Commentary on the decision of the Supreme Court of 21 August 2019, I CSK 349/18 — remarks on the necessity of delivering the declaration of will to the addressee in the required specific form

Abstract

The subject of the gloss is the judgment of the Supreme Court of 21 August 2019, I CSK 349/18, in which the opinion was expressed that “if, under pain of invalidity, a specific declaration of the will made to another person is required to be made in a specific written form, then in order to assume that it has been made and has produced legal effects, it is necessary to deliver to the addressee the original of the letter containing the declaration of will”. Despite the fact that this sentence is in line with the position prevailing both in the jurisdiction and in the literature, the author of the gloss draws attention to the need to verify the arguments that led to its formation. For this purpose the author analyses the motives indicated in the justification of the judgment, including the position of the Supreme Court cited in its resolution of 20 February 1967, III CZP 88/66. Finally, she comes to the conclusion that the categorical nature of the thesis referred to in the appendix is unjustified. This is supported not only by the lack of a specific provision resulting in an obligation to deliver a declaration of will to the addressee in the form required for its submission under pain of invalidity, but also by the functional interpretation of the provisions on submitting declarations of will. The
author points out that a copy of the letter containing the declaration of will fully secures the interest of the addressee, which is expressed in the possibility to become fully acquainted with the fact of making the declaration and its content.