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farm. It is fundamental to solve issues expressed in the following
questions. First of all, we need to determine whether in the case
of the specific bequest of a agricultural farm or enterprise we are
dealing with a bequest of its specific component parts i.e. things
composing given agricultural farm or enterprise and rights
related to its operation, or it is a bequest of a agricultural farm,
enterprise/ farm as a set of organized elements, or perhaps we
should adopt a different construction of the bequest: “a bequest
of the right to a agricultural farm” and “a bequest of the right to
an enterprise” assuming that such right can be isolated under the
present legal system. Answers to questions posed in this manner
have a considerable significance for determining legal and actual
effects of the specific bequest of a agricultural farm, enterprise
on individual elements composing them.

2.4 Object of specific bequest – a usufruct or servitude
established in favour of the legatee

Under cited Article 981

Section 2 of the Polish Civil Code, it is

possible to make a specific bequest of two limited property
rights – usufruct and servitude

. This regulation has caused

doubts of terminological nature that were voiced already at the
stage of assessment of the governmental bill introducing the
institution of specific bequest. Reservations were presented by P.
Sobolewski who claims that “the phrasing that »the object of the
specific bequest can be a usufruct or servitude established in
favour of the legatee« is at variance with the meaning assigned
to the notion of »an object« (legal transaction/legal relationship)
in civil law. The object of a legal transaction/legal relationship is
a specific class of items (e.g. things) or rights (e.g. transferable
property rights), and such meaning of the object is employed in
Article 981

Section 2 Item 1,2 and 3 of the Polish Civil Code”

At the same time, the author suggests that Item 4 of Article 981

should be replaced by Section 3 added to Article 981

which

would say that the specific bequest may incorporate also
establishment of limited real rights – usufruct and servitude.

Nevertheless, it seems that despite all the doubts expressed, this
issue does not require any correction. We need to take into
account that Article 981

of the Civil Code does not indicate any

object of a transaction or legal relationship in the true sense of
the word, but it indicates only the object of the testamentary
disposition

. Moreover, the doctrine presents views that there is

“an agreement establishing usufruct”. For instance, A.
Sylwestrzak writes that “under the doctrine, establishment of
usufruct is often tantamount to establishment of usufruct on the
basis of an agreement”

. It brings us to the conclusion that the

object of the agreement establishing usufruct is the actual
usufruct.

The option of making usufruct and servitude objects of the
specific bequest should be evaluated as positive. Taking into
consideration the fact that usufruct extinguishes at the moment
of death of the testator, it would be impossible to bequeath
existing usufruct by means of the specific bequest. In addition,
the fact that usufruct is non-transferable, its establishment is
impossible on the grounds of Article 981

Section 2 Item 2 of the

Polish Civil Code referring to the category of transferable
property rights. Under Article 299 of the Polish Civil Code,
personal servitude extinguishes at the latest upon the death of the
entitled person. Predial servitude cannot be a separate object of
transactions since it is connected with the ownership right to the
dominant tenement. If the dominant tenement is the object of the
specific bequest, predial servitude will also pass to the
beneficiary of the bequest. In the event where the object of the
specific bequest is a real property encumbered with servitude,
such servitude will encumber the beneficiary of the bequest. On

Usufruct can be imposed on immovables, movables and rights, servitude can be

imposed only on inmmovables. Encumbrance of things specified as to their identity
and fungibles is also possible.

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, p. 105.

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

2014, p. 201.

A. Sylwestrzak,

Użytkowanie. Konstrukcja prawna, Warszawa 2013, p. 122.

the opening of the succession, the legatee will become the
subject of the real right encumbering the thing which belonged
to the testator. Similar implications occur in the case of personal
servitude.

In this place, it is worth it to refer to the regulation of Article
981

of the Polish Civil Code which corresponds to Article 981

Section 2 Item 4 of the Polish Civil Code. The cited norm
clarifies that if the object of the legacy is usufruct or servitude
established in the legatee’s favour, the legacy is ineffective if at
the time the succession is opened the property item which was to
have been encumbered with the usufruct or servitude did not
belong to the estate or the testator had been obliged to dispose of
it. While the option of establishing usufruct and servitude by the
testator within the freedom of administering his property is not
questioned, making effectiveness of their establishment
contingent upon the thing being part of the estate is particularly
debatable. The literal meaning of the regulation and the phrase
“did not belong to the estate” used in it lead to important
consequences. In such case, it is impossible to bequeath a thing
by means of the specific legacy and encumber it with usufruct at
the same time since such thing does not enter the estate. Such
interpretation meets with many objections, because it is difficult
to find a reasonable answer to the question why a specific asset
of the testator’s property can be encumbered with usufruct when
entered into the estate and cannot – when subject to the specific
legacy. The drawn conclusion is that the used form should be
rather construed as a legislative defect rather than a well-
thought-out legislative provision with a substantive justification.
In literature, some believe that “in this regulation »the estate«
should be understood as the testator’s property”

, to be more

precise “the property that on the opening of the succession was
owned by the testator, and not the mass of the succession that
will pass to the testator’s heirs (after taking into account singular
succession of things covered by specific bequests)”

. In

summary, the estate in Article 981

of the Polish Civil Code

should be understood as everything that belongs to the testator
and is subject to both universal and singular succession. Such
interpretation demonstrates that it is not significant who acquires
the right to the thing – whether an heir or a beneficiary of the
specific bequest – but that the thing on the opening of the
succession belongs to the testator, by which structural coherence
is maintained.

It is worth it to underline the constitutive nature of such
regulation. The usufruct and servitude established in the
testament will become effective only on the opening of the
succession, and from this time onwards the beneficiary of the
specific bequest may exercise his entitlements. Additionally, we
need to emphasize that you cannot encumber the legatee with a
payment for establishing the usufruct or servitude, since the
specific bequest cannot constitute a source of liability for the
legate.

What is more, source literature points out that this provision is
ineffective if on the opening of the succession the testator was
only a co-owner of the thing encumbered with servitude/
usufruct

. It seems, however, that such stand is groundless. This

opinion was rightly criticised by S. Wójcik and F. Zoll, who
stated that “in this case it would be better to allow for conversion
of such regulation into usufruct encumbering only the share”.
The situation where the testator is not the owner of the thing on
the opening of the succession is not identical to the event where
he is its co-owner. Nevertheless, it is difficult to talk about
conversion, perhaps we can talk rather about establishment of
usufruct/servitude on the share in the thing belonging to the
testator

. Simultaneously, we need to allow for a partial

ineffectiveness of the specific bequest with regard to the share
not belonging to the testator since servitude/usufruct cannot be
established on such share.

J. T

urłukowski, Instytucja zapisu windykacyjnego w prawie polskim, Warszawa

2014, p. 203.

P. Księżak, Zapis windykacyjny, Warszawa 2012, p. 123.

Ibidem, p. 124.

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

2014, p. 207.

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