The catalogue of legal actions forms defined in the
Civil Code will be expanded starting from
September 2016. Under the new provisions of the
Civil Code, in order to meet the criteria of the new
document form of legal action, it is sufficient to
make a declaration of will in the form of a
document in such a way that makes possible the
identification of the individual making that
declaration.
Until now the primary form for effective legal
action was an ordinary written form. However, in
the practice of business dealings contracts are frequently negotiated and concluded by e-mail
correspondence or using other modern forms of
communication, without formalising them by
signing a paper copy of the agreed contract text.
The decision to introduce the document form of
legal action into the Civil Code addresses the
changing needs of the present, while taking into
account the dynamic development of new
technologies.
As explained in the grounds to this amendment, the
document form is to require a lesser degree of
formality than the written form, since affixing
personal signatures will not be required. It will be
sufficient for the person making the declaration of
will to be identified either in the text of such
document or on the data storage medium or the
device used to make the declaration. The drafters
of the proposed amendment believe that the
documentary form, by being easy to use, will help
to streamline legal transactions while it can still be
used for evidentiary purposes.
At the same time, “document” is now formally
defined in the Civil Code as “information storage
medium that allows its information content to be
retrieved”. This new definition of “document” is
truly revolutionary, given that this term
traditionally meant information fixed in writing.
The new definition is very broad and covers
declarations made using not only text but also
sound or image. The fundamental feature of a
document is its intellectual content, that is the
information or content containing various types of
declarations, including declarations of will. The
manner in which such content is fixed should allow
for it to be stored and reconstructed so that it is
capable of performing the evidentiary function of a
document. As mentioned before, whether or not
such a document is signed has no legal significance
for legal transactions made in this format.
In the absence of indications to the contrary either
in statute or in contract, the document form will be
reserved only for evidentiary purposes (ad
probationem). Accordingly, if the requirements for
this form are not complied with, the legal action
will still be valid, but no evidence from witness
testimony or hearing of the parties regarding the
existence of such action will be allowed. The Civil
Code provides an exception to this rule for
business-to-business relations between economic
operators—in professional relations such evidence
will be admissible regardless of the failure to
comply with the document form ad probationem.
This reservation for evidentiary purposes only will not apply to the other party if the documentary
form requirements are not met in case of a
unilateral legal action.
It should be stressed that the legal measures
introduced are dispositive in nature, and hence
they can be modified by agreement between the
parties.
MILLER, CANFIELD,
W. BABICKI, A. CHEŁCHOWSKI I WSPÓLNICY SP.K.
ul. Batorego 28-32
81-366 Gdynia
Tel. +48 58 782-0050
Fax +48 58 782-0060
gdynia@pl.millercanfield.com
ul. Nowogrodzka 11
00-513 Warszawa
Tel. +48 22 447-4300
Fax +48 22 447-4301
warszawa@pl.millercanfield.com
ul. Skarbowców 23a
53-125 Wrocław
Tel. +48 71 780-3100
Fax +48 71 780-3101
wroclaw@pl.millercanfield.com
Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield. It is intended to provide only a summary of
certain recent legal developments of selected areas of law. For this reason the information contained in this publication should not form the basis of
any decision as to a particular course of action; nor should it be relied on as legal advice or regarded as a substitute for detailed advice in individual
cases. The services of a competent professional adviser should be obtained in each instance so that the applicability of the relevant legislation or other
legal development to the particular facts can be verified.