1 Mortgage Law
In addition to the servitudes discussed above, other types of rights in rem also appeared widely in the legal theory and practice of the Free City of Cracow, including those of key importance in economic transactions: the pledge and the mortgage. The former was the subject of questions formulated during the work of the Legislative Committee (Title vii: âOn the Pledgeâ). In particular, the first question raised serious doubts as to whether a private, and therefore non-official (ânon-judicial and non-authenticâ) document could be the basis for an entry in a mortgage book. Contrary to the Committeeâs opinion, Feliks SÅotwiÅski took the view that there should not be any restrictions in this respect, as, from the creditorâs point of view, it is, after all, crucial to be able to obtain reliable information on âwhether he will be satisfied in his receivablesâ. It was precisely mortgage books, which SÅotwiÅski referred to as âsecurity booksâ, that could provide such information. A debtor, whose property becomes a âpledge for his creditorsâ can, after all, always apply for the debt to be removed from the mortgage if the obligation is paid. SÅotwiÅski also pointed out that the prohibition would reduce the level of mortgage security, as the debtor could then incur further debts at the expense of the interests of the first creditor, which would not be recorded in any way. Despite this rather rational argumentation, the Chamber resolved that: âA document not judicially, not authentically, but privately drawn up cannot be entered in the mortgage booksâ (principle one).1
Greater doubt was apparently not raised by the subsequent questions on this subject, since the Members unanimously resolved that: âA note of the right of first eviction should take place in public booksâ (principle two);2 âThe
Some of the questions posed within Title xvi: âOn the Limitation Periodâ also dealt with pledge rights in rem. These concerned in particular the theses passed by the Legislative Assembly: âBy the incorporation of the title of ownership into a mortgage, all rights of a third party are cancelled by the statute of limitations of more than three yearsâ (principle one); âAfter an entry into mortgage books, title to property and other rights in rem shall be acquired by a limitation period of more than three yearsâ (principle two).4 In contrast to the aforementioned issues, the question of doubling the length of the period of usucapion, compulsory against the property of the Public Treasury or the Catholic Church, raised considerable doubts. Contrary to the unsurprising opinion of Father Feliks JaroÅski, who referred to the 60-year period of usucapion in canon law, it was decided (by a vote of 23 to seven) that âFor barring by limitation against the Public Treasury or any moral body not twice as much time is needed as against anyone elseâ (principle four).5
The debate outlined above was only a prelude to a much more serious task facing the legal elite of the Free City of Cracow. Namely, it concerned a deeper revision of French mortgage law, which had been in force in the area from 1810.6 It was the subject of widespread criticism, especially with regard to the difficult control of the transfer of ownership of real estate and the taking of
The first problem that the authorities of the Republic of Cracow had to face was the necessity to extend several times the time limit for renewal of entries, resulting from Article 2154 of the nc, in order to enable the validity of mortgages and privileges to be maintained. The Court of Appeal also drew attention to the need to establish a cadastre of immovable properties located in the Free City of Cracow; appropriate instructions were issued to the wójtowie (commune heads) in 1822. Above all, work began on regulating property relations for the purposes of the future law, a task entrusted to the Mortgage Commission.9
A major success of the Cracovian legislator was undoubtedly the Act âOn Establishing the Ownership of Immovable Property, Privileges and Mortgagesâ, passed by the Extraordinary Legislative Assembly on 17 June 1822. It showed considerable similarity to the mortgage law of the Kingdom of Poland.10 This was the case in terms of the structure of the two acts, although the Cracovian
In terms of content, the 1822 Act mandated the compulsory entry of all mortgages in the mortgage books, as well as any deeds of disposal of real estate. The old Polish principle of openness and detail in mortgages was also given full force. This openness was not limited by anything; a mortgage was public and open to the public, while its inspection was possible in the presence of the Mortgage Regent, regardless of the legal interest. In order to establish the priority of a mortgage, it was necessary to indicate the number of its registration in the correspondence log (rule of priority of entry). Pursuant to Article 1 of the Act, all inter vivos acts which related to real estate (transfer of ownership, limitation of ownership, as well as encumbrance or release from encumbrance) required for their validity the form of a notarial deed, drawn up by a notary (scribe of deeds), with the participation of two witnesses. Secret mortgages that had been created before the Act came into force and had not been submitted for entry within the time limit set for a given property, could only be enforced in court; thus, entry could only take place as a result of a final judgment (Article 84). The creators of the Act essentially restricted its effects to urban and district immovable property, registered in the cadastre and belonging to private and legal persons, but excluding peasant properties. Numerous privileges taken from the nc were also retained, which became a cause for criticism. The so-called âmain mortgage booksâ took the form of lists kept for the individual municipal and district communes. They covered in one volume all the properties located in their area; no separate books were kept for them.13
An objection could be lodged against the contents of the list before the Mortgage Commissioner (an official of the Mortgage Commission), within the prescribed period. The Commissioner presented the objection at a meeting of the Commission, together with his proposal for regulating the mortgage. The Commission ruled in the first instance on the items on the list to which the objection had been lodged; if there was no objection from a party, it issued a resolution to accept the draft. The Commission could resolve disputes over the order of mortgage and listing title or right in rem. The Commissionâs decisions were delivered to the parties.16
Pursuant to Article 101 of the Mortgage Act, its decision could be appealed by the parties to the Court of Appeal, under the terms of the 1826 Instruction. The appeal had to be filed within 14 days. At the same time, it was incumbent upon the appellant to acquaint the claimants with the rights in rem covered by the list, as well as to strictly identify the disputed items in the mortgage list. The parties were bound by a compulsory representation by an advocate. Disputes were resolved by summary proceedings, in a public hearing. Judgments of the Court of Appeal were to be submitted to the Mortgage Commissioner to record changes in the mortgage list; a simple rectification could also be made
Seal of the President of the Court of Third Instance of the Free City of Cracow, (seal matrix, brass, 1st half of the 19th century)
source: national archives in cracow, ank, 29/661/455; photo & permission by national archives in cracow
The course of the regulation of mortgages revealed numerous discrepancies in the interpretation of mortgage law between the Mortgage Commission, the Court of Appeal and the Ruling Senate. Between 1 May 1827 and 19 May 1828, during 34 sessions, the Commission heard objections to entries in mortgage lists arranged by it, and also approved items not contested by the parties. In total, the Commission examined 877 cases, mostly approving entries to which
The mortgage judgments of the Court of Appeal, issued between 16 January 1828 and 17 July 1833, mostly upheld the Commissionâs decisions. On the basis of the completely preserved mortgage files of that court, it may be stated that the entities whose rights were in dispute included not only private individuals and the Public Treasury of the Free City of Cracow, but also Jagiellonian University, Cracowâs charitable organisations (the Charitable Society, the Archbrotherhood of Mercy and the Pious Bank), churches and monasteries, and even the General Counselâs Office of the Kingdom of Poland.19 The results of the research on the archival material are presented in the table below.
Mortgage cases before the Court of Appeal between 1828 and 1833
Plaintiff/defendant |
Private person |
Public treasury |
Ecclesiastical or secular institute |
General Counselâs Office of the Kingdom of Poland |
|---|---|---|---|---|
Private person: victory |
16 (2) |
23 (0) |
5 (0) |
1 (0) |
Private person: loss |
36 (20) |
31 (19) |
4 (0) |
3 (1) |
Public Treasury: victory |
13 (1) |
x |
10 (0) |
1 (0) |
Public Treasury: victory |
42 (11) |
x |
3 (0) |
3 (0) |
Institute: victory |
1 (0) |
2 (0) |
1 (0) |
0 |
Institute: loss |
6 (1) |
1 (0) |
0 |
0 |
General Counselâs Office: victory |
1 (0) |
x |
0 |
x |
General Counselâs Office: loss |
6 (3) |
0 |
0 |
x |
However, a few words of commentary are needed to the above results of adjudication, which are generally not highly controversial. First, cases terminated due to non-appearance also include the cases specified in Article 153 of the Code of Civil Procedure (joint judgment).20 Furthermore, a case was also classified as having been decided in favour of a given party if the Court of Appeal upheld even a part of its petition (claim). A separate mention should also be made of atypical cases, which do not fall within the limits of the above list. Here, one may mention cases in which the postponement (suspension) of the judgment or rejection of the petition was due to the failure to submit the required documentation,21 or the failure of the Mortgage Commission to complete its work with respect to the disputed real estate.22
2 Guardianship Law
Due to its unquestionable social role, guardianship law certainly deserved close attention from the legal community of the Free City of Cracow.26 The Cracovian lawmaker, however, did not venture to make any profound changes to the French system, despite numerous criticisms of it. These criticisms were, after all, quite serious and related primarily to its excessive complexity, resulting from the overdevelopment of certain institutions. High costs and its relatively low effectiveness were also cited as drawbacks. Nevertheless, the French system also had numerous advantages. In matters of guardianship, the family was to have the final say, and there was an extensive system for supervising decisions concerning the pupilâs property; in the absence of both parents, the guardian was to be a person appointed by them, then the ascendants of the pupil, and finally a person appointed by a family council. The latter was also responsible for appointing a so-called âawarded guardianâ (in Polish: opiekun przydany), who was to look after the interests of the minor in the event of a conflict of interests between him or her and the guardian. The council also exercised general supervision over the guardianship. It was to be composed of an equal number of three relatives from the paternal and maternal line. At the same time, the role of women in the exercise of guardianship was expressly
A debate on the principles of law governing the care of minors began as early as 1818. It resulted in the following resolutions, taken under Title v: âOn Guardianshipsâ: âThere shall be family councils to manage the interests of minors under the chairmanship of a justice of the peaceâ (principle one); âThe guardian shall be obliged to give an account every yearâ (principle two). Unanimity was lacking on the question of the priority of guardianship. Should it go to the mother, as indicated by natural rights (which, after all, âcivil acts may not violateâ), or to the grandfather on the fatherâs side, to whom, as a rule, patria potestas passed?29 It comes as no surprise that almost identical questions arose during the âpostponedâ debate of 1825. It should be made clear that the main work at that time revolved around two drafts, the proposals from which were finally embodied in the form of an act.30
On substantive matters, Article 25 of the Act explicitly stated that family councils should be attended by at least five of its members, including a justice of the peace; the minorâs guardians had only an advisory vote, ânot constituting a setâ.33 The Act also imposed an obligation, not explicitly resulting from the nc, that an awarded guardian, i.e. a person who supervised the main guardian, informed the family council of any of his actions that could negatively affect the situation of the pupil (Article 30). The time limit for filing an appeal against the decision of the family council to appoint a guardian was also slightly extended, from three days to one week (Article 49 of the Act; Article 439 of the nc). The catalogue of persons who, by law, could not be guardians or members of a family council or were âunfitâ for this role, was also expanded. Thus, in addition to minors (with the exception of the father or mother), women (with the exception of the mother and grandmother), incapacitated persons and those who have a conflict of interest with the pupil, as well as those who were unreliable or had an indecent lifestyle, the law also included, inter alia: senators, judges, prosecutors and other court officials, foreigners residing permanently outside the borders of the Free City of Cracow,
The list of conditions that were required for the acceptance or rejection of an inheritance by the guardian, on behalf of the pupil (the former could only take place up to the level of net assets) was also expanded. Namely, in addition to requiring the prior consent of the family council, the Act added the obligation to review the assets and also to obtain court confirmation (Article 75 of the Act; Article 461 of the nc). The Act also loosened the strictness as regards the conclusion of agreements on behalf of a minor. When its source was to be a settlement (âconciliatory agreementâ) and the value of the subject matter did not exceed 500 Polish zlotys, the consent of the Tribunal was not required, but only that of the family council (Article 82 of the Act; Article 467 of the nc). The creators of the Act also introduced solutions alien to the nc, e.g.: the exclusion of a member of the family council or a guardian from participation in meetings of the family council if there was a conflict of interests with the pupilâs interests; control of accounts from the management of the pupilâs property by the awarded guardian; the guardianâs liability for any damage and lost benefits resulting from negligent management of the minorâs property, which could involve joint and several liability with the awarded guardian; mortgage security of any possible claims by the ward on the guardianâs property (Articles 83, 87â88, 93â96 of the Act). They also imposed a duty on justices of the peace to report to the Court of Appeal, as well as to the senator appointed to oversee the affairs of minors, on the care given within their jurisdiction (Article 99 of the Act).35
A complete novelty was all of Section viii: âOn the Care and Emancipation of Illegitimate Childrenâ, within Title i of the Act. It provided for the transfer of illegitimate children to âcompetent guardianship institutesâ, to which the care of their person and property thus passed. In principle, guardianship was to last until the child came of age or was emancipated; however, it was permissible for the pupil to leave the institution earlier. As far as emancipation was concerned, the authorities of the institute had the rights of parents. Children outside the institute and those who left the institute were to be cared for by the parent who had legally recognised them; if both parents had recognised them, the mother was to be the guardian, and only after her death or loss of guardianship was the
Minor changes were also made to Title ii: âOn the Deprivation of Oneâs Own Will and on Judicial Counselâ. For example, Article 128 clarified the content of Article 498 of the nc dedicated to judgments of incapacitation issued on request. In addition to requiring the parties to be heard (in the Act also in absentia, in case of failure to appear), in a public audience, the Act provided for the Court to appoint a special custodian if the minorâs incapacitation was requested by his or her guardian (Article 128 of the Act; Article 498 of the nc).
An amendment to the Act adopted in 1844 proves that the Cracovian legislator was not indifferent to the fate of the estates of minors. In order to increase the level of their security, the threshold of the value of the property set out in Article 73 of the nc, in relation to which a family council could decide to sell âwithout an auctionâ, was then significantly increased: from 1,000 to 6,000 Polish zlotys. At the same time, the requirement of court approval of the resolution was maintained.36
Even a brief discussion of court practice in the field of guardianship law cannot fail to mention the very frequent convening of family councils, which showed genuine concern for the property of those under their care. Thus, they authorised the investment of money left to children by deceased parents; the sale of a tenement house to pay off mortgage debts; or movable property to cover funeral expenses. Their decisions also concerned the designation of a trousseau in the event of marriage or the settlement with creditors of the inheritance estate.37 It should be borne in mind that in more serious matters, such as leaving all property in the hands of the guardian mother, the confirmation of a family council resolution by the Tribunal was required.38
Guardianship issues arose in various, often quite surprising situational contexts. These included divorces, as evidenced by the case of Franciszek and Antonina (née Gloger) GieÅgów. In the case in question, although the Court of Appeal approved the Tribunalâs judgment granting the GieÅgÅóws a divorce, at the same time it modified its decision as to the further fate of the minor child, in such a way that custody of the child was entrusted to the father, respecting all the rights of the childâs mother under Article 303 of the nc.43 It also applied,
In the case of Ignacy Ulrych versus his daughter Romualda and Adam Biron, her uncle and at the same time her âawardedâ guardian, the Court of Appeal approved the resolutions of the family council authorising the removal of Romualda Ulrych from paternal authority, as well as her taking of benefits from the family property. The court, analysing the provision of Article 477 of the nc46 rejected the interpretation by Mr Ulrychâs advocate, that it was possible to impose conditions on the fatherâs act of emancipation of a minor child, as well as on its revocation, at any time, in particular when the emancipated person failed to comply with any of the conditions imposed.47
In another judgment, the Court of the Third Instance ruled that in relation to an awarded guardian, the application provisions of Articles 29â30 of the Guardianship Law,48 regarding the scope of his duties, may be excluded if only the main guardian had a separate authorisation from the family council.49
3 The Law on Courts of the Peace
Among the institutions constituting the legacy of the Duchy of Warsaw, which were particularly well adapted to the socio-political conditions of the Free City of Cracow, one should without hesitation include justices of the peace. Characteristically, their presence in the justice system was not controversial; the disputes concerned only the scope of their competences. Both the constitutions of the Free City of Cracow and the Code of Civil Procedure obliged them to reconcile parties in minor civil cases, recognise property disputes, and represent the property interests of the Public Treasury and clerical as well secular institutes. Justices of the peace also ex officio chaired family councils, i.e. meetings of family members of a minor, which decided on the most important matters for them, especially property matters.51
Questions about the permissible scope of the powers of justices of the peace appeared for the first time during the debate on the principles of law in 1818. As part of the discussion on the principles of civil procedure (Section: âConcerning Judicial Proceedingsâ), five theses regarding justices of the peace were adopted at that time. Namely, by a majority vote of 26 to five, it was resolved that âa justice of the peace will be granted the power to adjudicate disputes up to 200 Polish zlotysâ (principle one). This was a result of the position that extending their powers was particularly necessary in this area, even in disputes up to 500 Polish zlotys. This concept, according to its proponents, was consistent with the âgood of the country and the convenience of its citizensâ, as it could
Later in the debate, solutions regarding the above-mentioned in possesorio disputes were adopted. By a majority of 21 to nine, it was decided that âin possesorio cases will be adjudicated in the Courts of the Peaceâ (principle two). It was then unanimously agreed that: âThe matters expressed above shall be judged entered into the judgeâs recordsâ (principle three).54 In accordance with the wishes of the Legislative Committee, it was also resolved, by a majority of 25 to five, that: âCases of up to 30 Polish zloty may be judged by a justice of the peace as the last instanceâ (principle four). Finally, it was unanimously resolved that âsettlements concluded in a Court of the Peace between the parties are enforceableâ (principle five).55
The principles discussed above set the direction for the modifications introduced by Cracowâs deputies in the Code of Civil Procedure (Part i: âProceedings
A major achievement of the Cracovian legislator was also the introduction of an appeal to the Court of Third Instance, which was a solution unknown in French regulations. It concerned two different judgments of a Court of Peace and the Court of Appeal, if the value of the subject of the dispute exceeded 30 Polish zlotys. Somewhat surprisingly, it was also possible to lodge an appeal against a judgment of a justice of the peace in cases up to 30 Polish zlotys directly to the Court of Third Instance if a party claimed that substantive or formal law had been violated.58 What is more, following the proposals formulated as early as 1818, the enforcement by bailiffs of judgments of Courts of the Peace in cases worth between 30 and 200 zlotys was also introduced.59
In organisational terms, the division of the Courts of the Peace into five districts, introduced in 1816, was maintained in subsequent legislation, including
4 The Law on Judicial Enforcement
Crucial to the effectiveness of the execution of the law, is certainly the proper shaping of enforcement law. In the Free City of Cracow, the French Code of Civil Procedure, which contains numerous provisions on enforcement law (Book v: âOn the Enforcement of Judgmentsâ), played a decisive role in this regard.64 In the questionnaire of the Legislative Committee, among the questions intended to guide further legislative work, there was a question on the permissibility of an enforcement sale of real estate below two-thirds of its value, as determined by an estimate.65 The question was important because it concerned the sale of seized property by way of auction. This was an institution which caused heated disputes, both in the Duchy of Warsaw and the Kingdom of Poland, as well as in the Free City of Cracow, the main reason
As regards enforcement law, the unanimously adopted resolutions were as follows: (1) in order for a creditor to present a enforcement claim to court of a debtorâs movable property which is in the possession of a third party, a resolution of the judge is necessary in addition to a document; (2) in the absence of the document, a deposit is necessary for the validity of the announcement; (3) sequestration of proceeds (sequestratio proventuum) and tradition (traditio) cannot be considered as a step of enforcement, unlike a lease by way of public auction; (4) disputes by way of enforcement between the persuading law (iure vincentem) and the persuaded law (iurevictum controversae) are to be resolved in a public audience of the Court, upon summons of a patron by a patron, by way of judgment; (5) the adjudication (by way of enforcement) to the creditors of the salary of an official may not exceed one-quarter of his salary.68
The question of the admissibility of personal enforcement on the debtor certainly became the subject of an interesting discussion. Father Mateusz Dubiecki, Józef Nikorowicz (President of the Court of Appeal) and Józef SoÅtykowicz spoke in unison against such a possibility, suggested by the Legislative Committee. They all pointed to the constitutional guarantees of personal freedom, the need to protect inalienable human dignity, and the clear incompatibility of this institution with modern civilised times.69 The
Before turning to a discussion of the most important changes introduced in the enforcement law of the Free City of Cracow, it should be stated beforehand that the French model of judicial enforcement in force was very complicated. Described in Part i of Book v: Code of Civil Procedure, the system provided for several types of enforcement. These were: (a) a bailiffâs notice, consisting of the seizure of the debtorâs claims and movable property in the possession of third parties; b) the seizure of standing crops, i.e. de facto uncut grain; c) a notice of the debtorâs claim against his tenant for rent; d) enforcement against movable property, combined with the possibility of an auction sale by the bailiff; and e) enforcement against real estate.72 The provisions from other Titles (xiiiâxvi) were combined with the seizure of immovable property as the most important institution.73 A separate title was devoted to general provisions.74 It should be added that Book v of the Code of Civil Procedure described other issues of enforcement law in detail.75
The Act contained numerous provisions, which were guarantees by their nature. These certainly included the aforementioned: the prohibition of
In the section on the bailiffâs notice, among the changes introduced were: (a) the extension of the possibility of making it also with the consent of a justice of the peace, in cases falling under his jurisdiction (the Code of Civil Procedure always required the consent of the Chairman of the Tribunal), but this resolution had to be stated in the act of notice; (b) a slight extension â from seven to eight days â of the time limit for the creditor to notify the debtor of the notice made; (c) the omission of the provision on the sale of the matter in the notice and the partition of the amount obtained from its sale, if the notice was deemed valid; at the same time, the catalogue of items excluded from notice was left.82 The sections of the Act relating to the attachment of movable property were also affected by significant changes. The party supporting the enforcement was allowed to participate in the seizure (this was excluded under the Code of Civil Procedure), either in person or by a representative, who could thus participate on an equal footing with two witnesses who could read and write (this requirement was not present in the Code of Civil Procedure), and citizens of the Free City of Cracow, of full age and who were not at the same time relatives or in-laws of the parties or their cohabitants. The course of the enforcement itself remained basically unchanged (drawing up a protocol, sealing the items and depositing them, participation of a caretaker: a person of trust), as did the catalogue of items excluded from enforcement.83
Although a person claiming to be the owner of the seized objects could file an objection, which was examined by the court under an expedited procedure, he or she had to expect to have to pay damages to the seizing party if the claim
The provisions of Title iii: âOn Proportional Partitionâ dealt primarily with the situation in which the amount obtained from the auction was insufficient to satisfy the claims of all creditors. This part in relation to the Code of Civil Procedure underwent only minor changes. Of the more significant issues, the obligation to attempt an amicable partition of sums among the creditors was deleted (Articles 656â657 Code of Civil Procedure). Instead, a requirement for the placement of the amount obtained by the bailiff to be put in a court deposit and for the preparation of a report by the bailiff to the court, together with a need to compile a list of claims made, were introduced. The dispute was decided by a delegated judge appointed by the President of the Tribunal, after reviewing the requests of the prosecutor.85
What was new compared to the Code of Civil Procedure, was all of Title iv: âOn Leasing Outâ (Articles 73â79). Indeed, the institution of enforcement of
Due to its great practical importance, the enforcement of real estate, usually ending in an auction sale, deserves a wider discussion. Although this procedure was lengthy and quite expensive, the parties had the possibility to avoid it, and this was done by paying the obligation voluntarily. The law shortened the time limit for this, from 30 to 14 days, which was counted from the date of the delivery of the demand for payment. After the time limit expired, the bailiff could proceed with the seizure of the real estate, the purpose of which was to protect the real estate from the ownerâs actions that could lead to the depletion of the substance of the property and thus to the detriment of the creditors. The order for payment was valid for three months. Following the model of the Code of Civil Procedure, the Act specified in detail the subsequent actions of the bailiff, including the preparation of a seizure report, which was to contain the most important information about the property (location, legal status, tax burden, etc.), and to indicate the legal basis for enforcement. Those claiming seizure had to be represented by an advocate.
The list of persons to whom the bailiff was to deliver a copy of the âseizure protocolâ was expanded to include the debtor-owner of the estate (he was listed there alongside the wójt (commune head) as a representative of the local administration; the scribe of the justice of the peace was omitted). The seizure of the property was to be recorded by the Mortgage Regent in the mortgage books, at the request of the âauction supporterâ. Cracowâs legislator also
The creators of the Act omitted the solution in Article 688 of the Code of Civil Procedure, which allowed the debtor to remain in possession of the property if it could not be leased or rented and the creditors did not object; he then acquired the status of a person subject to judicial sequestration. In the Enforcement Act (Article 90), as was the case in the Code of Civil Procedure, the debtor was forbidden to undertake actions that could cause damage to the occupied property (e.g. cutting down trees), with the obligation to compensate for damages and lost profits; in extreme cases, criminal liability could be imposed for this. It was also very important that Article 698 of the Code of Civil Procedure was omitted, which allowed the property to be adjudicated to the creditor if there were no other bidders.87
Following the model of the Code of Civil Procedure, the law also distinguished between a preparatory and a final adjudication, between which at least six weeks had to elapse. Auctions took place in Tribunal sessions, with the participation of patrons (advocates) and with the use of candles burning for about one minute (as this was the amount of time given to the bidders to make a decision, with each call). It was necessary on this occasion to call three times to purchase the auctioned property. The Act provided for three auction dates, of which the public was informed by means of announcements by the scribe of the Tribunal of First Instance. In addition to detailed information about the property (location, value), the reasons for initiating the procedure and the conditions of the auction, they included a summons to mortgage creditors and other persons with rights in rem to submit documents to the Tribunal confirming these claims. The auction could be considered completed when the estimated price, or, obviously, a higher price, had been offered on the
In another part of the Act one can notice solutions referring to the institution of so-called âoverbiddingâ, regulated in Articles 710â711 of the Code of Civil Procedure. Article 105 of the Act indicated that within one week from the day of the auction anyone could offer for the auctioned property, personally or by a representative, an amount higher by at least one-quarter than the amount obtained through the auction. It was necessary to go to the office of the Tribunal of First Instance with this proposal and to inform the advocate of the person supporting the auction, the debtor and the person in whose favour the âoriginalâ adjudication took place (Article 106). In this case, the final adjudication of the property, either to the winner of the auction or to the âextraordinary bidderâ, was to take place on a date separately determined by the Tribunal (Article 107; equivalent to Article 712 of the Code of Civil Procedure).
The following persons were excluded from participating in an auction, on pain of nullity: court employees (judges, prosecutors, assessors, scribes), advocates representing creditors, and also debtors and insolvent persons. As mentioned, all claims against the property subject to seizure had to be filed before the auction; failure to do so resulted in the inability to assert claims during or after the auction. Failure to pay the bid amount in time could result, at the request of the debtor or creditor, in the auction being repeated at the risk (âat the expense and perilâ) of the late purchaser of the property, but with the asking price preserved. It was then possible to auction the property even below two-thirds of its value. The acquisition of rights to the property was established by the Tribunal of First Instance in the form of a so-called Heritage Decree.
Linked to the issue of auction sales of real estate was the issue of so-called incidental disputes (Articles 114â124 of the Act), which affected real estate owners and third parties, and could adversely affect the effectiveness of an auction sale. They were resolved in an expedited procedure; in the Cracovian Act the provisions of Articles 719â725 of the Code of Civil Procedure were also affected, which dealt with the so-called âconcurrence of enforcementsâ directed to the property of the same debtor or to the same real estate.88 The protection of the interests of mortgage creditors was provided for by Article 115, a variation of the provisions of Article 719 of the Code of Civil Procedure. They
The Enforcement Act omitted some of the detailed solutions of Article 719 of the Code of Civil Procedure. These concerned actions taken when two different seizers applied to the same Court for the seizure of different immovable properties, but belonging to the same person. The provisions concerning appeals against a judgment on the basis of which the property was seized (Articles 726â730 of the Code of Civil Procedure) were shredded, while the solutions giving the possibility to exclude the seized property from an auction were repeated without major changes (Articles 119â122; equivalents of Articles 727â730 of the Code of Civil Procedure). The Enforcement Act also contains provisions concerning pleas of nullity directed against the proceedings preceding the preliminary adjudication (Articles 733â736 of the Code of Civil Procedure). The drafters of the Enforcement Act omitted a number of other important provisions of the Code of Civil Procedure, including those on the debtorâs action for a declaration of invalidity of proceedings conducted after a âprovisional adjudicationâ,91 as well as those concerning the so-called âre-auctionâ92 and the conclusion of agreements between creditors and debtors to conduct a voluntary sale instead of a forced sale.93
Finally, it is worth looking at the final form of the provisions concerning the already mentioned enforcement against the debtor, i.e. the so-called âpersonal enforcementâ. The issue of personal enforcement was dealt with in Title xv: âOn Imprisonmentâ (Articles 780â805 of the Code of Civil Procedure), whose counterpart in the Act was the identically named Title viii. Under the Act, personal coercion in civil cases (âarrestâ) was only permissible for fraud, i.e., in this case, the act of selling real estate of which the perpetrator of the act knew that it was not his property, but also the making of a mortgage entry on such real estate. Misleading the other party as to the alleged absence of a mortgage burden or as to its actual amount was also treated as fraud.95
Personal coercion could also be used, and in principle without limitation, for promissory note and commercial debts (Article 136). Another form was the detention of an insolvent debtor, in the event of suspected escape (Article 137).
In conclusion, it should be noted that the provisions of enforcement law became the subject of work in the last Sejm of the Free City of Cracow in 1844. Although the members of the Sejmâs legislative commission complained about the alleged incompatibility of the Act with the economic realities of the time, the final modifications introduced did not turn out to be too far-reaching. First and foremost, the division of permissible types of enforcement was maintained, although âall other types of enforcementâ were allowed, provided they had been ordered by a final judgment (Article 25). The content of the protocol drawn up by the bailiff in the case of enforcement against movable property was specified (Article 41). The categories of items excluded from seizure were maintained (Article 49). The title âOn Leasingâ, which does not appear in the Code of Civil Procedure, was left in place (Articles 88â94). The catalogue of duties of the caretaker, upon seizure of immovable property, was clarified (Article 111). The penalisation of secret agreements on the occasion of an auction sale of real estate (conspiracy) was introduced, treated as an act of fraud and punished according to the rules laid down for this type of offence in the
Gazeta Krakowska No. 10 of 4 February 1818, 112â113. Also very important to SÅotwiÅski was the facilitation of credit, of which âprivate debenturesâ were an important source. This was supposed to have a positive effect on an âincrease in the circulation of moneyâ. However, he seems to have overlooked the dangers of usury.
It should be noted that the translation of this question from Latin submitted to the deputies is not very clear: âPrenotacja prawa dopiero majÄ cego byÄ ewinkowanego ma miejsce w ksiÄgach hipotecznychâ. In the original, it read as follows: âAn praenotatio iuris primum evincendi in libris publicis locum habeatâ, booklet with questions to the Extraordinary Legislative Assembly of 1816, ank, 29/200/200 (wmk v-1), 679.
Gazeta Krakowska No.10 of 4 February 1818, 13.
And principle three, indicated above in relation to servitudes: âIn the absence of written evidence, the right of servitude shall be acquired after thirty yearsâ.
Gazeta Krakowska No. 17 of 1 March 1818, 196â197. The remaining issues arising from Title xvii: âOn the Statute of Limitationsâ did not concern rights in rem. See Gazeta Krakowska No.18 of 4 March 1818, 205â206.
The previously applicable West Galician Civil Code of 13 February 1797, contained only substantive provisions, saying nothing about the form in which mortgage books were to be kept. The rules for keeping mortgage books in the Duchy of Warsaw were set out in the Saxon Kingâs Decree of 31 August 1809 and the Mortgage Instruction of 21 September 1809. They were in force in Cracow on the basis of transitional provisions of 16 January 1811 (dpkw, vol. 3, 157â173). Fierich 1888, 492â493.
PÅaza 2002, 289â290; Wójcikiewicz 1967, 25â30. The last-mentioned principle determined that the entries and the facts were deemed to be consistent with each other, so that a party acting in reliance on the contents of the entries could be certain that he would not suffer any damage to his property.
PÅaza 2002, 290â291. Modern solutions appeared in Prussia, in the form of the Mortgage Ordinance of 1722, amended by the Ordinance of 1783 and supplemented by the Prussian Landrecht of 1794. See also Górnicki 2002, 169â171.
Malec 2004, 79â81. It was headed by Franciszek B. Piekarski, a judge of the Court of Appeal. The Commissionâs main task was to establish the ownership of properties and mortgage rights, and then prepare drafts of new mortgage lists. In principle, the time limit for implementing this intention expired on 31 May 1826, but it was extended several times. For a detailed account of the work of the Commission, see Malec 2004, 85â96.
Act of 14 (26) April 1818. A detailed description of the Polish Mortgage Act is included in: Wójcikiewicz 1967, 63â72. See also Górnicki 2002, 174â175.
These were: Section i: âGeneral Regulationsâ. Division i. âOn Titlesâ (Articles 1â3). Division ii: âOn Mortgage Booksâ (Articles 4â24); Division ii: âOn Privilegesâ (Articles 25â28). Division i: âOn Privileges on Movable Propertyâ (Articles 29â30). Division ii: ââOn Privileges on Immovable Propertyââ (Articles 31â34); Division iii: âOn Mortgagesâ (Articles 35â49). Division i: âOn Judicial Mortgagesâ (Article 50). Division ii: âOn Contractual Mortgagesâ (Articles 51â57); Division iv: âOn the Abolition of Privileges and Mortgagesâ (Articles 58â66); Section v: âOn Giving Effect to Entries on Immovable Property or Mortgaged Capital Belonging to the Estateâ (Articles 67â69); Section vi: âOn Warningsââ. (Articles 70â78); Section viii: âOn the Gradual Establishment of a New Mortgage Orderâ (Articles 79â93); Section viii: âOn the Publicity of Acts, and the Responsibility of the Regentâ (Articles 94â99); Section ix: âOn the Commission Arranging the Mortgageâ (Articles 100â103); Section x: âOn the Rules of Application of this Lawâ (art. 104).
Fierich 1888, 495 points out the substantial similarity between the provisions of the Act in relation to Articles 2092â2105, 2115â2117, 2124, 2131, 2157â2165 of the nc.
Malec 2004, 83â84. The books were to be kept by the Regent of Mortgage Deeds, from 1844 onwards in cooperation with the mortgage authority. Mortgage books were in use until 1871, when the Austrian General Act on Land Books came into force.
Regulation of the Ruling Senate of 10 November 1826, No. 4788 dgs, DRz.WMK No. 2â3 of 26 January 1827, 5â10. The instruction consisted of 18 articles.
The failure of a duly summoned person to appear resulted in his or her being deemed not to have objected to the draft mortgage list. In the absence of an objection to the draft list, it was signed by the parties.
Regulation of the Ruling Senate of 10 November 1826. Some of the provisions were enacted with a view to safeguarding the interests of the Public Treasury. In the event of an intention to waive a claim owed to the Treasury or a property right of the Public Treasury, the attorney for the Government party was obliged to consult with the senator overseeing the instituteâs affairs. If, on the other hand, the Commissionâs decision was unfavourable to the institute or the Public Treasury, then the attorney could not withdraw from the appeal without the consent of the Senate. The legal basis for this was the Saxon Kingâs decree of 12 February 1812, published in the DRz.WMK of 1816, No. 20, 77â80.
Regulation of the Ruling Senate of 10 November 1826. A separate register of appealable cases was also to be kept; in proceedings before the Court of Appeal the parties were exempt from the stamp duty (entry fee). See also Malec 2004, 88â92.
Malec 2004, 92â95. See the Proclamation of the Ruling Senate of 8 July 1830, No. 3101 dgs, DRz.WMK No. 23 of 17 July 1830, 90: information on the termination of the activities of the Mortgage Commission.
On its activities, see WÄ sowicz 1977, 143â164; WÄ sowicz 1979, 109â147; WÄ sowicz 2017, 41â54.
âIf, of two or more parties summoned, one fails to appear and the other appears, a firm decision shall be suspended, and the judgment so suspended shall be handed to the party failing to appear, appointed by the Burgrave. The handing over will contain a summons for the day on which the case is to be called; there will be only one judgment, against which no objection can be raisedâ.
Judgments of the Court of Appeal of: 27 February 1828, 7 May 1828, 4 June 1828, 27 January 1830, 23 February 1831, ank, 29/200/1769 (wm 296), 113â115, 173â176, 207â209, 497â499, 687â689; of 23 November 1831, 29 February 1832, ank, 29/200/1770 (wm 297), 411â413, 783â785; of 19 June 1833, ank, 29/200/1772 (wm 299), 49â52. The reason was sometimes also the ineffectiveness of delivery.
Judgment of the Court of Appeal of 4 June 1828, ank, 29/200/1769 (wm 296), 221â224.
Judgment of the Court of Appeal of 1 July 1829: ank, 29/200/1769 (wm 296), 303â305. In one case there was a reference to the âordinary way of lawâ: Judgment of the Court of Appeal of 2 March 1831, ibidem, 707â710.
Wyroki hypoteczne SÄ du Najwyższej Instancji od dn. 1 wrzeÅnia 1831 r. do dn. 24 kwietnia 1834 r. zapadÅe, ank, 29/200/1690 (wm 217). Of the cases where the parties were private persons, only in one case was the decision in favour of the plaintiff, and in four in favour of the defendant. In cases where the plaintiff was a private person against the Public Treasury, the latter won twice and lost once (due to failure to appear). Interestingly, when the plaintiff was the Public Treasury, the cases always ended unfavourably for it (nine times). In addition, in two cases a private person as the plaintiff obtained a favourable settlement in a dispute with an institute; the latter was victorious once, also as a plaintiff.
These were: the Act of 26 January 1838, Zmiany w Ustawie hypotecznej z roku 1822, promulgated by the letter of the Ruling Senate of 8 March 1838, No. 466 dgs, DPr.WMK of 1838, whereby document books were introduced; and the Act of 27 June 1844 Zaprowadzenie ZwierzchnoÅci Hipotecznej, promulgated by the letter of the Ruling Senate of 1 July 1844 No. 3002 dgs, DPr.WMK of 1844.
The only available work from the first half of the 19th century devoted entirely to guardianship law is an interesting and competent work by Antoni Malinowski, a notary in PoznaÅ during the period of the Duchy of Warsaw: Malinowski 1811.
Sójka-ZieliÅska 2008, 97â98. On family councils under the nc, see Tkaczuk 2012, 179â185; Machut-Kowalczyk 2014, 49â200.
Especially from the 15th century onwards, there was a clear limitation of womenâs parental authority when it came to the management of childrenâs property, with the result that guardians had to be appointed in the event of the fatherâs death, absence or illness. It was not until the 18th century that womenâs rights were improved in this respect. It was very common for guardians to be appointed in the wills of the nobility; they then had priority over other guardians. After that, relatives were entitled to guardianship, with closer relatives excluding further relatives. In early land law, lotunk was popular, i.e. the auction-based appointment of the guardian who offered the most favourable financial terms to the pupil. In the 16th to 18th centuries, the principle of priority of relatives for guardianship gained predominance. Official guardianship, known as awarded guardianship, was also common: Uruszczak 2013, 307â308; Machut-Kowalczyk 2010, 57â65; Maciejewski 2003, 133â134; Maciejewski 2016, 79â80.
Gazeta Krakowska No. 10 of 4 February 1818, 111â112; booklet with questions to the Extraordinary Legislative Assembly of 1816, ank, 29/200/200 (wmk v-1), 677. The principles of natural law were indicated by Feliks SÅotwiÅski, his adversary was Father Mateusz Dubiecki. By a majority of 29 to two, it was resolved that âA mother is closer to legal guardianship than a paternal grandfatherâ (principle three). It was also decided, this time unanimously, that âA prodigal is subject to custody with the strictest limitationâ (principle four).
Gazeta Krakowska No. 20 of 9 March 1825, 268â269. There was a discussion at that time on the effective exercise of control over the property of minors, the obligation to submit annual accounts of guardianship, time limits for the approval of family councils resolutions by the Court, and the safeguarding of orphan property. Both drafts were reviewed by a five-member Sejm committee.
Act of the Extraordinary Legislative Sejm, Prawo o Opiekach of 31 October 1825 promulgated by the letter of the Ruling Senate of 7 April 1826 No. 1068 dgs, DPr.WMK of 1826.
Title i consisted of the following sections: i: âOn the Various Types of Careâ; ii: âOn an Awarded Guardianâ; iii: âOn Causes Relieving from Guardianshipâ; iv: âOn the Impossibility, Unfitness and Withdrawal of Guardianshipâ; v: âOn the Establishment of a Guardianâ; vi: âOn Accounts and Liability Arising from Guardianshipâ; vii: âOn the Emancipation of Legitimate Childrenâ; viii: âOn the Guardianship of Illegitimate Children and the Emancipation of Such Childrenâ.
The nc only stipulated that at least three-quarters of the members of the family council had to be present at meetings concerning the appointment of guardianship for them to be valid (Article 415).
The Act omitted those sentenced to corporal punishment (but not to âinfamous punishmentâ), a category which was present in the nc (Articles 442â444). See Articles 52â53 of the Act.
Article 98 of the Act also explicitly imposed liability on family council members for any negligence and intentional harm (âdeceitâ) caused to a minor.
Act of 21 June 1844 O zmianie artykuÅu 73 ustawy o Opiekach z 1825 roku, promulgated by the letter of the Ruling Senate of 1 August 1844, No. 2895 dgs, DPr.WMK of 1844, Article 73. If the value of an immovable property did not exceed 1,000 Polish zlotys, the family council was allowed to sell it without an auction, which, however, had to be approved by a resolution of the Tribunal. Auction sales entailed additional costs for the owner.
Minutes of family council meetings: of 4 October 1816, ank, 29/200/2334 (Tryb 137), 99â101; of 25 July 1825, ibidem, 79â80; of 22 February 1828, ibidem, 55â56, 61; of 27 January 1842, ibidem, 1027â1029.
Letter from the Tribunal of First Instance to the Court of the Peace of District ii of 23 March 1842, ank, 29/200/2334 (Tryb 137), 1163â1164; minutes of the Family Council meeting of 12 March 1842, ibidem, 1215â1216, 1221.
Judgment of the Court of First Instance of 3 October 1816, ank, 29/200/1960 (Tryb 157), 87â90.
Judgment of the Court of First Instance of 18 October 18, 1816, ank, 29/200/1960 (Tryb 157), 291â298. The necessity of civil proceedings was indicated in this case by Article 473 of the nc.
For example, between 1 June 1819 and 31 May 1820, 156 in Cracowâs Courts of the Peace in districts i and ii, 156 guardians (97 + 59) were appointed, and 178 family councils (116 + 62) were established. In District iii (MogiÅa), there were only 16 guardianships and 12 family councils, in District iv (Chrzanów) eight guardianships and family councils each, in District v (Krzeszowice) 13. A total of 266 guardianships and 284 family councils were established. Letter of the Court of Appeal to the Ruling Senate of 21 November 1820, ank, 29/200/407 (wmk v-196), 229â232.
In the period from 1 June 1818 to 28 February 1819, there were a total of 141 guardianships and 152 family councils. In the reporting year 1821/22 there were 321 family councils, in 1823/24: 324, in 1824/25: 288, in 1825/26: 438 (of which 275 in Cracow), in 1826/27: 475 (and 392 guardians). In the four-year period 1833â37 there were a total of 2,466 family councils (an average of 616 per year) and 1,967 guardianships (an average of 491 per year). In 1839 there were 617 family councils and 527 guardianships, and in 1843: 798 and 607 respectively. Source: data under Table 1.
âWhichever person holds the custody of the children, the father and mother shall not lose the right to take part in the maintenance and upbringing of the children, and they shall be obliged to do so, in proportion to their abilityâ.
âThe children shall be entrusted to the spouse receiving the divorce, unless the Tribunal, at the request of the family or the Imperial Prosecutor, orders for the greater good of the children that all or some of them be given to the other spouseâ.
Judgment of the Court of Appeal, 28 February 1822, ank, 29/200/1720 (wm 247), 235â236. The court agreed with the fatherâs view that âthe boy needs an education very soonâ, which his mother could not provide him with (âso he does not need female firmness as much as the fatherâs supervision and managementâ). The courtâs decision was also influenced by other circumstances. GieÅgowa was a single mother raising daughters from her first marriage,âwhom she could not manageâ.
âA minor, even if unmarried, may be emancipated by his father, or in the absence of a father, by his mother, when he or she has reached the age of 15 years. Such emancipation shall be effected by the mere declaration of the father, or of the mother, accepted by a justice of the peace, in the presence of his scribeâ.
Judgment of the Court of Appeal of 1 June 1837, ank, 29/200/1758 (wm 285), 1945â1947; resolutions of the family council of 30 April and 18 November 1836, ibidem. In the discussed case, the condition was that the father would not demand that his daughter return home to assist with the running of the farm. The estate due to Romualda Ulrych was estimated at the serious sum of 17,115 Polish zlotys, which, at an interest rate of 5 per cent, gave an annual sum of 855 zlotys.
Article 29: âIn each care, an awarded guardian will be appointed by the Family Council. It will be his duty to act for the good of the minor, in any case when the interests of the minor conflict or contradict the interests of the guardianâ. Article 30: âThe awarded guardian must also report to the family council about any actions of the guardian which could be seen or predicted as having harmful consequences for the minorâ.
Judgment of the Court of the Highest Instance of 8 January 1841, ank, 29/200/1687 (wm 214), no card number. In connection with the above, the Court also ruled the exclusion of the provisions of Articles 96â97 of the Guardianship Law regarding the financial liability of the awarded guardian, including his joint and several liability with the main guardian, provided that the law obliged them to act together.
See e.g. judgment of the Court of Appeal of 14 October 1818, ank, 29/200/1713 (wm 240), 843â845. It concerned the provisions of Chapter v âAbout Care and Guardianshipâ, Articles 164â265 of the same code.
As mentioned, justices of the peace were appointed by the Assembly of Representatives for a three-year term from among candidates presented by municipal assemblies. In practice, they were representatives of local elites: landowners, parish priests, officials and retired soldiers. They were not covered by the increasingly common principle of nomination, because it was citizens who chose candidates for vacant positions, who were then appointed by a designated state authority. Pomianowski 2022, 323â324.
Gazeta Krakowska No.18 of 4 March 1818, 207â208. The relatively small cost of the functioning of the Courts of the Peace was pointed out by Szczepan Lubowiecki, Rev. Jan Dzianotty and Franciszek B. Piekarski. They added that hitherto in cases involving up to 20 Polish zlotys, i.e. relatively minor cases, rural residents had to go to courts in Cracow, which required considerable expenses. Court fees (entry fees) and advocatessâ fees were also significant costs. The applicants also wanted to relieve the Tribunal, which was âoverwhelmed with casesâ, especially criminal ones.
Gazeta Krakowska No. 18 of 4 March 1818, 208â209. Father F. JaroÅskiâs claim was inaccurate because, as the Marshal of the Sejm noted, âparsons were elected as justices of the peaceâ. The Marshal also strongly opposed the idea of having justices of the peace hear appeals against the judgments of wójtowie (commune heads) âthe Constitution designates only one Court of Appeal for all disputesâ.
Gazeta Krakowska No. 18 of 4 March 1818, 209. Judge Jakub MÄ kolski was convinced that in possesorio cases should fall within the jurisdiction of the Tribunal. The Marshal of the Sejm pointed out that âin frequent evictions from properties and inns, for which an authority must be established, and this is most convenient in the Courts of the Peaceâ. This was particularly about the need to âsee the disputed itemâ. F. SÅotwiÅski was convinced that the Courts of the Peace can adjudicate in possesorio cases only if the value of the subject matter of the dispute determined for them is not exceeded.
Gazeta Krakowska No.18 of 4 March 1818, 209â210. With reference to principle No. 3, F. SÅotwiÅski argued that in view of the principle of equality of all citizens before the law (Article iii of the Constitution), it is unacceptable to exclude the possibility of filing an appeal to the Court of Appeal. In such a case, âthe lower classes would have to submit to the arbitrariness of conciliation officialsâ.
Act of the Extraordinary Legislative Sejm of 1 June 1825, Prawo oznaczajÄ ce postÄpowanie przed SÄ dami Pokoju w kraju Rzeczypospolitej Krakowskiey, promulgated by the letter of the Ruling Senate of 31 August 1825, No. 3647 dgs, DPr.WMK of 1826. The Act came into force on 1 December 1825.
Ibidem. Title ix âOn the Appealâ, Articles 58â67. The Act provided for the exchange of letters between the partiesâ representatives. In order to prevent barratry, the requirement to pay a sum of money by the appellant who loses the dispute was introduced.
As with the two concurring judgments of a Court of the Peace and the Court of Appeal, a favourable opinion from the Faculty of Law was then required: Title x. âOn the Appeal to the Court of Last Instanceâ, Articles 68â72. Interestingly, the Court of Third Instance, when examining a judgment of the Court of Peace up to 30 zlotys, ruled on the merits and not as an instance of cassation. Fierich 1917, 233â234.
Title xi: âOn the Enforcement of the Judgments of a Justice of the Peaceâ, Articles 73â84. In cases up to 30 Polish zlotys, enforcement took place with the participation of lower officials of these courts, i.e. ushers, paid from the Public Treasury; the justices of the peace performed their duties without payments; the professional factor was represented in the justices of the peace by scribes, who kept, inter alia, the entry book.
Statut UrzÄ dzajÄ cy SÄ downictwo of 27 August 1833, Chapter ii âOn Courts of the Peaceâ (Articles 2â3). Their seats were located in Cracow (two court districts), MogiÅa, Krzeszowice and Chrzanów.
However, due to the entry into force of the new Constitution of 1833 (Article xviii), appeals could not be brought to the Court of Third Instance in cases below 600 Polish zlotys. In disputes in possesorio brought before a Court of the Peace, if the value of the dispute was less than this amount, the parties were required to specify the exact value. This was aimed at preventing barratry and inundating justices of the peace with trivial cases.
Similarly, the Courts of Peace of the Duchy of Warsaw were very active, settling (in the conciliation departments) an impressive number of around 95,000 cases between 1807 and 1812. The equivalent courts in the Kingdom of Poland dealt with 25,312 cases, and that only in the years 1816â21. Rosner 1988, 661.
Zdanie sprawy o Stanie i PoÅożeniu Kraju Wolnego, NiepodlegÅego i ÅciÅle Neutralnego Miasta Krakowa i Jego OkrÄgu dla Zgromadzenia Reprezentantów 1826 roku, promulgated by the letter of the Ruling Senate No. 4925 dgs, ank, 29/200/407 (wmk v-196), 444â446. This was done on the basis of Article 20 of the Act on the Courts of the Peace.
On the aplication of the French Code of Civil Procedure, see: Broniewicz 1993, 217â221.
âCan immovable property below two-thirds of the estimate resulting from be sold by way of enforcement or not?â. Booklet with questions to the Extraordinary Legislative Assembly of 1816, ank, 29/200/200 (wmk v-1), 709.
It was clearly contrary to the Old Polish institution of so-called potioritas, or âcontest to the estateâ, Królasik 2019, 39â54.
Gazeta Krakowska No. 20 of 11 March 1818, 230.
Gazeta Krakowska No. 20 of 11 March 1818, 230. This calculation gives us an idea of the broad perspective of Ernest Reibnitz, highly likely to be the author of the questions on the issue of enforcement.
Gazeta Krakowska No. 20 of 11 March 1818, 230â235. J. Nikorowicz discussed at length the state of legislation in other European countries in this respect. In Austria, one yearâs personal arrest was allowed, except when âthe debtor, through unfortunate circumstances through no fault of his own, is brought to insolvency, anticipating the commencement of an overlap of creditors, voluntarily and judicially surrenders all his assetsâ. French law generally did not allow personal arrest âin the civil lineâ, except for commercial debts, âmisconduct of a debtor caused by the attitude of the creditorâ and âmaladministration of the public pennyâ. SoÅtykowicz, meanwhile, asked: âOr is it that we live at the time when a debtor could turn into our property, and having become our slave, pay us by forced labour?â. He also pointed to an example from Roman law, which, in the Laws of the Twelve Tables, allowed âto chop into quarters their debtors and to divide among themselves their ragged flesh!â.
Ibidem, 235. Adopted by 16 votes against 12, the Sejm resolution read as follows: âIn commercial matters there shall be enforcement against the person of the debtorâ. The deputies thus agreed with the proposal of the Legislative Committee, although the equal treatment of merchants with other citizens of the Free City of Cracow was demanded by a representative of the Merchantsâ Congregation, Antoni Morbitzer. Father M. Dubiecki retorted that in this type of case personal arrest âshould take place both by common custom and by the nature of the contract under which [the merchant] submitted to this lawâ.
Gazeta Krakowska No. 21 of 15 March 1818, 241.
Code of Civil Procedure, Titles: vii: âOn Notice or Oppositionâ, Articles 557â582; ix: âOn the Seizure of Standing Cropsâ, Articles 626â635; x: âOn the Notice of Items Placed at Rent with Private Personsâ, Articles 636â655; viii: âOn the Seizure of Movable Propertyâ, Articles 583â625; xii: âOn the Seizure of Immovable Propertyâ, Articles 673â717.
Code of Civil Procedure, Titles: xiii: âOn Incidental Disputes in Support of Seizure of Immovable Propertyâ, Articles 718â748; xiv: âOn Classificationâ, Articles 749â779; xv: âOn Imprisonmentâ, Articles 780â805; xvi : âOn Prompt Decisionâ, Articles 806â811.
Title vi: âGeneral Provisions on the Violent Enforcement of Judgments and Deedsâ, Articles 545â556 of the Code of Civil Procedure.
Code of Civil Procedure, Titles: i: âOn the Acceptance of Depositsâ, Articles 517â522; ii: âOn the Settlement of Damages and Lost Profitsâ, Articles 523â525; iii: âOn the Accounting of Productsâ, Article 526; iv: âOn the Passing of Accountsâ, Articles 527â542; v: âOn the Accounting of Expenses and Costsâ, Articles 543â544.
Act of the Extraordinary Legislative Assembly of 17 June 1823, Prawo o egzekucji sÄ dowej, DRRz.WMK of 1823.
These were the following titles: i: âOn Noticeâ; ii: âOn the Seizure of Movable Propertyâ; iii: âOn Proportional Partitionâ; iv: âOn Leasingâ; v: âOn the Attachment of Immovable Propertyâ; vi: âOn Incidental Disputes in Support of the Seizure of Immovable Propertyâ; vii: âOn Classificationâ; viii: âOn Imprisonmentâ; ix: âOn Prompt Decisionâ; x: âOn the Rules of Application of this Lawâ.
These were the following titles: i: âOn the Acceptance of Depositsâ, Articles 517â522; ii: âOn the Settlement of Damages and Lost Profitsâ, Articles 523â525; iii: âOn the Accounting of Productsâ, Article 526; iv: âOn the Passing of Accountsâ, Articles 527â542; v: âOn the Accounting of Expenses and Costsâ, Articles 543â544.
Enforcement Act, Article 3. See Fierich 1917, 191â192. As already mentioned, until 1833, in the case of unanimous judgments, a cassation appeal was possible after obtaining a favourable opinion from the Faculty of Law of Jagiellonian University. This requirement was not provided for judgments differing in content.
Bailiffâs notice, seizure of movable property, lease by public auction, seizure of immovable property and personal arrest were left out (Article 17 of the Act). However, the seizure of standing crops and the notice of the debt owed by the debtor from his tenant for rent were omitted (Articles 626â655 of the Code of Civil Procedure).
These were: items excluded by virtue of law; alimony and temporary court-ordered alimony; and sums and items expressly excluded from seizure in a will or donation (Articles 28â29 of the Act).
These were: bedding, clothing, books and workbench items necessary for the practice of the occupation, including craft tools, flour, etc. food products, for one month, one cow or three sheep together with fodder, grain and straw (Article 36 of the Act).
Articles 46, 49â52, 55â56 of the Enforcement Act.
Articles 58â59, 69â72 of the Enforcement Act. The parties were entitled to appeal against the judgment within ten days of its delivery.
Interestingly, it was introduced almost simultaneously in the neighbouring Kingdom of Poland by means of the Prince Governorâs decisions of 8 July and 2 September 1823, which remained in force there provisionally until 1876, Królasik 2019, 48â51.
This was likely to prevent the undervaluation of property by creditors wishing to acquire goods at the lowest possible price. In the Duchy of Warsaw, this was to be remedied by a decree of the Saxon King of 1811 prohibiting the award of immovable property put up for forced public sale for less than two-thirds of its value.
The division of incidental disputes was introduced by Thomine-Desmazures 1833, 120, cited by Królasik 2018, 137â138.
Negligence was understood in the Act to mean the failure to comply with formalities, or the failure to carry out âany act of conductâ, within the prescribed period. Proof of conspiracy or deceit resulted in compensation for damages and lost profits.
Article 723 of the Code of Civil Procedure provided for a two week time limit.
It was governed by the provisions of Articles 735â736 of the Code of Civil Procedure; the complaint had to be filed at least 20 days before the scheduled âfirm adjudicationâ; the judges were given a period of ten days to examine the objections; an appeal against the judgment thus rendered had to be lodged within one week from the date of its delivery.
It was governed by the provisions of Articles 737â745 of the Code of Civil Procedure.
It was governed by the provisions of Articles 746â748 of the Code of Civil Procedure. In addition, the Enforcement Act omitted quite important general provisions, including those proclaiming that a âfirm adjudication transfers to the purchaser only those rights to property which the expropriated debtor was entitled toâ (Article 731 of the Code of Civil Procedure); as well as a provision on the effects of delaying the announcement of the auction, which required a new suspension of announcements and publication of notices in the press (Article 732 of the Code of Civil Procedure). See Królasik 2018, 137â138.
For a discussion of several cases in this area, see Mataniak 2022a, 258â265.
The use of personal coercion (arrest) was also possible when it came to the return of: a) revenues collected during unlawful possession, as well as compensation for damages and lost profits when a court ordered the return of unlawfully taken land; b) money entrusted to a public person in connection with the performance of official duties; c) money and âtitlesâ entrusted to the Regent of Mortgage Deeds, notaries, advocates, bailiffs and ushers (Articles 133â134 of the Act).
The drafters of the Act left without major changes (in the form of Articles 146â151) the provisions of Articles 780â788 of the Code of Civil Procedure concerning arrest and imprisonment procedures, as well as (in the form of Articles 152â161) Articles 789â805 of the Code of Civil Procedure, detailing the rules for the serving of custodial sentences (the latter provisions approximating in their substance to the penitentiary regulations).
See, for example, letter of the Administrative Council to the Higher Court of 16 July 1846, ank, 29/200/221 (wmk v-22 B), 1295.
Act of 5 July 1844, Prawo o Exekucyi SÄ dowej, promulgated by the letter of the Ruling Senate No. 3108 dgs, DPr.WMK of 1844. The Sejm commission also appeared in the sources under the rather pompous name of âCommittee for the revision of legislationâ. It should be added that minor modifications submitted by the commission were taken into account during the votes. See the letters of the Sejm Committee for Legislative Revision to the Ruling Senate: of 9 May 1844, ank, 29/200/221 (wmk v-22 B), 1399â1401; of 26 June 1844, ibidem, 1501â1512; Projekt do zmian w Ustawie Exekucyjnej, ibidem, 1515â1615.