If you want to lend someone your money, it is important that both parties - you as the lender, and the other person as the borrower - sign a loan agreement. Obviously it's possible to lend someone money without any written evidence of it, but if the borrower fails to pay off the loan, you'll most likely come across a lot of trouble trying to get your money back. A standard loan agreement should state the parties, their addresses, ID numbers etc., the amount of the loan and the date by which it has to be returned. If if you don't want to determine the exact date of the return (you're not sure yet), it's important to at least state that the borrower undertakes to return the loan (it's the borrower's primary obligation that should be included in the agreement). You may decide about the time of the return later and if at that time you and the borrower won't agree on a date, you - as the lender - will have to give the borrower a notice of termination, which means that the borrower will have to pay back the loan within 6 weeks.
And what happens when you only had an oral agreement with the borrower? The good news is, it's legally binding. The bad news is, when you sue the borrower, you will not be able to support your claim with any witnesses' testimonies or even your own. What that means is that if you gave the money to the borrower in the presence of your friends (with no written evidence of it), and you would now like them to testify in court that the loan indeed took place, it won't be possible (the judge will not admit such evidence). What's more, the judge will not even want to hear your side of the story, which makes it super hard to prove that the borrower really borrowed money from you (as well as the amount of the loan + the return date). The judge will hear your witnesses as well as you and the borrower only if both parties agreed to it (this might not be in the borrower's best interest, obviously...). Fortunately all is not that bad. Some time ago the provisions of the Civil Code changed and now you can prove your (oral) loan agreement with pretty much anything that even vaguely resembles a document. This could be anything from a tiny scrap of paper stating the amount of the loan (signed by the borrower) to a text message, email or a recording of the converstation).
If the borrower fails to return the money (even if you do have a written loan agreement), it's important to give them a notice of payment, in which you request that they pay the amount due within the next e.g. 3 days. If you still don't get your money back after that time, you can file a suit against the borrower (enclosing the proof that you did try to settle the matter amicably, which, in this case, is sending a notice of payment).
One last thing - unless the lender and the borrower are not businesspeople, it is possible to pursue claims resulting form the loan agreement within 6 years after the due date of the loan. In case of a business loan, the limitation period is only 3 years.
2. You have a debtor and you want to sue them...which court should handle your case? (jurisdiction in Polish courts)
The general rule is that when you want to sue somebody, you shoud file a lawsuit with the court in whose district the defendant (the person you're suing) has their place of residence. It's worth noting that the place of residence simply means the place where your debtor lives (where their home is), even if their official, registered place of residence is somewhere else (which quite often happens among Polish people). What really matters to the court is that the defendant can be served legal documents in a given place, which they themselves consider the centre of their vital interests (=where they work and live). If you want to sue a company, all you'll need is the address of its registered office, which is usually easier to establish than an individual's place of residence.
When you live in the south of Poland and your debtor resides in the north, you'll not like the idea of a distant court handling your case (especially that you'll have to go there too, perhaps even several times, which can be very inconvenient). Fortunately the Polish Code of Civil Procedure provides for exceptions allowing you to file a lawsuit with the court in whose district you (and not the defendant) have your place of residence (it's called 'alternative jurisdiction', as you can still follow the general rule of the defendant's place of residence if you decide that it's more convenient for you). Here are some of the exceptions most often used in typical civil cases:
- lawsuits connected with executing, determining the content of, amending and establishing the existence of a contract or the performance, termination or invalidation thereof, as well as lawsuits for damages for non-performance or improper performance of a contract - such lawsuits may be filed with the court for the place of performance of the contract. This provision is widely used by entrepreneurs who do business with traders from all over the country and don't want to run cases in several different courts. The 'performance of a contract' includes payment by one of the parties for the goods/services rendered by the other party - it's important to know that according to Polish law the place of such payment is considered to be the place of residence (or the registered office) of the creditor (=you), which enables you to file a lawsuit with the court that is closest to where you live/run your business. Obviously this rules only applies if you and your debtor have not chosen any other place of performance in the contract.
Let's consider the following situation: you issue an invoice to your debtor (who happens to reside far, far away) and indicate on it, that the payment should be made to your bank account. Your debtor fails to pay up on time so you want to sue them. Normally you would have to file your lawsuit with that far-away court close to your debtor's place of residence, but thanks to the 'alternative jurisdiction', you can file your lawsuit with the court closest to where you live and then it will be your debtor, not you, who'll have to come all the way to the court to defend themselves.
- lawsuits for tort claims may be brought in a court in whose district the event giving rise to the claim occurred. In plain language: if someone did something that harmed you in any way and you believe they are at fault for it (but it is not connected with contracts) you can sue them for e.g. compensation and file your lawsuit with the court in whose district the incident happened (which may be closer to where you live than the place of residence of the defendant).
- if you want to sue somebody in connection with a lease contract, you may file your lawsuit with the court in whose district the leased real estate is located, which, again, may be more convenient than the place of residence of the other party of the lease agreement.
3. Conjugal relationship/cohabitation in Polish law
First things first: when you cohabitate with somebody in Poland (you're in a relationship akin to marriage), in legal terms you're still pretty much single. Only criminal law recognises the fact that living together as a couple is much more than just dating, therefore persons who cohabit have the right to refuse to testify in the case regarding their partner (they are treated similarly to close relatives). Unfortunately, apart from criminal law, there are no legal regulations concerning people living in conjugal relationships - under Polish law you can either be married or single and even if you've been living with the same person for the last 20 years, it won't change anything (you'll not inherit anything if that person dies, institutions/doctors will not treat you as your partner's family member and may deny you information about him/her). What's more, having a conjugal relationship, especially a long one, complicates things in terms of ownership and the division of property after the couple splits. All the regulations concerning the division of assets after the divorce will not apply here so the only legal basis which will enable you to get back what you invested are the provisions on unjust enrichment (art. 405 of the Polish Civil Code: anyone who without legal grounds has gained a financial benefit at the expense of another person is obliged to hand over the benefit in kind, and if that's impossible, to return its value). What does that mean in practice?
If you've been living with your partner for a while, in his/her house, and you invested some money in that house (you helped renovate it, bought some expensive equipment that can't really be taken away etc.) you can file a claim for the payment of money that you think you "lost" in this way. Obviously the case will go to court only if you're on bad terms with your ex and he/she refuses to settle with you.
If you've bought some furniture or other things that can be taken away, you should simply take them with you, they're yours anyway and there's no reason that you ex-partner should benefit from it any longer (unless you allow it). However, if you've e.g. renovated your ex-partner's kitchen, fitted it with custom made furniture and household equipment (which makes it impossible to just take with you) you should assess how much your ex is now (that you broke up) "enriched" because you paid for it. If the amount you want to be paid back is questioned by your ex, the case will inevitably end up in court and the judge will ask a witness expert to assess how much your investments are worth. An important note: if you invested PLN 50 000 in someone's house and you break up with them 10 years later, you will not get this amount back. The expert will assess how much your investment is worth now (taking into account fall in value overt the years plus ordinary wear and tear), so you might end up getting only a portion of what you actually invested back in the day.
4. The law of succession - who inherits under Polish law?
There are two ways in which you can inherit something - based on a last will written by the deceased (the person who died) or simply resulting from the lat (when there aws no last will = testament). As a rule, if there is a last will drawn by the testator, it solves the problem as to who inherits from a deceased person. However, in most cases there's no last will drawn up and then it's the law that decides who becomes the successor (it's called statutory inheritance). According to the inheritance rules provided for in the Polish Civil Code, the order of succession is as follows:
- first, the deceased person's children and spouse are called to the succession and they inherit in equal shares (however, the spouse's share cannot be less than one-fourth). If a child of the deceased person died before him/her, its share falls to its children in equal parts (e.g. when your sister died beore your father, but she left 2 children, they will inherit from their grandfather directly - each of them half of what their mother would get is she lived)
- if the deceased had no children and grandchildren (or they all died before him/her), the deceased person's spouse and parents will be called to succession. The share of each parent who inherits together with the deceased person's spouse is one-fourth of the entire property
- if the deceased had no children and no spouse, his/her parents will inherit everything
- if one of the parents died before the deceased person, the share which would normally fall to that parent will fall to the deceased person's siblings in equal parts (or if the siblings died as well, to their children, if any). If the deceased person had no siblings and one of the parents died, the other parent inheriting together with the deceased person's spouse will inherit 1/2 of the property.
- if the deceased person left no children, no parents or siblings, the entire property falls to the spouse.
- if the deceased person left no children, no spouse, no parents or siblings, the entire property falls to the deceased person's grandparents, who inherit in equal parts. If any of the grandparents died before the deceased person, the share that would normally fall to him/her will fall to the their descendants (=children or grandchildren). If a grandparent who died before the deceased person left no descendants, the share that would fall to him/her will fall to the remaining grandparents in equal parts.
- if the deceased person left no spouse or relatives, the property will fall in equal parts to the deceased person's stepchildren, if their own parents died before the deceased person.
- if the deceased person left no spouse, no relatives or ("orphaned") stepchild, the property will fall to the municipality of the deceased person's last place of residence, and if that person lived abroad, the property will fall to the State Treasury.
An interesting part: your ex-spouse will obviously not inherit anything, but if you're not divorced, but legally separated, your spouse will also be excluded from inheritance.
5. Legitim (Forced Share) accordig to Polish law
According to Polish law you can inherit something in two ways: based on the testator's last will (testament) in which you were called to succession or, if there is no last will, you'll be called to succession by law (=statute). If the deceased person made his/her last will and decided that the whole estate will go to a person that is not immediate family (=he/she left you out of their will), all is not lost for the next-of-kin.
Pursuant to Polish Civil Code, the deceased person's descendants (children, grandchildren, grand grandchildren), spouse and parents who would be called to succession by law are entitled to one-half of the value of the share in the estate which they would get if they inherited by law (if any of these persons are deemed permanently incapable of working or underage, they'll be entitled to two-thirds of their "statutory" share in the estate).
What does it practically mean? That any (and all) of the entitled persons may sue the testamentary hair for payment of the value of their legitims. They have 5 years to file a lawsuit after the last will was read. If they don't keep that deadline, their right to legitim will expire.
It's important to know, though, that if the deceased person donated something to you and the value of it was equal to the value of your legitim (or higher), this will cover your claim for legitim to you will not receive anything else. If, however, the property/money you received as a donation didn't cover the whole value of the legitim, you can sue the heir for the remainder (the value of your legitim minus the value of the donation = the amount you may request as your legitim).
The right to legitim can be inherited so if your e.g. dad was entitled to a legitim but died before the lapse of 5 years after the deceased person's last will was read and you're his heir (also you have to be one of the persons entitled to legitim in general - a descendant, a parent or a spouse), you will inherit your dad's right to legitim and you can, as his heir, pursue that claim in court.
6. Period of prescription / limitation of claims
Prescription can be a saving grace for debtors and a curse for creditors - either way, it's worth knowing what it's all about. In short - when you're a person obliged to pay a certain amount of money to somebody (and you fail to do it for a long time), after the lapse of a specific (prescribed) period your debt becomes "too old", which means that you won't have to pay. Sounds great, I know, but if you think it's worth procrastinating in fulfilling your obligations, read on.
According to Polish Civil Code (Article 117 and the following) after the prescription (also called: limitation) period has run, the person against whom a claim is made (=the obliged person) may avoid satisfying it, unless he waives his right to use prescription/limitation of claims as a defense (however, you can't waive this right before the prescription period has run).
If you happen to be a consumer and the prescription period has lapsed, the other party may not sue you (technically they can but you'll win the case). Only in special cases, upon considering the interests of both parties, the court may decide that the lapse of prescription period doesn't "protect" the debtor (it's an exception to the rule, which will be applied in rare cases).
What are the periods of prescription in Polish civil law?
After a recent change in regulations, they became shorter than before and now the general period of prescription is 6 years (it used to be 10 years). If we're talking about periodical claims (such as alimony, rent, utility payments etc.) or claims connected with running a business, prescription period is 3 years.
However, some specific regulations provide for different periods of prescription (e.g. claims of a professional seller are subject to a 2-year prescription) so the above mentioned 'general rules' are applied only if there are no other, more specific prescription periods.
Important note: The end of any prescription period falls on the last day of a calendar year, unless it's shorter than 2 years.
It is impossible to shorten or extend prescription period through agreements between the parties so it is pretty much set in stone, nobody can change it.
When does this period start running? When the claim becomes due and payable.
There are, however, situations which interrupt the running of prescription periods. Every time such a period is interrupted, it starts running anew. The situations interrupting prescription are:
- any action before a court or other authority appointed to hear cases or enforce claims (e.g. law enforcement officer) or before an arbitration tribunal taken directly to pursue a claim (most often it's when you get sued by your creditor)
- recognition of a claim by the obliged person (that one is very tricky - if you sign an agreement confirming that you do owe something to somebody, that will be seen as a recognition of a claim; the same goes for making even a partial payment - it would mean that you recognised the claim because you started paying it off)
And one last thing - if a court (or any other authority) has already issued a ruling and decided that you should pay, such a ruling holds for 6 years (3 years for periodical claims and those connected with running a business). This means that if you're a creditor and you have a decision of a court in your favour, you can't just wait and do nothing (if your debtor still doesn't pay you back, it's important to start enforcement proceedings). If you fail to do anything (for 6 years) you may not be able to get what the court decision granted you.
7. When is a contract (or an act in law, for that matter) invalid under Polish law?
As a general rule, agreement must be kept, we all know that. However, Polish Civil Code provides for some situations which make a contract invalid:
a) if a contract is contrary to law or its purpose is to bypass law (usually it's not the whole contract, just some of its provisions), unless there is a stipulation in the contract that the relevant statutory provision replaces the invalid provision included in the contract,
b) if a contract is contrary to the principles of community life (e.g. an alcoholic sells their house for a fracture of its real worth)
c) if a contract (or any statement having legal consequences) was made by a person who was in a state excluding conscious or free decision-making and expressing their intent (mainly it's about mental illnesses, mental retardation or other, even temporary, mental disorder)
d) if a contract (or a statement) was made by a person acting for false appearance's sake (even with the consent of the other party)
e) if a contract (or a statement) was made by a person acting in error as to the content of an act, especially if that error was provoked deceitfully by the other person
f) if a contract (or a statment) was made by a person being under the influence of an illegal threat
g) if a contract was made by a person who has no capacity for legal acts (e.g. such a person had been fully incapacitated or was younger than 13)
8. Land and mortgage register in Poland
Every district court in Poland keeps a land and mortgage register of all the real estates situated in the area. There is always a separate division in the court which deals with anything connected with this register (entries, removals, warnings, issuance of copies etc.).
Every real estate in Poland should have its own land and mortgage register; it is open to public inspection and shows the legal status of a given real estate (it says where the estate is located, how big it is, the names of the owner(s), the history of entries, limited real rights, mortages, if any).
Land and mortgage register is regulated by Act on Land and Mortgage Register of 6th July 1982 (as amended). Because anyone can check the legal status of a given real estate the Act states that one cannot plead ignorance in that regard. This means that when you are about to buy e.g. a house or a plot of land, the first thing you should do is check its land and mortage register, for your own safety. When you have bought real estate you should file an application with the land and mortgage register division of a competent district court so that the court makes an entry and replaces the previous owner with your name. All applications are subject to a fee. Bear in mind that real estate is not always only one plot of land. Sometimes land and mortgage register of a given real estate indicates that the real estate consists of a few plots and sometimes real estate equals only one.
It's important to know that each land and mortgage register (for every real estate) has its own unique number, e.g. BB1B/010101010/01. If you know the number, you can check the land and mortgage register online at: https://przegladarka-ekw.ms.gov.pl.