1. Scientific goal of the project
1.1. Description of the problem.
The Polish legal tradition appears as a broken tradition. Throughout the 19th century, when the national legal systems in Europe were taking shape, Poland remained divided between the Empires of Prussia, Russia and Austria. In 1918 five different legal systems were in force in the territory of the new Polish State (in the central territory of Poland the French Code civil; in the western territory the German BGB; in the southern territory the Austrian ABGB; in some parts of eastern Poland the Digest of Laws of the Russian Empire – Swod zakonow Rossijskoj impierii – and in Spis and Orava the Hungarian customary law). From the comparative perspective, the French, German and Austrian codes were the leading and most influential European civil codes of that time, and “the Polish law” did not stand out from other European jurisdictions.
The Code of Obligations of 1933 has been considered as the first truly European codification, which could have been promulgated in any European country. The works on the Code of Obligations of 1933 are generally publicly available. All the drafts of the Code of Obligations and a great part of their motives have been published by the Codification Commission before the World War II broke out (cf. Codification Commission, Subcommittee for Law of Obligations, Explanatory memorandum to project of the Polish Code of Obligations, issue 1-8, Warszawa 1934-1939, compiled by R. Longchamps de Bérier). The assumptions of the project and discussions that inspired the Codification Commission can be found in other works published in that period (c.f. R. Longchamps de Bérier Law of Obligations, Lwów 1939; L. Domański, Institutions of the Code of obligations. Theoretical-practical commentary. General part, Warszawa 1936; L. Domański, Institutions of the Code of Obligations. Theoretical-practical Commentary. Detailed part, Warszawa 1938). Because of that it is possible to reconstruct what influence the particular foreign solutions had on the single provisions of the Code of Obligations of 1933, as well as which of them were adopted directly or with modifications.
After the World War II a great part of the solutions originally adopted in the Code of Obligations of 1933 were incorporated in the Act of 18 July 1950 – General Part of the Civil Law, and then into the Polish Civil Code of 1964. Contrary to the Code of Obligations of 1933, the official explanatory memorandum to the Civil Code of 1964 has never been published. Moreover, the materials of the Codification Commission of Civil Law at the Ministry of Justice of the Polish People”s Republic, and especially the minutes of meetings, have never been issued in print. As a consequence, from the historical perspective the Polish Civil Code of 1964 is among the least known civil codes of contemporary Europe.
Although the members of the Codification Commission of Civil Law at the Ministry of Justice of the Polish People”s Republic officially referred to socialist principles and solutions of other socialist countries, without any doubts the most important parts of the Civil Code of 1964 – books I and III – were based on the tradition of the Polish Code of Obligations, which indirectly included the references to the Western legal tradition. One may suppose that they did not want to disclose that fact and therefore the official explanatory memorandum to the Civil Code of 1964 and the minutes of meetings have never been published. Such a thesis requires a verification through the analysis of the source material in the form of original records of the Codification Commission that drafted the Polish Civil Code.
1.2. Research questions to be answered and the scientific goal of the project.
The aim of the project is to identify which solutions of the Romanic and Germanic legal systems have been explicitly absorbed into the current Polish law of obligations on the basis of the “indirect reception”. Particular attention will be given to operative legal solutions present in other legal systems that provided either direct or indirect inspiration in the development of the Polish Civil Code. As such, the project relates specifically to the legal mechanisms: (1) applied in the Polish territories during the inter-war period (i.e. French, German, Austrian laws; in the limited scope also – the Digest of Laws of the Russian Empire); (2) providing inspiration for the Codification Commission working on the Code of Obligations (including the influences of the Swiss law, the draft of French-Italian Law of Obligations), (3) applied in the Roman law, as the ultimate source of inspiration for the development of other civil codes. In this way, the project attempts to demonstrate to which extent the Polish law of obligations is a contributing part of the European legal tradition.
The main scientific goal of this project is to (1) find and analyse source material in the form of original records of the Codification Commission affiliated with the Ministry of Justice of the People”s Republic of Poland that drafted the Polish Civil Code, and (2) compare it with the materials on the inter-war Code of Obligations. As an outcome, not only the proportions between foreign borrowings and local legal thinking could be established, but also the extent to which the codification works after World War II have been really influenced by the Socialist legal doctrine.
2. Significance of the project
2.1. State of the art and justification for tackling a specific scientific problem.
It is natural to say that the Polish Code of Obligations, followed by the Polish Civil Code, did not originate from nothing. The substantive of the body of law was the outcome of a sustained development of Polish legal concepts, initiated already on the grounds of codes of the partitioning states. In this way, both Codes gathered direct inspirations from several continental legal families.
If the 1933 Code of Obligations was the first truly European codification, as the European nature of the code is concerned, the same holds for the postwar Polish Civil Code of 1964, which was the next major stage in the development of Polish private law. Even if promulgated under the communist rule, this well-regarded piece of legislation was based to a large extent upon the experience of the works, legislative as well as preparatory, done during the interwar period of 1918-1939 and decrees unifying the Private law after the World War II (1945-1946). Owing to its solid traditional foundations, the Polish Civil Code, even if it presented certain socialist principles, has nonetheless remained in force until today, albeit with several modifications. However, its doctrinal origins are relatively unclear, with an important question being why that is the case.
During the communist period, the development of the Polish Civil Code was a politically perilous subject, as the evidence of many doctrinal borrowings from the interwar period, hence from the West, would have compromised the code in its communist surroundings. The blanket of silence, which concealed the origins of the Polish Civil Code, created the conviction that this impressive piece of legislation was conjured up from nothing. Such an unreasonable assumption survived the fall of communism, leading to the antithetical motivation to underplay the communistic components. As a consequence, the Polish Civil Code is among the least known civil codes of contemporary Europe, and it is very often omitted from most Western overviews and analyses of continental civil law.
It should be emphasized that the materials of the Codification Commission of Civil Law at the Ministry of Justice of the Polish People”s Republic, and especially the minutes of meetings, have never been issued in print. Only the drafts of particular provisions of civil code were published at the end of 1950″s and at the beginning of 1960″s (Drafts of the Civil Code of the Polish People”s Republic dated 1954, 1955, 1960, 1961 succeeding by final Draft of the Civil Code and provisions introducing the Civil Code, 1962). The proposed provisions and their versions have never been compared entirely in a single analytical study. The lack of publishing of the materials developed by the Codification Commission of Civil Law at the Ministry of Justice of the Polish People”s Republic (especially the minutes documenting particular discussions) could have been caused by the reluctance of some Commission members to disclose the influence of socialist ideology on the solutions adopted at that time. The aim of this project is additionally to verify empirically whether this was the actual reason for not publishing the minutes.
The Codification Commission of Civil Law at the Ministry of Justice of the Polish People”s Republic often included outstanding interwar lawyers (e.g. Jan Wasilkowski, as chairman, Jan Gwiazdomorski, Kazimierz Przybyłowski, Adam Szpunar) who were accustomed to the solutions adopted by the codes of partitioning states which were in force in Poland in the interwar period of 1918-1939 and who had a very broad experience both in comparative works, in adjudicating on the basis of regulations of partitioning states (e.g. Aleksander Wolter or Bronisław Dobrzański were judges in the interwar period), as well as in codification works in the this period (e.g. Jan Wasilkowski and Kazimierz Przybyłowski were members of the interwar Codification Commission). Perhaps therefore, during its works, the Codification Commission of Civil Law at the Ministry of Justice of the Polish People”s Republic did not refer so much to the solutions adopted in other socialist countries which were less visible than the references to the Western legal tradition, which were concealed by the argumentation underlining the tradition of the Polish Code of Obligations. This is quite apparent due to the preservation in the Civil Code of numerous ideas and solutions adopted in the Code of Obligations. Therefore, it seems reasonable to analyze the ideas and solutions which have been adopted in the Code of Obligations and later transmitted into the Civil Code partially or even entirely. This way of dealing with the origins of the Polish law of obligations will allow us to hypothesise that the Polish legal concept has its historical continuity in the sphere of private law, which was unbroken during the period of the Polish People’s Republic.
2.2. Justification for the pioneering nature of the project and the impact of the project results on the development of the research field and scientific discipline
At present, the works on the third book called “Obligations” of the current Civil Code are not a subject of any deeper historical-comparative analysis in the Polish legal doctrine (cf. list of relevant literature below). Neither Polish historians nor civil lawyers have yet undertaken such a broad study to determine the historical and legal origins of the Polish private law in the field of obligations. It should be considered as a clear gap in legal research on the development of the Polish legal tradition. Already evident is the obstacles caused by this lack of research to the interpretation of currently applicable provisions of law; critical analysis of work of the Codification Commission of Civil Law at the Ministry of Justice of the Polish People’s Republic and its comparison with the materials issued with regard to the Code of Obligations enable us to indicate the doctrinal origins of the Polish law of obligations. Polish legal historians have not undertaken such a research project to date, most likely due to its large scope and lack of a sufficient number of research team members. Therefore the project needs to be carried out by a larger team and spread in time (approximately three years).
The lack of historical research into the Polish Civil Code puts contemporary comparative research at a disadvantage, given that such research exists for other legal systems. For example, in German law, a comparative wide-ranging study is the historical-critical commentary on the German Civil code (Historisch-kritischer Kommentar zum BGB).
The project will greatly contribute to Polish legal scholarship generally and specifically to future work on the recodification of the Polish law of obligation. Through this research, Polish legal scientists will be in a position to engage completely in the global discussion regarding the essence and future of the law of obligations, making available to future comparative analyses Polish laws that can be shown to have their origins in the European legal tradition. Moreover, by identifying the origins of the Polish law of obligations, it will also be possible to compare and draw inspirations from equivalent substantive provisions regulated in other European legal systems, and thus to add clarity to numerous doctrinal doubts regarding the current discourse of Polish private law.
3. Concept and work plan
3.1. Concept and general work plan.
The law of obligations is the only part of private law that was codified during the inter-war period, and which was not influenced by major political changes that were initiated after World War II. The necessity of starting from the law of obligations stems from the fact that official explanations and models for respective regulations (based on regulations applicable in other legal systems), on which the Codifications Commission based its works, were published in the official report. Further references to borrowed regulations that inspired the Codification Commission can be found in other works published in that period (R. Longchamps de Bérier and L. Domański). These publications were themselves based on earlier drafts of the code of obligations prepared at the Jan Kazimierz University in Lviv (E. Till, Polish law of obligations. (general part). Early draft, Lwów 1923; E. Till, R. Longchamps de Bérier, Polish law of obligations (detailed part). Early draft, Lwów 1928). All the drafts of the Code of obligations and a great part of their motives have been published by the Codification Commission before the World War II broke out and are available for further comparison with the afterwar materials (see e.g. the PolOGB joint project of the University of Warsaw and the University of Zurich, https://rwi.app/iurisprudentia/de/polor).
The law of obligations is the most significant part of private law because it regulates the flow of trade. That is precisely the reason why it is not so easily ascribed to differing ideologies (which, in Poland, included socialist ideology) when compared to property law (such as with ownership rights), family law (such as with the definition of marriage or the regulation of the relationship between spouses) or inheritance law (such as with the interrelations between family and property law). Thus, the law of obligations was codified earliest during the inter-war period and as such has the longest tradition and accessible history of the various components of the Polish Civil Code.
3.2. Specific research goals.
A key deliverable of the project will be the creation of a new digital database, which will include digitised versions of the all materials and protocols of the Codification Commission of Civil Law at the Ministry of Justice of the Polish People”s Republic. As a result, the project will add to the open access general knowledge base in this area, allowing future scholars easy and free access to the materials.
Additionally, there are plans to develop a webpage dedicated to dissemination of the results of the project (in Polish and in English), including the protocols of the Codification Commission of Civil Law at the Ministry of Justice of the Polish People”s Republic that are currently difficult to access, and as such, are rarely cited by researchers. The website will also consist in a table comparing the provisions of the Civil Code with earlier drafts and the relevant foreign legal provisions. Due to the project’s character it is advisable that the analysed legal provisions of the Polish and foreign codes as well as texts of draft projects be set together in a table in order to better compare them and show the changes in the course of drafting the civil code. Such a webpage should be considered as the best platform for an overview of project’s results. A search machine and links to specific archives, documents and publications will facilitate the application of the project’s results for further studies.
3.3. Results of preliminary research.
The correct interpretation of the Polish Civil Code requires an “archeological” approach which enables us to determine the source of many current prescriptions. For example, Article 388 of the Civil Code, a norm on unfair advantage, traces its origins to Article 42 of the Code of Obligations, which itself is inspired by Article 22 of the French-Italian Project of the Law of obligations of 1927. Furthermore, it is possible to trace the origins of Article 434 of the Civil Code on the collapse of a construction (cautio damni infecti), which is derived from Article 151 the Code of Obligations, which is known to originate in Article 1386 French Code civil, § 836 BGB and Article 2053 of the Italian Civil Code.
Moreover, already at this stage of the project we can assume that the impact of foreign regulations was significant not only for the Code of Obligations, but also for the subsequent Civil Code. Moreover, at this stage of the project preparation, we can make the initial hypothesis that references to comparative law, including the law being in force in capitalist countries (as the origin of Polish legal thought), although not explicitly emphasized, were apparent to the members of the Codification Commission of Civil Law at the Ministry of Justice of the Polish People”s Republic.
4. Research methodology
4.1. Underlying scientific methodology
The chosen scientific methodology will be methodologically differentiated. We will use the comparative method to prepare the commentary, which will summarize the conclusions resulting from the analysis of sources indicate the source of Civil Code provisions. The analysed legal materials will be subject to a historical-comparative synthesis, since comparing modern law with its tradition will enrich it, and facilitate its understanding.
4.2. Methods, techniques and research tools.
The project will present not only direct references to European civil codes made in the course of work on the Code of Obligations but also the wording of the provisions, which were then in force. This will clearly present their impact on the provisions adopted in the Code of Obligations. The analysis of sources will be accompanied by a commentary, which will take the form of a summary and will indicate directly the source of the given provision and the foreign regulations that had a direct impact on it. This approach will not only allow a deeper understanding of the analysed sources but will also permit the tracing of the historical evolution of specific provisions in the context of the European legal tradition.
4.3. Methods of results analysis.
The final result of the project will be the draft of a monograph that will amount to an overview of the research completed as part of the project. It will state the factors that influenced specific provisions of the Polish Civil Code and how the Polish Code of Obligations of 1933 influenced the complete Polish Civil Code and how it was influenced in turn by foreign regulations. Such a book could, for example, be published in English by Brill publishing house as part of the monographic series Studies in the History of Private Law. The layout of the monograph will correspond to the Polish Civil Code.
The project will result in at least three publications in English, aimed toward international legal scholars to include the development of the Polish law of obligations in their comparative research (one of the planned texts is to be published in Zeitschrift für Europäisches Privatrecht). Additional publications will be considered, in German as well as French, so as to provide the broadest possible international coalition of comparative interest in the Polish law of obligations (including, for example, La Revue trimestrielle de droit civil).