https://doi.org/10.32082/fp.v3i53.306

Attachments:

Oakerson (1).pdf

462 kB

The principal aim of this paper is to design a “test” who verifies if one thing is obvious (or self-evident) or not. But, as it is impossible to do without a deep comprehension of the notion of evidence, we begin analyzing how the evidence was conceived in philosophy and in law (Chapter II); then, with a systematic and analytic method, we apply our efforts to understand the meaning of the evident, his classifications and characteristics, and his function in science (Chapter III). Finally, with this background, we deal with the possibility of prove the obvious, and we design a dual test that verifies if the characteristics of the evident appears or not in the evaluated thing (Chapter IV). Always, in each chapter, after the philosophical considerations, we put the consequences of that in the Law.

https://doi.org/10.32082/fp.v3i53.219

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2 Riofrio.pdf

364 kB

The venire contra factum proprium nemini licet legal maxim in legal argumentation expresses an objection against inconsistent behaviour. However, opinions regarding its significance are not uniform in legal discussion It inspires the following questions: Why was that maxim introduced into legal argumentation? Are there any systemic elements in in the pre-codification history of the maxim? Can they inspire a contemporary view on a useful method of referring to the maxim in private law and if so – how? The paper deals with these issues. The historical and comparative analysis leads to two main conclusions: firstly, immanent flexibility of the maxim should inspire moderation in declaring the venire contra factum proprium prohibition as one of the basic principles of private law. Secondly, the effect of being bound by an act by a person who wrongly caused its invalidity, which has been based on the maxim in pre-codification legal practice, is worth thinking through in the world of developed theories of legal transactions.

https://doi.org/10.32082/fp.v3i53.222

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3 Dajczak.pdf

321 kB

The aim of the article is to analyse selected issues relating to the statutory provisions and contractual terms which allow to amend or terminate a contract in the event of a change in circumstances occurred after the conclusion of the contract. Many provisions of the Polish Civil Code grant in such a case one of the parties the right to unilaterally amend or ter-minate the contract by its declaration of will or a right to demand for a change or dissolving the contract by the court. The parties may also agree the specific terms in the contract which allow adopting their contractual relation to new circumstances. If a party affected by change of circumstances exercises its right to modify the contract it should be considered a problem of how the interests of the other party should be protected. Particularly the question arises whether the statute or the contract grants such a party the right to terminate the contract.

https://doi.org/10.32082/fp.v3i53.218

Attachments:

4 Pisulinski.pdf

354 kB

The author presents original research method enabling to answer the question ‘what is the ratio (rationale, justification) of prescription?’ not from theoretical but practical standpoint, as well as the results of its application in historical-comparative study. This study demonstrates that even bearing in mind the potential differences across legal systems and historical periods, it may be argued that there is something permanent and common in prescription, that the notion of a universal core of the ratio is indeed viable. Thus the aim of this paper is to assess — taking into account findings concerning the ratio of prescription — Swiss (OR 2020) and Polish proposals of modification and recent developments in the civil-law regulation of the said institution.

https://doi.org/10.32082/fp.v3i53.243

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5 Kruszynska-Kola.pdf

277 kB

The word abuse seems to be made of two parts. The root use stands for to take advantage of something implicitly in casual, normal way. The prefix ab, however, changes the meaning of the root, indicating that it concerns something beyond the casual, normal usage. The comparison of any random definition of the strategic litigation with a simple semantic analysis of the term abuse immediately gives rise to a view that the strategic litigation can be easily described as a kind of abuse of the practice of litigating. This notion arises because the primary purpose of the strategic litigation does not refer to the interest of the party to the proceedings (like in the conventional litigation); instead, it is aimed at bringing social change, always deprived of any evaluation. The observation above is hardly the only reason supporting the necessity of investigating possible critiques of the strategic litigation. The contemporary literature devoted to this institution presents certain instances of its critique; nevertheless, it provides us with possible allegations or doubts addressed exclusively from the perspective of the strategic litigation’s proponents (or proponents of aims of the strategic litigation). As a result, such a criticism has ostensible character, focusing mostly on inefficiency of the strategic litigation, rather than on more down-to-earth sceptical reflection on ideas standing behind the whole concept.

https://doi.org/10.32082/fp.v3i53.211

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6 Mirocha.pdf

333 kB

As an international collection of essays, Marriage, Children, and Family: Modern Challenges and Comparative Law Perspective, reveals the universal nature of challenges every society faces both in encouraging family formation and responding to some of the harms arising from the failure of such formation due to a variety of addictions. Abuse, abandonment, and the sexualization of children are just a few of the harms addresses by the experts. In this brief review, the author encourages readers to compare both jurisprudential and technical differences in national treatment of these difficult family law issues, with a special emphasis on understanding the current approach of the Polish government.

https://doi.org/10.32082/fp.v3i53.307 

Attachments:

7 Collett.pdf

215 kB