5780447536

52 Toman Pajor

II. Where a thing leascd i$ dcstroycd duc to ctrcumstanccs for which tbc lessor is not liablc. hc/shc is not obligcd to rcstorc it to it> forma State (Art. 662 § 3 Civ.C). In this siluation the car rcntal contract came to an end.²⁰ IIowever_t sinoe the contract was binding upon the partie* for a ccrtain period, such circumstancc must be taken into aocount whik establishing the generał duty of co-operation binding upon thcm.^:ł Thereforc it must be concludcd that RAC should havc cnablcd its former contractor to inspect the wieck in order to establish the influence of the tcchnic* condition of the vchiclc and its possiblc defects on the car crash. Tha: duty was not qucstioned by RAC, which arises from the informatiott forwardcd to Nicholas that hc had 60 days to inspect the car. It ougbt to be noted that this Information crcated. on the part of Nicholas, a sute of legitimate rehance as regards the possibility of inspcction and the timc hc has at his disposal to do it. The fact that RAC allowcd violalion of thH duty amounts to a dclictuaJ fault sometimes referred to as culpa post factum perfectum.

Casc 9

\1r Smith became an employte of ALPHA. as an account manager, hetórą previou*iy been employed by OMEGA and. while so employed. was a membtr of their occupational pension scheme. He was told by ALPHA that ht wat eligible to join the ALPHA occupational penston scheme. As an m-player. hc would. unless hc wished to opt out. be automatically jointi to the scheme and deductions will be taken from his first salary payment Before makmg up his mind. Mr Smith contacls an Insurance Broker. Bosei upon a careless reading of the materials prońded. the Broker raunts tht economic rirtues and performances of OMEGA Pension Fund ("OPF> and suggests that Mr Smith should opt out of the ALPHA scheme ani join the OPF scheme. which he in fact did.

On Mr Smith's death. Mrs Smith, his widów, flndt out that payments frets OPF are 100,000 Euro less than what she would have receired from ALPHA. Mrs Smith sues the Broker.

1. The effeets of the daim of Mrs. Smith against the Broker cannot k foccsccn with absolute ccrtain ty. It appear* tbougb that her daim unóer Art. 415 Civ.C. should be considered wcll founded.

» Scc Art. 495 Ov.C.

^a Cf. oc thi« l«uc - 1. Psjor. "Zakres notowania oUpo^tcdnaieoici kontraktom* w razie wyr/fd/zfna tzkody przed zawarciem lub po wykonaniu umowy" phc *copc i ipplicatioD of ihc cooiractujJ liabikly «n casc of cauunjt <1*iiurc before format ton or do perfrcroancc of a contract), Siudta Prawno Ekonomiczne 1983, Voł. XXXI. p. 49 ti ar*

II. The Broker can bc contractually liable for negligcnce cotnmitlcd while providing advice, yct Ihc contract was betwcen him and Mr. Smith. Nonethckss it is Mrs. Smith who is damagcd. claiming recovcry of hcr own Iosks Basing her clatm on contractual grounds would rcquire her to prove that the contract of Mr. Smith with the Broker was entered into for the bcncfil of the wife as the third party, who thus a u| u i red her own claim for performance (Art. 393 Civ.C.). Such cvidcncc cannot bc produccd bccause Mr. Smith requestcd the Broker for advicc for himself and not for his wife. It should bc stressed that Polish law docs not allow a contract for a third party only with protccticc effeets with protcctivc cfTcct, therefore it is not possible to cxtend contractual compcnsalory protcction to the persons rclated in this way or another to the party to the contract.¹³ Mrs. Smith can only raisc a claim in tort under Art. 415 Civ.C.

In niising this claim the plaintiff must prove that the defendant, acting unentionally or negligently, violated a generał duty binding upon him/her atra-contractually. In the present casc it appears that such esidence would bc possible to produce, smcc the duties of the Broker arc rcgulated in the sututc and therefore bind persons acting in this profeiwion rcgardless of the contract.'^v Thus it can be supposcd that in providmg Mr. Smith with poor advicc. Broker violatcd both his contractual and statutory duties. By rcason of the spccific object of his advicc, Broker musi havc been awarc that its oootent is likcly to havc an esscntial influence not only on the interests of Mr. Smith, but also on the members of his family. Therefore it can bc admitted that negligcncc in providing advicc was dircctcd also against Mrs. Smith

As for the establishment of the causal link. it sccms undisputed that the damage claimed by ber remains within normal conscquences of such negligcncc and, at the same timc, that it docs not constitutc a rcsult of the damage incurred by other person. This mcans that Mrs. Smith can bc coosłdcred a person dircctly injured by the professiona! negligence of the Broker, which substantiates his liability to her pursuant to Art. 415 Civ.C..

ni. KINAL KI1MAKKS

1) As it appears from the foregoing Polish law. although starting from the generał notion of damage (Art. 361 § 2 Civ.C.) and cncompassing the