One regime to rule them all?

Jolanta Budzowska        17 May 2017        Comments (0)

When advising on Polish law in personal injury cases, we are often asked about the contractual and delictual liability regimes – mainly how each of them function in practice, and what is the relationship between the two under Polish law. The issue may be of particular interest when it comes to plastic/cosmetic surgery procedures, which are almost exclusively performed on the basis of a contract.

It shouldn’t come as much of a surprise that in regard to contractual liability, the terms of the contract are key. Polish law does provide general regulations that apply to contractual liability, however most of these may be lawfully modified by the parties in the contract. I wouldn’t exactly say that the sky is the limit, but that expression is not very far off, as the freedom available to the contract parties (freedom of contract) under Polish law is quite extensive.

The provisions in regard to delictual liability on the other hand provide a very solid framework; one might even say that it is dependable. Analysing each specific regulation extends far over the scope of this blog post. However, what is the actual relationship between the two liability regimes, and what are the options when an injured party may potentially pursue claims under both the contractual and delictual liability regime?

The Polish Civil Code provides that the fact that an action or omission which causes damage (i.e. tort) also constitutes a non-performance or improper performance of an earlier obligation does not preclude a claim for remedy of damage under tort (delictual liability), unless the substance of that earlier obligation (in essence, the contract) points to the contrary (freedom of contract strikes again).

Therefore the general rule – which may be modified by the contract – is that any potential delictual liability is not limited or prejudiced by the fact of the pre-existence of a contract between parties. In other words, the same action may constitute both a breach of contract, as well as tort, and in such a case, the aggrieved may freely choose to claim for damages either on the basis of contractual liability or delictual liability.

However, it is important to keep in mind that said action would need to constitute tort regardless of the pre-existing contractual relationship, i.e. it would need to be an action that can be considered as tort even in the absence of any contractual relationship between the parties (or entirely outside of such relationship).

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