A Gloss to the Supreme Court’s Resolution of 26 July 2017 (III CZP 30/17) concerning the Exclusive Fault of a Third Party as an Exonerating Circumstance
In the said Resolution, the Supreme Court held that in order for a person running an enterprise or an establishment which are set in motion by natural forces to be effectively released from liability, it was not necessary to identify an entity in question (Article 435 of the Polish Civil Code). It was sufficient to demonstrate that the person in question was of sound mind, i.e. unlikely to be found guilty. According to the Supreme Court, such a flexible interpretation was supported by both systemic reasons and the fact that the liability based on Article 435 of the Civil Code was very strict. It was a question of the increased danger linked to risk-based liability, as the provision itself did not require the subjective criterion to be applied. It was sufficient to prove the objective premises (absolute certainty was not necessary). The author of this gloss points out that the proposed interpretation of the above-mentioned exonerating circumstance significantly weakens the situation of an injured party, who, in many cases, is not be able to obtain compensation either from the entity running an enterprise or from a third party (since it has not been identified) or from the liability insurer. Consequently, it indirectly weakens the extended protection provided to the victim in the risk-based liability. Moreover, it requires a hypothetical assumption not only of the guilt of an unidentified third party, but also of the fact that it is a third party who is in no way connected with the motion of an undertaking (enterprise). Finally, the author raises other objections, especially given that the aforementioned interpretation could be applied under Article 435 of the Civil Code and in all cases of risk-based liability as well.