Compensation for inadequate performance

Pursuant to Article 471 k.c., the self-fulfilment of the work entitles the opposing organization to claim compensation, and it is for the counterparty, which has not fulfilled its work in a contractual manner, to show that this was due to circumstances for which it is not liable.

Conditions for contact responsibility

Liability under Article 471 k.c. requires the following conditions to be met:

• Pity,
• non-execution or inadequate execution of an existing obligation,
• the causal link between the non-execution or improper execution of the undertaking and the harm which must be the consequence of the circumstances for which the debtor is liable.

It should be borne in head that even the fulfilment by the creditor of all 3 of the above conditions does not always let for the final attribution of contractual liability to the debtor, since the anticipation of the debtor being released from liability is then updated – by demonstrating that the failure or improper execution of the work is simply a consequence of circumstances for which he is not liable (exogeratory grounds).

The contractual liability is in fact based on the alleged responsibility of the debtor, or the individual referred to in Article 474 k.c. (in the words: The debtor is liable as for his own action or omission for the acts and omissions of the persons from whom the work is exercised, as well as the persons to whom he entrusts the performance of the obligation) (yes: judgement of the Bialystok Court of Appeal of 22 August 2019, Act No I AG 43/19).

Inadequacy

Pursuant to Article 471 k.c., since a liability relation has been created (regardless of its source), the creditor has the right to anticipate the debtor to fulfil the benefit and thus to behave in accordance with the obligation, while fulfilling the interest of the creditor in its content. If this is the case, the undertaking is carried out and as specified expires (yes: judgement of the Court of Appeal in Warsaw of 24 January 2014. Ref. Act I ACa 1528/13).

Inadequate performance of the work occurs erstwhile the debtor fulfils the performance contrary to its content, thereby failing to satisfy the creditor’s interest due to the discrepancy between the degree of satisfaction resulting from the content of the work and the actual obtained (G. Stojek, Commentary on Art. 471 k.c., LEX, and the judgement of the Bialystok Court of Appeal of 22 August 2019, Act No I AG 43/19).

If the work is not fulfilled or inadequately met, the contractual liability of the debtor shall arise. As long as the benefit is possible and the parties are bound by the obligation, the creditor has the right to require the performance of the work in kind. He may even request the fulfillment of the service through state coercion (the judgement of the court and its execution). Only if the work remains unexecuted and there are no another legal reasons for the expiry of the work relation shall the creditor's claim for enforcement be converted into a compensation claim.

This may be compensation for the full harm resulting from default, or supplementary compensation for undue performance. Therefore, there must be a damage, and a average causal link between the debtor's breach of the bond and the creditor's harm (Article 361 of the Code) (yes: judgement of the Court of Appeal in Warsaw of 24 January 2014. Ref. Act I ACa 1528/13).

Exemption from the work to make good damage

Exculpation of the debtor is only possible if, in a given work relationship, the debtor is liable on the basis of alleged guilt, while in another cases, resulting from Article 471 k.c., it does not apply at all. In the second cases, the debtor is exempted from the work to make good the harm only if he demonstrates that the breach of the undertaking is not a consequence of the circumstances for which it is liable under a circumstantial commitment.

The debtor is liable for failing to exercise due diligence (Article 472 k.c.) as a synonym of responsibility in the form of negligence (involuntary guilt). There are exceptions, due to the fact that sometimes the provision of the law binds the debtor in isolation from contractual liability, i.e. on a hazard basis. In liability for acts or omissions of 3rd parties (Article 474 of the Code), there is liability on a hazard basis in the sense that it means that the debtor is not able to trust on the deficiency of his own responsibility in the choice, supervision or direction, instruction, etc. (yes: judgement of the Court of Appeal in Warsaw of 24 January 2014. Ref. Act I ACa 1528/13).

Principle of alleged responsibility with contractual liability

The creditor shall not be liable to prove the debtor's responsibility in the failure to execute or neglect to execute the obligation, since the construction of compensation contract liability is based on the alleged responsibility rule and the debtor shall bear the burden of proving that the default or improper execution of the work is simply a consequence of circumstances for which he is not liable.

The liability of the debtor pursuant to Article 471 k.c. shall not depend on the creditor proving that the incorrect performance of the work is the consequence of the circumstances for which the debtor is liable. It is up to the debtor – in order to be effectively released from work – to prove that the incorrect execution of his work is simply a consequence of circumstances for which he is not liable (yes: ultimate Court judgement of 24 June 2013, act No. II PK 344/12, Legalis; similarly, the ultimate Court judgement of 30 March 2017, act No. V CSK 468/16, Legalis, and the judgement of the territory Court of Suwałki of 30 December 2019. Ref. Act I Ca 461/19).

Definition of injury

The harm within the meaning of Article 471 k.c. in the mention to Article 361(2) k.c. is the harm to property or the decrease of the injured person's assets covering the actual failure (damnum emergens) and the failure of benefits (lucrum cessans). Thus, the failure is expressed in the actual change in the assets of the injured individual and consists of either a decrease in its assets or an increase in liabilities (yes: Court of Appeal in Warsaw in its judgement of 21 December 2017. Act No VI ACa 1140/16).

The failure resulting from the default or breach of the work is seen as the difference between the state of the creditor's assets after the breach of the work and the hypothetical condition that would be if the debtor behaved in accordance with the terms of the obligation. specified injury must stay in an adequate causal link in breach of the undertaking. However, its amount does not always correspond to the value of the benefit.

The ex contract liability government provides the basis for the compensation of any harm resulting from the breach of the undertaking (Article 361 §2 k.c.). These include both damages within the alleged affirmative contractual interest (no benefit and benefits lost as a consequence of the deficiency of the anticipation to dispose of the object) and further adverse property consequences of the breach of the work (yes: ultimate Court resolution of 22 November 2013). Act III CZP 72/13).

Damnum Emergens – harm to real loss

The word ‘damnum ergens’ was taken to take into account any deterioration in the property situation of the injured individual as a consequence of a decrease in assets held or an increase in their liabilities. The failure of assets is caused by the loss, failure or demolition of the individual assets that have previously been granted to the injured party, so the form of the harm in question is that the asset is depreciated.

It should be stressed that the present form of harm besides includes an increase in the liability of the injured person, whose emergence or increase in their size is the consequence of an event attributable to the individual obliged to repair the harm (yes: judgement of the Court of Appeal in Szczecin of 22 April 2020, Ref. Act I ACa 29/20).

Compensation for failure of benefits

The claim for compensation for the lost benefits of its substance refers to the hypothetical profit that the suspect would have achieved if he had duly executed the contract, namely the part of the property of the injured individual that his assets did not increase or reduce his liabilities, and this effect would have been the case if not for which the liability was attributed to the designated entity (yes: judgement of the Court of Appeal of Warsaw of 21 December 2017. Act No VI ACa 1140/16).

Obligation to show the causal link of injury to undue performance of the undertaking

Pursuant to Article 6 k.c., floods (as a individual who derives legal effects from these facts) are the burden of demonstrating harm in an adequate causal relation with the failure of the suspect to comply with the work (yes: judgement of the Court of Appeal in Warsaw of 21 December 2017, Act No VI ACa 1140/16).

Causal link of injury to undue performance of the undertaking — definition

In determining an adequate causal link, account should be taken of events that have actually occurred and not those which could happen (yes: justification for the resolution of 7 ultimate Court judges of 15 October 2008, act No. II of PZP 10/08, OSNP 2009 No. 9-10, item 112).

An adequate causal link must be demonstrated between the harm reported by the claimant and the actions of the suspect causing the injury in the absence of careful action. The legal importance has only a alleged adequate causal link, as defined in Article 361(1) k.c.

Obligation to show the amount of harm suffered

The Court of Appeal in Warsaw in its judgement of 21 December 2017. Act No VI ACa 1140/16 concluded that, in accordance with Article 6 k.c., it was for the floods to show the amount of harm suffered. This mandatory reason will in no way meet, not indicating what the harm is and requesting only the reimbursement of the full benefit fulfilled to the suspect on the basis of the connecting organization to the contract.

The amount of harm caused by improper performance of the contract

In the event of an improper execution of an work in the creditor's assets, harm shall arise only if the value of that asset after the improper execution of the contract is little than that determined on the presumption that the contract would be duly executed. The difference in the property of the injured individual is so not the same amount paid in accordance with the contract of remuneration.

It is clear that it is up to the court to find the appropriate rules for calculating the compensation, but does not exempt the parties from the work to find what the harm is, whether it involves the failure of benefits or actual losses linked to the improper execution of the work (so: judgement of the Court of Appeal of Warsaw of 21 December 2017. Act No VI ACa 1140/16).

The Court of Appeal in Warsaw, in its judgement of 23 April 2013 in Case No. VI ACa 975/12, stated on the bench that the harm to the property was caused by the defendant's inadequate performance of the obligation, and that, according to the plaintiff, the method of calculating the amount of compensation was the right of the plaintiff. It is inappropriate to conclude that the plaintiff could only effectively get compensation of the difference between the value of the object actually built and the object ordered. The difference between the value of the object free of defects and the value of the object actually owned by the community can besides be calculated by determining the amount of expenditure needed to remove defects – selection of the method belongs to the enumerator.

The Court of Appeal pointed out that the plaintiff in the case did not, in any event, recover future damage, but the harm already suffered. The harm is, according to the plaintiff, to receive defective (failingly executed) parts of common properties alternatively of obtaining common surfaces without defects according to the contract. This is simply a harm suffered by the victim, whether or not it has already been repaired.

In its judgement of 8 August 2007, Case CSK 177/07, the ultimate Court stated that the developer was liable for harm resulting from default pursuant to Article 471 k.c. The harm to the contracting authority in specified a situation is simply a material damage, understood as the difference between the present state of the creditor's assets and the hypothetical condition that would be if the work were fulfilled.

Purpose of obtaining compensation

The intent of the compensation is indifferent — entitled or not to remedy the harm if it has received the appropriate amount. Already in the judgement of 22 February 2007, Case I ACa 1179/06 The Poznań Court of Appeal found that the work to compensate for harm by the payment of an appropriate monetary sum arises erstwhile the harm is caused and is not dependent on whether the injured individual has repaired the goods and intends to repair them at all. This ruling was based on the fact that the car was being repaired, but its content has a general value.

Compensation and a claim for performance

The ultimate Court, in its judgement of 30 January 2009, Case CSK 435/08 ECR II CSK 435/08, held that compensation for improper performance of the contract was a benefit intended to remedy the harm caused by the incorrect act or omission of the debtor. This is simply a claim of a different nature than a claim for performance. It aims to compensate for the harm caused by incorrect behaviour of the counterparty , alternatively than forcing it to comply with the contract .

Claims for compensation of contractual harm and first liability ratio

It should be stressed that the claim for compensation for ex-contract harm exists in a separate legal relation from the first liability relationship. Consequently, from the position of the statute of limitations, the claims in both cases stay autonomous. The limitation periods relating to them should besides be calculated separately (yes: ultimate Court resolution of 22 November 2013. Act III CZP 72/13).

Judgement of the appropriate sum for damages

Pursuant to Article 322 kpc, if, in a case for damages, the court considers that a strict proof of the amount of the claim is impossible, unduly impeded or, of course, untargeted, it may justice in the judgement an appropriate sum according to its assessment based on consideration of all the circumstances of the case.

Article 322 k.p.c. does not, on the another hand, lay down rules for the estimation of harm and does not alter the distribution of the burden of proof.

The legal standard contained in Article 322 of the Code serves to mitigate the rules of evidence, and the condition for the application of that provision is that the court considers that it is impossible or unduly hard to prove the amount of the claim.

In specified a situation, without the work to carry out additional evidence of his own motion, the court should, erstwhile the harm is uncontested, effort to find its amount on the basis of an assessment ‘based on consideration of all the circumstances of the case’ (yes: judgement of the Court of Appeal of Warsaw of 21 December 2017. Act No VI ACa 1140/16).

Article 322 kpc and no essential evidence initiative

However, Article 322 of the General Court cannot be interpreted as exempting the injured individual from the work to prove his harm (yes: judgement of the ultimate Court of 24 March 2000 and CKN 559/98), and the absence of a essential evidence initiative in relation to the circumstances which the organization is charged cannot be replaced by actions taken by the court under Article 322 of the ultimate Court of 5 July 2013 (yes: judgement of the ultimate Court of 4 July 2013 IV CSK 17/13).

Article 322 k.p.c. covers only the state of affairs in which the plaintiff has exhausted the available and known means of evidence, and nevertheless the amount of the harm remains unproven. The plaintiff, in accordance with its burden of proof, should, therefore, supply evidence of both the injury suffered and the amount to be demonstrated, have the work to exhaust all admissible evidence and to show that strict proof of the claim is impossible or highly hard (yes: ultimate Court judgement of 19 December 2013 II CSK 179/13).

It is so not possible to apply Article 322 of the Code where there is no evidence showing not only the amount of the harm but besides any circumstances which may be applicable to the determination of its amount, in peculiar the indication by the injured organization as to what it considers its injury.

Therefore, Article 322 kpc does not replace attempts to show that the plaintiff has suffered injury resulting from the unsuccessful execution of the undertaking by the defendant, resulting, for example, from the employment of another entity and covering the costs incurred. It does not comply with the work to show the amount of harm by limiting itself to a claim for the amount corresponding to that of the benefit to the counterparty (yes: judgement of the Court of Appeal in Warsaw of 21 December 2017. Act No VI ACa 1140/16).

Ways to make good damage

Pursuant to Article 363(1) kc, compensation for harm should be made, either by the choice of the victim or by the restoration of the erstwhile condition or by the payment of an appropriate monetary sum. However, if it is impossible to reconstruct the former, or if it involves excessive difficulties or costs for the obliged person, the injured person's claim is limited to money.

If the compensation is to be recovered in money, the amount of the compensation should be fixed at prices from the date on which the compensation was established, unless peculiar circumstances require that the prices at another time be taken as a basis (§ 2).

The minute erstwhile a claim for damages for contractual harm was made

A claim for compensation for harm caused by a breach of the undertaking shall arise no earlier than the time erstwhile all the conditions which, in accordance with Article 471 of the Code, find its origin. They are:

• breach of the work (‘contract law’),
• damage to the creditor (Article 361 §2 k.c.),
• the existence of a causal injury in breach of the undertaking (Article 361(1) k.c.).

This provision provides for compensation where the benefit has not been fulfilled or not been fulfilled. In specified a case, the work to provide, in part in which the debtor has been breached, shall be transformed into an work to make good the damage. In practice, it can full replace or play a complementary role.

The harm resulting from the compensation claim provided for in Article 471 may be referred to erstwhile the debtor is no longer in a position to act in accordance with the terms of the undertaking. In practice, this will happen on the day following the expiry of the time limit within which the debtor could execute the work on him under the work relationship. As a rule, this will be the day following the expiry of the period to be fulfilled. This situation is characterised primarily by the obligations of the consequence and those of careful action which, in a method and temporary sense, form 1 whole. If the debtor is subject to an work extended in time or of a multi-step nature, the creation of a compensation claim may be referred to from the time erstwhile the debtor could no longer behave in a manner consistent with the content of the ‘partial’ obligation, the infringement of which led to the harm (yes: ultimate Court resolution of 22 November 2013), Act III CZP 72/13).

Unlawfulness with contractual liability

The illegality in ex-contract liability is linked to a breach of the comparative obligations existing solely within the content of a circumstantial work (yes: ultimate Court resolution of 22 November 2013). Act III CZP 72/13).

Inadequate performance and counterparty remuneration

The ultimate Court in its judgement of 16 April 2008 in Case V CSK 515/07 indicated that if the organization to the contract did not withdraw, even if it was aware that the contract was not decently implemented and that the contractual work was likely not to be fulfilled by the counterparty, since the connecting organization had not been annihilated, counterparty (the defendant) was entitled to the remuneration laid down in the contract and the harm of the claimant in an adequate causal link with the undue execution of the undertaking cannot be paid in accordance with the provisions of the contract,.

The Court of First Instance pointed out that since the claimant’s claim did not concern the simplification of the defendant’s remuneration due, the suspect was so not required to show ‘the criteria for the simplification of the benefit and the costs incurred by her for the performance of the contract’. The Court of First Instance indicated that it could besides not be concluded that the remuneration paid to the suspect was an undue benefit.

Compensation for improper performance of a contract, pursuant to Article 471 of the Code, shall be a compensation for harm caused by the incorrect act or omission of the debtor. This is simply a claim of a different nature than a contract execution claim. The intent is to compensate for the harm caused by incorrect behaviour of the counterparty, not to force the performance of the work in accordance with the contract. The work to compensate for harm covers all of it, including harm caused by failure to receive due benefits in due time, in the case of cash benefits, including interest due for hold (yes: judgement of the Court of Appeal in Warsaw of 21 December 2017. Act No VI ACa 1140/16).

Admissibility of the colliding of contractual and non-contractual claims

In view of the admissibility of ex contract and ex delicto (Article 443 k.c.), the choice of the basis for the redress to compensate for the harm suffered by the creditor's assets as a consequence of an event which may be qualified simultaneously as non-execution and as a tender was left to the injured organization (yes: ultimate Court in its resolution of 22 November 2013 ref. act III CZP 72/13).

Start of the limitation period for a claim for compensation for breach of the obligation

According to the general regulation laid down in the first conviction of Article 120(1), the limitation period shall begin on the date on which the claim became due. The legislator did not specify this concept. However, literature and jurisprudence agree that it means a situation in which the rightholder (the creditor) opens up the anticipation of demanding from the obliged individual (the debtor) to satisfy the claim and thus to comply with the content of his work (such as the ultimate Court judgments of 12 February 1991, III CRN 500/90, OSN 1992, No. 7-8, item 137, 28 April 2004, V CK 461/03, Lex No. 174217).

This state of affairs, in principle, besides opens the way for an effective action to be taken before the court; the legislature, rather exceptionally, allows for judicial redress of claims not required.

The ultimate Court in its resolution of 22 November 2013. Act III CZP 72/13 erstwhile deciding whether, in the light of the legal standard contained in Article 120(1) k.c., the time limit for the limitation of a claim for compensation for breach of an work (Article 471 k.c.) begins to run from the date of execution of the undertaking or from the date on which the harm occurred or from the date on which the creditor was aware of the damage, he stated that 2 types of liability were included in the word of liability as a consequence of the undue execution:

• inadequate performance of the benefit and
• improper implementation of the obligations constituting the content of the legal relation between the parties.

Inadequate performance of the benefit and inadequate fulfilment of the debtor's side obligations

Inadequate performance of the benefit and inadequate fulfilment of the debtor's side obligations fall within the broader conceptual category of breach of the obligation. This concept shall cover all cases where the debtor behaves in a manner contrary to the content of the work relation determined in accordance with Article 56 k.c.

Principle of real implementation of the undertaking

The Polish law accepts the rule of real execution of the work (e.g. Articles 477(2) and 491(2) in fin k.c.) that the creditor should get from the debtor precisely the benefit for which the debtor was obliged. It follows that, in the event of a breach of an obligation, the creditor may choose 1 of 2 alternate claims: to comply with the work in accordance with the legal relation or to make good the harm caused by its failure or improper execution. However, in certain cases the nature of the work may exclude the existence of a claim for enforcement, leaving the creditor only the anticipation of claiming compensation for harm resulting from its failure or inadequate execution (yes: ultimate Court in its resolution of 22 November 2013). Act III CZP 72/13).

Termination of damages claims for non-execution

The rules on limitation of claims for compensation for harm caused by an act are not permitted by the legislator laid down in Article 442 ¹ k.c. erstwhile it comes to contractual liability, for selected legal relations in this area, the legislator has determined the dimension of limitation periods for claims for the performance of the obligations resulting from them, and sometimes besides the time from which their limitation period should be calculated (e.g. Article 390(3), Article 541, Article 624(1) and (2), Article 646 k.c., Article 677, Article 719, Article 722, Article 778, Article 792, Article 803 §2 k.c.), but has not created general provisions that would regulate the limitation of claims for the performance of the work or the compensation of damages caused by their failure or inadequate execution.

In principle, specified claims must so be subject to general statute of limitations (Article 117-125). Claims for damages in the contractual government shall so be limited in accordance with the general regulation resulting from Articles 117 and n.c.

This means that, in accordance with Article 118 k.c., the limitation period is six years or, possibly, 3 years, if they are linked to the pursuit of an economical activity (although the end of the limitation period is at the last day of the calendar year, unless the limitation period is little than 2 years). On the another hand, the beginning of the limitation period for specified claims is laid down in Article 120 k.c., in peculiar the second conviction of paragraph 1 of that provision (if the claim is subject to a circumstantial action by the rightholder, the period starts with the date on which the claim would become due if the rightholder had acted within the earliest possible time limit) (yes: the ultimate Court resolution of 22 November 2013. Act III CZP 72/13).

Terminate nature of the liability to supply compensation for improper performance

The time limit within which the debtor must meet the benefit due to the creditor is set out in Article 455 k.c. In view of the wording of this provision, it is essential to separate between situations in which claims arising from fixed-term liabilities and unlimited liabilities become payable.

Such obligations shall be deemed to be timely for which the word of the benefit is due to the content of the legal act or to its jurisdiction. They shall be due within the time limit within which the benefit should be fulfilled. If the parties to the contract have not set a deadline for the performance of the undertaking or if that time limit is not due to its competence, the work shall be unlimited. This is besides the nature of the work to supply compensation for improper performance.

The second conviction of Article 120(1) of the Code refers virtually to the beginning of the limitation period on the date “on which the claim would become due” if the creditor had acted to render the claim “in the earliest possible time”. This earliest date is the minute erstwhile all the conditions of compensation will be fulfilled, and so the harm to the creditor resulting from the state of contract lawlessness, resulting from its causal link. Even then, the creditor, by calling on the debtor to comply with the compensation benefit, may have due effect on his claim. The debtor should fulfil this benefit at the expiry of the appropriate time determined in accordance with the criterion of “not delay” in Article 455 k.c. The exact beginning of this word must, of course, be ad casum, and the adoption in this respect of any more general expression seems impossible (yes: ultimate Court resolution of 22 November 2013. Act III CZP 72/13).

Start of the limitation period for contractual claims and get the creditor’s cognition of the event resulting from his claim

The regulation of ex contract liability does not include the equivalent of Article 442 1 k.c., and so the calculation of the limitation period for specified claims in conjunction with the creditor's obtaining cognition of the event from which his claim (a temporal science) results would require the application of that provision by analogy. Certain functional considerations may support the analogous application of Article 442 1 k.c. to ex contract compensation. This solution would defend the creditor (damaged) and supply him with convenient conditions to recover the damage, regardless of the minute at which it was created and the actual grounds for his claim were disclosed.

However, there are more arguments against the usage of this solution in the contractual liability regime. The statute of limitations and temporal discipline is an extraordinary solution in the Polish legal system, utilized by the legislator in a very cost-effective way. The argument of akin harm characteristics under both liability regimes does not justify an extended explanation of the exceptional regulation, as provided for in Article 442 1 k.c. A different statute of limitations is indicated in literature among the typical differences between ex contract liability and ex delicto, which proves that the legislator's intention was to treat claims belonging to both liability regimes differently. Consequently, harmonising the limitation rules by explanation would be contrary to the intention underlying the separateness of the 2 regimes of liability for damage.

The deficiency of the anticipation to apply time limits a temporale scientiae to claims for compensation for ex contract harm is besides supported by the functional differentiation of this origin of liability compared to the pecuniary liability. In the event of liability for breach of an obligation, it may be much easier to find both the fact that it has been harmed and the individual responsible. In a typical situation, it will be adequate to compare the condition which was to become the consequence of the undertaking with the condition which exists in fact after the expiry of the period to be fulfilled. It is besides easier to find the degree of harm in this case than in the government of delict liability.

The shortening of the time limits for the limitation of delict claims and the calculation of them a tempore sciencee shall correspond to the particularities of those claims whose effective investigation in most cases depends on the anticipation of proving the grounds for liability.
The concept of calculating the limitation period for an ex-contract claim according to the state of the creditor's cognition would besides be contrary to the values underlying the limitation institution. The determination of the actual state of consciousness of the injured individual in practice is frequently importantly hampered, unless the creditor discloses this awareness outside, and the determination of the beginning of the statute of limitations and tempore scientiae could service as a pretext for opportunistic behaviour of the injured individual (cf. the justification for the ultimate Court judgement of 11 July 2002, IV CKN 1219/00, OSNC 2003, No. 11 item 152).

In the summary of the above comments on the existence, maturity and commencement of the limitation period for ex contract damages claims, it must be stated that the claim for compensation for damages caused by a breach of the undertaking, as an unlimited obligation, becomes chargeable in accordance with the regulation laid down in Article 455 k.c., and thus after the creditor has requested the creditor to comply with the compensation. The debtor is obliged to satisfy specified an work as shortly as the creditor has placed them in due time by that act. The debtor shall be delayed to comply with the benefit after specified time has elapsed since the date on which he is called upon to act in accordance with the work which he should reasonably be allowed to fulfil the benefit. The undertaking becomes due (yes: ultimate Court resolution of 22 November 2013). Act III CZP 72/13).

Request of the debtor to meet the compensation for breach of contract

Claims on unlimited liabilities become payable after an event occurs which depends on the creditor's will, namely require the debtor to comply with the benefit. In specified a request, the creditor may specify the time limit within which the work should be fulfilled. It then becomes the maturity of the claim for performance. If, on the another hand, the creditor does not specify that time limit, in accordance with Article 455 in fine k.c., the benefit must be fulfilled by the debtor immediately after the request. In this case, the maturity should be determined separately for each benefit, as it depends on both its properties and the overall relation in which the parties remain.. In practice, it is usually between a fewer and a twelve days from the call (yes: ultimate Court resolution of 22 November 2013. Act III CZP 72/13).

Extension of an action in the course of an infringement procedure

The territory Court of Łódź, in its judgement of 2 July 2015 in Case III Ca 366/15, indicated that the correct application of Article 123 § 1 point 1 k.c. leads to the adoption that the bringing of a claim for damages results in the interruption of the limitation period for the full final determination of compensation, regardless of the fact that the plaintiff initially obtained a lower amount. Therefore, the applicant’s plea of limitation of the claim in question above the first amount cannot stand.

The ultimate Court held in its judgement of 13 December 2012, Case IV CSK 142/12, LEX No 1341697, that it is essential to separate between situations where the plaintiff extends the action submitting a fresh claimfrom a situation where, within the same factual basis, an increase in the first claim takes place, For example, due to the change in the data underlying the claimant’s assessment of the claim. specified a position is based straight on Article 363(2) of the Code, which states that ‘although the inadmissibility of a separate appeal does not become a final provision to be examined by the second instance by the court erstwhile that court finds the case in which it was issued’.

The same should be applied to situations where the injured individual increases his or her request in the course of the trial as a consequence of the court's findings on the amount of damage. Claims — although containing a claim to justice a lower amount — The limitation period for the full amount of compensation determined by the court (Yes: judgement of the ultimate Court of 6 April 2011, Case No I CSK 684/09, LEX No 951732, approved by Z. Banasczak, Palestra 2012, No 7/–8, p. 154).

The analysis of the jurisprudence of the ultimate Court clearly indicates that, in the case of damages claims (as well as, for example, in favour cases), whether they arise from unlawful acts or from contractual liability, it is assumed that the interruption of the limitation period relates to the full amount of compensation established during the proceedings, unless the factual basis of the claim is changed. It is clear that the facts on which the case is applicable are not identical to the findings made in the present case, but whatever the origin of the compensation, the rules for determining the amount of compensation are the same, with the exception of circumstantial provisions.

In particular, in the reasons for the judgments of 6 April 2011, Case I CSK 684/09 and Case IV CSK 142/12, The ultimate Court did not take the view that only the price change warrants that the limitation period for the extended part of the action be disregarded. On the contrary, it was clearly stated in the judgement of 13 December 2012 that, in the event of an extension of the action pending, the extension of the action to the fresh claim must be distinguished from the change in the amount of the compensation claimed under the first claim.

One of the circumstances justifying the change in the amount of the claim in question is the change in the price level in the course of the proceedings and the resulting request to establish compensation at prices from the date of the judgement (Article 363 §2 k.c.), which, within the same factual basis of the claim, results in the first filing of the application resulting in a limitation of the limitation period as to the full amount sought. However, it cannot be argued that, in another cases of compensation, prices must be changed in order to exclude the limitation period for the extended part of the action.

Indemnification process modification of proceedings in the form of an increase in the amount of compensation claimed is only a change of claim in a procedural sense. In view of the content of Article 363 k.c. it does not constitute a substantive change of claimwhich is, from the beginning of the process, a claim for compensation. A change in the amount of the compensation — even material — does not mean to prosecute a fresh claim.

The territory Court in Łódź, in the message of reasons for the judgement in question dated 2 July 2015, the mention to Act III Ca 366/15 argued this thesis as follows: “In the case in question, the plaintiff sought from the outset to remedy all harm related to the improper execution of the undertaking. Already in the defendant's complaint of 3 August 2012, the plaintiff demanded a refund of half the payment for the level or "a full fresh location in 2 parquet rooms". The call for payment of 12 October 2012 mentions the amount of PLN 5000, but as compensation for the equivalent costs of removing the effects of the defective service. The fact that the claimant requested to issue a payment order of PLN 5000 did not, in the Court's assessment, mean that the claim for damages was limited to that amount only. In the lawsuit, it did not reserve the anticipation of extending the action, but no provision imposes specified an work on the plaintiff.

The application for evidence from the expert’s opinion was already included in the application, which led to the conclusion that Finally, the amount of damage, and thus the compensation essential to compensate for it, may be definitively estimated by the expert.

At the same time, the view expressed in the appeal cannot be shared that the plaintiff was obliged to order a private opinion before the action was brought in order to decently find the amount of compensation claimed. The private opinion has no evidence in civilian proceedings and it is in no way the claimant's work to draw up specified an opinion before the action is brought. In the case at hand, it was doubtless only the expert’s opinion, which was requested by the plaintiff, allowed, on the 1 hand, to measure the quality of the work done, on the another hand, to find the degree of the work needed to remedy the harm and its actual cost. The extension of the claim beyond the amount originally investigated was not due to the submission of a fresh claim but to the findings made in the course of the investigation as to the actual amount of the injury. In specified a situation, there is no reason to accept that the claimant's claim has expired more than PLN 5000."

Change in the process of the liability base with a liability guarantee

The change of the basis of liability for damages of the seller in the course of the process constitutes, in specified a situation, the change in the action in question, since there are different factual and legal grounds for liability for warrants and liability for damages, different scope of possible defence of the suspect and another factual circumstances, which are borne by each organization and, therefore, different limits for the examination of the case by the court.

The case law of the ultimate Court is uniformly held that, although the claimant’s indication of the substantive basis of the claim is not required, it is not irrelevant for the course and result of the case, since it indirectly besides defines the factual circumstances justifying the application. As the ultimate Court stated in its judgement of 23 February 1999. I CKN 252/98 (OSNC 1999/9/152), the substantive basis of the claim outlines a series of factual circumstances justifying the application and thus sets limits for the examination of the court, and its amendment constitutes the conversion of the action in question.

Consequently, it is uniformly accepted in the ultimate Court’s case-law that the change in the application in question is all the acts which lead to a change in the quantity or quality of the request, as well as those which substantially alter the factual basis of the essential arrangements, leading to the request to respond to a fresh legal justification for the request, and an indication of another substantive basis for the claim, even with the same wording of the procedural request (Compare, inter alia, the ultimate Court ruling of 29 January 2009 V CSK 282/08, not publ., of 19 November 1998 I CKN 32/98, OSNC 1999/5/96, of 19 December 2007 V CSK 301/07, not publ., of 28 February 1958 3 CR 464/57, OSPIKA 1960/11/290, of 13 September 1960 2 CR 212/60, OSN 19621/16, of 2 June 1966 II PZ 25/66, OSPIKA 1967/6/138, of 12 November 1969 II CZ 117/69. OSNCP 1970/9/154, of 24 April 1972 III PZP 17/70, OSNCP 1973/5/72, of 24 May 1979 II CZ 52/79, OSNCP 1979/12/246, of 12 November 1982 III CRN 271/82, OSNCP 1983/8/118, of 12 July 1988 III CZP 50/88, OSNCP 1989/10/158, of 7 April 1992 III CZP 29/92, OSNCP 1992/11/192 and of 11 December 1998 II CKN 96/98, OSNC 1999/5/98, and the ultimate Court judgement of 11 December 2009, Ref. Act V CSK 180/09).

The view presented in the case-law of the average courts and the ultimate Court must be considered to be settled, that it is for the court ruling to carry out, of its own motion, an ex officio subsumation under the applicable substantive law of the claimant's claim. The organization does not request to state the grounds for the request, and erstwhile it does, the court is not bound by it.

The specified indication of the basis of the procedural claim pending without altering the request or the facts does not constitute the change of the action in question (yes: ultimate Court in its judgement of 21 May 2009, Case No. V. CSK. 439/08, Op. Lex No. 518121). In the light of the rule resulting from the general paramemia “da mihi factum dabo tibi ius” the court’s adoption of a different basis from that indicated by the parties does not constitute an exit beyond the limits of the request under Article 321(1) of the General Court (yes: ultimate Court in its judgement of 16 September 2009, Case II CSK. 189/09, Op. Lex No 564981).

Inadequate performance of the sale contract and the guarantee

The sale of defective goods may be qualified as a claim for compensation for harm caused by improper performance of the contract. In fact, the liability of the counterparty for the provision of a defective item is assumed to be governed by the rules laid down in Article 471 of the Code and may be sought independently of the fulfilment of the conditions with the warrant (yes: the resolution of the composition of the 7 ultimate Court judges of 13 May 1987, III CZP 82/86. OSNCP 1987/12/189 and the resolution of the full composition of the civilian and Administrative Chamber of the ultimate Court of 30 December 1988, III CZP 48/88, OSNCP 1989/3/36).

The condition in which the organization to the sale contract receives a defective item from the seller alternatively of the item agreed in the contract allows the rightholder to make a request for natural restitution in the form of the removal of defects of the property on the basis of general rules of contractual compensation liability (yes: the composition of the 7 ultimate Court judges of 12 February 1991). CRN 500/90, OSNC 1992/7-8/137, and the Court of Appeal judgement of 4 July 2018, Act No VI ACa 23/17).

In its judgement of 11 December 2012, CSK 180/09, the ultimate Court indicated that the claim for a price simplification was a claim only provided for in Article 560 k.c. concerning the liability of the seller in respect of the warranty for defects. This is not a compensation claim, since the harm within the meaning of Article 471 of the Code in Article 361(2) of the Code is the difference between the condition of the injured person's property before and after the event causing the damage, i.e. the simplification in the value of the defective thing, and not its price in the manner laid down in Article 560(3) of the Code.

Whereas, in the resolution of the ultimate Court of 30 January 1970, the signature of act III CZP 102/69, The ultimate Court considered that an investor who has lost his warranty claim for defects may claim damages based on general principles (Articles 471 et seq.).

Compensation and claim for price simplification at the guarantee

The claim for price simplification is simply a claim only provided for in Article 560 k.c. concerning the liability of the seller for the defects. This is not a compensation claim, since the harm within the meaning of Article 471 of the Code in Article 361(2) of the Code is the difference between the condition of the injured person's property before and after the event causing the damage, i.e. the simplification in the value of the defective thing, and not its price in the manner laid down in Article 560(3) of the Code.

It should so be considered that, if the claimant requests in the application a certain amount for lowering the price of the defective item purchased and, as a factual fact, states that he has acquired the goods from the defendant, the existence of defects which have not been removed and indicates that he requests a simplification in the price in specified a way that the value of the defective item remains to its value taking into account the existing disadvantages, that he has chosen from among his claims a claim for the physical defects of the goods and thus has shaped the process in question (yes: the ultimate Court judgement of 11 December 2009, Ref. Act V CSK 180/09).

Compensation in case the employer fails to re-employed

In the event of the employer's failure to re-employed an employee, the worker may demand, alternatively of establishing an employment relationship, payment of compensation under general contractual responsibility, i.e. pursuant to Article 471 of the Code in conjunction with Article 300 of the Code (yes: ultimate Court judgement of 12 July 2011, II PK 19/11, OSNP 2012 No 19-20, item 231).

This is possible if the worker is not employed as a consequence of a recruitment procedure due to non-compliance with additional requirements, specified as education. As already under the provisions of the erstwhile Act on Group Exemptions, the ultimate Court expressly accepted that the employer could not refuse to re-establish an employment relation due to a negative assessment of his qualifications and suitability for work, nor due to the employment of another worker in that position (yes: resolution of the ultimate Court of 22 February 1994, I PZP 2/94, OSNP 1994, No 1, item 5). This view is full up to date besides in the current legal state and in line with advice 166 of the ILO Convention 158.

The ultimate Court in its judgement of 6 December 2016. Ref. Act II PK 254/15 it pointed out that the degree of the injury in specified a case is determined taking into account the rule of average causal link, as provided for in Article 361(1) (in conjunction with Article 300). According to the ultimate Court, the acceptance that compensation due to an worker should be limited to the amount of monthly remuneration multiplied by the number of months remaining until the employer has obtained the right to terminate the worker correctly is unacceptable. It is based solely on the assertion of the opposing organization and is in fact unverifiable.

It would only be possible to reduce the amount of compensation by mention to the period of employment if it could be accurately and surely defined (e.g. in the event of the liquidation of the establishment). This does not mean, of course, that in any case, in violation of Article 9 of the Act, compensation will be granted for the full period of unemployment (yes: justification of the cited judgement II PK 19/11). It can only be noted that the re-employment of a individual in the same professional group and then the following day's announcement could violate Article 8 of the Code.

Compensation for inadequate care of the premises

The ultimate Court judgement of 30 September 2010, act mention I CSK 689/09, states that the improper implementation of the work to take care of the premises, resulting in harm to the owner of the premises, may justify the liability of the contractor for the repair and reconstruction of the premises based on contract rules (Article 471 k.c.).

On the limitation period for claims for damages for improper performance of the work contract – read here

On work for the sale of defective items (arms) – read here