Civil Law PDF

**CONCEPT AND OBJECTS OF REAL RIGHTS** Objective meaning -- set of rules pertaining to real rights Subjective meaning -- subjective rights pertaining to things and are effective against everyone Effective against everyone (erga omnes) Closed catalogue ( numerus clausus) Dominance of uncondition...

**CONCEPT AND OBJECTS OF REAL RIGHTS** Objective meaning -- set of rules pertaining to real rights Subjective meaning -- subjective rights pertaining to things and are effective against everyone Effective against everyone (erga omnes) Closed catalogue ( numerus clausus) Dominance of unconditionally operating norms (iura cogentes) 3\. Divisions of real rights according to the scope of competences A blue and white table with black text Description automatically generated 4\. Object of real rights  5\. Divisions of real rights according to independence A close-up of a list of items Description automatically generated 6\. Division of real rights according to transferability  7\. Concept of things a\. Art. 45. Civil Code Within the meaning of this Code "things" are material objects only b\. Art. 44 Civil Code Property is ownership and other property rights 8\. Things vs Animal Art. 1 Animal Protection act a\. The animal as a living creature, capable of suffering, is not a thing. The human being should respect, protect and provide care to it. b\. All matters not regulated by this act will be governed by the regulations applicable to things 9\. Real Estate a\. Art. 46 Civil code \- Real Estate is part of the Earth's surface constituting a separate object of ownership (land), as well as buildings if, under specific regulations, they constitute an object of ownership separate from the land \- The keeping of land and mortgage registers is governed by separate regulations b\. Art. 143 Civil Code \- Within limits set by the social and economic purpose of land, the ownership of land extends to the space over and under its surface. This provision does not prejudice regulations on rights to waters \- In extraordinary cases a building can be a real estate 10\. Agricultural real estate a\. Art. 46 Civil Code Agricultural real estate (agricultural land) is any real estate which is or may be used to conduct agricultural production, both crop and animal farming, including gardening, horticulture and fish farming. 11\. Movable a\. definition \- Movable property includes items that can be transported without altering them, unlike immovable property like land b\. goods in specie, and fungibles \- Goods in specie: Unique, specific items (e.g. a painting) \- Fungibles: Interchargable items (e.g. grains, money) c\. divisible and indivisible things \- Divisible: Can be split without losing value (e.g. wheat) \- Indivisible: Cannot be split without losing value (e.g. a car) d\. in legal transactions and barred from it \- In transactions: Movables are commonly sold or leased \- Barred: Some items (e.g. hazardous materials) may be restricted by law 12\. Compononent part a\. Art. 47 Civil Code \- A component part of a thing cannot be a separate object of ownership or other real rights \- A component of part of a thing is anything which cannot be separated therefrom without damaging or substantially altering the entire thing or without damaging or substantially altering the separated object \- Objects which are attached to a thing for temporary use only do not constitute a component part of a thing 13\. Appurtenances a\. Art.51 Civil Code \- Appurtenances are movables needed to make use of another thing (the principal thing) in accordance with its purpose if they have an actual connection with it corresponding to that purpose \- A thing does which does not belong to the owner of the principal thing cannot be an Appurtenance \- An appurtenance does not lose its character by being temporarily deprived of the actual connection with the principal thing 14\. Profits a\. Art. 53 Civil Code \- The natural profits from a thing are its fruits and other component parts separated from it if, according to the principles of proper management, they constitute the normal gains from the thing \- Civil profits from a thing are gains which a thing brings on the basis of a legal relationship b\. Art. 54 Civil Code \- Profits from rights are gains which that right brings in accordance with its social and economic purpose -May be owned by an owner (Art. 140 Civil Code) or someone else (e.i. art. 693 1 Civil Code) **POSSESSION** 1\. Possession a\. Actual control of a thing \- owner-like possessor: acts as the owner, using and controlling the item as \- dependent possessor: Holds the item but depends on another's rights (e.g. tenant) \- actual holder of a thing: Physically holds or controls the item, regardless of ownership rights b\. Elements: \- corpus: Physical control or holding of the item \- animus: Intention to possess or control the item as one's own 2\. Good faith of the possessor a\. Art. 169 Good Faith of the possessor \- If a person who is not entitled to dispose of a movable disposes of it and hands it over to the acquirer, the latter acquires ownership at the time he takes possession of the thing unless he is acting in bad faith \- However, if a thing lost, stolen or otherwise mislaid by the owner is disposed of before three years have passed from the time it was lost, stolen or mislaid, the acquirer may require ownership only upon the lapse of the said three years. This restriction does not apply to money or bearer documents or to things acquired at an official public auction or in the course of execution procedure 3\. Presumptions pertaining to possession a\. Presumed owner-like possession (339 CC) \- person in possession is presumed to possess the item as if they were the owner b\. Presumed contitnuity (340 CC) \- Possession is presumed to continue unless proven otherwise c\. Presumed compliance with the law (341 CC) \- Possession is presumed to comply with legal requirements d\. uninterrupted possession (345 CC) \- Possession is considered continuous unless there is evidence of interruption 4\. Protection of possession a\. Art. 342 CC \- Possession cannot be willfully breached even if the possessor acted in bad faith b\. Art. 343 CC \- A possessor may use self-defense to repel a willful breach of his possession \- A possessor of real estate may immediately, after a willfull breach of his possession, restore the previous status by his own actions; however, when doing so, he cannot use violence agains other persons. The possessor of a movable, if threatened by the danger of irreparable damage, may immediately , after having been wilfully deprived of possession , use the necessary self-help in order to restore the previous status \- The provisions of the preceding paragraphs apply accordingly to an actual holder 5\. Claim for protection a\. Art. 344 CC \- A possessor can claim restoration of the previous state and cessation of breach against a person who wilfully breached his possession and agains a person for whose benefit the breach took place. This claim is not conditional on the possessor's good faith or the compliance of his possession with the legal status unless a final non-reversible decision of a court or other state authority appointed to hear cases of a given type states that the state of possession which resulted from the breach was lawful \- A claim expires if it is not pursued within one year of breach Ownership 1\. Concept of ownership a\. Art.140 CC \- Within the limits set by the law and the pricniples of community life, an owner may, to the exclusion of other persons, use a thing in accordance with the social and economic purpose of his right, and may, in particular, collect the profits and other revenues from the said thing. Within the same limits, he may dispose of the thing 2\. Ways of Acquisition and Loss of ownership a\. transfer b\. positivte prescription c\. abandonment d\. appropriation f\. finding g\. separation, transformation, attachment, mix h\. extra-civil ways 3\. Consensual and real legal act a\. Art. 155 CC \- A sale, exchange, donation, real estate alienation or other contract creating an obligation to transfer the ownership of goods in specie transfers the ownership to the acquirer unless a specific regulation provides otherwise or the parties decide otherwise \- If fungibles are the subject of a contract creating an obligation to transfer the ownership of the fungibles, the transfer of possession is required. The same applies if the subject of the future contract creating an obligation to transfer ownership is future things. 4\. Transfer of ownership of Real Estate a\. Art. 157 CC \- The ownership of Real Estate cannot be transferred on a condition or subject to a time being \- If a contract creating an obligation to transfer the ownership of real estate is executed on a condition or subject to a time limit, an additional agreement between the parties containing their unconditional consent to the immediate transition of ownership is required to transfer the ownership b\. Art. 158 CC \- Form. A contract creating an obligation to transfer the ownership of real estate should be executed in the form of a notarial deed. The same applies to a contract transferring ownership which is executed in order to perform an earlier obligation to transfer the ownership of real estate; the obligation should be specified in the deed. 5\. Sale of agricultural real estate a\. Art. 166 CC \- If a co-owner of agricultural real estate sells his share or a part of his share in the co-ownership, the remaining co-owners have the right of first refusal, if they run a farm on the co-owned land. This does not, however, apply if a co-ownership together with the said farm or if the acquirer is another co-owner or a natural person who would inherit the farm from the seller 6\. Adverse possession of real estate Art. 172 CC A possessor of real estate who is not the real estate owner acquires ownership if he possesses the real estate uninterruptedly for twenty years as an owner-like possessor unless he gained possession in bad faith (adverse possession) After the lapse of thirty years, the possessor of real estate acquires ownership even if he gained possession in bad-faith Art. 173 CC If the owner of real estate against whom an adverse possession period is running is a [minor], the adverse possession cannot end [until two years after the owner attains majority]. 7\. Adverse possession of a movable a\. Art. 174 CC \- The possessor of a [movable] who is not the movable owner acquires ownership if he possesses the movable uninterruptedly for [three years] as an owner-like possessor unless he possesses it in [bad faith]. 8\. Adding time of the predecessor a\. Art. 176 CC \- § 1. If [possession is transferred] while the adverse possession period is running, the present possessor [may add] the time of possession by his predecessor to the time of his own possession. If, however, the previous possessor gained possession of the [real estate in bad faith], the time of his possession may be added only if, together with the present possessor\'s time of possession, it amounts to at least thirty years. \- § 2. The above provisions apply accordingly if the present possessor is an [heir] of the previous possessor. 9\. Abandonement and acquisition **a. Art. 180 CC** \- An owner may relinquish the ownership of a movable thing by [abandoning it with such intention]. **b. Art. 181 CC** \- The ownership of an [ownerless] movable is acquired by the movable being taken in owner-like possession. 10\. Finding **a. Art. 187. CC** \- § 1. The found thing that [is not collected] by the authorized person within one year from the date of delivery of the summons, and if the summons is impossible - within two years from the date of finding it, becomes the property of the finder if he has fulfilled his obligations. However, if the item has been returned to the staroste, the finder becomes its owner if he / she received the thing within the time limit set by the staroste. \- § 2. The found thing which is a [monument or archival material] after the expiry of the time limit for its collection by an authorized person becomes the property of the State Treasury. Other things found become the property of the poviat after the deadline for their collection by the finder. \- § 3. Upon the acquisition of ownership of the property by the finder, the poviat or the State Treasury, the [limited rights] in rem shall [expire]. **b. Art. 189. CC** If an item is found in such circumstances that the search for the owner would be [obviously pointless], it becomes the subject of [co-ownership in fractional parts] of the finder and the owner of the property on which it was found, but if the item is a monument or archival material, it becomes the property of the State Treasury and the finder is obliged to hand it over immediately to the competent starost. 11\. Acquisition of profits **a. Art. 190. CC** \- A person entitled to collect the natural profits of a thing [acquires their ownership by separating them] from the thing. 12\. Production **a. Art. 192. CC** \- § 1. Anyone who produces a [new movable with another person\'s materials] becomes its owner if the value of the workmanship is higher than the value of the materials. \- § 2. If a thing is processed [in bad faith or] if the value of the materials is higher than the value of the workmanship, the thing produced becomes the property of the owner of the materials. 13\. Joining, Mixing **a. Art. 193. CC** \- § 1. If movables are [joined or mixed] in such a manner that it would be extremely difficult or costly to restore them to their previous condition, their current owners become co-owners of the whole. Shares in the co-ownership are set as a proportion of the value of the things joined or mixed. \- § 2. However, if one of the joined things has a [value considerably greater] than the others, the things of lesser value become its component parts. 14\. Swarm of Bees **a. Art. 182. CC** \- § 1. A swarm of bees becomes ownerless if the owner does not find it within [three days] of the day the bees left the hive. When [pursuing] the swarm, the owner may enter another person\'s land but he should remedy any resulting damage. \- § 2. If the swarm of bees comes to rest in another person\'s [unoccupied] beehive, the owner may demand that it be returned upon reimbursement of costs. \- § 3. If the swarm of bees [comes to rest] in another person\'s [occupied] beehive, it becomes the property of the person who owns the swarm which is in the beehive. The former owner is not entitled in this case to a claim based on unjust enrichment. 15\. Protection of ownership **a. Art. 20 Constitution** \- A social market economy, based on the freedom of economic activity, private ownership, and solidarity, dialogue and cooperation between social partners, shall be the basis of the economic system of the Republic of Poland. **b. Art. 21 Constitution** \- 1. The Republic of Poland shall protect ownership and the right of succession. \- 2. Expropriation may be allowed solely for public purposes and for just compensation. **c. Art. 64 Constitution** \- 1. Everyone shall have the right to ownership, other property rights and the right of succession. \- 2. Everyone, on an equal basis, shall receive legal protection regarding ownership, other property rights and the right of succession. \- 3. The right of ownership may only be limited by means of a statute and only to the extent that it does not violate the substance of such right. **d. Main Claims:** \- 1. rei vindicatio (art. 222 § 1 KC), \- 2. actio negatoria (art. 222 § 2 KC). !- in case of real estate no statutory limitations (art. 223 CC) **e. Supplementary Claims:** \- paying a fee (art. 224 CC), \- return of profits (art. 224 CC), \- compensation for deterioration or loss (art. 225 CC). \- ! claims depend on good or bad faith of the possessor 16\. Claims of possessor against an owner a\. Art.226 CC \- § 1. An owner-like possessor acting [in good faith] may demand that the necessary outlays be reimbursed insofar as they are not covered by the benefits which he gained from the thing. He may demand that other outlays be reimbursed insofar as they increase the value of the thing at the time it is handed over to the owner. If, however, the outlays were made after the owner-like possessor acting in good faith learned that a court action had been brought against him to hand-over the thing, he may demand that only the necessary outlays be reimbursed. \- § 2. An owner-like possessor acting [in bad faith] may demand that only the necessary outlays be reimbursed and only insofar as the owner would have become unjustly enriched at his expense. 17\. Co-ownership **a. Art. 195 CC** \- One thing may be indivisibly owned by several persons (co-ownership). **b. Characteristics:** \- one object, \- several subjects, \- joint right. **c. Art. 196 CC** \- § 1. Co-ownership is either fractional or joint. \- § 2. Joint co-ownership is regulated by the provisions on the relations from which it stems. The provisions of this section apply to fractional co-ownership 18\. Types of Co-ownership A table with blue and white text Description automatically generated 19.Shares **a. Art. 197 CC** \- Co-owners\' shares are presumed to be [equal]. **b. Art. 204 CC** \- The [majority] of co-owners is calculated according to the size of their shares. **c. Art. 207 CC** [- Profits] and other revenues from a co-owned thing accrue to the co-owners in proportion to the size of their shares; the co-owners bear the [expenses] and charges connected with the co-owned thing in the same proportion. 20\. Possession of a Co-Owned thing **a. Art. 206 CC** Each co-owner is entitled to jointly possess a co-owned thing and to use it to an extent [compatible] with the joint possession and use of the thing by the remaining co-owners. 21\. Disposition of shares vs Disposition of a thing **a. Art. 198 CC** \- Each co-owner may [dispose of his share] without the other co-owners\' consent. **b. Art. 199 CC** \- The disposition of a co-owned thing and other acts which exceed the scope of ordinary management require the [consent of all] co-owners. In the absence of such consent, the co-owners whose shares are equal to at least one half may demand that the court decide taking into account the purpose of the intended act and the interest of all the co-owners. 22\. Management of a Co-Owned thing **a. Art. 200 CC** \- Each co-owner is obliged to [cooperate] in the management of a co-owned thing. **b. Art. 201 CC** \- The consent of the majority of the co-owners is required for [ordinary management] of a joint thing. In the absence of such consent, each of the co-owners [may demand court] authorization to perform an act. **c. Art. 205 CC** \- A co-owner exercising management of a co-owned thing may demand from the remaining co-owners [remuneration] corresponding to the justified input of his labor. **d. Art. 208 CC** \- Each co-owner not exercising management of the co-owned thing may [demand an account] of the management at appropriate dates. 23\. Court control of management **a. Art. 202 CC** \- If the majority of the co-owners decide to perform an act in [gross contradiction] to the rules of proper management of a co-owned thing, each of the other co-owners may demand that a court decide. **b. Art. 203 CC** \- Each co-owner may apply to the court to appoint an [administrator] if the majority of the co-owners cannot reach agreement on material issues concerning ordinary management, or if the majority of the co-owners violate the principles of proper management or act to the detriment the minority. 24\. Protection of a Co-Owned thing **a. Art. 209 CC** \- Each co-owner may perform any actions and pursue any claims aimed at [preserving] the joint right. 25\. Cancellation of Co-Ownership \- physical division (art. 211 CC), \- awarded to one/several (212, 214 CC), \- disposition (art. 198-199 CC). **a. Art. 220 CC** \- A claim for cancellation of co-ownership is not subject to the [statute of limitations]. **PERPETUAL USURFUCT** 1\. Perpetual usufruct 2\. Termination of perpetual usufruct \- The involved parties mutually agree to terminate usufruct e\. termination due to improper use \- If the usufructuary misuses the property or violates its intended use, it can result in termination 3\. Termination of perpetual usufruct **a. Art. 235 CC** \- § 1. [Buildings] and other facilities [erected] on land owned by the State Treasury, local government units or their associations [by a perpetual usufructuary become his property]. The same applies to buildings and other facilities which the perpetual usufructuary acquired under relevant regulations at the time the contract for giving land in perpetual usufruct was executed. \- § 2. The perpetual usufructuary\'s ownership of buildings and facilities on land used [is a right related to perpetual usufruct]. **b. Art. 241 CC** [- On expiry of the perpetual usufruct, the encumbrances] established thereon are [also extinguished]. 4\. Use contraty to the contract **a. Art. 240 CC** \- A contract on giving in perpetual usufruct land owned by the State Treasury or by local government units or their associations may be [dissolved before the lapse] of the period specified therein [if the perpetual usufructuary] uses the land in a manner which is obviously contradictory to the purpose specified in the contract, particularly, if, contrary to the contract, the usufructuary has failed to erect the buildings or facilities specified therein. **b. Art. 243 CC** \- A claim against a perpetual usufructuary [for remedying damage] arising from improper use of land owned by the State Treasury or by local government units or their associations, as well as a claim of the perpetual usufructuary for payment for the buildings and facilities existing on the day the land is returned becomes barred by statute of limitations [three years] after that date. 5\. Transformation into ownership **LIMITED REAL RIGHTS** 1\. Limited real rights *a. Numerus clausus*: \- usufruct, - The right to use or benefit from another person's property without owning it \- easement, - A right allowing one person to use another's land for a specific purpose, such as access to road or utility \- cooperative ownership right to premises, - A right to use and Co-own premises within a cooperative , often seen in housing cooperatives \- pledge, - A security interest I movable property or rights to secure debt, where the pledged property serves as collateral \- mortgage. -- A security interest in real estate to secure the repayment of a loan, allowing the lender to claim the propery If the borrower defaults 2\. Creation of limited real rights a\. usually a contract (art. 245 CC), b\. extraordinarly legal act (eg. statutory pledge, art. 432 § 2 CC). c\. Art 432 \- § 1 The owner of the land may take someone else\'s [animal], which it causes damage to land, if the seizure is necessary to secure the claim for damages. \- § 2. The owner of the land obtains the [statutory pledge] on the seized animal to secure the compensation due to him and the costs feeding and maintaining the animal. 3\. Applications of provisions on ownership **a. Art. 245 CC** \- § 1. Subject to the exceptions provided for by the law, the provisions on ownership transfer apply [accordingly] to the establishment of a limited real right. \- § 2. However, the provisions on [inadmissibility of a condition or period do not apply] to the establishment of a limited real right on real estate. Notarial deed [form] is required only for the declaration of the owner establishing the right. **b. Art. 251 CC** \- The provisions on protection of ownership apply accordingly to [protection] of limited real rights. 4\. Contract pertaining to the limited real rights **a. Art. 245\[1\] CC** \- The transfer of a limited real right to real estate [requires a contract] between the entitled person and the acquirer, and, if the right is disclosed in the [land and mortgage register], an entry in this register unless a specific regulation provides otherwise. **b. Art. 248 CC** \- § 1. In order to [change] the substance of a limited real right, a [contract] is required between the entitled person and the owner of the thing encumbered, and if the right is disclosed in the [land and mortgage register], an entry in this register. \- § 2. If a change in the substance of the right affects the [rights of a third party], such a change requires consent of that person. A declaration of the third party should be made to one of the parties. 5\. Extinguishing of limited real rights **a. Art. 246 CC** \- § 1. If an entitled person [waives] his limited real right, the right is extinguished. A [declaration] on the waiver should be made to the owner of the thing encumbered. \- § 2. However, if the law does not provide otherwise, and the right is disclosed in the land and mortgage register, in order for it to be extinguished it has to be [deleted from the land and mortgage register]. **b. Art. 247 CC** \- A limited real right [is extinguished if it is transferred to the owner] of the thing encumbered [or] if the person holding such a right acquires the ownership of the thing encumbered. 6\. Priority of limited real rights **a. Art. 249 CC** \- § 1. If several limited real rights encumber the same thing, the right which was [established at a later date] cannot be exercised to the detriment of the right which was established earlier ([priority]). \- § 2. The above provision does not prejudice the provisions which establish priority differently. **b. Art. 250 CC** \- § 1. The priority of limited real rights [may be changed]. The change [does not prejudice] the rights which have lower priority than the right which yields priority and higher than the right which takes priority over the right which yields priority. \- § 2. In order to change priority of limited real rights, a [contract is required] between the person whose right is to yield priority and the person whose right is to have priority over the right yielding priority. If at least one of those rights is disclosed in the [land and mortgage register], an entry in the land and mortgage register is also required. \- § 3. A change of priority becomes ineffective at the time the right yielding priority expires. 7\. Concept of Usufruct **a. Art. 252 CC** \- A thing may be encumbered with a right to [use and to collect profits] (usufruct). **b. Art. 253 CC** \- § 1. The scope of the usufruct [may be limited] by designated profits being excluded from the thing. \- § 2. Exercising a usufruct of real estate may be [limited] to a designated part of the real estate. **c. Art. 254 CC** \- A usufruct is [non-transferable]. **d. Art. 256 CC** \- A usufructuary should exercise his right in accordance with the requirements of [proper management]. 8\. Outlays and Repairs **a. Art. 259 CC** \- An [owner has no obligation to make outlays] on a thing encumbered with a usufruct. If he has made such outlays, he may demand that the usufructuary return them according to the provisions on managing another person\'s affairs without a mandate. **b. Art. 260 CC** \- § 1. A [usufructuary is obliged to carry out repairs] and other outlays related to [ordinary use] of a thing. He should immediately inform the owner of the need to carry out other repairs and outlays and permit the latter to perform the required work. \- § 2. If the usufructuary makes outlays which he is not obliged to make, the provisions on managing another person\'s affairs without a mandate apply accordingly. 9\. Usurfuct's Expiry **a. Art. 255 CC** \- A usufruct [expires] if not exercised for [ten years]. **b. Art. 266 CC** \- A usufruct established in favor of an [individual] expires at the latest on his [death]. 10\. Easements b\. easement in gross, c\. transmission easement. 11\. Concept of Easement Appurtenant **a. Art. 285 CC** \- § 1. Real estate may be encumbered in favor of the owner of other real estate ([dominant estate]) with a right under which the owner of the dominant estate may use the [servient estate] for a specified purpose, or the owner of the servient estate becomes limited in taking certain actions with respect to it, or under which the owner of the servient real estate is not allowed to exercise certain rights which he holds with respect to the dominant estate on the basis of provisions on the substance and exercise of ownership ([easement appurtenant]). \- § 2. The sole purpose of an easement appurtenant is to increase the usefulness of the dominant estate or its designated part. **b. Art. 288 CC** \- An easement appurtenant should be [exercised] in such a manner as to cause as little inconvenience as possible in the use of the servient estate. 12\. Right of Way **a. Art. 145. Easement by necessity.** \- § 1. If real estate does not have suitable [access to a public road] or to farm buildings belonging to it, the owner may demand that the owners of adjacent land establish, against payment, an easement by necessity (right of way). \- § 2. A right of way is established with [account taken of] the needs of the landlocked real estate and with the least burden to the land through which the way is to run. If the need to establish a right of way results from the sale of land or another legal act, and the interested parties do not reach an agreement, [the court] will, provided that it is possible, order the way to be established on the land which was the subject of that legal act. \- § 3. The establishment of a right of way should [take into account] social and economic interests. 13\. Establishment of Easement Appurtenant 14\. Termination of Easement Appurtenant 15\. Easement in Gross **a. Art. 296 CC** \- Real estate may be encumbered in favor of a designated natural person with a right which corresponds to easement appurtenant ([easement in gross]). **b. Art. 299 CC** \- An easement in gross [expires] with the death of the beneficiary at the latest. **c. Art. 300 CC** \- Easements in gross are [non-transferrable]. Nor can the right to exercise them be transferred. **d. Art. 304 CC** \- An easement in gross cannot be acquired by [adverse possession]. 16\. Right of Habitation **a. Art. 301 CC** \- § 1. A person having the right of habitation may [house his spouse and minor children] in the dwelling unit. He may house other persons only if they are dependant on him or if they are needed to run his household. Children housed as minors may remain in the dwelling unit also after attaining majority. \- § 2. It may be agreed that on the beneficiary\'s death the right of habitation [passes] to his children, parents and spouse. **b. Art. 302 CC** \- § 1. The beneficiary of a right of habitation [may use the rooms and facilities] intended for the common use of the occupants of the building. \- § 2. The [provisions on usufruct by natural persons] apply accordingly to mutual relationships between the beneficiary of a right of habitation and the owner of the servient estate. 17\. Transmission easement **a. Art. 305\[1\] CC** \- Real estate may be encumbered with a right in favor of an [entrepreneur] who intends to construct or which owns the facilities referred to in Article 49 § 1 under which the entrepreneur may use the servient estate within a designated scope, in accordance with the purpose of the facilities (transmission easement). \- Either part may demand that an easement be established (art. 305\[2\] CC). 18\. Concept of Pledge **a. Art. 306 CC** \- § 1. In order to secure a given claim, a [movable] may be encumbered with a right under which the creditor may seek [satisfaction from a thing regardless of whose property] it has become [and with priority] over the personal creditors of the owner of the thing, save for those who under the law hold special priority. \- § 2. A pledge may [also] be established for the purpose of securing a [future or conditional claim]. 19\. Characteristics of a Pledge **a. Art. 311 CC (ineffectiveness of a commitment not to dispose)** \- A stipulation whereby the pledgor commits to the pledgee [not to dispose] of or encumber a thing before the pledge expires is [invalid]. **b. Art. 323 CC (accessory nature of a pledge)** \- § 1. [The transfer of a claim secured by a pledge entails the transfer of the pledge]. If the claim is transferred without the pledge, the pledge is [extinguished]. \- § 2. A pledge [cannot] be transferred without the claim which it secures 20\. Benefits of the Creditor **a. Art. 314 (scope of security)** \- A pledge [also secures claims for interest] for the last three years before the thing is sold in execution or bankruptcy proceedings, awarded [costs of proceedings] in an amount of up to one-tenth of the capital [and other claims] for accessory performances, especially a claim for [compensation] for non-performance or improper performance of an obligation and for [reimbursement of outlays] on a thing. **b. Art. 317 (limitations does not exclude satisfaction)** \- The passing of a [limitations period] for a claim secured by a pledge [does not prejudice the pledgee\'s right] to obtain satisfaction from the pledged thing. This provision does [not apply to] claims for interest or other accessory performances. 21\. Mortgage 22\. Cooperative ownership right to premises **MORTGAGE BOOKS** 1\. Mortgage Books CIVIL LAW Private law characteristics Equality of subjects Parties autonomy Freedom of contracts Mostly property relations Mostly civil law Divisions of Civil Law General provisions Real rights Obligations Succession Intellectual property law Family law Commercial law Labor law Principles of Civil Law Principle of protection of human beings Principle of autonomy Principle of equality of subjects Principle of equal protection of property Principle of equity Principle of security of economic transactions Principle of unity of civil law **SUBJECTS OF CIVIL LAW** Subjects of civil law Natural persons Human beings Legal persons Private: Corporations, foundations, associations Public: Government entities, public universities, state-owned companies Imperfect legal persons (organizational units which are not accorded legal personality, but do have legal capacity) Partnerships that do not have full legal personality but can enter contracts and own property in some jurisdictions Certain trusts or estates in administration Legal capacity and capacity for legal acts Legal capacity Ability to hold rights and obligations under the law No capacity for legal acts No ability to independently perform legal acts and create legal effects Limited capacity for legal acts The restricted ability to independently perform legal acts and create legal effects Full capacity for legal acts The unrestricted ability to independently perform legal acts and create legal effects -------------------------------------------------------------------------------------------------------------------------------------------------------- **No Capacity** Infants, incapacitated persons (both have legal capacity) Can hold rights (via representative) Cannot independently perform legal acts **Limited Capacity** Older minors, partially incapacitated Can perform simple legal acts independently Requires consent for significant acts **Full Capacity** Adults with no restrictions Fully independent in legal transactions No restrictions -------------------------------------------------------------------------------------------------------------------------------------------------------- Termination of legal capacity of a natural person Death Declaration of death ------------------------------------------------------------------------------------------ **Death Declaration of Death** **Cause** Natural or accidental biological death Presumed death due to disappearance **Proof** Certified by a medical authority Determined by a court after legal proceedings **Timing** Immediate After a legally defined waiting period **Reversal** Not possible Can be reversed if the person is found alive ------------------------------------------------------------------------------------------ Legal persons Has organs Distinct organization Law accords legal personality Usually registration Creation Methods of Legal Persons State acts system Concession system Normative system Examples of legal persons State Treasury Local Government Units Public Universities Public Hospitals Government Agencies Capital Companies Political Parties Foundations Types of legal persons Departmental -- Extension of government, Hospitals, etc. Corporate -- Private companies, Non-Profit organisations, Municipal corporations State Treasury Legal capacity and capacity for legal acts of legal persons Legal capacity Capacity for legal acts Termination of legal persons Liquidation Insolvency Imperfect legal persons Notion Partial legal recognition Dependent nature Limited capacity Legal capacity and capacity for legal acts Legal capacity, Imperfect legal persons may: Capacity for legal acts Examples Unincorporated associations Trusts Foundations without full legal personality Public agencies without corporate status Status of civil law partnership Legal person Independent of its partners Rights and obligations Examples Imperfect legal person Dependent nature on the partners Capacity for legal acts under the collective agreements Liability Consumer Art.22 \[1\] KC A consumer is any natural person performing a legal act with an entrepreneur which is not directly related to his business or professional activity Enterpreneur Art 43. \[1\] KC An entrepreneur is a natural person, a legal person or an organizational unit conducting business or professional activity on its own behalf Economic activity Art 3. Act on Entrepreneurs Economic activity is an organized profit-making activity, conducted in its own name and continuous fashion Professional activity Commercial companies code Persons qualified to pursue the following professions may become partners in the partnership: advocate, pharmacist, architect, civil engineer, auditor, insurance broker, tax advisor, stock broker, investment advisor, accountant, physician, dentist, veterinary doctor, notary, nurse, midwife, legal advisor, patent attorney, property advisor and sworn translator Registration of economic activity\\ KRS (National Court Register) CEIDG (Registry of individual economic activity) **ENTERPRISE** Enterprise A Designation distinguishing the enterprise or its separated parts (the name of the enterpsie) The ownership of immovables or movables, including equipment, materials, goods and products, and other real rights to immovables or movables Rights under contracts for the tenancy and lease of immovables or movables and rights to use immovables or movables under other legal relationships Receivables, rights attached to securities, and cash Concessions licences and permits Patents and other industrial property rights Copyrights and neighbouring rights Secrets of the enterprise Books and documents related to business activity Legal act concerning enterprise Civil code Art.55 \[2\] A legal act whose object is an enterprise covers all that which is part of the enterprise unless it follows otherwise from the substance of the legal act or from specific regulations. Art. 55 \[4\] Civil code The acquirer of an enterprise or an agricultural farm is liable jointly and severally with the transferor for the transferor's obligations related to running the enterprise or agricultural farm unless, at the time of acquisition, the acquirer was not aware of those obligations despite having used due care. The acquirer's liability is limited to the value of the acquired enterpsie or farm as at the moment of acquisition and according to the prices as at the time the creditor is satisfied. This liability cannot be excluded or limited without the creditors's consent. Art 75. \[1\] Civil Code The transfer or lease of an enterprise or the establishment of a usufruct thereon should be made in writing with notarized signatures The transfer of an enterprise belonging to a person entered in a register should be entered in that register The previous provision applies accordingly to the lease of an enterprise or the establishment of a usufruct theoreon The above provisions do not prejudice the provisions on the form of legal acts concerning real estate. **BUSINESS NAME** Business name Art 43 Civil Code The business name of a natural person is his forename and surname. This does not preclude a pseudonym or expressions denoting the enterpreneur's objects, place of activity or any other freely chosen descriptions being included in the business name. Art. 43 \[5\] Civil Code The business name of a legal person is its name The business name specifies the legal persons legal form, which may be abbreviated, and may indicate the objects and registered office of the legal person and any other freely chosen descriptions The business name of a legal persons may contain the surname or pseudonym of a natural person if its purpose is to indicate that natural person's relations with the establishment or activity of the entrepreneur. The written consent of the natural person is required before his name or pseudonym can be placed in the business name, or, in the event of his death, the consent of his spouse and children. Rules regarding the business name Art. 43 \[3\] Civil code The enterpreneur's name should differ sufficiently from the names of other entrepreneurs conducting activity on the same market A business name cannot be misleading, particularly regarding the identity of the entrepreneur, its objects, place of activity or supply sources Art 43 \[7\] Civil Code A change in business name must be entered in the register. Where a legal person is transformed, it may retain its former business name except for the expressions denoting its legal form if the legal form has changed. This also applies to the transformation of a partnership Art 43. \[9\] Civil Code A business name cannot be transferred An entrepreneur may authorize another entrepreneur to use its business name if it is not misleading Retaining the business name Art 43 \[8\] Civil code Where a partner/shareholder whose surname is included in the business name loses his membership, the partnership/company may retain the former partner's/shareholder's surname in its business name only with the written consent of the partner/shareholder, or, in the event of his death, with the consent of his spouse and children Previous provision applies accordingly to the business activity of a natural person which is continued by another natural person who is his legal successor Any person who acquires an enterprise may continue to run it under the same name. This person should, however, place an addition to denote the business name or surname of the acquirer unless the parties agree otherwise Art 43 \[ 7\] Civil Code A change in business name must be entered in the register. Where a legal person is transformed, it may retain its former business name except for the expression denoting its legal form, if the legal form has changed. This also applies to the transformation of a partnership 1\. Representation a\. Essence \- Representation enables one person to perform legal acts for another, creating obligations and rights for the principal. It facilitates participation in legal matters without the principal's direct involvement. b\. Statutory representation V power of attorney \- Staturatory representation is granted by law, such as parents representing minors or guardians managing affairs for incapacitated persons. \- Power of attorney is a voluntary legal document where the principal authorizes someone to act on their behal, specific or broad, revokable by principal. 2\. Power of attorney a\. Being limited in his capacity for legal acts does not affect the validity of an act performed by him on the principal's behalf b\. Impermissible power of attorney \- Power of attorney cannot authorize illegal actions, actions against public policy, or inherently personal (marriage, voting etc.) c\. Power of attorney V organ of a legal person A power of attorney involves a principal voluntarily authorizing an agent, whereas an organ (e.g., a board of directors) is a permanent structure of a legal person with inherent authority by law. The organ\'s actions are those of the legal person itself. d\. Unilateral legal act Granting a power of attorney is a unilateral legal act, meaning it only requires the principal's decision and does not need acceptance by the agent to be effective. The principal creates the PoA independently to empower the agent. 3\. Types of power of attorney a\. General power of attorney b\. Power of attorney for a particular type of acts c\. Power of attorney for a particular act 4\. Form of the Power of Attorney a\. If a specific form is required for a legal act to be valid, the power of attorney to perform that act should be given in the same form b\. A general power of attorney should be made in writing, otherwise it will be invalid 5\. Alleged Attorney Art. 103 Civil code a\. If a person executing a contract as an attorney-in-fact has no authorization or exceeds its cope, the validity of the contract depends on it being ratified by the person on behalf of whom it was executed. b\. The other party may set the person on behalf of whom the contract was executed an appropriate period in which to ratify the contract; he is released when that period passes to no effect c\. In the absence of ratification, a person who executes a contract on another person's behalf is obliged to return anything he has received from the other party in performance of the contract and to remedy any damage which the other party has suffered due to the fact that it executed a contract without knowing that there was no authorization or that its scope had been exceeded 6\. Representing both parties Art 108 Civil code Anattotney-in-fact cannot be the other party to a legal act performed on the principa's behalf unless the power of attorney provides otherwise or, owing to the naure of the legal act, any possibility of the principal's interest being violated is excluded. This provision applies accordingly if the attorney-in-fact represents both parties 7\. Several attorneys Art 106 KC An attorney-in-fact may appoint other attorneys-in-fact for the principal only if such authorization follows from the wording of the power of attorney , the law or the legal relationship which is the basis for the power of attorney Art 107 KC If the principal appoints several attorneys-in-fact with the same scope of authorization , each of them may act individually unless the PoA provides otherwise. This provision applies accordingly to Attorneys-In-Fact whom the attorney-in-fact himself appoints for the principal 8\. Revocation of the power of attorney Art 101 Civil Code a\. PoA may be revoked at any time unless the principal waived his right to revoke the PoA for reasons justified by the substance of the legal relationship which is the basis for PoA b\. The authorization expires upon the principal's or attorney's death unless the PoA provides otherwise for reasons justified by the substance of the legal relationship which is the basis for PoA Art 102 Civil Code c\. After the authorization expires, the attorney-in-fact is obliged to return the power of attorney document to the principal. He may demand a certified copy of that document; expiry of the authorization should be indicated on that copy. 9\. Presumption of the power of attorney Art 97. Civil Code a\. A person acting on the premises of an enterprise whose purpose is to serve the public is deemed, in case of doubt, authorized to perform the legal acts that are usually performed with persons using the enterprise's services **Commercial Proxy** 1\. Commercial Proxy \- essence, \- who can grant proxy, \- who can be granted proxy, \- form of granting and receiving, \- registration duty, \- not a member of a governing body 2\. Scope of the Commercial Proxy \- not only ordinary management, \- to act in and out of court, \- exemptions (the disposal of an enterprise, transfer of proxy), \- cannot be limited, \- branch commercial proxy, \- joint and individual. **ACTS AND ACTIONS OF LAW** 1\. Acts of Law a\. Privity -- bond between two subject, of which one has a obligation and the other a right b\. Act of law -- every fact, which according to the law, creates, changes or terminates a privity 2\. Types of acts of law a\. Acts sensu stricto b\. Actions of men \- unintended actions Allowed Lawless c\. intended actions Unilateral Bilateral Resolutions Constitutive court decisions 3\. Types of contracts \- pledges and disposing, \- named and unnamed, \- unilaterally and bilaterally pledging, \- consensual and real, \- earning, \- causal and abstract, \- random, \- freely negotiatied and adhesive. **STATUTORY LIMITATION** 1\. Concept a\. § 1. Subject to the exceptions provided for in the law, [property] [claims become barred] by the statute of limitations. b\. § 2. After the limitations period has run, the person against whom a claim is made [may avoid] satisfying it [unless he waives] his right to use the statute of limitations as a defense. Waiving the right to use the statute of limitations as a defense [before] the limitations period has run is, however, invalid. c\. § 3. After the expiry of the statutory limitation period, the claim against the [consumer] cannot be claimed. 2\. Protection of the Consumer a\. § 1. [In exceptional cases], the court may, having considered the interests of the parties, not to take into account the expiry of the limitation period for the claim against the consumer, if it is justified by reasons of equity. b\. § 2. When exercising the power referred to in § 1, the court [should consider] in particular: \- the length of the limitation period; \- the length of the period from the expiry of the limitation period until the claim is asserted; \- the nature of the circumstances which caused the claimant not to pursue the claim, including the impact of the obligee\'s behavior on the delay of the entitled person in pursuing the claim. 3\. Statutory limitations terms **a. Art. 118.** \- Unless a special provision provides otherwise, the limitation period is [six years], and for claims for [periodic] benefits and claims related to running a [business] - [three years]. However, the end of the limitation period shall be the last day of the [calendar year], [unless] the limitation period is less than two years. **b. Art. 119.** \- Limitations periods [cannot] be shortened or extended by a legal act. 4\. Limitation period start **a. Art. 120.** \- A limitations period starts running on the day on which a claim becomes [due and payable]. If the claim becoming due and payable depends on the entitled person carrying out a specific act, the limitations period starts running on the day on which the claim would have become due and payable if the entitled person performed the act at the earliest possible time. \- § 2. The limitations period for claims for actions to be ceased starts to run on the day on which the person against whom the claim can be made fails to comply with the claim. 5\. Suspension **a. Art. 121.** \- A limitations period does not start and, if started, is suspended: \- for claims by [children against parents] - for the duration of the parental authority; \- for claims by persons who do [not have full capacity] for legal acts against persons exercising guardianship or curatorship - for the time during which the [guardianship or curatorship] is exercised; \- for claims made by one [spouse] against the other - for the duration of the marriage; \- for any claims if, due to [force majeure], the entitled person cannot bring them before a court or other authority set up to hear cases of a given type - for the duration of the obstacle. 6\. Withholding **a. Art. 122 CC** \- § 1. The limitations period for claims made by a person [who does not have full capacity for legal acts] cannot have run before the lapse of two years from a statutory representative being appointed for that person or from the reason for his appointment ceasing to exist. \- § 2. If the limitations period is shorter than two years, it begins to run from the day the statutory representative is appointed or from the day the reason for the appointment ceases to exist. \- § 3. The above provisions apply accordingly to a limitations period running against a person with respect to whom there are grounds for his full incapacitation. 7\. Interruption **a. Art. 123 CC** \- § 1. The running of the limitations period is [interrupted]: \- by any action before a court or other authority appointed to hear cases or enforce claims of a given type or before an arbitration tribunal taken directly to either assert or establish, or satisfy or secure a claim; \- by recognition of a claim by the person against whom the claim is made; \- by commencement of mediation. 8\. After interruption **a. Art. 124.** \- § 1. After each interruption of the limitations period, the limitations period [starts to run anew]. \- § 2. However, in the case of any interruption of the limitations period by an act in proceedings before a court or other authority appointed to hear cases or enforce claims of a given type or before an arbitration tribunal or by commencement of mediation, the limitations period does not start to run anew until the proceedings are closed. 9\. Periods after interruption **a. Art. 125. CC** \- § 1. A claim upheld by a final and non-revisable decision of a court or other authority appointed to hear cases of a given type or by an arbitration tribunal award, and a claim upheld by a settlement being made before a court or an arbitration tribunal or a settlement reached before a mediator and approved by the court become barred by the statute of limitations after [six years] even if the limitations period for claims of that type is shorter. If a claim upheld in this way concerns a [periodical] performance, the claim for a periodical performance due in the future is subject to a three-year limitations period. 10\. Non-actionable demand **a. Art. 411 Civil Code** \- The return of a performance cannot be demanded: \- if the performance was made in order to satisfy a claim barred by the statute of limitations; **DEFECTS IN DECLARATION OF INTENT** 1\. Defects in declaration of intent \- Lack of consciousness or freedom \- Ostensible nature \- Error \- Deceit \- Threat 2\. Lack of consciousness or freedom **a. Art. 82 CC** \- A declaration of intent made by a person who, for any reason, is in a state which precludes the conscious or free making of a decision and declaring of intent is invalid. This applies in particular to mental illness, mental retardation or other, even temporary, mental disorder. 3\. Ostensible Nature **a. Art. 83 CC** \- § 1. An ostensible declaration of intent made to another party with its consent is [invalid]. If such a declaration is made to [conceal] another legal act, the validity of the declaration is judged by the nature of that legal act. \- § 2. The ostensible nature of a declaration of intent [does not influence the effectiveness] of a legal act against payment performed on the basis of an ostensible declaration if, as a result of the legal act, a [third party acquires a right or is released from an obligation] unless it has acted in bad faith. 4\. Error **a. Art. 84 CC** \- § 1. In the case of an error in the substance of a legal act, the legal effects of this declaration of intent may be avoided. If, however, the declaration of intent is made to another person, its legal effects may be avoided only if the error [was caused by that person, even if it was not his fault, or if that person was aware of the error or could easily have noticed it]; this restriction does not apply to a free-of-charge legal act. \- § 2. An error can only be relied on if it justifies the supposition that, if the person making the declaration of intent had not acted under the influence of the error and had judged the case reasonably, he would not have made such a declaration ([material error]). 5\. Deceit **a. Art. 86 CC** § 1. If an error is caused by the other party with the [intent] to deceive, the legal effects of a declaration of intent made under the influence of the error may also be avoided if the error is [not material] or if it does [not] relate to the [substance] of a legal act. § 2. The deceit of a third party is tantamount to the deceit of the party if the latter was aware of the deceit and did not inform the other party about it or if the legal act was free of charge. 6\. Threat **a. Art. 87 CC** \- Any person who makes a declaration of intent under the influence of an [unlawful threat] made by the other party or a third party may avoid the legal effects of his declaration if it follows from the circumstances that he [had reason to fear that he or another person was in serious danger with regard to person or property]. 7\. Avoidance of effects of declaration **a. Art. 88 CC** \- § 1. The legal effects of a declaration of intent made to another person under the influence of an error or threat are avoided by a declaration being made to that person in writing. \- § 2. The avoidance right expires: in the case of an error one year after its discovery, and in the case of a threat, one year after the state of fear ceases.