Published: 2021-09-25

Mutual Agreement on the Legal Grounds for Performance as a Prerequisite of ‘condictio ob rem’

Marek Sobczyk
Zeszyty Prawnicze
Section: Artykuły
https://doi.org/10.21697/zp.2021.21.3.01

Abstract

The roots of the contemporary concept of performance for a specific purpose which has not been achieved, as regulated in Art. 410 § 2 of the Polish Civil Code, go back to the Roman concept of condictio ob rem. In this paper I deal with one of the basic prerequisites of its application, an agreement between the parties concerned as to the legal grounds for performance, its juridical character, contents, function and purpose. This kind of agreement cannot be regarded as a legal transaction, it does not generate claims (enforceable obligations), even if it refers to the conduct expected of the recipient of the given performance. Condictio ob rem cannot be applied in actionable claims on the grounds of a contract. In the condictio ob rem agreement, the parties determine the purpose of the performance and its prospective legal grounds, which will be applicable if and when the purpose of performance is achieved. If the purpose is not achieved, the giver may claim the restitution of his performance, because it has not met the predetermined legal grounds. The condictio ob rem agreement gives the grounds entitling the recipient  to retain the performance until such time when it is clear whether or not the purpose has been achieved. The popular view in Polish case law and civil law doctrine that the purpose of condictio ob rem performance may refer only to an unenforceable mutual performance expected of the recipient is too narrow. In fact, the purpose may refer to any future licit event or state of affairs and should be distinguishable from the giver’s motive. The giver’s intention to accomplish the purpose of the performance should constitute the effective cause of his action, without which performance cannot be achieved. Unlike the giver’s motive, the purpose must be known to and approved by the recipient, at least per facta concludentia.

Keywords:

unjustifed enrichment; undue performance; performance for an intended purpose; condictio ob rem; agreement as to the legal grounds for performance.

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Citation rules

Sobczyk, M. (2021). Mutual Agreement on the Legal Grounds for Performance as a Prerequisite of ‘condictio ob rem’. Zeszyty Prawnicze, 21(3), 7–50. https://doi.org/10.21697/zp.2021.21.3.01

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