Z problematyki lucrum cessans w obrocie uspołecznionym
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Date
1983
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Publisher
Wydział Prawa i Administracji UAM
Title alternative
On lucrum cessans problems in socialized transactions
Abstract
Failing a legal or contractual provision - to the contrary, redress of damages
covers the losses borne by the injured person as well as the profit he could have
made if he had not sustaineld the damage. Dogmatic amid legal probletms emeriging
by delimiting a scope of that form of a profit loss which is loss of returns expected
by the injured unit of economy is the subject of this study. The analysis has
to be opened with stating the relation of that element of damage concept to its
other types described in legal acts as "direct damage", "indirect damage", "actual
damage", "future damage", "damage in the amount of usual commercial value of
goods", or "expected damage". These terms can be usually observed when discussing
departures from the principle of full damages.
Assessing value of lost profits has to account for an individual situation of
a specific injured person. There is no justification on the grounds of Polish law
to emiploy a concept of the so-called "abstract profit". This fact however does not
exclude a possibility of invoking certain typical standard situations when assessing
value of lost profits, yet an actual and specific character of damage calculation is
not upset. There is a problem to be solved on reconstruction of a hypothetical
course of events which could have effected possible profits: can the scope of
debtor's liability be influenced by the fact that a loss of profits would have
ocurred even if the event producing damage had not happened? Another problem
requires an answer to the question whether the injured unit should recover damages
reduced by profits it could have gained undertaking other type of activities?
Still other questions can emerge when assessing what part of the expected (planned)
financial gain can be considered to be lost within the meaning of art. 316)1 § 12 of
the civil code. It is a fragment of a wider problem i.e. the effect of financial law
institutions on the application of civil law provisions. The author has also made
an effort to prove that a postuliate raised in literature as to necessity of proving
that a loss of profits was "actually" borne does not contradict the fact that a hypothetical
situation of the injured can only be assessed at most, with a high degree
of probability.
Employing a traditional division to lucrum cessans and damnum emergens by
the Polish legislator even in economic relations can prove the advisability of
using — to a proper degree — solutions elaborated by practice and doctrine of civil
law when discussing problems characteristic for law on socialized transactions.
Legislative solutions as well as views of the doctrine of law on economic activities
of the socialist States were presented in its essentials.
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Keywords
Citation
Ruch Prawniczy, Ekonomiczny i Socjologiczny 45, 1983, z. 4, s. 41-57