Odpowiedzialność na zasadzie słuszności a miarkowanie odszkodowania w świetle orzecznictwa i poglądów doktryny

Abstract

In the Polish system of civil law there are three main regimes of liability for damages formed. Liability with or without fault and liability based on the principle of equity. It happens more and more often that the aggrieved party in the purpose of compensating the damage reaches out beyond the direct perpetrator, namely to those who by act of law or on the basis of legal relationship, are obliged to repair the damage for inadequate supervision over general safety or a particular person. However, sometimes the responsibility of such people is excluded or is not an option. For that reason it is important to examine the topic of liability for damages based on the principle of equity which is applied merely to cases specified in the Code, that is Art. 417(2), 428 and 431 CC. Close attention should be drawn to liability for damages on the basis of Art. 428 CC. In this case, the liability is justified in the following cases: 1) supervisory is not established although there are indications for that, 2) lack of indications for establishing the supervisory, 3) a person obliged to supervise shirked his or her responsibility, 4) the residence of the person obliged to supervise cannot be established, 5) the compensation from the person obliged to supervise cannot be obtained due to his or her financial situation or the compensation is incomplete. If the claim of the injured party is justified by principles of social coexistence, he is entitled to demand compensation for the damage from the perpetrator. It is questionable, however, just how much compensation he can demand on the principle of equity. The determination of whether the obligation to compensate should be reduced because of contribution is made by the court in its own assessment and this is its power. In the light of the recent case law of the Supreme Court it is assumed that, “on the basis of Art. 362 CC, to reduce the compensation for a minor who is not liable due to age, it is possible to use Art. 428 CC by analogy when it is demanded by the principles of social coexistence” (judgement of the Supreme Court of 19 March 2014, file ref. I CSK 295/13, Supreme Court Newsletter 2014/7).