Klauzule wyłączające odpowiedzialność za szkodę a ubezpieczenie odpowiedzialności cywilnej

dc.contributor.authorWarkałło, Witold
dc.description.abstractThe two law institutions specified in the title, so different as they are (i.e. provision of a contract between a possible wrongdoer and a person subject to damage, as well as liability insurance), have however one common characteristic: they both aim at the protection of the damage perpetrator against a diminution of his assets as result of indemnitary obligations. In short: they release the perpetrator from the liability incurred by the damage, they protect him against the "legal risk" consisting in the diminution of his assets by the amount due as indemnity. As regards the elimination of the liability for damages and the insurance of the liability, they both result in the exemption of the wrong-doer from a property sanction and find their justification in the principle of freedom of contract. However, this principle cannot lead to an exemption from liability for intentionally caused damage, as nullo pacto effici posse ne dolus praestatur. Therefore, neither the clause of non-liability nor the liability insurance might protect against the liability for wilful damage. It has been shown in the article that the non-liability clause (i.e. the clause excluding liability) can be applied not only to indemnitary relations ex contractu but also ex delicto, as testified, among others, by the contents of Art. 437 of the Civil Code. There is an essential difference between the clauses excluding liability and the clauses merely limiting liability. None the less, the legislator regulates jointly and uniformly the scope of application and of effectiveness of both these kinds of clauses. Thus they are both invalid by virtue of relevant provisions (e.g. Art 437 and Art. 558 § 2 of the C.C.; Art 160 and Art. 170 of the Maritime Code) and, moreover, by their being contrary to the principles of social coexixtence. The freedom of contract in exempting or limiting liabilities is restricted to the highest degree under legislation relating to planned contracts of socialist organisations, e.g. delivery and building contracts. One could say that these clauses are a legally admitted form of escape from the rigours and severities of individual liability conceived sometimes as a specific and severe risk inherent in economic activity. The application of these clauses contributes to the fact that the civil liability does not cover the totality of inflicted damages and does not cover the full amount of those taken into consideration and to be compensated. Though — from the point of view of the wrong-doer — the clause excluding liability and the liability insurance have an identical effect, they are actually in mutual opposition. In contra-distinction to the non-liability clause the liability insurance: a) does not deprive the injured person of the indemnity but guarantees its obtaining; b) does not release the perpetrator of the indemnity expenses but, on the contrary, ensures their payment in advance, namely in the form of insurance premiums. While the exemptive (i.e. excluding liability) clauses bring to light the necessity of extending the scope of persons' and goods' insurance, the limiting clauses favour the development of liability insurance: limitation and lumping (in one sum) of indemnities focilitate a proper evaluation of risks and the respective insurance protection.pl_PL
dc.description.sponsorshipDigitalizacja i deponowanie archiwalnych zeszytów RPEiS sfinansowane przez MNiSW w ramach realizacji umowy nr 541/P-DUN/2016pl_PL
dc.identifier.citationRuch Prawniczy, Ekonomiczny i Socjologiczny 36, 1974, z. 3, s. 325-340pl_PL
dc.publisherWydział Prawa i Administracji UAMpl_PL
dc.titleKlauzule wyłączające odpowiedzialność za szkodę a ubezpieczenie odpowiedzialności cywilnejpl_PL
dc.title.alternativeClauses Excluding Liability for Damage and Liability Insurancepl_PL


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Uniwersytet im. Adama Mickiewicza w Poznaniu
Biblioteka Uniwersytetu im. Adama Mickiewicza w Poznaniu
Ministerstwo Nauki i Szkolnictwa Wyższego