Page 44

AD ALTA

JOURNAL OF INTERDISCIPLINARY RESEARCH

The admissible scope of the specific legacy in terms of its
objects has been identified in Article 981

Section 2 of the Polish

Civil Code

. The object may be:

1) specified as to its identity,
2) transferable property rights,
3) enterprise or agricultural farm,
4) usufruct or servitude established in favour of the legatee.

The above makes us believe that the legislator has provided for a
closed catalogue of things (rights) that can be an object of the
specific legacy. The enumerative nature of the definition
describing objects of the specific legacy has caused many
reservations among representatives of the doctrine. E.

Skowrońska-Bocian claimed that “such regulation may raise
doubts since statutory enumeration of objects that cannot be
covered by the specific bequest seems to be more proper”

. In

literature, we can also encounter different views which should be
suitably divided. The regulation introduced should be regarded
as positive because it closes the discussion on what else can be
an object of the specific legacy. It also demarcates a clear border
between what can be an object of the specific bequest and what
can be an object of the regular bequest. It is worth adding that
“this list, despite being of enumerative nature, is very broad and
in principle allows us to bequeath all specific assets of the
property by means of the specific bequest”

Another very important issue within the context of the subject
touched upon in this paper is the attempt to define the meaning
of notions used by the legislator in Article 981

Section 2 Items

1,2,3 and 4 of the Polish Civil Code. The scope of use of the
institution of specific bequest of a thing specified as to its
identity, transferable property right, enterprise or farm, usufruct
or servitude established in favour of the legatee will depend
exactly on the interpretation of the above-mentioned notions.
Without any verbal changes to Article 981

Section 2 of the

Polish Civil Code, you may differently shape its scope by
employing various definitions of designata of these regulations.

2.1

Object of specific bequest – a thing specified as to its
identity

Among representatives of the doctrine, considerable doubts were
aroused by the listing of things specified as to their identity in
Article 981

Section 2 Item 1 of the Polish Civil Code with

simultaneous indication of transferable property rights in Article
981

Section 2 Item 2 of the Polish Civil Code

. P. Sobolewski

in his legal opinion on the governmental bill amending the Civil
Code and certain other laws (

Opinia prawna o rządowym

projekcie ustawy o zmianie ustawy – Kodeks cywilny oraz
niektórych innych ustaw) pointed out that “ownership of a thing
specified as to its identity is a transferrable property right, which
means that things mentioned in Article 981

Section 2 Item 1

simultaneously constitute an element of Article 981

Section 2

Item 2”, and he suggested that “Article 981

Section 2 Item 1

should be crossed out, and Item 2 supplemented with a
clarification that the object of the legacy may be transferable
property rights except the ownership right to fungibles”. All that
have led to a search for motives that had induced the legislator to
use such solution.

The phrasing used in Article 981

Section 2 Item 1 of the Polish

Civil Code is a linguistic convention of the civil code commonly
used by the legislator. The term of a thing specified as to its
identity should be understood as a thing i.e. a material object
(Article 45 of the Polish Civil Code). According to well-

E. Skowrońska-Bocian, Komentarz do kodeksu cywilnego. Księga czwarta. Spadki,

Warszawa 2011, p. 185; K. Osajda, [in:] Kodeks cywilny. Komentarz. Tom III, Spadki,
(ed.) K. Osajda, Warszawa 2013, p. 571 and next;

P. Księżak, Podstawowe problemy

zapisu windykacyjnego, Kwartalnik Prawa Prywatnego 2011, no. 4, p. 1065 and next;

J. Turłukowski, Zapis windykacyjny. Komentarz, Warszawa 2011, p. 29 and next.

E. Skowrońska-Bocian, Komentarz do Kodeksu cywilnego. Księga czwarta. Spadki,

Warszawa 2011, pp. 185 - 186.

P. Księżak, Zapis windykacyjny, Warszawa 2012, pp. 95 - 96.

P. Sobolewski,

Opinia prawna o rządowym projekcie ustawy o zmianie ustawy –

Kodeks cywilny oraz niektórych innych ustaw, Zeszyty Prawnicze Biura Analiz
Sejmowych Kancelarii Sejmu 2010, no. 4, pp. 104 - 105.

established views of the doctrine, it is a part of nature in its
original or processed form, separated from others (naturally or
intentionally) in a manner that allows it to be treated individually
within social and economic relationships expressed by property
law, law of obligations or others

. Because of the adopted

criterion, it further differs from fungibles in that it has individual
features, exclusively typical of that thing, or that it is a thing
clearly designated by parties to a legal relationship. To be more
precise, writing about a thing specified as to its identity always
means an ownership right to an individually designated object

Such form of Article 981

Section 2 Item 1 of the Polish Civil

Code is a consequence of the principle that only an
individualised thing can be the object of ownership. The
legislator’s direct reference to things specified as to its identity
in the regulation may be seen as a prohibition of designating
fungibles as objects of the specific bequest. Such non-acceptance
can be also justified by difficulties in designating what exactly is
the object of the specific legacy in this case

. In the justification

of the bill, it was argued that “making fungibles (things /rights)
belonging to the testator the object of the specific legacy would
require their specification e.g. by a transfer of possession which
has a dispositive effect, and leads to the acquisition of things
(rights) by the legatee”. This limitation is completely well-
grounded because of the fact that the object of the specific
legacy passes to the legatee on the opening of the succession. To
transfer the ownership of fungibles, it is required that such
fungibles are isolated and their possession transferred to the
acquirer (Article 155 Section 2 of the Polish Civil Code). In the
light of the existing prescriptive regulations, it is difficult to
indicate a person who would perform such specification.

Moreover, the necessity of specification of the object of the
specific legacy in order to acquire its ownership after the
testator’s death would stand in contradiction to the transfer of
ownership on the opening of the succession, and consequently in
contradiction to the essence of the specific legacy. For similar
reasons, such obligation cannot be imposed on the executor of
the will as referred to in Article 990

of the Polish Civil Code.

It means that the object of the specific legacy on the opening of
the succession should be adequately individualised so not to
arouse any doubts. Adoption of such solution, however, does not
exclude difficulties in differentiating between fungibles and
things specified as to their identity, in particular because of the
fact that this division is conventional. On numerous occasions,
the classification of an object under things specified as to their
identity is based solely on the will of parties. A lot depends on
the accuracy with which parties individualise a given thing, since
the thing itself may be regarded sometimes as belonging to
fungibles and sometimes to things specified as to their identity.
In literature, it is commonly established that the requirement of
individualisation is met when things are designated in a manner
allowing for their assignment to beneficiaries of specific
bequests on the opening of the succession

Moreover, in literature it is often underlined that the criterion for
“things specified as to their identity” does not coincide with the
notion of “non-fungibles” (things that are not interchangeable). It
means that interchangeable things can be the object of the
specific legacy, if they are sufficiently individualised, and the
legatee can become their owner on the opening of the
succession

. There is another argument in favour of this stand,

namely the obligation saying that a thing being the object of the
specific bequest should demonstrate individual treats can be
understood in two ways. Individual treats may be possessed not
only by one of a kind unique things i.e. not interchangeable
objects such as sculptures or pictures of a specific artist. There

W. J. Katner [in:] System Prawa Prywatnego, Tom 1, Prawo cywilne –

część ogólna

(ed.) M. Safjan, Warszawa 2012, p. 1299.

J. Turłukowski, Instytucja zapisu windykacyjnego w prawie polskim, Warszawa

2014, p. 166.

The justification of the bill, p. 9.

S. Wójcik, F, Zoll, [in:] System Prawa Prywatnego, tom 10, Prawo spadkowe (ed.)

B. Kordasiewicz, Warszawa 2013, p. 425.

Ibidem.

- page 44 -