Civil law-

General part
Main branches of Civil Law
 Civil law

Civil law (ius civili) creates the most practical part of

law. We use its regulations every day even not
knowing that it is applied.
When we make shopping in the neighbouring grocery
we make the civil contract. When hiring a baby sitter
for a kid we sign the contract, hiring a car on a
excurions is a matter of civil law contract.
 2 main parts of civil law

Civi law regulates two sorts of legal activity:

1. Equity law- refers to all of things with certain

economical value like tangible and intangible: money,
property, rights etc.
2. Personal values (not having economical value)
like health, freedom, respect, honour, patents, artistic
values, copy rights etc.
 Patterns of civi law relations

Contrary to other branches of law the main pattern of

civil legal relationships is equality of parties. No
side is dominant to the other.
Contrary to administration law or criminal law and
financial law.
People create various relations with other people and
things.
In civil law 3 elements of such relation exist:

1. Parties- persons in the legal relation

2. Object of the relation
3. Rights and liabilities
 Classification of civi law branches

A common way of classifying civil laws is based on

their subject matter. , The main categories of law
include
contract law,
law of delicts (tort law),
property law,
family law,
heritage law
 Contract law

Contracts are agreements made between people or

bodies who have legal capabilities to do so. Such
agreements are enforced by the courts if they are
intended to be binding , are not legal or contrary to
public policy; and are not based upon some
fundamental mistake made by both parties caused by
one of the parties.
 Law of delicts (torts)
Delicts are civil wrongs that are commited when one
person causes injury, damage or loss to another
person in circumstances that the courts consider should
render them liable to pay damages to compensate for
the harm they have caused.
It is hard to express any general statement as to when
the courts will consider a person liable to pay damages
but some of the main instances are when a person has
acted without reasonable care, ie.
 Torts of delicts

Negligence, has caused an unreasonable interference in the

rights of neighbours, of the rights of the public (nuisance),
has failed to keep control of dangerous things, or animals
known to be dangerous, that he has on his property (trespass)
or
has impairing the reputation of another person by making
untruthful statements about him, which is called
defamation.

Under some jurisdictions, some torts are also criminal

offences and are punished by the state, as well as give rise to
liability to pay damages to the individual suffered injury.
 Property law

Property is usually divided into two types:

Real property which is immovable property such as
land and buildings erected on land; and
Personal property, which is movable property
such as animals, vehicles or money.

The rules concerning ownerships use and transfer of

property differ according to the particular type of
property.
 Family law

Family law is concerned with the law relating to

births,
deaths and burying,
marriages and nullity of marriage,
divorce or dissolution of marriage,
the custody of children born out o a marriage,
and the rights to joint marriage property.
 Natural person
versus legal person
Legal capacity
 Natural persons versus legal persons

The present Code governs civil-law relations between

natural persons and civil persons.

1. The statute shall not have retroactive effect unless it

results from its wording or purpose.
2. Every human being shall have legal capacity from
the moment of birth.
3. A person shall attain majority upon reaching
eighteen years of age.
4. Full capacity to perform atcs in law shall be acquired at
the moment of attaining majority.
5. Guardianship shall be established for a fully
incapacitated person unless he is still under parental
authority.
6. Minors who have attained thirteen years of age as well as
partially incapacitated persons shall have limited capacity
for juridical atcs.
7. Subjects to exceptions provided for by statute, the validity
of an act in law for which a person limited in capacity for
juridicial act assumes an obligation or disposes of his right,
shall require the consent of his statutory representative.
 Natural persons vs. Legal persons

8. The domicile of a child being under parental authority is

the domicile of his parents or of that one parent who is
exclusively vested with parental authority or who has been
entrusted with the exercise or parental authority.
9. The State Treasury and the organizational units vested
with legal personality by specific provisions shall be legal
persons.
10. Unless otherwise provided for by specific provisions, an
organizational unit shall attain legal personality upon being
entered into a relevant register.
11. A legal person shall act through its bodies in a manner
provided for by the law on the grounds of its statute.
 Capacity to perform acts in law

Apart from legal capacity, the Polish law provides for a capacity to
perform acts in law which gives an entity tools to shape its rights and
obligations by way of various actions.

Capacity to perform acts in law is also called capacity for

juridicial atcs, capacity to perform juridical acts.
1. Persons who have not attained thirteen years of age and persons
totally incapactitated shall not have the capacity to perform acts in law.
2. A person who has attained thirteen years of age may be fully
incapaciteted if he is incapable of controlling his own behaviour.
3. An act in law carried out by a person who has no capacity to perform
such acts shall be invalid.
4. A person limited in his capacity to perform acts in law may enter into
contracts that are generally concluded with respect to petty, current
matters of every daylife without the consent of his statutory
5. A person who has attained majority may be partially
incapacitated due to mental ilness, mental retardation
or another kind of mental disorder.
6. A person limited in the capacity for juridical acts
may himself confirm the contract upon attaining full
capacity to perform acts in law.
7. A person limited in his capacity for juridical acts
may dispose his earnings without the consent of his
statutory representative.
 Property

The word property is somewhat troublesome. The word is

assigned with a different meaning in everyday language and in
the legalese.

Whereas in everyday speech it means anything that can be

owned by a person or an entity, irrespective of the fact if it is
tangible or intangible, according to the conception of lawyer,
e.g. Hohfel, an american jurist, property is a ‚bundle of rights
and the obligations’.
In such a view, despite a common parlance, property is not a
tangible object.
Property is the relation between person and the object.
 Property and
ownership law
As in legal terms property is the relation rather than the
thing itself , thus it becomes possible that there may be a
number of users.
Property may be divided into two types:
‚real property’ which is any interest in land, real
property, growing plants or the improvements on it.
And personal property which is everything else.
Pursuant to Article 44 of the Polish Civil Code, property
includes ownership and other property rights. This
means that the term refers only for asstes. Liabilities do
not fall within the scope of the concept.
 Types of ownership

Different categories of property in view of ownership

are also known. To name some of them, common
property is ownership by more than one person of the
same possession, community property is a form of
joint ownership between husband and wife, separate
property is a property owned by one spouse in a
community property regime, and ‚public property’
which refers to ownership by the State Teasury or state
owned legal persons, eg. local governemt units.
The gorvernment, and, in particular, the courts are
obligated to protect proprietary rights and to help
clarify ownership.
 Intelectual property

Intelectual property is a special type of property

which results from the fruits of mental labour and
means creations of mind, which have both moral and
commercial value.
Protection of intellectual property is intended to
stimulate the creativity of the human mind for the
benefit of all by ensuring that the advantages derived
from exploiting a creation benefit the creator
 Match the key terms concerning immovable property with their
1. definitions
Immovable a. Include buildings and other installations attached
property permanently to land, as well as trees and other plants
from the moment when they were planted or sown. The
rights bound with ownership of immovable property
are also regarded as its component parts
2. Land and b. Are tangible objects within the meaning of the Polish Civil Code
mortgage
register
3. Component c. Contains information about real property and rights established
parts of land thereupon. Access to it is open, universal and free of charge.
4. Agricultural d. Can not be detached from a thing without damaging or changing
land essentially its entirety or without damaging or changing
essentially the detached object.
5. Things/items e. Is immovable property which is or may be used for carrying out
agricultural production activity, including plant and animal
production or gardening.
6. Component f Also called real property; land constituing a separate object of
parts of the ownership as well as buildings permanently attached to land or
thing parts of such buildings.
 Answers correct
1. Immovable f. Also called real property; land constituing a separate
property object of ownership as well as buildings permanently
attached to land or parts of such buildings.

2. Land and c. Contains information about real property and rights established
mortgage thereupon. Access to it is open, universal and free of charge.
register
3. Component a Include buildings and other installations attached permanently
parts of land to land, as well as trees and other plants from the moment when
they were planted or sown. The rights bound with ownership of
immovable property are also regarded as its component parts
4. Agricultural e Is immovable property which is or may be used for carrying out
land agricultural production activity, including plant and animal
production or gardening.

5. Things/items b. Are tangible objects within the meaning of the Polish Civil Code

6. Component d Can not be detached from a thing without damaging or changing

parts of the essentially its entirety or without damaging or changing
thing essentially the detached object.
 Appurtenances

An appurtenance means an attachment of a right or property to a

more worthy principal (the main thing). The term‚ appurtenance’ is
most often used in the context of real property.

In real property, a physical appurtenance would be something found on

the land, which is of lesser value than the land itself.

An appurtenance ccurs when the thing becomes part of the property

such as a furnance or an air-conditioning unit.
Another example of appurtenance would be a shed or garage found on a
property holding a small suburban home.

Although it is detached from the house itself, it is still considered part of

the property, which means that it will not be removed when house is
sold.
Appurtenances can also be intangible in nature
similarly to an easement. The easement is a right
held by one property owner to make use of the land of
another for a limited purpose, such as a right of
passage.
One example would be a driveway easement. When
two homes are set too close to each other, they may
share the same driveway, which is found in between
the two houses. When one of the properties is sold, the
easement goes with as well.
In the context of real property disposal, appurtenances may be
used as an added value in the course of negotiations, where
potential buyers are made aware of the attachments that come
with the property in question, as they may affect its utility,
function and value.

The Civil Code stipulates that appurtenances include movable

things necessary to use another thing (the main thing)
according to its purpose, provided that they remain in an
actual relation which corresponds to that purpose. Thus, if a
thing does not belong to the main thing’s owner, it can not be
an appurentance. An appurtenance does not lose its status by
being temporarily deprived of an actual relation to the main
thing.
 True or false
1. Appurtenance is a thing of a lower value than the principal.
True
2. Appurtenance must be permanently fixed to the land
True
3. Appurtenance may also cover intangible property rights.
False
4. Appurtenances are transfered if the real property is conveyed.
True
5. Appurtenances do not have to be indispensable for the use of the main
thing.
False
In order for a thing to be an appurtenance it has to be owned by the owner of
the main thing.
True
7. A temporary lack of relation to the principal may result in the loss of the
status of an appurtenance.
 Enterprise
An enterprise is an organized set of intangible and
tangible assets, established in order to conduct business
activity.
It shall include in particular:
1. The designation which individualises the enterprise
or its separated parts (name of the enterprise).
2. Ownership of the real property or movable property,
including equipment, materials, goods, wares as well as
other property rights to immovable or movable property.
3. Rights resulting from contracts of lease and
tenancy or real property or movable property as well as
rights to use immovable or movable property resulting
from other legal relations.
4.Receivable, rights arising out of securities and cash,
5. Consessions, licences and permits.
6. Patents and other industrial property rigths.
7. Economic rights arising from copyright and
neighbouring/related rights.
8. The enterprise’s trade secrets.
9. Books and documents related to conducting
business activity.
 Acts in law

An act in law, also called a juridical act or a legal

transaction, may be in actionand omission which is aimed
at producing legal effects. Within the meaning of civil law,
an act in law occurs when at least one declaration of intent
is made by an entity expressing its decision intended to
produce legal effects, involving the creation, modification
or termination of e legal relationship.

Acts in law may be unilateral or bilateral. Whilst

unilateral atcs cause legal effects if at least one declaration
of intent is made (e.g. power of attorney), bilateral acts
require two parties to make mutual declarations of intent
(e.g. lease).
 Types of acts of civil- law
Under Polish law, acts in law may be divided into:

1. Consensual acts in law, i.e. the acts the effectiveness of which depends solely on
the submission of a declaration of intent (e.g. lease agreement), and real acts in
law which apart from the declaration of intent require a change in the actual
control over a thing or other objects (e.g. bailment agreement, lend-for-use
agreement).

2. Acts creating liabilites relying on the commitment by one party (the debtor) to
accompishing an action, i.e. a particular act or omission for the benefit of the
creditor (this group includes acts creating for one party which require only one
party to accomplish a particular action, and acts creating liabilites for two parties
which result in relevant obligations for both parties), and acts in law
concerning disposal of asstes, including tranfer, encumbrance, limitation or
annulment of a personal right; this category comprises also acts in law which
produce a double effect, both creating liabilites and concerning disposal of
assets (e.g. sales agreement).

3. Causal acts in law which are legal transactions that accrue financial benefits,
where their validity depends on the extistence of a proper reason (causae), and
 Types of acts of law

4. Paid acts in law, i.e. acts on the basis of which both

parties to a legal transaction creating liabilities for two parties
gain a financial advantage, and free of charge acts in law.
5. Acts in law that accrue financial benefits result in a
financial change, consisting in the fact that a person acquires
a personal right or is released from an obligaton or a burden
restraining the personal right.
6. Authorising acts in law defining the powers of other
entities to carry out activities with the effect for a person
giving the authorisation (e.g. power of attorney).
7. Mortis causa acts in law which produce legal effect
upon the death of a person who carried out act in law (e.g. last
will, agreement to waive inheritance), and inter vivos acts in
law.
Match the correct act in law with the right palce at the graph

(1)…………. real causal

(2)….
(3)………
Acts in law paid
(juridical
acts/ legal
(4)………………. (7)……………
transaction)

For
For two Creating
one liabilities
parties or (6)….
party
concerning
disposal
assets
Inter vivos
The accrue
(5)……………… financial
benefits
a. Authorising
b. Consensual
c. Abstract
d. Creating liabilities
e. Concering disposal of assets
f. Mortis causa
g. Free of charge
 Declaration of intent- Proxy (power of attorney) vs commerial
proxy

1. A general power of attorney comprises the

empowerment for acts of ordinary management. For acts
exceeding the scope of ordinary management a power of
attorney determining their kind shall be required, unless a
statute requiresa power of atorney for an individual act.
2. A general power of attorney shall be granted in writting on
pain of nullity.
3. Commercial proxy is a power of attorney granted by an
entrepreneur who is subject to a duty to be entered in the
register of entrepreneurs, which comprises the
empowerment for judicial and extrajudicial acts to the
conduct of the enterprise. `
Contracts
 Contracts

A contract is a voluntary, deliberate, and legally

enforceable (binding) agreement between two or
more competent parties.

A contractual relationship is evidenced by an offer, acceptance

of the offer, and a valid (legal and valuable) consideration.

Each party to the contract acquires rights and duties related

to the rights and duties of the other parties.
However, while all parties may expect a fair benefit from the
contract, it does not follow that each party will benefit to an
equal extent.
Existence of a contractual relationship does not necessarily
mean that the contract is enforceable or that it is not void or
voidable.
Contracts are normally enforceable whether or not in written
form, although a written contract protects all parties to it.
Some contracts (such as for sale of real property, hire
purchase agreements, insurance policies) must be made in
writting to be legally binding and enforceable.
Other contracts are assumed in and enforced by law whether
or not the involved parties desired to enter into a contract.
 Types of contract

Hereafter follow most popular types of contracts under Polish Civil law ststem

Leasing contract
Storage contract
Bailment contract
Life annuity contract
Agency contract
Contract for a specific task
Land lease contract
Commission contract/ contract of mandate
Insurance contract
Construction works contract
Consignment contract
Lending for use contract
Tenancy contract
 sale

A contract of sale is a legal contract. It is a contract

for the exchange of goods, services or property that are
the subject of exchange from seller (or vendor) to
buyer (or purchaser) for an agreed upon value in
money (or money equivalent) paid or the promise to
pay same. It is a specific type of legal contract.
 leasing

Leasing- is a contractual arrangement calling for the lessee

(user) to pay the lessor (owner) for use of an asset. Property,
buildings and vehicles are common assets that are leased.
Industrial or business equipment is also leased.
Broadly put, a lease agreement is a contract between two
parties, the lessor and the lessee. The lessor is the legal
owner of the asset; the lessee obtains the right to use the
asset in return for regular rental payments. The lessee also
agrees to abide by various conditions regarding their use of
the property or equipment. For example, a person leasing a
car may agree that the car will only be used for personal use.
 Bailment

Bailment describes a legal relationship where

physical possession of personal property, or a chattel,
is transferred from one person (the "bailor") to
another person (the "bailee") who subsequently has
possession of the property. It arises when a person
gives property to someone else for safekeeping, and is
a cause of action independent of contract or tort.
 Life annuity contract

A life annuity is an annuity, or series of payments at

fixed intervals, paid while the purchaser (or annuitant)
is alive.
A life annuity is an insurance product typically sold or
issued by life insurance companies.
Life annuities may be sold in exchange for the
immediate payment of a lump sum (single-payment
annuity) or a series of regular payments (flexible
payment annuity), prior to the onset of the annuity.
 Agency agreement
 An agency agreement is a legal contract creating a fiduciary relationship
whereby the first party ("the principal") agrees that the actions of a second
party ("the agent") binds the principal to later agreements made by the
agent as if the principal had himself personally made the later agreements.
The power of the agent to bind the principal is usually legally referred to as
authority. Agency created via an agreement may be a form of implied
authority, such as when a person gives their credit card to a close relative,
the cardholder may be required to pay for purchases made by the relative
with their credit card.
 An example of the existence of an agency agreement at issue in a 2006 court
case arose when a tennis tournament sponsor sued Venus and Serena
Williams for not participating. The sponsor argued that their father,
Richard Williams, had committed to their participation in the tournament.
The Williams sisters argued that their father did not have the authority to
bind them to such an agreement. If their father did commit the sisters to
play, the issue for the court to decide is whether a valid agency agreement
existed between the Williams sisters and their father. If not, then they likely
were not bound to his agreement under the law of agency
 tenancy

Tenancy agreement- a holding of an estate or a mode

of holding an estate; specifically : the temporary
possession or occupancy of something (such as a
house) that belongs to another for a certain amount of
money.
 Delicts and torts
Function
The law of civil wrongs in England is known as tort of law, from tortus,
Latin for „crooked”. It is impossible to attmept a more exhaustive definition
than that. Strictly, we should speak of torts in the plural, since tort law is
made up of a number of separate causes of action, protecting different
interests and imposing different standards of liability.
Common torts
To take some more better known examples:
Nuisance protects a landowner’s use and enjoyment of land against indirect
interference (e.g. noise, smoke, smell).
Trespass to land proctects land against direct physical intrusion (e.g. an
overhanging projection on a building)
Defamation protects reputation from being damaged by false statements
of fact. It can properly be subdivided into the separate torts of liblel (written
statements) and slander (spoken words).
False imprisonment provides a cause of action for one deprived of his
personal liberty, without lawful excuse.
There are many more torts. Professor Bernard Rudden
of Oxford University has identified as many as seventy
torts of one sort or another, some very small and
specialised, what he calls torticles. The most important
tort in practice is the tort of negligence.
 Tort of negligence

Negligence has a ordinary meaning of failing to

take care. Essentially, this is its meaning as a tort
also includes a very important additional
requirement that the carelessness must take place in
a situation where the law recognises an obligation to
take reasonable care, or in the language of the law,
that there has been a duty of care owed by the
defendant to the claiment (the person injured by the
carelessness).
 Scope of negligence

Negligence has an unusually wide scope. Other torts

tend to protect only certain particular interests (e.g.
use and enjoyment of land; liberty, in the examples
given above).
Negligence can, in principle, be used to compensate for
any loss which occurs through somebody’s
carelessness. There is constant pressure to expand the
tort of negligence to cater for new situations (it is said
that humans are particularly ingenious in thinking up
new ways of injuring one another- this is certainly a
frequent result of new advances in technology).
It is simply not fair to hold people liable for all losses
which occur in all situations when they conceivably
might have been said to be careless (e.g. should a woman
be liable to her child, injured as a result of the mother
drinking to much alcohol while pregnant?). These limits
have largely been imposed by limiting a duty of care.
But to a lesser exten, liability can be kept under control
by using the concepts of breach of duty (was the action
careless)
There are laso a number of important defences which
might be raised.
Right of purchase
The priority of purchase of a specified thing
Sale by instalments
Sale with a reservation of the thing’s examination by the buyer
Fixed price
A price higher than the specified one
Minimum price the price for the given sort of kind
Guarantee of quality
Release from liability
Warranty for defects
Distance selling
 Difference between civil and criminal law under common law
system

Youtube.com/watch?v=dMnqtRtd7F4

Questions:
1. What is the fundamental difference between the
civil and criminal law?
2. What evidence is necessary to get guilt or liability?
3. How do the terms and wrongful death relate one to
the other? Explain that on the example of the O.J.
Simpson case
 Sole trader

Entry to the Business Activity Register

The simplest form of business activity is operating as a

sole trader. It requires registration in Urząd
Gminny (commune or municipal office), the Central
Statistical Office and a tax office.
The EU residents can simply register such activity,
others need to obtain a certificate of the Polish
representation abroad stating that, in accordance with
the principle of reciprocity, Polish entrepreneurs are
permitted to conduct business activity.
 Property law- ownership and rights ad rem (things)

Ownership means an exclusive right to use, posess and

dispose of property. Ownership may be corporeal, i.e.
of a tangible thing, which may be moveable or
immovable; or it may be incorporeal, e.i. of something
intangible, such as a copyright or patent. Ownership
entails enjoyment of the broadest set of rights over the
property.
The Civil Code stipulates that within the limits specified
by statutory law and the principles of social coexistence
rules, the owner may use a thing in accordance with the
socioeconomic purpose of the right and may collect fruits
and other incomes from that thing and within the same
limits may dispose of the thing.
Ownership may be transferred by way of a contract of
sale, exchange, (donation), for the transfer of ownership
or any other contract obliging to transfer the ownership of
a thing defined as to its identity to the acquier.
Article 195 of the Civil Code lays down that ownership of the same
thing may be indivisibly vested in several persons. Co-ownership
may be split into two types: ownership in fractional parts
(similar to the English concept of tenancy in common) or joint
ownership (compared to the English concept of joint tenancy).,
where it is assumed that the co-owner’s shares are equal.

The law provides that every co-owner may dispose of his share
without the consent of other co-owners.
Moreover, the distinction is made between the owner, having the
legal title, and the possessor a person holding and using real or
movable property.
Taking an example of real property, we may talk about
full ownership, which is similar to the English legal
concept of freehold.
Polish law also provides for a so-called perpetual
usufruct, which is similar to ownership in that it is
freely transferable and ensures the use of the property
in a similar manner as an owner’s.
There are also a number of limited property rights,
such as mortgages, usufruct and servitudes (right is
similar to easements under English law), and two
types of lease property.
Legal titles are registered in the Land and Mortgge
Register, which is kept by district courts having
jurisdiction over particular property. The data kept by
the courts can be check online as courts across the
country have been transferred to a national electronic
register, and it is also possible to check the legal status
of properties at the Land Register Information
Centre unit.
 Usucaption - zasiedzenie

Usucaption in the US and the UK also known as

acquisitive prescription, is a concept originating
from the Roman law of property and applied in the
civil-law sysytems.
Usucaption stands for a method of acquiring a legal
title to the property by its possesion for a period
required by law.
Usucaption is similar to a common-law institution of
adverse possession, also called squatting, which means
actual. Open and notorious, exclusive and continuous
use of property for a defined statutory period.
 Usucaption- Polish law

Polish law regulates usucaption in the Civil Code.

Article 172 sets upon that „a possessor of immovable
property who is not its owner shall acquire ownership if
he has possessed the immovable property in
uninterrupted period of twenty years as an
autonomous possessor, unless he has acquired
possession in bad faith (usucaption). However , good
faith plays relativelymodest role in usucaption, as it is
possible to acquire ownership by the possessor of the
immovable property in the laps of thirty years, even
though he acquired possession in bad faith.
The law also stipulates that in the case when the owner
of immovable property to whom the usucaption period
runs is a minor, the usucaption period may not end
earlier than within the laps of two years from the time
when the owner attains his majority.
 Protection of ownership match the terms
1. Autonomus a. A person who takes possession of a thing in the
possessor process of performing the agreement believed to be
ligitimate
2. Dependent possessor b. Possession of a thing
3. Restitution claim c. A person who actually holds a thing like an owner: he does
not lose possession by giving the thing to another person into
dependent possession
4. Possessor in good d. A person who takes possession of a thing as a counterparty
faith to contract despite having knowledge or awareness that the
transaction is not strictly in accordance with all legal
restrictions
5. Possessor in bad faith e. Such expenses which are necessary in order to keep things fit
for their purpose and normal use
6. Actual control over a f. A person who actually controls someone else’s thing, such as
thing the tenant, the lesee, the pledgee, etc. And is subordinate to the
owner or autonomous possessor based on the legal relationship
e.g. lease agreement.
7. Necessary g. A claim against the person who infringes the ownership in a
expenditure manner other than by depriving the owner of actual control
over the thing; in such a case the owner may claim for
restoration of the state compliant with the law.
 answers

1. C
2. F
3. G
4. A
5. D
6. B
7. E
 Protection of ownership
Match the terms
1. Autonomus c. A person who actually holds a thing like an owner:
possessor he does not lose possession by giving the thing to
another person into dependent possession

2. Dependent possessor f. A person who actually controls someone else’s thing, such
as the tenant, the lesee, the pledgee, etc. And is subordinate
to the owner or autonomous possessor based on the legal
relationship e.g. lease agreement.

3. Restitution claim g. A claim against the person who infringes the ownership in
a manner other than by depriving the owner of actual
control over the thing; in such a case the owner may claim for
restoration of the state compliant with the law.
4. Possessor in good faith a. A person who takes possession of a thing in the process of
performing the agreement believed to be ligitimate
5. Possessor in bad faith d. A person who takes possession of a thing as a counterparty
to a contract, despite a knowledge or awarness that is not
right.
6. Actual control over a b. Possession of a thing
thing
 Perpetual usufruct- użytkowanie wieczyste

The concept of perpetual usufruct arises from the

historical reluctance of the State o transfer control of
properties to fully private ownership. It was intended
to give the holder a relatively extensive bundle of
rights and responsibilites, whilst allowing the full title
to remain with the state.
 Perpetual usufruct part II

Perpetual usufruct may only be established on land

owned by the State Treasury or municipalities.
Once created, it can be subject to inheritnce, transfer
to third parties and encumbrances, such as mortgage,
servitude , and usufruct.
In comparison with the wide powers granted to the
holder of perpetual usufruct rights, the State Treasury
or a municipality is subtstantially restrained in its
powers; it can not encumber the property or sell it to
an entity other than the holder of perpetual usufruct,
the State Treasury or commune (municipality).
 Perpetual usufruct III

The holder of the perpetual usufruct is solely entitled to use

and collect income from the land. The perpetual usufructuary
(holder of perpetual usufruct) is the owner of buildings and
other constructions erected on the land.
There are two basic ways of creating usufruct; by virtue of a
contract or by operation of law.
Creating the right of perpetual usufruct through a contract
requires with very few exceptions, putting the land up for
tender. The bidder who wins the tender signs a notarial deed
with the State Treasury or a municipality establishing the
right of perpetual usufruct. The right comes into force only
after its registration in the land and mortgage register.
 Perpetual usufruct IV
A fundamental difference between perpetual usufruct and the full
ownership right is that perpetual usufruct right is supossed to be
created for a defined purpose e.g. the development of a project or
the conduct of some sort of activity, as provided in a contract.
Upon the creation of the right of perpetual usufruct by virtue of a
contract, thr perpetual usufructary is obliged to pay an initial fee
amounting to 25% of the land value.
Thereafter, he pays annual fees of 1% or 3% of this value,
depending on the purpose of the development.
The percentage of fees may be lower in some specific cases, for
example, in relation to some non-profit organizations and historic
monuments.
The value of the land, as established based on an official valuation
for the purposes of calculating the annual fees, is subject to
indexation.
Upon the termination of a perpetual usufruct contract,
the perpetual usufructuary loses is rights, and the
land- together with the buildings and other
improvements- is taken over by the owner.
Nonetheless the owner is obliged to reimburse the
perpetual usufructuary for the current mrket value of
the buildings and other improvemtns legally erected or
implemented by him.
 True or false
1. Rights in rem refer to rights/interests associated with the property and are not based on
a personal relationship.
True
2. A perpetual usufructuary is vested with the broadest rights out of all property rights
holders.
False
3. The owner of the land subject to perpetual usufruct may sell the land only to defined
buyers.
True
4. Both State Treasury and the perpetual usufructuary may collect income from the land.
False
5. In principle, a tender procedure is conducted in order to transfer a land to perpetual
usufruct by way of a contract.
True
6. Perpetual usufruct is always created for a specific purpose
True
7. A perpetual usufructuary is obliged to pay annual fee for the land at a fixed rate.
False
8. The State Treasury or the municipality has to pay back the costs of any improvemtns to the
perpetual usufructuary when the usufruct expires.
 Limited property right
Under Article 244 of the Civil Code limited property rights include usufruct,
servitude, pledge, cooperative memebr’s ownership right to premises
and mortgage.

The provisions on transfer of ownership of the property rights shall apply

accordingly to the establishment of a limited property right.
When the entitled party waives a limited property right that right shall expire.
If several limited property rights encumber the same thing a right that arose later
shall not be exercised to the detritment of a right which arose earlier (priority).
Cooperative member’s ownership right to premises and mortgage is governed by
a separate provisions.

A limited property tight shall expire if it is transferred to an owner of an

encumbered thing or if a person who is entitled to such a right acquires an
ownership of the encumbered thing.
Priority of limited property rights may be changed, but the change shall not
infringe the rights which have a priority inferior to the right relinquishing
priority or these of a priority superior to the right which acquires priority over
the relinquishing right.
 Mortgage- hipoteka

Mortgage is a debt instrument, secured by the

collateral of specified real property, under which the
borrower who is the mortgagor is obliged to pay back
to the creditor, called the mortgagee, a debt with a
predeterminant set of payments.
Over a period of many years, the mortgagor repays the
loan incremented by interest, until he eventually owns
the property free and clear. Mortgages are also known
as „liens against property” or „claims on property”. If
the borrower defaults on payment, the bank can
foreclose on the mortgage.
Under Polish law, mortgage is governed by the
provisions of the Civil Code and the Act on Land and
Mortgage Register and on mortgage of July 1982.
Whereas the Code provides general regulations on
limited property rights, the Act defines mortgage in
general, specifies types of mortgage, including
contractual mortgage, mortgage on mortgage receivble
debt, and compulsatory mortagge.
The principles for the transfer of mortgage receivble
debt, extent of mortgage encumberance and protection
thereof, and expiration of mortgage.
In residential mortgage, real property buyer agrees to
create a security interest in his house to the benefit of the
bank.
Mortgages come in many forms. With a fixed-rate
mortgage, called a ‚traditional mortagage’ the borrower
pays the same interest rate for the life of the loan.
Most fixed-rate mortgages have a 15 or 30-year term. If
market interest rates rise, the borrower’s payment does
not change. If market interest rates drop significantly,
the borrower may be able to secure that lower rate by
refinancing the mortgage.
With an adjustable-rate mortgage. Also called floating-
rate mortagge, the interest rate is fixed for an initial
term, but then it fuctuates along with market interest
rates. The initial interest rate is often a below-market
rate, but interest rates may increase later, which may
make it difficult for the borrower to afford the higher
monthly payments. The monthly payments are
unpredictable after the initial term.
 servitude- służebność

Two main types of servitudes may be distinguished under Polish law:

Land servitude
Personal servitude

Although both types of servitudes are related to property, they fulfil

different functions and are governed by separate provisions of the
Civil Code.
Whereas land servitude may only by aimed at anhancing the usability
of a dominant property or its determinant part and it consists in
encumbering a given property (‚servient property”) to the benefit of
the owner of other property (dominant property), personal servitude
consists in encumbering a property to the benefit of an individual-
only a natural person.
 Pledge- zastaw

According to article 306 of the Civil Code for the

purpose of securing a specified claim, a movable
thing may be encumbered with a right which gives
the creditor an entitlement to satisfy his claims
against the thing, regardless of who has become the
owner of the thing and with prioriti over the personal
creditors of the thing’s owner, exclusive of those who
are entitled to specific priority under statue.

A pledge may also be established for the purpose of

securing a future or contingent claim.
 Possession

Although the terms possession and ownership are

often confused and considered to be synonyms,
possession is not the same as ownership.
Therefore, the concepts should not be used
interchangeably, especially in the legal context. The
owner of an object does not always possess the object
For instance the, an owner of a car could lend it to
somepne else to drive, who then possesses the car.
Therefore, the owner does not give up ownership by
mere fact of lending the car to someone else.
The distinction between possession and ownership, and many
nuances of possession, are complicated even for attorenys and
judges. So as to avoid considerable confusion over what exactly is
meant by possession the word is frequnetly modified by adding a
term describing the type of possession. For instance, possession
may be actual, adverse, conscious, constructive, exclusive, illegal,
joint, sole, superficial and plenty other.
In the eyes of law, ownership is a right to a thing or an object which
is exercised to the exclusion of others. Therefoe permanence is one
strong featrue of ownership, possession is characterized by
temeporariness.
And ownership is proven beyond doubt by legal title to a property
and possession by the actual holding of a thing.
When you buy a car in your name, the ownership or the title of the car
belongs to you and no one else can make a claim to be the owner of the car.
In fact, the same occurs in the case with the real property that you buy
through financial help from the bank once you have paid all the
instalments.
If you live in a rented apartment, you can say that you are in possession of
the apartment, but you can not claim ownership as the title of the
apartment remains in the hands of the person who bought it.
Moreover, the physical control over a thing gives you a possession of that
thing. For example, the house that a person lives in with his family is said to
be in his possession and so are all other things that he keeps under his
control.
But, possession never automatically implies ownership. Let us take an
example of a criminal who is in possession of the stolen property or money
that actually belongs to soemone else.
 Main differences between possession and ownership

1. Ownership signifies permanence, whereas

possession is mostly temporary.
2. Actual possession means physical control of a
thing, whereas ownership means the name on the
title deed.
3. Power and intention to control a thing is important
in the concept of possession.
4. Ownership is a guerantee by law, whereas
possession is a physical control.
5. Ownership does not require possession.
Watch the presentation on the introduction to
propert law in the UK under the link below:

www.youtube.com/watch?v=762c1MJIAfg

Questions:
1. What are proprietary rights?
2. What are legal estates and legal interesrs?
3. What legal estates and legal interests are enforced?
4. What makes the legal right enforceable?