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stamps as on the date of making the will as well as stamps
acquired later until the opening of the succession. Without a
doubt, such solution will express the will of the testator –
collector whose intention was to hand over the whole collection
of stamps systematically enriched with new elements. Any other
solution would lead to a conclusion that the testator needs to
update his will systematically each time he purchases stamps. It
would be, however, too time-consuming and too expensive.

If the testator – collector when defining the object of the specific
bequest designates only the set of stamps possessed at the
moment of making the will by listing only them in the testament
without adding the stipulation that the object of the specific
bequests extends to stamps purchased in the future, items bought
thereafter are considered to be a part of the estate. If the testator
wants to hand over the stamps systematically acquired after
drafting the will, he should make further specific bequests
covering newly purchased stamps and indicate their legatee.

Often source literature also points out the fact that an
individualised subset separated from fungibles can be the object
of the specific bequest

. Such opinion is correct. Such bequest

will be effective if the testator in a sufficiently precise manner
isolates the subset bequeathed from the set. The object of the
legacy passing to the legatee on the opening of the succession
cannot raise any doubts.

2.2 Object of specific bequest - transferrable property rights

Another object of the specific bequest listed in Article 981

Section 2 of the Polish Civil Code may be also transferrable
property rights. It is a quite wide category covering, among
others: ownership rights, perpetual usufruct, rights to intangibles
of proprietary nature, stocks, bonds and other securities,
cooperative member’s ownership right to residential premises,
receivables. Transferability of a right should be assessed as on
the opening of the succession. Similarly as in the case of things
specified as to their identity, here as well it does not matter
whether the bequeathed right exists, whether it is transferable
and whether it is a part of the property of the testator at the
moment of making the will. The opening of the succession is the
time taken into consideration. Such right cannot, however, be
excluded from transactions.

Such shape of the regulation lead us to the conclusion that the
object of the specific bequest cannot be a non-transferable right
such as usufruct, personal servitude, right of first refusal or buy-
back right, rights whose non-transferability results from legal
validity of legal transactions, even if they are shaped as
hereditary. It leads to significant practical consequences. For
example, the testator – the stamp collector – during times of
crisis becomes short of means. In order to obtain financial
resources, he decides to sell a part of his collection of stamps,
reserving the buy-back right hoping for a better economic
situation in the future. In the meantime, he makes his daughter
the specific legatee of his stamp collection. Under applicable
prescriptive regulations, the testator could not bequeath to his
daughter the buy-back right since it is non-transferable, although
hereditary. The buy-back right, because it is non-transferable,
cannot be the object of the ordinary bequest, and consequently
heirs will not be able to deliver such bequest. In the event of
death of the testator, such right will become a part of the estate
and heirs will be able to execute it. From this perspective, the
adopted solution can be criticized. More suitable would be
accepting hereditary rights rather that transferable property rights
as objects of specific bequests. It is difficult to find justification
for the view that a hereditary right which is non-transferable
cannot be the object of the specific bequest. In literature, many
suggest that Article 981

Section 2 of the Polish Civil Code

should be wider interpreted by referring to teleological
interpretation, which would allow for bequeathing non-

M. Kowalewska, M. Panek, Przedmiot zapisu windykacyjnego w praktyce

notarialnej – wybrane zagadnienia, Rejent 2012, no. 10, pp. 102 - 104.

transferable rights that are hereditary

. Such concept seems to

be too far-reaching and for now can be only a de lege ferenda
proposal.

We need to assume that within the present legal system, it is not
permitted to bequeath by means of the specific bequest rights
which are non-transferable, although hereditary, despite the lack
of structural obstacles which occur in the case of the ordinary
bequest, for instance. In consideration of the above, a proper
amendment of the regulation should be suggested.

2.3

Object of specific bequest - an enterprise or agricultural
farm

The object of the specific bequest can be also an enterprise or
agricultural farm. Combining these types of estate in one item is
not random. Enterprises and agricultural farms are sets of
material and non-material components functionally connected
with each other in order to conduct a specific business activity.
What is more, in the majority of cases both enterprises and
agricultural farms change over time. Expanding the scope of the
conducted business activity or production activity changes their
composition. Over time, some component parts are replaced by
others, some are purchased or established, others vanish
irretrievably. For that reason, crucial issues are common for
enterprises and agricultural farms. Considering the subject of the
article and space limitations, I will just mention occurring
problems. They, however, deserve a separate dissertation since
the topic is vast.

Even before the enactment of the amending act introducing the
institution of specific bequest into Polish law, recognising such
types of estate like an enterprise and agricultural farm as objects
of the bequest caused many reservations. In literature, some
pointed out practical problems related to insufficient separation
of elements of an enterprise or agricultural farm from the
property of the testator, which in turn may entail evidential
difficulties in indicating what assets make up the property

After introducing the bequest with an effect on real rights whose
object can be a agricultural farm established under Polish law,
similar doubts were voiced by A. Stempniak. The author claimed
that “there can be some doubts when defining certain property
rights and classifying them under an enterprise or agricultural
farm subject to the specific bequest”

. On the other hand, Z.

Truszkiewicz believes that „while the specific bequest of
separate rights may be considered uncomplicated, the specific
bequest of an enterprise or agricultural farm is a very complex
legal transaction”

. We need to agree with the above-mentioned

views. Undoubtedly, making a specific bequest of a agricultural
farm in the notarial testament as well as later execution of the
testator’s will may turn out to be very complicated in practice.
There is a significant difference between a specific bequest of
one or several things and a bequest of an estate with complex
and changeable composition.

Under Polish law, there is no universal notion of an enterprise or
agricultural farm. Even from the perspective of the Civil Code,
this concept has not had a uniform nature. Similarly, the
introduced regulations concerning the specific bequest do not
establish any particular principles on the basis of which we could
specify its object in the form of a agricultural farm. This issue
refers us back to definitions of the enterprise and agricultural

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

B. Kordasiewicz, Warszawa 2013, p. 427.

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. 106 - 107.

A. Stempniak, Nowelizacja Kodeksu cywilnego w zakresie prawa spadkowego,

Monitor Prawniczy 2011, no. 12, p. 631; E. Gniewek,

O niedopuszczalności zapisu

windykacyjnego przedmiotów majątku wspólnego małżonków, Rejent 2012, no. 1, p.
22.

Z. Truszkiewicz,

O niektórych skutkach zapisu windykacyjnego przedsiębiorstwa

lub gospodarstwa rolnego, Rozprawy z prawa prywatnego oraz notarialnego [in:]

Księga pamiątkowa dedykowana profesorowi Maksymilianowi Pazdanowi, Warszawa

2014, p. 399; P. Księżak, Zapis windykacyjny gospodarstwa rolnego [in:] Z zagadnień

prawa rolnego, cywilnego i samorządu terytorialnego. Księga jubileuszowa Profesora

Stanisława Prutisa, (ed.) J. Bieluk, A. Doliwa, A. Malarewicz-Jakubów, T.
Mróz,

Białystok 2012, p. 510.

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