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

2020 ◽  
Vol 1 (102) ◽  
pp. 79-91
Author(s):  
Małgorzata Serwach

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.

Author(s):  
Amanda Adamska ◽  
Anna Maria Barańska

The responsibility of an insurance company for damages caused by an insurance agent The subject of this article is the responsibility of an insurance company for damages caused by an insurance agent in connection with the performance of agency activities. The Act on Insurance Intermediation of 22 May 2003 lays down a liability regime based on the principle of risk. It also contains the definition of an insurance agent and performed agency activities. In the next part of the article there is analysed the jurisprudence of the Supreme Court concerning the interpretation of article 11 1 of the abovementioned Act. It discusses an attempt at defining the difference between activities performed “in connection with” and “at the occasion of” other activities. Finally there is analysed an issue of the contribution of the injured party to the occurrence of the damage in this type of cases article 362 of the Civil Code.


Jurnal MINUTA ◽  
2019 ◽  
Vol 1 (1) ◽  
pp. 14-19
Author(s):  
Evi Retno Wati

Generally collateral is divided into two, namely personal guarantee (persoonlijke zekerheid) and corporeal guarantee (zakerlijke zekerheid). On Personal collateral, what given by debtor was not an object but a statement made by the third party who has no interest at all both toward debtor or creditor. In the case that was reviewed in this research to wit The supreme court of Republic of Indonesia decree No. 2960 K/Pdt/2010 PT. Pertamina Dana Ventura (first named PT. Pertamina Saving & Investment), as a creditor filed a confiscation guarantee claim toward Kairudin Nur who is the guarantor of the debt of PT. Goro Bata Sakti (in bankruptcy) as a debtor. Guarantor in Indonesian Civil Code (later stated as KUHPer) is given a privilege which is stated in article 1831 KUHPer which given right to the guarantor to reject payment to creditor before the creditor’s property confiscated first and sold in order to pay the debts. If after the debtor’s property confiscated and sold are not enough to pay the debts, then in this case the guarantor is responsible for fulfilling the debts toward creditor. In The supreme court of Republic of Indonesia decree No. 2960 K/Pdt/2010, the guarantor right as ruled in KUHPer is violated. Therefore the law protection that can be given to the guarantor is the guarantor is given the right to accelerate the management and settlement toward debtor’s assets which were under curator supervision.


2021 ◽  
Vol 6 ◽  
pp. 27-32
Author(s):  
V. K. Andreev ◽  

The article discusses the forms of clarification on matters of judicial practice by the Plenum of the Supreme Court of the Russian Federation, the Presidium of the Supreme Court, as well as in the Review of judicial practice on some issues of the application of legislation on business companies dated December 25, 2019. Clarifications of the Supreme Court of the Russian Federation on issues of judicial practice are characterized as the positions of the courts identified in the course of studying and summarizing the judicial practice of the corresponding category of cases, which are acts of individual regulation of public relations. Focusing on Art. 6 of the Civil Code of the Russian Federation and Section 6, Art. 12 of the APC RF shows the validity of dividing wrong into two types of wrong: the «moderate» type of «judicial law-making and the position of the court» and the «radical» type of «judicial law-making», when the court develops the rule of law, which contradicts the constitutional principle of separation of powers. When resolving corporate disputes, it is necessary to investigate whether the charter of a non-public company does not contain the rights and obligations of its participants, which they themselves created by making a unanimous decision and including them in the charter of the company (paragraph 3 of Art. 66.3 of the Civil Code of the Russian Federation, paragraph 3 of Art. 14 of the Law about LLC).


Author(s):  
Anna Moskal

Does forgiveness nullify the effects of previous disinheritance? The legal nature of forgiveness is the subject of passionate debates among the representatives of civil law doctrine. According to the dominant position in the literature, forgiveness is an act of affection or its manifested expression of forgiveness of the perpetrator of experienced injustice and related to this grudge. This institution has been applied three times in the Civil Code — once with the donation agreement, twice in regulations of inheritance law. Article 1010 § 1 provides that a testator cannot disinherit eligible for legal portion if he forgave him. The wording of the above article indicates that accomplishment of disinheritance in case if testator eligible for legal portion has previously forgiven. The legislator did not, however, determine the effects of forgiveness in relation to previous disinheritance. In the act of 1971, the Supreme Court accepted that such forgiveness would automatically nullify the effects of disinheritance, and could be made in any form. In recent years, lower courts have begun to question the Supreme Court's position, and judges increasingly refer to the critical statements of numerous doctrines. As it was rightly stated, admitting the possibility of invoking the forgiveness made after disinheritance poses a serious threat to the realization of the testator’s will, who, by forgiving, does not necessarily want to revoke the effects of his previous disinheritance. The postulate of de lege ferenda is, according to the author of the article, giving of freedom of judging the effects of forgiveness to the courts and each examination of the forgiving testator’s will on the possible abatement of the consequences of previous disinheritance.]]>


1968 ◽  
Vol 3 (4) ◽  
pp. 562-578 ◽  
Author(s):  
S. Z. Feller

Both the facts of The State of Israel v. Siman Tov, and the solution adopted in that case by the Supreme Court, raise, it is felt, a number of legal problems which warrant particular attention.The respondent, Siman Tov, owner of a grocer's shop, sold goods worth IL. 6,000 on credit to someone called Pressman. When Siman Tov requested payment from Pressman, the latter offered him U.S. $4,000 which Siman Tov was to deposit with a third party of his own choice in return for a loan of IL. 12,000, on the understanding that Siman Tov would deduct the money owing to him from this last sum and hand over the balance of IL. 6,000 to Pressman. Siman Tov accepted the offer and received from Pressman a package containing 4,000 ostensibly genuine dollar banknotes. He then approached a neighbour, Binat, who agreed to accept the dollars as security for a loan of the equivalent sum in Israeli pounds. On examining the package and finding that the dollars were counterfeit, Binat returned them to Siman Tov and refused to go on with the transaction. Siman Tov for his part had believed the notes to be genuine until Binat's disclosure.


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