Orzeczenia stwierdzające obowiązek złożenia oświadczenia woli w obrocie nieruchomościami (art. 64 k.c, 1047 k.p.c.)
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Date
1983
Authors
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Journal Title
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Publisher
Wydział Prawa i Administracji UAM
Title alternative
Judicial decision as means of legal enforcement of declaration of will in transfer of land property transactions
Abstract
The Polish Civil Code (sec. 64) and the Polish Code of Civil Law Procedure
provide the special rules in a case when one person refuses to make a declaration
of will. These rules, however, apply mostly to the cases When there have already
been an obligation between the parties to make such declaration. The following
typical situations can be distinguished in transfer of land property transactions:
1) a preliminary contract of sale (a donation or another type of contract is not
excluded), obliging both parties to concludes specific contract in the future,
2) a final contract of sale of land (or another type of contract) which does not
transfer ownership of it to the buyer. It is however necessary for the both parties
to make their final declarations to transfer ownership (sec. 157 § 2 c.c),
3) the obligation arising from another source than a contractual one, i.e. an
unjust enrichement, legacy, erection of a building on land by an owner-like possessor
etc.,
4) revoking of a donation by the donor.
In order to transfer ownership of land in those situations, a legal act have
to be drawn by the public notary tin a solemn form (a deed). If any party refuses
to participate in the legal transaction- the law permits to have its declaration of
Will replaced by a decision of a court.
The party who wants the transfer of land property to be effected may lay
an action against the other party. It is a duty of a court in the legal proceedings
to establish the existence of the forementioned Obligation to make a declaration
of will. The final judgement replaces the declaration of will of the defendant
(sec. 84 c.c, sec. 1047 c.c.l.p.). The author argues that in the transfer of land
property, this judgement should generally take place of the declarations of will
of both parties (i.e. plaintiff's and defendant's).
That solution has the advantage of being the moist suitable in the practice.
With the final judgement both parties get the surogate of a deed drawn by
a public notary. The transfer of land property is usually effected as a result of
that judgement. In some cases, however, the additional registration of the judgement
in the land registry is required.
Description
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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 45, 1983, z. 2, s. 59-74
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ISBN
ISSN
0035-9629