Oświadczenie dorozumiane a swoboda formy czynności prawnych
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Date
1983
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Wydział Prawa i Administracji UAM
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Implied declaration of will and the freedom of form of legal transactions
Abstract
A notion of the implied declarations of will is still controversial in the current
statements of legal doctrine. Therefore an attempt at construction of the reporting
definition of the term seems worthwhile.
Interpretation of the sec. 60 of the Civil Code allows to reach a conclusion
that the explicit and implied declarations of will cannot be distinguished on the
grounds of this regulation. On the other hand, several various concepts of the
declarations issued per facta concludentia are presented in the legal science. Opting
for anyone of those is of no importance. One can agree that defining implied
declarations one way or another is primarily a matter of convention. The above
statement however, should not result in renouncing the defined term. It is the
author's opiniono that a declaration of will can be understood as the implied one if
it is issued with a use of sign which aquires its significance only in a defined
situational context.
A detail interpretation of wording of the sec. 60 of the c.c: "with a reservation
of exceptions provided in the Act" is necessary to verify a statement that
the cited rule does not allow to differentiate between the implied and explicit declarations
of will. Contrary to the common opinion, that phrase, as it seems, cannot
be identified with a requirement of keeping declarations of will in a form prascribqd
by law. One can 'assume here that in this instance the Act requires to
issue declarations of will by means of reproducing certain established formulae
or models of behavior.
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Digitalizacja i deponowanie archiwalnych zeszytów RPEiS sfinansowane przez MNiSW w ramach realizacji umowy nr 541/P-DUN/2016
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Citation
Ruch Prawniczy, Ekonomiczny i Socjologiczny 45, 1983, z. 1, s. 67-79