Uwagi o formie przewidzianej dla celów dowodowych
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Date
1987
Authors
Advisor
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Publisher
Wydział Prawa i Administracji UAM
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Remarks on the from required for evidence purposes
Abstract
The provisions on the form required for evidence purposes (ad probationem) belong
to those which should be subject to critical evaluation in the course of works
on the Civil Code reform. The article presents the history of the form ad probationem
in Polish law, the form which is the manifestation of the French adage
„lettres passent témoins". The said form was included into the Civil Code despite
strong criticism. The author presents arguments for and against the said form. The present Art. 74 of the Civil Code provides for the moderate type of the
form for evidence purposes. The interdiction to admit evidence in the form of witnesses
or in the form of statements by the parties concerning the fact of concluding
the transaction allows three exceptions: 1) if both sides express their consent
in that respect, 2) if the fact of concluding the transaction is authenticated by means
of a document, 3) if a court deems it necessary due to the particular circumstances
of a case. The author analyses the above exception in detail, and reaches the conclusion
that they mitigate the severity of the rule itself
The author also discusses Art. 77 of the Civil Code which reads that if a contract
was concluded in writing, its supplementation, change or dissolution by consent
of both parties, as well as its renunciation, must be set down in writing. The author
presents the views of the doctrine and the case law in that respect.
The author criticizes Art. 75 of the Civil Code which requires the form for
evidence purposes when a legal transaction contains a disposition of a right, the
value of which exceeds 10 000 zloties, as well as when a legal transaction concerns
an obligation to pay an amount exceeding 10 000 zloties. In the author's opinion,
Art. 75 is a dead letter in practice.
In conclusion the author does not put forth the postulate to eliminate the form
ad probationem in its present shape. Yet, he is of the opinion that Art. 75 should be
abrogated. Only in case of a loan exceeding 100 000 zloties should the contract be
drawn up in writing.
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Sponsor
Digitalizacja i deponowanie archiwalnych zeszytów RPEiS sfinansowane przez MNiSW w ramach realizacji umowy nr 541/P-DUN/2016
Keywords
Citation
Ruch Prawniczy, Ekonomiczny i Socjologiczny 49, 1987, z. 4, s. 39-54