres of national life, the need for a uniform legal system was kept in the foreground and work on it begun at once. As a first step the most glaring differences existing between certain provinces were removed. For example, by the Act of October 21st, 1919, majority, which according to Austrian Law was attained on the twenty-fourth birthday, was altered in Southern Poland to twenty-one years of age so as to conform with the law of the other Polish provinces. To complete the picture, one should bear in mind that a small portion of South-Western Poland which before the First World War belonged to Hungary (Orava and Spiz—“ Szepes ” in Hungarian), was governed by Hungarian law, based for the most part on custom or unwritten law. To liquidate this fifth and very small legal area it was in 1922 brought within the scope of the Austrian codes applying to Southern Poland, viz., the Civil and Commercial Law and the laws relating to Bills of Exchange, Cheques, Mortgages and Bankruptcy. In view of the fact that in Eastern Poland the Law of Property had been based on the Russian land law, a system which was completely alien to the western ideas with which all Poland was familiar, the Polish Acts of 1818 and 1825 enacting the law of real property and of mortgages were made applicable to this territory as early as August 31st, 1919. As a result, Central and Eastern Poland, being the whole of the territory gained from Russia, then had uniform laws so far as real property and mortgages were concerned. But these piecemeal changes and modifications were insufficient. What was needed was the creation of a new Polish legal system, a uniform system for the whole country,

﻿48 CODIFICATION OF CIVIL LAW IN POLAND (1918—1939) and one adapted to the modern needs and views of the people. On June 3rd, 1919, the Bill providing for the setting up of a Commission for the Codification of the Law was passed. Under this Act, the functions of the Commission were: (a) to prepare schemes for a uniform system of civil and criminal law for all the provinces of Poland; (b) to draft such Bills as the Commission might be required to prepare either by resolution of the Diet or by and in co-operation with the Ministry of Justice. The draft Bills prepared by the Commission for the Codification of the Law were to be submitted to the Diet by the Minister of Justice. The Commission for the Codification of the Law was duly set up and consisted of a Chairman, three Deputy Chairmen, and forty members. The first forty members, as well as the Chairman and the Deputy Chairmen, were appointed by the President of Poland on the recommendation of the Minister of Justice made with the concurrence' of the Speaker of the Diet. Subsequent members were appointed by the President of Poland on the recommendation of the Chairman of the Commission. The organisation of the Commission, including the time and place of its sittings, and the manner of carrying out its terms of reference, was to be settled by the Commission itself and set out in Rules of Procedure. The Minister of Justice had his permanent delegate on the Commission and, in addition, could either personally take part in the meetings of the Commission and of its committees or send his representatives. Thus the Commission was a body of experts appointed by the President of Poland on tbe recommendation of their own Chairman (with the exception of the first members) and completely independent of the Government both as regards its organisation and its interpretation of its terms of reference. The Commission could not, however, submit its reports and schemes to the Diet direct but had to present them to the Government through the Minister of Justice. The Government, being responsible to the legislature for the administration of the national policy, decided whether or not to adopt the reports and schemes of the Commission and bring them before the Diet through the Minister of Justice. Some of the draft Bills prepared by the Commission were introduced in the Diet without any alteration; others were not introduced until

﻿CODIFICATION OF CIVIL LAW IN POLAND (1918—1939) 49 major Or minor amendments to them had been made by the Government. The draft Bills relating to marriage, which the Commission presented to the Minister of Justice in 1926, is the only Bill drafted by the Commission which the Government failed to submit to the Diet. The setting-up of the Commission was not an easy task. When Poland regained her independence the number of Polish lawyers was far too small for the new national needs, yet they had to fill all the posts in the newly created system of Courts (during the German and Russian occupation the Polish language was not allowed in the Courts and there were no Polish judges); in the legal profession; and in the numerous administrative offices. They had also to take over the teaching of law in the Universities of Warsaw, Cracow, Lwow, Poznan and Wilno. It was impossible, therefore, to reserve highly qualified jurists exclusively for the work on codification. The difficulty was overcome by appointing as members of the Commission, professors, judges, advocates and notaries who, for the most part, continued their ordinary occupations and consequently could devote only part of their time to the work of unifying the law. Except for the Chairman and the general secretary, each of whom received a salary, the members of the Commission were not remunerated for their work, but they were reimbursed their travelling expenses and they were paid modest fees for preparing reports and draft Bills for the Commission. This inevitable state of affairs was not conducive to rapid progress in the work entrusted to the Commission. In the course of twenty years, however, the Commission completed its work on a number of Bills of great importance and considerable length. Apart from its activities in the field of Civil Law, which will be mentioned separately, the Commission drafted the Bills which eventually became the following laws, viz.:— (1) Law relating to the Organisation of the Courts (February 6th, 1928). (2) Code of Criminal Procedure (March 10th, 1928). (3) Code of Civil Procedure (November 29th, 1930). (4) Criminal Code—Petty Offences Act (July 11th, 1932). Law of Bankruptcy } Law as to deeds oi arrangement 4 B.

﻿50 CODIFICATION OF CIVIL LAW IN POLAND (1918—1939) Before preparing the Codes covering the whole field of Civil and Commercial Law, the Commission found it necessary to deal with and dispose of certain other matters of a particularly pressing character. Private International Law belonged to this category. Each of the four legal areas mentioned above had a different Private International Law. In Central Poland the position was governed by Art. 3 of the Civil Code of the Kingdom of Poland, which was a re-enactment of the well-known Art. 3 of the Code Napoleon and contained only a brief and general outline of certain broad principles.1 In Western Poland the rules of conflict of laws were included in the rather detailed provisions of the enforcement rules of the BGB (Einfuehrungsgesetz zum B.G.B.—Arts. 7—31). The Austrian Code applying to Southern Poland contained only a few general provisions on the subject while the Russian law governing Eastern Poland gave no guidance whatsoever on the matter. Thus whenever the question arose in Poland as to whether Polish or foreign law should be applied to settle a particular dispute the answer might be different in each province as the legal area to which the person or corporation involved in the dispute belonged would be an important factor in settling the point. The difficulties were even more acutely felt in the relations inter se of the various provinces of Poland herself. When Poland again became a unitary and independent sovereign State these relations naturally became very close; the interchange of population, goods and services was an everyday occurrence; change of abode from one province to another was frequent; private individuals and corporations owned chattels and real property and had liabilities and assets in many provinces at one and the same time. The creation of a uniform private international law for the whole of Poland was, therefore, a most urgent need. This task could not be left to the Courts, which in the first years after Poland had regained her independence tried hard to overcome the then existing difficulties and to combine the principles of four different legal systems. They were, moreover, greatly Art. 3 of the Civil Code of the Kingdom of Poland reads as follows: “ Police and 1 security rules apply to all people living in the country. All real property, although in the possession of foreigners, is subject to the law of the Polish State. Laws pertaining to status and capacity are applicable to all Poles even if living abroad.”

﻿CODIFICATION OF CIVIL LAW IN POLAND (1918—1939) 51 hampered by the statute law of three provinces and, as regards Eastern Poland, by the decisions of the Russian Courts. Soon after being set up, the Commission for the Codification of the Law embarked upon the preparation of the two Acts which were promulgated on October 13th, 1926, and became law on November 13th of the same year. The first related to the “ law competent for private relations inside the country and the second to the “ law competent for private international relations.” The Bills were drafted by M. Frederic Zoll, Professor of Civil Law, Cracow University, in co-operation with M. Michael Rostworowski, Professor of International Law of the same University and Judge of the Permanent Court of International Justice. By 1919 the Bills were completed and they were at once submitted for the considera- of the Legislature. In view, however, of the important constitutional problems and matters of international policy then under consideration the Bills could not be discussed. In 1923 they were again brought before the Diet, but three years elapsed before they had passed the committee stage and the plenary sessions of the Diet and the Senate, and it was 1926 before they became law. Each of these Acts is divided into nine sections, viz.:—. (1) Persons. Proof of death or disappearance. (2) Form of acts in law. (3) Law of property. (4) Contracts and torts. (5) Marriage law. (6) Relations between parents and children. Guardianship. (8) Wills and inheritance. (In the Act relating to private international law, this section deals with inheritance from Polish citizens and inheritance from foreigners.) (9) General rules. It will be observed that the structure and substance of both Acts were almost identical. The differences were due to the particular objectives they sought to attain. For example, as regards inheritance the inter-provincial law did not need to differentiate between Polish citizens and foreigners, because the inhabitants of all Polish provinces were Polish citizens. Similarly, with regard to various provinces of 4 (2)

﻿52 CODIFICATION OF CIVIL LAW IN POLAND (1918—1939) Poland the problem of referring to another system of law or of “ establishing the wording, meaning and competence of foreign law ” could not arise, because all laws in force in Poland were Polish and not foreign, and were necessarily known to the Polish Courts. This viewpoint is different from the British one which considers Scottish law to be foreign in England, just as Scottish Courts do not differentiate between English, French or Dutch laws but treat them all as foreign. Notwithstanding their practically identical structure and substance, each of these two Acts provides a different solution for inter-provincial and private international relations. The main difference lies in the fact that in inter-provincial relations the civil capacity of a Polish citizen is governed by the Lex Domicilii. Domicile is considered to be the place in Poland where a Polish citizen lives and where he intends permanently to reside. If a Polish citizen changes his domicile within Poland itself then the law of the province to which he moves becomes applicable to him after a period of one year so far as his civil capacity, family relations and inheritance rights are concerned. In private international relations, however, the civil capacity of a person is governed by the laws of the country of which the person is a citizen. It is only in those cases where citizenship cannot be established that civil capacity is governed by the Lex Domicilii. Thus, while in relations inter se of the Polish provinces the Lex Domicilii applies, relations between Poland and other countries are governed by the Lex Patrice. To this rule there is the important exception that the civil capacity of a merchant, in his commercial activities, is always governed by the law of the district in which the office of his business is situated which, of course, can be different from the law of his domicile or the law of his country. Similarly, the civil capacity of corporate bodies and of companies and associations is always governed by the law of the province in which they have their registered offices. It is not the aim of this essay to present, even in a most concise manner, the substance of Polish law. It will, therefore, only be referred to when it would appear to be desirable to point out its most characteristic provisions. As to private inter-provincial and private international law, the attempt to codify its main principles in two short Acts,

﻿CODIFICATION OF CIVIL LAW IN POLAND (1918—1939) 53 one of which has thirty-four sections and the other forty-two, not only evoked considerable interest in European legal circles —both among academic and practical lawyers—but was regarded as a good and thoroughly modern solution of a difficult problem. Copyright.—The second task accomplished by the Commission for the Codification of the Law was the Copyright Act of March 29th, 1926. The reason for having a separate Act dealing with copyright was that none of the provincial codes enacted at the beginning of the nineteenth century regulated the matter in a manner conforming with modem needs. The progress of scientific investigation into this branch of law and the precedents established by judicial decisions had made the amendment and unification of the Law of Copyright for the whole of Poland imperative. This Act complies with the requirements of the Berne Convention and approaches many problems in an original and modern way. Bills of Exchange.—Earlier the Commission found it necessary to draft two Bills,—one dealing with bills of exchange, the other with cheques—both of which were promulgated on November 14th, 1924. In view of the active commercial and economic relations between the newly-united provinces of Poland bills of exchange and cheques were indispensable instruments of credit and noncash payments and the introduction of uniform regulations for the whole country for bills of exchange and cheques and for their circulation was essential. By Acts of April 28th, 1936, these laws, based on principles universally adopted in international relations on the Continent, were subsequently amended to comply with international conventions of June 7th, 1930 (to which Poland adhered on December 19th, 1930), and of March 19th, 1931 (to which Poland adhered on March 18th, 1937). Civil Code.—When eventually the Commission undertook the task of unifying the Civil Law, a number of preliminary problems arose which demanded a permanent solution. First it had to be decided whether it would not be possible to achieve uniformity of law by extending to the whole country one of the Civil Codes already in force. The Russian law was excluded, for it was not a modern codification, being based on the principle of class and religious distinction,

﻿54 CODIFICATION OF CIVIL LAW IN POLAND (1918—1939) according great privileges to the orthodox religion, and generally presenting neither a complete nor a modern system of private law. The German, Austrian and French -Polish codes, however, had their supporters. The extension to all Polish territory of one of the provincial codes would have had the great practical advantage of requiring little preliminary work and allowing a relatively quick unification of private law, in that all that would have been required would be the issue of regulations introducing into three provinces the law applying to the fourth. The system of the French-Polish law in force in Central Poland was particularly recommended by many persons as being the most suitable for the other provinces. The main arguments in favour of such a solution were: (1) this law had not been imposed on Poland by any of the three partitioning powers, who had aimed at bringing Poland within their own legal system; (2) some purely Polish amendments to the system had greatly adapted it to national needs; (3) it was based on the excellent pattern of the Code Napoleon, the elasticity and clarity of which made it easily adaptable to the needs of the Polish people; (4) the people of Central Poland had become deeply attached to this law, which had applied for so long a time and which had originated from a friendly country whose Latin culture was akin to the Polish spirit and tradition; its extension to the other provinces would make Poland a legal area not only uniform but also completely different from the German, German-Austrian and Russian legal areas. These arguments, however, did not convince either public opinion or the majority of Polish lawyers. It was decided—rightly it seems—that reborn Poland should create her own new and modern civil law, particularly as none of the legal systems established in the four provincial areas was the embodiment of Polish legal tradition, or the product of free development of Polish legal institutions, or the result of creative work on the part of Polish Courts. None of them fulfilled the needs of modern social and economic life or was in accordance with the exigencies of the Polish nation. Moreover, both the Code Napoleon and the Polish Acts which amended or supplemented it dated from the beginning of the nineteenth century, when the then prevailing conditions were quite different, and they were, therefore,

﻿CODIFICATION OF CIVIL LAW IN POLAND (1918—1939) 55 out of date in many respects. The same remarks applied to the Austrian Code and to the Russian Law. As to the German Civil Code, although it was of more recent date it would not be applied to Poland because (1) it was the product of the development of German law, which was not only foreign but hostile to Poland; (2) it was adapted to an economic and social system which was entirely different from the Polish; (3) its heavy formulae and complicated construction were contrary to the Polish way of legal thinking and did not meet the needs of the average citizen. Consequently, the Commission for the Codification of the Law quickly came to the conclusion that the unification of Private Law in Poland could not be achieved by extending to the whole of Poland one of the systems applying to the provinces. The right solution, it was felt, would be to evolve a new system of civil law—a new Polish Civil Code. The second problem of a preliminary nature was whether this new civil law was to be introduced as a whole, that is, only when all the parts of the future civil code had been completed and correlated into a homogeneous whole, or whether it would be better to introduce the various parts as and when they had been drafted. For instance, if the Commission completed its work on the law of marriage before having prepared the law of contracts should the former be enacted without further delay ? After some discussion it was decided that to wait for the completion of the work in all the branches of the new civil law would greatly delay the unification of the system, and the principle of gradual unification was adopted, the pace of the process being determined by the progress of the work of the Commission and the decisions of the Government on the reports and schemes presented by the Commission. The Commission began its work by dividing itself into several sub-commissions each entrusted with the preparation of the drafts for distinct parts of the new Civil Code. The following sub-commissions were set up : (1) the subcommission for the general part of the Civil Code; (2) the sub-commission for Marriage Law; (3) the sub-commission for Family Relations Law (parents and children, guardianship); (4) the sub-commission for Property and Mortgage Law; (5) the sub-commission for Inheritance Law.

﻿56 CODIFICATION OF CIVIL LAW IN POLAND (1918—1939) Marriage Law.—The report and scheme for the new marriage law were the first to be completed and were submitted to the Government in 1926. This was not an accident; both the Government and the Commission considered this section of the civil law as being in urgent need of amendment and reorganisation, because the differences between the systems of the various provinces were very real and gave rise to serious practical difficulties. In Western Poland only civil marriage (marriage at the registrar’s office) was valid, a religious marriage, which could be celebrated only after the marriage before the registrar, by itself having no legal validity. Also, jurisdiction in matrimonial cases, such as nullity, divorce and judicial separation, was conferred exclusively on the civil Courts. Conversely, in Central and Eastern Poland (formerly under Russian rule), apart from marriages between non-Christians (e.g., Jews or Moslems), which could be solemnized before registrars and the validity or dissolution of which was pronounced or granted by the secular Courts, a marriage could only be solemnized before a clergyman of the proper denomination and could be dissolved or annulled only by an ecclesiastical Court. Lastly, in Southern Poland a marriage had to be solemnized in church, while annulment, divorce and judicial separation were granted by the secular Courts. This legal position gave rise to considerable difficulties, which were further aggravated by the fact that according to all the legal systems applying in Poland before the introduction in 1926 of the inter-provincial law, the Lex Patrice determined a person’s capacity to marry, while in Central and Eastern Poland the religious form of marriage was regarded not merely as a formality but as the very essence of matrimony. For this reason, a civil marriage celebrated in a foreign country or in another part of Poland by persons domiciled in these two provinces had no legal validity. Not until the passing of the inter-provincial law, which, in Art. 14, provides that “ the marriage shall be celebrated in accordance with the law applying at the place of its solemnization,”— did the Supreme Court in Warsaw pronounce that even those parties to the marriage who were personally within the scope of the law of Central or Eastern Poland, could conclude valid marriages in Western Poland (or abroad) according to the secular formalities in force in such province or country. The Supreme Court thus rightly decided that the religious

﻿CODIFICATION OF CIVIL LAW IN POLAND (1018 1039) 37 ceremony pertained to the form and was not of the -*n oi marriage. Notwithstanding the solution of this particular diili- uhr many others, resulting from the variety of th- law. n ktir to marriage, still remained to be disposed of. Mowjim the denominational character of law of marriage in Central and Eastern Poland; the fact that the Homan Catholic Church did not recognise divorce; and the prohibition of marriage between Christians and non-Christians; indu««d people to change their religion for opportunistic con- U rations. For instance, non-Christians adopted one of the Christian religions in order to be able to many pcraom* of Christian faith, or Catholics adopted a Protestant or the Orthodox religion so as to be in a position to obtain a divorce from the ecclesiastical Court of their new denomination. For all these reasons, the unification of the marriage Uw> was regarded as an extremely important and very urgent matter. According to the scheme prepared by the Coin minion for the Codification of the Law, a civil marriage solemnized at the registrar’s office should be recognised as legally binding. By accepting this principle the Commission acknowledged the necessity of adopting a uniform marriage ceremony which would be legally binding for all citizens no matter what their religious beliefs might be. This was ini port an particularly in view of the fact that, side by side with the prevailing majority of Roman Catholics, there was in Poland a high percentage of people of other Christian and non-Christian denominations. But because of the special róle in Poland of the Roman Catholic Church, which does not recognise civil marriage, the Commission made an innovation their scheme would have allowed the parties to expt** before a clergyman of the appropriate denomination. tb»tr desire to marry; this would have released them from tU obligation to reiterate their desire before the registrar clergyman, however, before whom the desire to many expressed would have no power to perforin th«* marna^ ceremony, but only to issue a certificate in a pr- - ribrd -nr stating that the interested parties had expressed him their desire to marry. On receipt of such a ccr*.n st t registrar would issue the marriage certificate by which thmarriage would become legally binding, tinalh the sth-TW would have conferred jurisdiction in divorce, judicial -paration and nullity on the civil Courts.

﻿58 CODIFICATION OF CIVIL LAW IN POLAND (1918—1939) This scheme, however, never became law, nor was it ever submitted by the Government for consideration by the legislative assembly. It was most vigorously opposed by the Roman Catholic Church, which refused to agree to the ousting of the jurisdiction of ecclesiastical Courts in matrimonial cases, which jurisdiction extended to a large part of Poland. That Church, too, was also opposed to the introduction of compulsory civil marriages and to the transfer of jurisdiction in matrimonial disputes to the civil Courts. At that time Poland was conducting negotiations with the Vatican for a Concordat and had many fundamental domestic problems to solve; she could not, therefore, afford a serious contention with the Roman Catholic Church. Law of Obligations.—Consequently, the Commission decided to speed up the work on that part of the civil law the unification of which was urgently needed for the proper functioning of the economic life of the community, viz., the laws of contracts and torts. This work presented relatively few fundamental difficulties. As regards the law of contract, the Code Napoleon, the Austrian and German Codes and even, to a certain extent, the Russian code, were all based on the principles of Roman Law. In addition, in the first three of these codes the influence of the' canon law could also be discerned as well as the reciprocal influence of each of them on the others. It is well known that the authors of the Austrian Civil Code of 1811 were influenced both by Roman Law and the then newly published and highly esteemed Code Napoleon. The same two factors—Roman Law in the form of the so-called “ Pandektenrecht ” and French Law which, until 1900, applied to large areas of Western Germany—also left deep marks on the then new German Civil Code. It is true that the latter had all the features characteristic of the German mentality and was the product of widely different economic, social and cultural conditions; but because of their common derivation, there was between them a historical link and the affinity of basic principles on which they had built their respective systems of contracts. Lastly, the unification of the laws of contract was further greatly facilitated by the fact that the cultural level of the Polish people was more or less equal throughout the whole of Poland and that the principles and customs in economic relations were also common for the whole country, a most important foundation for any law.

﻿CODIFICATION OF CIVIL LAW IN POLAND (1918—1939) 59 When working on the scheme for a Code of Obligations, the Commission faced the difficult task of replacing the often conflicting principles of the French, German and Austrian Codes by new and uniform principles, fully adapted to the needs and customs of modern Poland. In their work the Polish codifiers based themselves not only on the Codes already mentioned and which applied to the various Polish provinces, but turned also to other sources. First of all, they studied carefully the Swiss Civil Code, which embodied modern ideas on this subject. This model was of special value to Poland, for it represented more than an example of a code drawn with great skill and talent and marked by the simplicity and clarity of its phraseology. The Swiss Code appealed to the minds of Polish jurists because it was created in a country in which law of Germanic origin or type (in the German-speaking cantons) applied alongside with law of Latin origin or type (in the French and Italian speaking cantons). Similarly in Poland, both legal systems existed side by side but, as in Switzerland, it was necessary to correlate two legal worlds, and to reconcile German and Latin legal concepts is certainly no easy task. Apart from these systems of enacted law, the Commission also studied the French-Italian scheme for the Law of Contracts and Torts which had been prepared by the “ Union Legislative entre les Nations Alliees and published in 1928—1929. Although this scheme never became law, either in France or in Italy, it deserved special attention as the joint work of the most eminent French and Italian jurists. It took into account the most recent developments in legal science, the latest decisions of the Courts of the most important European countries, and the experience gained from the German and Swiss codifications. The sub-commission which prepared the Polish scheme was composed of five University professors, two advocates, and M. Boleslaw Pohorecki, the Chairman of the Commission itself and President of the Polish Supreme Court. The scheme was introduced by Professor Longchamps de Berrier, of Lwow, and seconded by M. Domański, an advocate from Warsaw. The other members of this sub-commission were: Professors Till, Doliński and Stefko, all of the University of Lwow, Professor Wasilkowski, of Warsaw, and M. Konitz, a Warsaw advocate.

﻿60 CODIFICATION OF CIVIL LAW IN POLAND (1918—1939) The work on the scheme lasted from 1925 to 1933. After the Ministry of Justice had made certain amendments the scheme was issued on October 27th, 1933, in the form of a decree of the President of Poland, who had been authorised by a special Act of the Diet to issue the new Code of Obligations by decree. The new Code came into operation on July 1st, 1934, and in the course of the five years of its operation it became very popular and enjoyed the steady support of the judiciary, who interpreted and adjusted it to meet the needs of practical life. The Polish Code of Obligations is an original Polish achievement, although this branch of legal relations gives very limited scope for originality, as is proved, for example, by the previously mentioned Franco-Italian scheme which, notwithstanding its scientific and formal merits, is, in essence, but a modest revision of the greatly similar French and Italian codes. The main problem of the authors of the Polish Code was to find a middle way between German and French legal concepts, at the same time trying to satisfy the needs of Polish life and mental outlook. The Code of Obligations consists of 645 Articles divided into 17 chapters. The first five chapters form the general part of the Code and contain provisions which apply to all contracts. Chapter I deals with the “ sources, elements and kinds of obligations ”■—divisible and indivisible, joint and several, assignable; .Chapter II deals with the “formation of contract ” (form of and defects in the expression of consent; the formation of contracts in general; prepayment; remedies for breach of contract; rules as to payment of interests; contracts for the benefit of third parties; relation of principal and agent; interpretation of contracts; civil wrongs or torts and indemnities in general; Chapter III treats of “ the assignment of rights and liabilities resulting from obligations ” (change of creditor or debtor); Chapter IV on the “ discharge of obligations ”—deals with the following matters: (1) discharge of obligation (manner, place and time; object of discharge, acceptance of payment, liens, receipts and other proofs of discharge of obligation; documents to bearer; delays of creditors, and deposits in Court; results of failure to discharge obligations); (2) set-off; (3) renewal; (4) impossibility of performance; (5) lapse or

﻿CODIFICATION OF CIVIL LAW LN POLAND (1018 1030) 0| change of obligations due to exceptional cireunutaw-6) voluntary release from debt, ami (7) lap,.- of turn Chapter V contains rules relating to legal procwling- .gun debtors acting to the detriment of their creditors Chapters VI to XVII govern contracts relating to the tollowing matters, viz. VI. Sale and exchange. VIL Gift. VIII. Hire and tenancy. IX. Loan for use. X. Loan for consumption. XI. Contracts of service: (a) contracts of employment, (b) independent contractors, (c) commission, e.g., contracts with stockbroker* (d) agency, (e) bailment, (f) liens of hotel and innkeepers and owner* of similar establishments, (g) deposits. XII. Partnership. XIII. Maintenance and life annuities. XIV. Gaming and wagering. XV. Assignment. XVI. Compromise. XVII. Suretyship. In this study it is obviously impossible to give even th most general outline of the principles of the Polish Code o( Obligations and only an enumeration of the matters with which it deals, together with an account of its formal structure and a reminder that it contains, like other Continental codr certain definition clauses has or will be given. The purpn* of the definition clauses is to provide the judge with g-n^ral guidance in the application and interpretation of |mrt* ukr articles of the code; at the same time they giv cfT-t to the views of the legislature on certain fundamental qiir-t r As a rule the definition clauses arc to be found nt the I- cinnu-< of the chapters, each relating to a particular kind of obl^* - tion. The definition of “ contract of sale ” may l>r qu'-c^i as an example. According to Art. 294, By contract of sale, the vendor undertakes to tram*f*r

﻿62 CODIFICATION OF CIVIL LAW IN POLAND (1918—1939) ownership or other stipulated rights to the purchaser who undertakes to pay the named price.” Such definitions are not merely of theoretical value, because they state the factual and legal elements which must exist if a given contract is to be regarded as legally binding. A better idea of the effect of the Code can be gained from the first two articles which respectively provide as follows:— Art. 1.—Obligations arise from manifestation of the will or from acts and other facts which the law considers as the source of obligations. Art 2, Sec. 1.—The substance of obligation is that a person is under a bounden duty to act or forbear on behalf of another person. Sec. 2.—The substance of bounden duty is to render, to act, to refrain from acting, to cease or to forbear. It may be doubted whether rules of written law should contain general statements, formulae or definitions of this kind. If, however, in this matter the views of the authors of the Polish Code are accepted it must be admitted that their approach to the origin and substance of obligations.is concise as well as clear, sufficiently general to be elastic, and at the same time sufficiently comprehensive, for it contains all the elements of an obligation occurring in practice. The rules which give the judge general instructions how to interpret manifestation of the will and contracts are also worthy of notice. According to Art. 107:— Manifestation of the will should be interpreted in the light of surrounding circumstances and in accordance with the principle of good faith and fair dealing.” This general provision is further developed in Art. 189, which governs the chapter dealing with the discharge of obligations and orders the parties to— discharge their obligations in accordance with their substance and in a manner conforming with the principle of good faith and fair dealing.” All rules of the Code are built upon these two basic postulates of legal relations between men and constantly emphasise the necessity of conforming with them.

﻿CODIFICATION OF CIVIL LAW IN POLAND (1918—1039) 63 With regard to contracts, the Code contains two mam interpretation clauses. The first of them lays down that Contracts are binding not only with respect to what is expressly stipulated in them, but also with r- pcct to all consequences resulting from law, custom or equitv (Art. 60). The second instructs the Courts— to examine the mutual intention of the parties and tl purpose of the contract rather than to adhere to the literal meanings of the words ” (Art. 108). Foreign commentators on the Polish Cotie of Obligations have stressed among other things its modem spirit ai^l the importance of the rule which pertains to the (pleation so controversial both in theory and in practice—whether and what significance for the interpretation of contracts has the so-called “ clausula rebus sic stantibus Thu important problem was subjected by the Commi^ion to particularly exhaustive research. Although accepting the view, which is the cornerstone of every law of obligations that “pacta sunt servanda” the Commission came to the conclusion that exceptional situations sometimes ari*e affect ing so deeply the circumstances accompanying the conclusion of a contract that it is impossible to disregard their influence on the rights and duties of the parties. Poland, heavily trie! during the last war, shaken by its economic effects and by the vicissitudes of the period of inflation (1918—1921), had to be prepared for a recurrence of similarly exceptional circumstances. It was the duty of the Polish Legislature to indicate to the judges the effect such circumstances should have upon the discharge of contracts. Art. 269 of the Code of Obligations states that in accondan with the principle of good faith and after having ron* i the interests of both parties the judge shall have the ugh’ to prescribe the manner of performing the contract tu fix th amount of damages, or even to rescind the contract if “because of extraordinary circumstances (war, cpkkni^ complete failure of crops and other disasters) dm Irnrre of the obligation has become inordinately (jiffault or threatens one of the parties with a crippling low winch could not have been foreseen at the time of the formal^ of the contract.”

﻿64 CODIFICATION OF CIVIL LAW IN POLAND (1918—1939) This rule obviously lends itself to wide interpretation. It is for the judge to ascertain first of all, whether extraordinary circumstances of the character indicated by the Code have in fact arisen. If he decides that they have, he must then examine and decide whether the discharge of the obligation would create inordinate difficulties; whether it threatened one of the parties with a crippling loss; and whether these effects were caused by the said extraordinary circumstances. He must also ascertain whether the exceptional circumstances should have been foreseen by the parties; and finally, he must consider the interests of both parties and, in accordance with the principle of good faith, decide either how, in the light of the changed conditions, the obligation should be discharged, or whether the contract should be rescinded. All these matters are questions of fact the decision of which is in the discretion of the judge, who must take into account all the surrounding circumstances. In practice, much is left to the discretion of the judge, for often the Code limits itself to statements of general principles which must be interpreted and adjusted to each particular case. For example, the provisions of Arts. 123—127 on enrichissement sans cause or of Arts. 128—133 on payment sans cause, belong to this category. Responsibility for torts or civil wrongs is governed by Arts. 134—167. The Code adopts the view that guilt forms the basis of responsibility; that responsibility for torts or civil ’wrongs consists in paying compensation for the wrong done and not in penal punishment. When considering the question of responsibility the judge is directed first and foremost by considerations of equity and good faith. But there are important exceptions to this principle of guilt. For instance, the owner of a building or other structure is responsible for the damage caused by the crumbling of his building or other structure or by its collapse unless he can prove that the accident occurred not because the building or other structure had been neglected or because its construction was faulty but for some other reason not under the control of the owner (Art. 151). There is a presumption of liability in the case of proprietors of businesses or establishments run by natural power (steam, gas, electricity, water and the like) or of places where explosives are made or used. The proprietors are liable for damage

﻿CODIFICATION OF CIVIL LAW IN POLAND (1918 193y) (U caused by the running of their businesses or c-tabh except in those cases where the plaintiff or a third p»m for whom the proprietors are not resjionsible han can-d tU damage or where the damage was due to force mat. (Art. 152). The same presumption of liability is provided bj \rt 153 and 154 in respect of the owners and, exceptionally,, the u* of mechanical vehicles. The Code of Obligations was very well received in mobt of the European countries. M. Henri Capitant, Prof~*r of Civil Law in the Faculty of Law, University of Paris, in K-Preface to the French translation of the Code, wrote: 11 The qualities of method and of formulation are und-ni able and striking even at first sight . . German influence is undeniable and this is not surprising mainly because many Polish lawyers have bcm educated in the German school of legal thought, further because by its standing and scientific character the German Civil Code (Buergerliches Gesetzbuch) has exercised a great influence on modem legal thought. Ncverthck . because of its precision, its clarity and the shortness of it' Articles, the Polish Code is much more akin to the Swi» Civil Code than to the BGB. It has avoided the often heavy and unpleasant casuistry which has been ju»tly denounced in the German work. “ The tendency to formulate short and easily und< r standable texts is apparent. Each long Article is dnid«d into sections—an excellent method—not only when ref, m i to rules but also for their exact understanding. Thi- * * happy innovation which might usefully lx* adopts 1 other countries. In a number of Articles the influence of th- (' Napoleon is also discernible. The influence of the Erniw>-Italian scheme can be similarly detected. The Utt< r not very great, which is not surprising if one n tn mtin what spirit that scheme was evolved. Its auth r* an*, at rejuvenating the French and Italian Codes by intn-1 new rules, sanctioned by the decisions of the Court... Du* guiding principle gave to their work the chan* t»r < moderate reforms which seemed insufficient to a na-

﻿66 CODIFICATION OF CIVIL LAW IN POLAND (1918—1939) wishing to build anew and to unify its civil law. The Poles were in a situation somewhat similar to that of the draftsmen of the Code Napoleon at the beginning of the nineteenth century, who had to consider various legal systems which had applied to their country. They have produced a work of compromise, as in France had the authors of our Civil Code. We believe their work to be completely successful. The plan is well framed. The technique is good.” Other parts of the Civil Code were in preparation and their enactment was prevented only by the outbreak of the war. The work on the law of property and mortgages was wTell advanced and the final draft awaited only the approval of the appropriate authorities of the Commission. This work was accompanied by special difficulties and lasted ten years. The Bill on Married Persons’ Property and that part of the Family Law pertaining to the legal relationship of Parent and Child were also in preparation and the principles of the Law of Inheritance had been formulated as a preliminary to the framing of an appropriate part of the Civil Code. Commercial Code.—Alongside with other countries of the European Continent, Poland adopted the principle of a separate code for matters arising out of commercial relations. Such a system already applied in territories governed by German, Austrian and French law and there was no reason for not following this tradition. Accordingly, simultaneously with the work on the Civil Law in its strict meaning and particularly on the Code of Obligations, special subcommissions proceeded with the task of unifying the various branches of the Commercial Law. Thus one sub-commission was entrusted with the drafting of a Commercial Code, i.e., a Bill relating to merchants in general and to various types of commercial partnerships, and containing special rules for particular commercial contracts. A second sub-commission worked on Maritime Law, a third on Insurance Law. The Commercial Code, or rather its first part, became law on July 1st, 1934, simultaneously with the Code of Obligations. The two other parts, although completed, never became law because of the outbreak of the war. Even before the enactment of the Commercial Code, commercial law was being gradually unified. The Act relating to

﻿CODIFICATION OF CIVIL LAW IN POLAND (1918 1039) fl7 Limited Liability Companies, for instance, was published in 1928, and the Act on Joint Stock Companion in 1028. In the light of experience, both these Acts were amended and improved before being incorporated into the Commercial Code. This Code consists of two parts. The first part deals with merchants and commercial partnerships. The second with commercial transactions (odes de commerce). According to the definition in the Commercial Code, “ a merchant is a person who in his own name controls a profit-making undertaking.” The Code does not define the expression “ profit making undertaking ” and leaves the matter to be doadd by the judge in each particular case, but it does contain clauses expressly excluding certain types of activities from the expression. For instance, the Code expressly provide* that farming, forestry, market-gardening, fishing, game hunting and bee-keeping shall not be considered to be “ profitmaking undertakings.” Likewise the mere fact of having a farm or of working as a fanner does not of itself constitute a profit-making undertaking. On the other hand the Code introduces certain economic and formal criteria which make it easier to say who should be considered a merchant. This was achieved by establishing a Commercial Register in which the name of even* merchant owning a large-scale profit-making enterprise must be enrolled The enterprises to be considered as “ large-scale ” were defined by special orders. Before the war the amount of turnover fax which the merchant was required to pay was the governing factor. Merchants whose names were entered in the Com mercial Register were called “ registered merchants. ’ All commercial partnerships were by law regarded as regime merchants and consequently were compelled to enrol in thj Commercial Register. The Commercial Code contained rules pertaining to com mercial partnerships; Limited Liability Companies—w hi b differ greatly from the Limited Liability Companies known to English Law; and to Joint Stock Companion A wparat* Act, applying to the whole country as early as 1920, contain* rules on Co-operative Societies. In the eyes of th« law al these partnerships are commercial partnerships. They must appear in the Commercial Register and arc therefore registered merchants.” 5 (2)

﻿68 CODIFICATION OF CIVIL LAW IN POLAND (1918—1939) The Code adopted the view that legal relationships entered into by a merchant in the course of running his business were commercial transactions and consequently governed by the Commercial Law. It was assumed that all such legal relationships of a merchant were commercial transactions. But legal relationships entered into by persons who were not merchants, as well as those of merchants not connected with the conduct of their businesses were governed by the ordinary Civil Law. If a legal relationship was a commercial transaction for one of the parties Commercial Law applied to both parties, unless otherwise provided by law. It should be noted that the Commercial Code explicitly stated that in cases not provided for by that law Polish custom was to be applicable, and only ultimately the rules of the Civil Law. merchant ” and Apart from the provisions defining pertaining to the Commercial Register, commercial transactions, and commercial partnerships, the Code contained detailed rules about business names, commercial procuration, commercial book-keeping, the sale and renting of commercial undertakings, sale of goods, sale by instalments, commission sale, transport and warehousing. Part Two of the Commercial Code dealing with Maritime Law, and Part Three with Insurance Law, were on the point? of completion when the war broke out. The Commission for the Codification of the Law also completed the scheme for the Law of Things (the law of proprietary rights) which included rules as to ownership and real and personal property, easements and other limitations on the ownership of property, mortgages, and the registration of mortgages and land charges. The work on this part of the Civil Code presented special difficulties because the legal provisions pertaining to real property and the registration of mortgages and land charges as well as to the organisation of the supervising authorities were quite different in each Polish province. These difficulties were closely connected with the divergence of the provisions of the three principal legal systems then in force concerning the transfer to mortgagees and like persons of real property or goods and chattels as security. The scheme, which because of the war did not become law, would have created a new

﻿CODIFICATION OF CIVIL LAW IN POLAND (1918 — 1939) GO system of registration of mortgages and would have provide a complete solution of these complex problems. Finally three years before the outbreak of war, work wm started on a uniform Law of Inheritance but only the broad principles which were to serve as a foundation for this part of the Code had been agreed. As in the case of their other national activities, the Pol<« embarked upon the task of unifying their Civil Law with all their usual energy. Had it not been for the disaster of the war which struck Poland first and most cruelly the r-ult of these endeavours would assuredly have been a most important contribution to the legal culture of Western Europ* a contribution greater even than that which it had been possible to make before the war. Readers interested in further details of Polish Civil Law are referred to the following works:— 1. Golab, S.—The Codification of Polish I>aw, Journal of Comparative Legislation, London, 1924 , 95 pp 2. U.S.A. Department of Commerce.—General Legal Bulletin, No. 86. Law Governing Foreign Limited Liability Companies in Poland, 3 pp No. 165, Summary of the Polish Code of Obligations, 12 pp. No. 166, Summary of the Polish Commercial Code 3. Wortley, B.A.—Poland’s New Codes of Law, Birmingham Information Service on Slavonic Countries —Poland—Monograph No. 3, May, 1937. 4. Helczynski, B.—The Underlying Principles of I oliah Commercial Law, “ Polish Science and Learning, No. 1,” June, 1942.