Marcin Sepełowski, A Natural Person’s Capacity to Act in Law: An Overview of Polish Law in:

OER Osteuropa Recht, page 260 - 276

OER, Volume 66 (2020), Issue 2, ISSN: 0030-6444, ISSN online: 0030-6444, https://doi.org/10.5771/0030-6444-2020-2-260

Browse Volumes and Issues: OER Osteuropa Recht

Bibliographic information
Marcin Sepełowski* A Natural Person’s Capacity to Act in Law: An Overview of Polish Law Abstract The article presents the issue of capacity to act under Polish law and discusses the es‐ sence and definition of a natural person’s capacity to act in law. Whereas the article focuses on the different types of capacity to act (no capacity, limited and full capacity and the corresponding conditions, particular emphasis is placed on the legal situation of persons with limited capacity in order to evaluate the age limits of limited capacity in Polish law. Keywords: capacity; limited capacity; Polish civil law; minor Introduction The principle of autonomy of will is undoubtedly one of the core principles in the va‐ rious systems of private law across Europe. This principle is applied above all through the competence conferred on natural persons to independently shape their own legal situation through their declarations of will, leading to legally-relevant acts.1 Independent participation in legally-relevant acts is not without risk. Accordingly, the legislator has implemented rules that protect categories of natural persons by im‐ posing various restrictions and limitations on the principle of autonomy of will and also by establishing special rules in the law of representation. However, legal regulati‐ on of such issues entails numerous dilemmas. This article focuses on the effects of particular Polish legislative provisions on ca‐ pacity to act in law of natural persons. The scope of this topic is, however, too broad for a comprehensive discussion in this paper, therefore the focus is directed specifical‐ ly at the core elements and limited capacity, in particular. The essence and definition of capacity to act There have been many attempts among legal commentators to define the term zdol‐ ność do czynności prawnych, literally 'capacity to act in law'.2 Whereas not all cannot I. II. * Marcin Sepełowski, M.A., UAM – Uniwersytet im. Adama Mickiewicza w Poznaniu (Adam- Mickiewicz-Universität Posen, Fakultät für Recht und Verwaltung). 1 K. Mularski/Z. Radwański, in: System Prawa Prywatnego. Tom II. Prawo cywilne – część ogólna, ed. Z. Radwański, A. Olejniczak, Warszawa 2019, p. 14. 2 M. Pazdan, in: System Prawa Prywatnego. Tom I. Prawo cywilne – część ogólna, ed. M. Safjan, Warszawa 2007, pp. 979–980. OER 2/2020, DOI: 10.5771/0030-6444-2020-2-260 be analyzed within the scope of this paper, it suffices to note that the capacity to act is recognized either as a certain attribute (qualification, property) of a natural or legal person or as one of the requirements for valid acts in law.3 The Polish legislator ap‐ pears to have favoured the first approach in placing the corresponding legislative pro‐ visions (Art. 11–22 of the Polish Civil Code, kodeks cywilny, hereinafter abbreviated as 'k.c.') in a title dedicated to 'persons' and not 'acts in law'.4 However, although the perceptions differ, they are not necessarily contradictory; in particular, they allow the issue of capacity to act to be viewed from two different perspectives. The expression 'capacity to act in law' contains a combination of 'capacity to act' and an 'act in law' and therefore gives rise to the question whether an 'act in law' takes primacy over the 'capacity to act'. Intuitively, this question should be answered in the affirmative: an 'act in law' is a conventional act, whose meaning is derived from legal norms, including those regulating capacity.5 The legislator therefore adopts rules for a particular act in law in order to 'create' this act, and as such does not 'create' an act in law for its rules to appear. Accordingly, it is reasonable to believe that the capacity to act forms part of the rules which stipulate the conditions for the proper performance of an act in law.6 It should also be noted that capacity to act directly relates to the effectiveness of a de‐ claration of will, and only indirectly to the effectiveness of an act in law, which may consist of more than one declaration of will. The capacity to act in law may be thus defined as an element of the general competence to make declarations of will in one’s own name and with legal effects for oneself.7 Types and conditions of capacity to act From the perspective of the Polish Civil Code, the capacity of a natural person to act in law may be full or limited. The provisions also provide for and regulate a state in which a natural person has no capacity to act. No capacity Pursuant to Art. 12 k.c., persons under 13 years of age and persons who have been ful‐ ly legally incapacitated by a final court decision do not have capacity to act. Such a decision may be issued after the person has reached the age of 13, if as a result of a mental illness, a mental retardation or other type of mental disorder, in particular III. 1. 3 L. Kociucki, Zdolność do czynności prawnych: atrybut osoby czy element konstrukcji pojęcia czynności prawnych, in: Zdolność do czynności prawnych osób dorosłych i jej ogranicze‐ nia, Warszawa 2011 (Legalis – electronic version). 4 ibid. 5 K. Mularski, Czynności podobne do czynności prawnych, Warszawa 2011, pp. 216–217. 6 Z. Radwański/ A. Olejniczak, Prawo cywilne – część ogólna, Warszawa 2017, p. 272. 7 M. Watrakiewicz, Wiek a zdolność do czynności prawnych, Kwartalnik Prawa Prywatnego 3/2003, p. 505; L. Kociucki, Analiza…. A Natural Person’s Capacity to Act in Law: An Overview of Polish Law 261 drunkenness or drug addiction, they are unable to control their conduct (Art. 13 § 1 k.c.). Limited capacity According to Art. 15 k.c. limited capacity to act is available to persons: ● who are at least 13 years of age but have not reached the age of majority (which occurs either upon reaching the age of 18 or through earlier marriage), ● who have been partially incapacitated by a final court decision, ● for whom the court has appointed an interim guardian (Art. 549 § 1 of the Polish Code of Civil Procedure, Kodeks postępowania cywilnego, hereinafter abbreviated as k.p.c.). A decision on partial incapacitation may be issued against a person who has reached the age of majority (an 'adult') whose condition does not justify total incapacitation, but who, due to a mental illness, a mental retardation or other type of mental disorder, in particular drunkenness or drug addiction, requires assistance to conduct their affairs (Art. 16 § 1 k.c.). On the other hand, an interim guardian may be appointed by the court while initiating or during the proceedings for incapacitation, if the court deems it necessary in order to protect the person or their property (Art. 548 § 1 k.c.). Full capacity Full capacity to act in law is available to non-incapacitated adults. As already mentio‐ ned, a natural person becomes an adult at the age of 18 or through earlier marriage (Art. 10 § 1 and 2 k.c.). With regard to the latter, in accordance with Art. 10 § 1 of the Polish Family and Custody Code (Kodeks rodzinny i opiekuńczy, hereinafter abbreviated as 'k.r.o.'), as a rule, a marriage can only be entered into by persons who have reached 18 years of age. However, the court may for important reasons allow a 16-year-old woman to marry, if the circumstances indicate that the marriage would be for the good of the new family. The courts generally recognize pregnancy as an important reason.8 As far, as the good of the family is concerned, the family court evaluates the personal situati‐ on of every prospective spouse and their reciprocal relation in the light of the antici‐ pated impact on the matrimony.9 In such case, she attains majority upon entering into the marriage. It is also possi‐ ble to attain majority by entering into marriage in violation of the abovementioned 2. 3. 8 The findings of M. Domański show that in 97.9% of cases in which the application was accepted, an important reason was pregnancy or the birth of a child by the minor (M. Domański, Orzekanie o zezwoleniu na zawarcie małżeństwa kobiecie, która nie ukończyła 18 lat, in: Stosowanie prawa. Księga jubileuszowa z okazji XX-lecia Instytutu Wymiaru Sprawiedliwości, VIII. Ocena orzecznictwa, Lex 2011(electronic version). 9 M. Prucnak-Wójcik, in: Kodeks rodzinny i opiekuńczy. Komentarz, ed. K. Osajda, Art. 10, Nb 11, Legalis 2020 (electronic version). 262 Marcin Sepełowski provision (e.g. by a 15-year-old female and a 16-year-old male or by an adult male and a 17-year-old female who did not obtain court permission for her wedding).10 In the light of the provisions of the Polish Family and Custody Code, such a marriage will nonetheless be valid, although it may be annulled. However, it is important to no‐ te that majority attained by entering into such a marriage is not lost upon its annul‐ ment (Art. 10 § 2 k.c. in fine).11 Moreover, it is not lost if the marriage ends through death or divorce.12 Nonetheless, the latter does not result from the argument a maiori ad minus – as some commentators point out13 – but from the fact that Art. 10 § 1 k.c. binds one’s majority to 'entering into' and not to 'duration of' marriage. The need to issue a separate provision (Art. 10 § 2 k.c. in fine), whereby majority is not lost upon the annulment of the marriage, stemmed from the fact that annulment has, in prin‐ ciple, an ex tunc effect.14 Serious and justified doubts therefore could arise in practice, whether obtaining majority is an exception to this rule. The ratio legis of the approach may be expressed through the view of legal com‐ mentators that the need to ensure marital equality justifies affording majority to a mi‐ nor entering into marriage.15 The fact that the statutory matrimonial regime in Poland adopts the community property regime is also a significant factor – if the spouse did not attain majority at the time of entering into marriage, the management of commu‐ nity property on behalf of the minor spouse could be carried out by the parents, who are her statutory representatives, which may lead to extreme situations threatening the unity and stability of the marriage. Furthermore, in the vast majority of cases, a wo‐ man who is under 18 years of age wants to marry due to her pregnancy or the birth of her child.16 Meanwhile, parental authority is vested in a parent who has full capacity to act in law. Accordingly, reaching majority through a marriage enables a young wo‐ man to have parental authority over her own child. Notwithstanding, the fact that the annulment of marriage does not influence the already attained majority seems to be justified by the need to protect the contractors who performed acts in law with the person, who has reached her majority through a 10 T. Sokołowski, in: Kodeks cywilny. Komentarz. Tom I. Część ogólna, ed. A. Kidyba, Warszawa 2009, p. 67; P. Księżak, in: Kodeks cywilny. Komentarz, ed. K. Osajda, Art. 10, Nb 8, Legalis 2020 (electronic version). In the opinion of the latter author, in practice, it is not possible for a minor to marry in a way other than that regulated in Art. 10 § 1 k.r.o. 11 Lege non distinguente it does not matter for what reasons the marriage was annulled. (Księżak). 12 T. Sokołowski, in: Kodeks cywilny. Komentarz. Tom I. Część ogólna, ed. A. Kidyba, Warszawa 2009, p. 68; P. Księżak, in: Kodeks cywilny. Komentarz, ed. K. Osajda, Art. 10, Nb 11, Legalis 2020 (electronic version). 13 J. Strzebińczyk, in: Kodeks cywilny. Komentarz, ed. E. Gniewek, Warszawa 2008, p. 38; R. Strugała, in: Kodeks cywilny. Komentarz, ed. E. Gniewek, P. Machnikowski, Art. 10, Nb 4, Legalis 2019 (electronic version). 14 Cf. K. Pietrzykowski, in: Kodeks rodzinny i opiekuńczy. Komentarz, ed. K. Pietrzykowski, Art. 21, Nb 2, Legalis 2020 (electronic version). Exceptions to this rule come from Art. 21 k.r.o. 15 Strzebińczyk, fn. 13, p. 37; Strugała, fn. 13, Art. 10, Nb 1. 16 The findings of M. Domański show that in 97.9% of cases in which the application was accepted, an important reason was pregnancy or the birth of a child by the minor (M. Domański, Orzekanie o zezwoleniu na zawarcie małżeństwa kobiecie, która nie ukończyła 18 lat, in: Stosowanie prawa. Księga jubileuszowa z okazji XX-lecia Instytutu Wymiaru Sprawiedliwości, VIII. Ocena orzecznictwa, Lex 2011(electronic version). A Natural Person’s Capacity to Act in Law: An Overview of Polish Law 263 marriage, at the time when she was fully capable to act. On the other hand, the moti‐ vation for which the legislator decided that a spouse who attained her majority would retain this state after annulling the marriage is less obvious. Perhaps the point is that such a person would be able to make independent financial settlements with her exspouse? It should also be considered whether the legislator wanted to protect such person from a situation in which she would have to return under the parental authority of her parents after the marriage was annulled. The fact that annulment of the marria‐ ge is very rarely caused by a violation of the provisions on the minimum age of pros‐ pective spouses could have certain significance for the adopted solutions.17 It is also worth considering the issue of the age at which a natural person acquires limited and then full capacity to act. However, since this issue is strongly related to the scope of competence conferred on individual categories of natural persons to per‐ form acts in law, it will be discussed below. Legal effects No capacity Statutory representative As a rule, a person who has no capacity to act in law is represented by their statutory representative(s). For minors, their parents play this role first, provided they have par‐ ental authority (Art. 93 § 1 and Art. 94 k.r.o.). If neither parent has parental authority, a guardian is appointed for the minor (Art. 94 § 3 k.r.o.). A guardian is also appointed for fully incapacitated persons, unless they are still under parental authority (Art. 94 § 3 k.r.o.). It is to be emphasized that parents may not, without the permission of a guardi‐ anship court, perform activities exceeding the scope of ordinary management of the assets of the person without capacity to act (Art. 101 § 3 k.r.o.). On the other hand, the guardian should obtain the permission of a guardianship court in all major matters that relate to the person without capacity to act or this person’s property (Art. 156 and Art. 175 in conjunction with Art. 156 k.r.o.). There are, however, particular legal acts that cannot be performed on behalf of the person without capacity to act (nor on behalf of a person with limited capacity). This is an exceptional situation and it must result either from a legal provision or from the characteristics of a specific legal act.18 For example, a will may be made and revoked by a person with full capacity to act and who must also act in person – it cannot be made or revoked by a representative (Art. 944 k.c.). It is assumed that this provision should be applied per analogiam with the mortis causa bank deposit disposition.19 IV. 1. a) 17 See footnote 10. 18 M. Pazdan. However, it seems safe to argue that in both cases the lack of competence to perform an act in law results from the content of a legal norm. 19 R. Gołąb, Zakres swobody przyznanej małoletniemu w ramach umowy rachunku bankowe‐ go, Acta Universitatis Wratislaviensis. Prawo 308/2009, p. 173. 264 Marcin Sepełowski Contracts for minor matters of everyday life In general, an act in law performed by a person who has no capacity to act is invalid (Art. 14 § 1 k.c.). This rule is relaxed by Art. 14 § 2 k.c., according to which a contract of a type commonly concluded in minor current matters of everyday life becomes va‐ lid at the time of its performance, unless it results in gross harm to the person without capacity to act in law. The meaning of a 'contract commonly concluded in minor cur‐ rent matters of everyday life' (umowa powszechnie zawierana w drobnych bieżących sprawach życia codziennego) will be discussed below in relation to limited capacity (Art. 20 k.c.); this section instead focuses on the justification and doctrinal discussion surrounding validation of an otherwise invalid contract. The relaxation of the otherwise strict rule in Art. 14 § 1 k.c. meets the needs of so‐ cial life.20 Parents (or guardians) usually allow their children to make small purcha‐ ses, and often give them 'pocket money'. Such practices have enormous educational significance. The socialization function of the competence conferred by this provision is emphasized by the fact that it is only gross 'harm' to the person without capacity to act which will render the contract void. One may therefore suggest that the legislator has sought to allow persons who still have no capacity to act to experience the prac‐ tice of concluding minor contracts, learning from their own small mistakes. It is disputed whether Art. 14 § 2 k.c. provides the possibility to render the original contract effective,21 or modifies the general rule for persons without capacity to act, conferring on them a limited and conditional competence to perform the acts in law specified therein.22 Nevertheless, Art. 14 § 2 k.c. concerns an unusual and complex le‐ gal scenario, which requires the occurrence of all circumstances covered by provision for 'validation' of the contract, whereby the contract is understood only as an element of these complex factual circumstances.23 The most convincing notion, however, is the conference of a limited competence to conclude contracts, specified in Art. 14 § 2 k.c., on the persons without capacity to act. In the light of the view that the contract requires 'validation', it may be assumed that the parties knowingly enter into an invalid contract, which they subsequently ren‐ der effective through performance. In this respect, it should be noted that the doctrinal view is that an act in law must be intended to cause certain legal effects, but does not necessarily have to cause them on its own. If the legislator so requires, the occurrence of the effect specified in the content of an act in law may depend on even several se‐ parate and independent legal events. These legal events are thus the conditiones iuris of the effectiveness of this act in law.24 For Art. 14 § 2 k.c., therefore, this type of le‐ gal condition is the performance of the contract. b) 20 Watrakiewicz, fn. 7, p. 513. 21 Pazdan, fn. 2, p. 982–983; Księżak, fn. 10, Art. 14, Nb 4. 22 Radwański/ Olejniczak, fn. 6, p. 275. 23 Strzebińczyk, fn. 13, p. 44. 24 J. Grykiel, Czynność prawna a skutki prawne, in: Prawo wobec wyzwań współczesności. Tom V., ed. B. Guzik, N. Buchowska, P. Wiliński, Poznań 2008, pp. 136–143; J. Grykiel, in: Kodeks cywilny. Tom I. Komentarz. Art. 1-352, ed. M. Gutowski, Warszawa 2019, pp. 508– 509; Resolution of the Polish Supreme Court of 11 April 2019, sygn. akt III CZP 100/18, publ. Legalis. In part in this direction the statement that 'not every conditio iuris has the form A Natural Person’s Capacity to Act in Law: An Overview of Polish Law 265 An alternative view holds that Art. 14 § 2 k.c. establishes a special procedure for persons without the capacity to act, to conclude contracts for minor current matters of everyday life. Under such procedure the performance of a contract is also a declarati‐ on of intent (or part of it) to conclude this contract.25 Limited capacity to act in law Consent of statutory representative The discussion of the scope of limited capacity to act should begin with the contents of Art. 17 k.c., which provides that, subject to exceptions provided for in a legal act, the consent of the statutory representative is required for the validity of an act in law by which a person with limited capacity incurs an obligation or disposes of their right. The parents of a minor with limited capacity to act are the minor’s statutory represen‐ tatives. They are entitled to grant consent referred to in Art. 17 k.c., provided they have parental authority (Art. 93 § 1 and Art. 94 k.r.o.). In the event that no parent has parental authority, a guardian is appointed for the minor (Art. 94 § 3 k.r.o.). As men‐ tioned above, sometimes a person with limited capacity to act is represented by an in‐ terim guardian. In the light of this provision, a distinction may be drawn between, on the one hand, acts in law through which the person with limited capacity to act enters into an obligation or disposes of their right and, on the other hand, other acts in law. Accor‐ ding to Art. 17 k.c. acts in law of both these groups can be effectively performed by the person with limited capacity. However, in the light of this provision, the consent of the statutory representative presents an additional condition for the effectiveness of acts in law through which the person with limited capacity to act enters into an obli‐ gation or disposes of their right. However, the consent is not required in the event of an act in law through which neither an obligation is incurred nor any right is disposed of (Art. 17 k.c. a contrario). In general, such acts can therefore be performed by a per‐ son with limited capacity entirely independently. For example, a donation of things (including immovables) can be accepted, as long as it is free of liabilities to the donor or third parties;26 and consent to the adoption of one’s child by another person.27 2. a) of an element of an act in law' (M. Gutowski, Bezskuteczność czynności prawnej, Warszawa 2017, p. 343), and further, when analyzing cases in which the norms of administrative law require a permit for an act in law, the statement that 'the required administrative activity may constitute a conditio iuris of an act in law (not covered by the actual state of this act). It seems more correct to treat the administrative decision as an external element in relation to the act, than to recognize it as part of the act in law.' (ibid., p. 346). 25 Similarly, K. Mularski, considering the legal nature of Art. 890 § 1 k.c., according to which a donation contract concluded without the form of a notarial act becomes valid if performance has been rendered (K. Mularski, Kodeks cywilny. Tom III. Komentarz. Art. 627–1088, ed. M. Gutowski, Art. 890, Nb 3-4, Legalis 2019 (electronic version). 26 Resolution of the Plenary Session of the Civil Chamber of the Polish Supreme Court of 30 April 1977, sygn. akt III CZP 73/76, publ. Legalis. 27 Resolution of the Polish Supreme Court of 13 December 1994, sygn. akt III CZP 159/94, publ. Legalis. 266 Marcin Sepełowski However, the legislator has provided certain exceptions to both of the principles included in Art. 17 k.c. for acts in law that do not depend on the consent of the statuto‐ ry representative in order to be effective. Such acts may be performed by the person with limited capacity to act completely independently. These include: ● contracts commonly concluded in minor current matters of everyday life (Art. 20 k.c.); ● acts in law through which the person with limited capacity to act disposes of their earnings (Art. 21 k.c.);28 ● acts in law regarding items given to them by a statutory representative for free use, except for those acts in law for which the consent of the statutory representa‐ tive is not sufficient – that is, these which require court permission for their effec‐ tiveness (Art. 22 k.c.); ● employment agreements, with additional conditions for the admissibility of these contracts set out in the Polish Labour Code (Kodeks pracy, hereinafter abbreviated as k.p.); ● savings account, a savings and current account or a fixed-term savings deposit ac‐ count; after reaching 13 years of age the holder may freely dispose of funds accu‐ mulated on those accounts, unless their statutory representative objects in writing (Art. 58 of the Polish Banking Law). It should be emphasized though, that this provision refers to the relationship between the bank and the minor with limited capacity to act.29 Dispositions and obligations exist which require not only the consent of the authori‐ zed person but also the permission of the court in order to be effective. In the case of minors with limited capacity under parental authority, consent to acts exceeding the scope of ordinary management requires permission from the guardianship court (Art. 101 § 3 k.r.o.), whereas the guardian of a minor whose parents do not have par‐ ental authority and the guardian of a partially incapacitated person should obtain the permission of a guardianship court in all major matters that relate to the incapacitated person or their property (Art. 178 § 2 in conjunction with Art. 156 k.r.o.). This regula‐ tion is applied accordingly in the case of an interim guardian (Art. 549 § 2 k.p.c.). Special legislative provisions contain exceptions to the rule (resulting from Art. 17 k.c. a contrario) according to which a person with limited capacity to act may completely independently perform acts in law through which they do not incur an ob‐ ligation or dispose of their right; for instance, the modes of expressing consent to va‐ rious types of medical and health measures regulated in separate legal acts.30 Howe‐ ver, in such exceptions the nature of the consent may be considered by the widespread 28 However, the guardianship court may, for important reasons, deprive them of this compe‐ tence (Art. 21 in fine k.c.). 29 Gołąb, fn. 19, p. 173. 30 For example: Art. 17 of the Polish Patients’ Rights Act of 6 November 2008; Art. 4 a § 4 of the Polish Family Planning, Protection of the Human Fetus and Conditions for the Admissi‐ bility of Termination of Pregnancy Act of 7 January 1993; Art. 31 section 1 point 7 of the Polish Infertility Treatment Act of 25 June 2015. A Natural Person’s Capacity to Act in Law: An Overview of Polish Law 267 view in legal doctrine that they are not acts in law, but rather acts similar to acts in law.31 Absence of consent from statutory representative As noted above, pursuant to Art. 17 k.c., the validity of an act in law through which a person with limited capacity to act incurs an obligation or disposes of their right re‐ quires the consent of their statutory representative. However, the fact that such consent is a prerequisite for the validity of the act in law does not mean that perfor‐ mance in the absence of consent renders the legal act void. The legislator provided for such an effect only in the case of a unilateral act in law (Art. 19 k.c.). On the contrary, a contract concluded by a person with limited capacity without the required consent remains in a state of suspended ineffectiveness (negotium claudicans), and its validity depends on the confirmation of the contract by the statutory representative (Art. 18 § 1 k.c.). The contract may also be ratified by the person with limited capacity to act if in the meantime they have acquired full capacity to act (Art. 18 § 2 k.c.). It should be emphasized that a party who has entered into the contract with the person limited in capacity to act may set a reasonable due date to ratify the contract by the representati‐ ve (Art. 18 § 3 k.c.). The contract will become invalid (thereby ending the state of sus‐ pended ineffectiveness) both in the event that the representative expresses the refusal to consent and in the event that the deadline expires without the grant of consent.32 Exceptions to consent As mentioned above, the legislator has provided several exceptions to the rule that the consent of the statutory representative is required for the validity of an act in law by which a person with limited capacity to act incurs an obligation or disposes of their right. The following focuses on the general exceptions contained in Art. 20–22 k.c. Contracts for minor matters of everyday life In accordance with Art. 20 k.c., a person with limited capacity to act may conclude contracts commonly concluded in minor current matters of everyday life without the consent of their statutory representative. Art. 20 k.c. resembles Art. 14 § 2 k.c. Whereas the above comments on the ratio legis of Art. 14 § 2 k.c. may hold true for Art. 20 k.c., the legislator abstained from the 'performance of the contract' and 'gross harm' as (respectively: positive and negative) prerequisites for its validity. Nevertheless, the prevailing view is that in the event of b) c) i) 31 More on this dispute: K. Smyk, Charakter prawny zgody pacjenta na gruncie prawa cywilne‐ go, Folia Iuridica Universitatis Wratislaviensis 6/2017, pp. 121–138. 32 Księżak, fn. 10, Art. 18, Nb 7. 268 Marcin Sepełowski 'gross harm' of the person with limited capacity it is possible to make use of the de‐ mands arising from Art. 388 k.c. ('exploitation').33 Some legal commentators also claim that the meaning of umowy powszechnie za‐ wierane w drobnych bieżących sprawach życia codziennego ('contracts commonly concluded in minor current matters of everyday life') in Art. 20 k.c. is broader than in Art. 14 § 2 k.c. It is proposed that the interpretation of these provisions should take in‐ to account the perspective of the groups in the given circumstances.34 Some authors go even further and assume that 'due to the fact that the scope of matters of everyday life depends also on age, the admissibility of minors in signing contracts independent‐ ly increases as they age'.35 Sometimes, the need to take into account the 'specific fi‐ nancial and personal situation of a person with limited capacity to act in law' is also indicated.36 However, some authors also claim that 'contracts commonly concluded in minor current matters of everyday life' occurs as an objective phenomenon and its subjectification is inadmissible.37 Nonetheless, the attempts to relativize the term 'contracts commonly concluded in minor current matters of everyday life' are criticized by some authors. They note that Art. 20 and Art. 14 § 2 k.c. use this phrase in the same wording. In their opinion, this circumstance cannot be ignored.38 This view appears to follow the assumption that the legislator uses a specific term in one legal act only in one sense, and if otherwise, the difference should be expressed directly.39 It should also be noted that both provisi‐ ons use the term 'commonly' (powszechnie) which is not defined in the Code, and which means 'by everyone, by the general, generally' or 'usually, customarily, most of‐ ten, everywhere'.40 In the light of this observation, and in line with the rejection of subjectification, Art. 20 k.c. does not seem to refer to contracts usually concluded by those with limited capacity to act in law, but to contracts concluded by everyone, by the general public. Contracts falling within the scope of application of Art. 20 k.c. should also be 'mi‐ nor' (drobnych) and concern 'current matters of everyday life' (bieżących sprawach 33 Pazdan, fn. 2, p. 989; Strzebińczyk, fn. 13, p. 51; Sokołowski, fn. 10, p. 97; S. Grzybowski, System Prawa Cywilnego. Część ogólna, Warszawa 1974, p. 345. 34 Pazdan, fn. 2, p. 989; M. Gutowski, in: Kodeks cywilny. Tom I. Komentarz do art. 1–352, ed. M. Gutowski, Warszawa 2018, p. 161. W tym kierunku zmierza również w swoich ro‐ zważaniach: Strugała, fn. 13, Art. 21, Nb 1. 35 Księżak, fn. 10, Art. 20, Nb 1. 36 Ibidem; J. Regan (Balcarczyk), Kodeks cywilny. Komentarz, ed. M. Załucki, Art. 20, Nb 2, Legalis 2019 (electronic version). Also, T. Sokołowski is in favour of a differentiated approach, taking into account: the reason for limiting capacity to act; development skills of an adolescent child; and circumstances such as the nature of the social environment and the material situation of the family. (Sokołowski, fn. 10, pp. 96–97). Against taking into account the individual characteristics of the person concerned in concreto: Pazdan, fn. 2, p. 989. 37 Watrakiewicz, fn. 7, pp. 521–522. 38 Strzebińczyk, fn. 13, p. 51. 39 Z. Ziembiński, Logika Praktyczna, Warszawa 1992, p. 219. The importance of the legisla‐ ture’s terminological consistency directive is also highlighted in the case law of the Supreme Court (see e.g. Resolution of the Polish Supreme Court of 25 July 2003, sygn. akt III PZP 7/03, publ. LEX). 40 https://sjp.pwn.pl/doroszewski/powszechnie;5479687.html; access date: 7 May 2020. A Natural Person’s Capacity to Act in Law: An Overview of Polish Law 269 życia codziennego). In fact, it means contracts concluded by an average person every day, e.g. purchase of such as sales contracts related to small purchases, transport con‐ tracts, contracts concluded on the occasion of using food services. Disposal of one’s own earnings Art. 21 k.c. provides another exception to the rule under Art. 17 k.c.: a person with li‐ mited capacity to act may dispose of their earnings without the consent of their sta‐ tutory representative, unless a guardianship court decides otherwise for important rea‐ sons. It can be observed that Art. 21 k.c. reflects a form of appreciation of activity, dili‐ gence and creativity of the person with limited capacity. The legislator assumes that since a given person, due to their own personal efforts or abilities, made a financial gain, it would be unjust and discouraging if they could not freely dispose thereof. This regulation also has significance for socialization – it encourages a minor to re‐ sign from a passive and demanding life attitude, giving them the opportunity to find out that a legal gainful activity is a proper and effective form of multiplying their own assets, which enables realization of both smaller and larger consumption intentions. The first opportunity in one’s life to independently buy their dream property from their own 'hard-earned money' is an event that is often remembered for many years and that leaves a lasting, usually positive effect. With regard to the scope of the provision, it should be noted that it literally refers only to dispositions, but not to obligations or obligation-and-dispositions. However, on the basis of such understanding of Art. 21 k.c., the competence of a person with limited capacity, only to dispose of their own earnings would be very narrow, given that double-effect contracts are the most practical in legal transactions. Moreover, dis‐ position contracts concluded through performance of an obligation form part of dispo‐ sitions with the greatest social significance; yet their validity depends on the existence of the obligation, since they are intended to serve the performance of it (Art. 156 k.c.), and the person with limited capacity could not incur that obligation on their own. Therefore, legal commentators adopt an extending interpretation of this provision, ac‐ cording to which it refers both to dispositions and obligation-and-dispositions.41 So‐ me authors even consider that the scope of application of Art. 21 k.c. includes also mere obligations, regarding earnings already received by the person with limited ca‐ pacity to act.42 This last view, however, is accused of blurring the sense of limited capacity to act. It is noted that the incurrence of an obligation, which involves, for example, the requi‐ rement to fulfill a pecuniary performance, cannot be linked in advance to the earnings of the obligee.43 These reservations are relevant to the extent that they refer to the pecuniary liabili‐ ties of a person with limited capacity to act. However, it should be mentioned that so‐ ii) 41 Księżak, fn. 10, Art. 21, Nb 3; Strugała, fn. 13, Art. 21, Nb 1; Regan (Balcarczyk), fn. 36, Art. 21, Nb 1. 42 Strzebińczyk, fn. 13, p. 52; M. Serwach, in: Kodeks cywilny. Część ogólna, ed. M. Pyziak- Szafnicka, P. Księżak, Warszawa 2014, p. 245; Gutowski, fn. 34, p. 162–163. 43 Księżak, fn. 10, Art. 21, Nb 3; Strugała, fn. 13, Art. 21, Nb 1. 270 Marcin Sepełowski me legal commentators claim that 'earnings' can be both pecuniary and non-pecunia‐ ry.44 Therefore, it cannot be excluded that Art. 21 k.c. confers a competence on the person with limited capacity, to incur obligations to dispose of a thing obtained as earnings or for received earnings.45 Moreover, it should be noted that according to Art. 101 § 2 k.r.o., which is directly applied to minors with limited capacity, under parental authority, and accordingly to other persons with limited capacity, the ma‐ nagement of their assets by a statutory representative does not include the manage‐ ment of their earnings. Thus, assuming that the person with limited capacity has no competence to incur obligations regarding the property items they have earned, the re‐ sult would be that no one has such competence. In legal doctrine, the meaning of the term 'earnings' (zarobek) is also disputed. A broad understanding of the term prevails, according to which 'earnings' are any pro‐ perty benefit obtained by a person with limited capacity as a result of their life activi‐ ty.46 Proponents of this view assume that the term includes remuneration for labour or services, honoraria received for creative, artistic or sport activities,47 scholarships, awards related to participation in contests or competitions, benefits gained from collecting, or profit obtained as part of minor casual trade.48 As mentioned, it is ar‐ gued that the form of 'income' is indifferent – it can be both pecuniary and non-pecu‐ niary.49 A contrasting view maintains, however, that 'earnings' should be understood narrowly and denote only remuneration for labour within the meaning of the Polish Labour Code. Proponents of the narrower interpretation claim that adopting its broad meaning would lead to a situation in which not only a person with limited capacity to act, but also a person without this capacity could receive 'earnings'. In their opinion, it would lead to 'disharmony' between Art. 21 k.c., and Art. 101 § 2 k.r.o., according to which the management exercised by the parents does not include the child’s earnings or items given them for free use.50 There is also a view among the legal commentators that earnings do not include scholarships and benefits of a similar nature, awards re‐ ceived in contests, sports competitions or similar events, and profit in the form of in‐ terest on savings.51 Nevertheless, the prevailing view should be strongly supported, thus affording a broader meaning to the term 'earnings' beyond mere 'remuneration for labour'. Lege non distinguente, hence the meaning of this term should not be narrowed down. Mo‐ reover, such a restrictive interpretation does not seem to be justified by the ratio legis of Art. 21 k.c. and is not congruent with the practice of social life. The gainful activity of the vast majority of minors does not take the form of employment. And de lege 44 Pazdan, fn. 2, p. 990. 45 In the further section of this article a view is advocated that Art. 21 k.c. refers not only to earnings in the strict sense, but also to surrogates of earnings. 46 Pazdan, fn. 2, p. 989. T. Sokołowski is also a supporter of a broad understanding of this concept and claims that earnings are any income earned from an independent gainful activity while operating one’s own business (Sokołowski, fn. 10, p. 100). 47 Pazdan, fn. 2, pp. 989–990. 48 Gutowski, fn. 34, p. 163; Grzybowski, fn. 33, p. 346. 49 Pazdan, fn. 2, p. 990. 50 Strzebińczyk, fn. 13, pp. 51–52;. 51 K. Piasecki, Kodeks cywilny. Księga pierwsza. Część ogólna. Komentarz, Zakamycze 2003, p. 152. A Natural Person’s Capacity to Act in Law: An Overview of Polish Law 271 lata, under certain conditions, it is possible to employ minors under the age of 13 as part of cultural, artistic, sport or advertising activities (Art. 3045 k.p.).52 Consequently, the view disputed herein does not permit the removal of the alleged 'disharmony' be‐ tween Art. 21 k.c. and Art. 101 § 2 k.r.o. Therefore, it should be accepted that the earnings can also be received by a person without capacity to act, assuming that Art. 101 § 2 k.r.o. excludes parental management only with respect to such minor’s earnings, which they may manage independently pursuant to Art. 21 k.c. Thus, the earnings received by a minor who has no capacity to act are managed by their statuto‐ ry representatives (usually parents) until the minor have acquired limited capacity to act. Along with acquiring limited legal capacity, minors acquire ex lege competence to dispose of their previous earnings. Earnings should be also understood as including scholarships for achievements (scientific, sporting and artistic) and awards received for participating in contests or sports competitions. From a linguistic point of view, it may be doubted whether scho‐ larships and awards constitute 'earnings' within the meaning of Art. 21 k.c., but the functional interpretation justifies the acceptance of this argument. Awards and scho‐ larships for scientific, sporting and artistic achievements are a form of acknowledge‐ ment for efforts and talents of the person with limited capacity. It would be unjust and discouraging if they could not freely dispose of the property items thus obtained. Furthermore, the prevailing position among the legal commentators is that Art. 21 k.c. may be applied only to the earnings already received, but not to claims to re‐ ceive them.53 However, this view is not indisputable. It is argued that lege non dis‐ tinguente Art. 21 k.c. does not distinguish between the concepts of earnings received and due or future earnings. Moreover, it is noted that if a person with limited capacity had no competence to dispose of the claim to receive earnings, this competence would be conferred on their statutory representative, which could lead to situations that con‐ flict with the ratio legis of this provision. Attention is also drawn to the fact that in Art. 31 § 2 k.r.o. the legislator, in relation to the community property of spouses, indi‐ cates only 'received remuneration', while in Art. 101 § 2 k.r.o. the broader term 'child’s earnings' and not 'child’s received earnings' is applied. Finally, it is argued that the principles of labour law support the solution outlined herein. In the light of these prin‐ ciples, the received earnings should remain in the discretion of the person performing the labour.54 It is reasonable that the term 'earnings' should also be understood as 'due earnings'. The argument referring to the ratio legis of Art. 21 k.c. is particularly convincing. It would be difficult to accept a situation in which the decision about an executable claim would belong to a person other than the one by whose personal activity the claim was created and became executable. 52 However, commentators of labour law claim that this provision, contrary to its literal wording, does not regulate employment of children, but only their participation in the types of activity specified therein. Therefore, in the case of children under 13 years of age, a contract is concluded for the child’s participation in specific activities (J. Stelina, in: Kodeks pracy. Komentarz, ed. A. Sobczyk, Art. 3045, Nb 2, Legalis 2020 (electronic version). 53 Gutowski, fn. 34, pp. 163–164; Strugała, fn. 13, Nb 2; Księżak, fn. 10, Nb 2; Grzybowski, fn. 33, p. 346; Pazdan, fn. 2, p. 990. 54 Sokołowski, fn. 10, p. 100. 272 Marcin Sepełowski The commonly accepted view – that Art. 21 k.c. confers no competence on a per‐ son with limited capacity, to dispose of items acquired in exchange for earnings – is unconvincing.55 Although this argument is justified by the literal interpretation of this provision, it has unacceptable consequences. It should be noted that often the motiva‐ tion for a minor to engage in gainful activity is the desire to obtain funds independent‐ ly in order to purchase a specific item. Therefore, it would be unjust, or even harmful, that minors would not be able to freely dispose of the item acquired for their earnings. Moreover, it seems that the commented interpretation of Art. 21 k.c. would discourage such a person from using the competence conferred on them in this provision, which would be contrary to the purpose of this regulation. Items given by the statutory representative for free use In accordance with Art. 22 k.c., if the statutory representative of a person with limited capacity to act gives them specific property items for free use, that person acquires full capacity regarding acts in law that concern these items. There is an exception: acts in law for which the consent of the statutory representative is not sufficient accor‐ ding to the law, i.e. – acts in law that require the permission of the guardianship court for their validity. Legal commentators assume that the provision applies to both things and money,56 and in the opinion of some authors, even rights.57 Although the literal wording of this provision may cast doubt on this, this view may raise some doubts, it may meet social needs. It is a common practice for parents to give children 'pocket money'. The oppor‐ tunity to freely dispose of these funds provides the person with limited capacity to ex‐ ercise autonomy while also being a lesson in responsibility in the process of money management. Independent management of a part of property given for free use un‐ doubtedly helps to prepare minors with limited capacity, to independently manage their property, which they will do after reaching the age of majority.58 Art. 22 k.c., in regard to giving things, also satisfies the natural need for almost every human being to be the 'real', and not just the 'nominal' owner of objects belonging to them.59 The restriction resulting from the second sentence of Art. 22 k.c. is justified. As aptly indicated by legal commentators, the statutory representative of a person with limited capacity should not be able to authorize them to independently perform acts in law, which even the representative cannot perform independently on behalf of this person.60 iii) 55 Księżak, fn. 10, Nb 4; Strugała, fn. 13, Nb 1; Grzybowski, fn. 33, p. 346; Pazdan, fn. 2, p. 990. However, this view is not shared by T. Sokołowski, who believes that the item, acquired for the received earnings, obtains such a status as items given to that person for free use with the power of full disposal (Sokołowski, fn, 10, p. 101). 56 Księżak, fn. 10, Art. 22, Nb 1; Pazdan, fn. 2, p. 990; Grzybowski, fn. 33, p. 346; Sokołowski, fn. 10, p. 104. 57 Księżak, fn. 10, Art. 22, Nb 1. 58 Sokołowski, fn. 10, p. 105. 59 It should be emphasized that the act of 'giving' is not a disposition – it may only concern these items that have already belonged to the person with limited capacity. This, of course, does not exclude a donation. 60 Księżak, fn. 10, Art. 22, Nb 9; J. Regan (Balcarczyk), fn. 36, Art. 22, Nb 3. A Natural Person’s Capacity to Act in Law: An Overview of Polish Law 273 However, the legal nature of giving an object for free use to a person with limited capacity is disputed. Some authors assume that it is a unilateral authorizing act in law,61 others see a real act in this institution,62 whereas others claim that it is an act similar to an act in law.63 However, it is generally accepted that only the statutory rep‐ resentative can perform the act of 'giving'.64 The view that Art. 22 k.c. imposes no restrictions of value or of type on giving items for free use to the person with limited capacity to act, is convincing.65 Thus, the legislator appears to rely on the statutory representative’s deliberation. It is also con‐ siderably important that, in the light of this provision, the person with limited capacity to act does not acquire the competence to perform acts in law for which the consent of the statutory representative according to the law is not sufficient. Competence of the person with limited capacity to act in law and competence of their statutory representatives When considering the legal situation of a person with limited capacity to act, it should be noted that although they may independently perform acts in law (in some cases with the consent and in others even without the consent of their statutory representati‐ ve), the statutory representative’s competence to represent them is not excluded.66 Ge‐ nerally, a statutory representative may perform all kinds of acts in law (obligations, dispositions etc.) on behalf of a person with limited capacity. Exceptions to this rule are items given for free use to the person with limited capacity and child’s earnings (Art. 101 § 2 k.r.o.). Some exceptions to this competence also arise from specific pro‐ visions regulating procedures for expressing consent to various types of medical and health measures.67 However, it should be emphasized again that parents may not, without the permis‐ sion of a guardianship court, perform acts in law that exceed the scope of ordinary management of assets of the person without capacity to act (Art. 101 § 3 k.r.o.).68 On the other hand, a guardian of a minor, whose parents do not have parental authority, should acquire the permission of the guardianship court in all major matters that relate to the person without capacity to act or this person’s property (Art. 175 in conjunction with Art. 156 k.r.o.). The provisions apply by analogy to a guardian of a partially inca‐ pacitated person and an interim guardian. d) 61 Księżak, fn. 10, Art. 22, Nb 3-4; Sokołowski, fn. 10, p. 104. 62 Gutowski, fn. 34, p. 165. 63 Mularski, fn. 5, p. 204. Strugała seems to hold a similar view and in his opinion 'giving' does not have to be 'combined with the intention of granting the person without capacity to act, the possibility to freely use them' (Strugała, fn. 13, Art. 21, Nb 1). 64 Pazdan, fn. 2, p. 990; Księżak, fn. 10, Art. 22, Nb 5; Gutowski, fn. 34, p. 165–166. 65 Pazdan, fn. 2, p. 991. 66 ibid., p. 985. 67 See above, at footnotes 30 and 31 for the controversial nature of the exceptions. 68 For example: sale of real estate, rejection of inheritance. 274 Marcin Sepełowski An assessment of the age requirement It is clear from the above review that the issue of limited capacity plays a pivotal role. With its commencement, the status of having no capacity ends; with its end, the status of full capacity commences. Assessing the suitability of the current regulations there‐ fore first requires consideration of the age requirement, specifically whether the limit for acquiring limited capacity to act is not too high. According to some authors, such a question is justified due to the 'noticeable process of accelerated adolescence in the post-war period'. However, these researchers also note that the negative consequences of the current solution are mitigated by the effect of Art. 14 § 2 k.c.69 In answering the question about the rationality of the lower age limit of limited capacity to act, it should be noted that since 1989 legal transactions in Poland have been gradually becoming more and more complicated, whereby the process is defini‐ tely more problematic for older people than younger, but the latter group is not free from the threats associated with it. Moreover, the younger generation are now the re‐ cipients of intensified, often manipulative advertising approaches; and indeed some of them are very susceptible to such activities. Finally, it seems that the period of childhood should not be devoted to special activity in legal transactions, and in most cases parents duly protect the property and non-property interests of the minor. However, the above statements have undoubtedly the nature of hypotheses that re‐ quire interdisciplinary approaches, namely sociological and psychological research. Studies conducted in 2014 on behalf of the National Bank of Poland provided a cer‐ tain picture of the economic skills of Polish youth: 46% of students graduating from elementary school (they were twelve years old at that time) have a problem identify‐ ing gross and net pay, and 44% do not respond properly to phishing. Of the respond‐ ents, only 9% understood the terms and conditions of one of the bank deposits. More‐ over, 30% did not cope with the task of giving change without the aid of a calcula‐ tor.70 The conclusions that may be drawn from these data can be underestimated, by arguing that problems understanding the terms and conditions of banking products is widespread across society, and the ability to give the correct change is disappearing due to the widespread use of cashless payments and cash registers calculating the change. Nevertheless, in fact it is obvious that maturity to participate in legal transactions is a highly individual matter. Therefore, some arbitrariness of the rigid age limits ad‐ opted by the legislator cannot be avoided. Such a solution, although imperfect, ap‐ pears justified by the need to ensure trading security. However, regarding the age limit for obtaining full capacity to act in law and the broader social consequences, the example may be given of a problem that may poten‐ tially arise in Poland in April 2027, when children born in 2009 will graduate from high schools. The year 2009 was the only year when exclusively children at the age of six began their school education (instead of the age of seven, which was the case in V. 69 Radwański/ Olejniczak, fn. 6, p. 274. 70 Diagnoza wiedzy i świadomości ekonomicznej dzieci i młodzieży w Polsce, konsorcjum Pracowni Badań i Innowacji Społecznych „Stocznia” i Grupy IQS dla Departamentu Eduka‐ cji i Wydawnictw NBP, Warszawa 2014, p. 25. A Natural Person’s Capacity to Act in Law: An Overview of Polish Law 275 all other years). A significant part of these people will choose universities and then, before reaching the age of majority, conclude contracts concerning their university education. Whereas it remains to be hoped that the related potential inconveniences and problems will be identified and eliminated by the legislator in advance, adjusting age requirements in other areas of law and society may bring knock-on effects on the issue of the capacity to act in law. 276 Marcin Sepełowski

Abstract

The article presents the issue of capacity to act under Polish law and discusses the essence and definition of a natural person’s capacity to act in law. Whereas the article focuses on the different types of capacity to act (no capacity, limited and full capacity and the corresponding conditions, particular emphasis is placed on the legal situation of persons with limited capacity in order to evaluate the age limits of limited capacity in Polish law.

References

Zusammenfassung

Osteuropa Recht behandelt Gegenwartsfragen der Rechtssysteme und Rechtswissenschaft im östlichen Europa sowie deren völkerrechtliche Einbindung. Im Fokus stehen die ost-, ostmittel- und südosteuropäischen Staaten sowie der Kaukasus und Zentralasien. Die Zeitschrift dokumentiert und analysiert Gesetzgebung, Rechtsprechung und rechtswissenschaftliche Debatten in den einzelnen Staaten der Region und leistet einen Beitrag zum internationalen Rechtsvergleich. Die Zeitschrift erscheint vierteljährlich und ist peer-reviewed. Publikationssprachen sind Deutsch und Englisch. Osteuropa Recht wurde 1954 von der Deutschen Gesellschaft für Osteuropakunde e.V. gegründet.