Law in Changing Circumstances: Evolution of Liability for Succession Debts in Poland
The complex nature of the law of succession reflects various arguments of an historical, ideological, political, economic, social and legal nature. The provisions of the law of succession are deeply rooted in the nature of national private law systems. The law of succession is a synthesis of other parts of the national private law system and results to some extent from regulations of other parts of private law. Despite this, there are significant similarities between succession law provisions among European civil law systems. The law of succession responds to universal and Europe-wide problems. Its purpose is to determine who is to continue or succeed to the legal personality of the deceased, and to determine the legal and economic consequences of this mortis causa transition. Different legal institutes1 have been developed in various national systems to solve similar problems. The fact that according to the Roman law tradition successors are liable for succession debts sets the framework for, and determines the contours of, the provisions on the liability for succession debts in civil law systems. These provisions determine the proprietary and financial consequences of a succession and reduce the economic risks associated with the untimely death of creditors and debtors. The shape and function of such provisions are, however, designated by the political and economic priorities of national legislatures. These factors determine the character and specificity of the system of liability for succession debts.
The evolution of the Polish rules on the law of succession in the twentieth century reveals how significantly various legal and extra-legal factors influenced the shape of the Polish system of liability for succession debts.
The first codification of the Polish law of succession arose in the turbulent period of the first half of the twentieth century, and can be understood in the context of the nineteenth-century European codifications which influenced it, among which were the German Bürgerlisches Gesetzbuch (BGB), the French Code Civil (FR CC) and the Austrian Allgemeines Bürgerlisches Gesetzbuch (ABGB). Since these codes were already applicable in different areas of modern-day Poland, they provided an obvious starting point and defined the contours for codification when Poland unified in 1918.
The mix of different influences can be explained by historical fact. From the second half of the eighteenth century (1772) onwards, Poland was gradually partitioned and annexed to the Russian Empire, the Kingdom of Prussia and Habsburg Austria. The territorial divisions were altered in 1807 by the French Emperor Napoleon who created the Duchy of Warsaw. The annexed regions or districts of the divided state were subjected to five different legal systems. The territory of Western Poland, incorporated into the Prussian confederation – later to be transformed into the German Reich, was governed by the BGB. The Austrian ABGB was applied in the south. The French Code Napoléon2 was in force in the Duchy of Warsaw. In the Eastern part of Poland annexed by Russia, certain parts of the Russian Code of Laws (Svod Zakonov, Vol. X, part I) were applied. In addition, a small southern part of Poland was governed by Hungarian customary law.3 After the First World War, when the Polish Republic was finally restored (1918), the newly reborn state did not have a uniform civil law code. There was also no willingness to extend any of the applicable Western codifications to the united territory.4 The need to create an autonomous, unified legal system arose as one of the fundamental conditions of the resurrection of the Nation State of Poland.5
The lengthy process of harmonisation and codification of Polish civil law was launched by a settlement of the Codification Commission in 1919.6 The new codification of the law of succession was initially considered as a priority.7 The first draft of the succession liability rules was published by Henryk Konic as early as 1924.8 The proposed rules were explicitly modelled on the district laws applied in Poland (in particular the BGB, the ABGB, the Code Napoléon) and the Swiss Civil Code (ZGB).9 However, the lack of a single political vision in the Polish government regarding further reforms of property and succession law slowed down the legislative activity in this area.10 This meant that the project never became the subject of broad legislative debate.
The provisions on liability for succession debts were finally subjected to discussion during the Third Congress of Polish Lawyers in 1936.11 Two different concepts regarding limitation of liability for succession debts by Stefan Wróblewski and Kazimierz Przybyłowski were presented to the public.12
The idea of codification was only revived again in 1945, after the end of the Second World War. The duality of concepts proposed in 1936 reappeared in the post-war codification proposals.13 The law of succession was finally codified in the Succession Decree of 1946 that came into force on 1 January 1947.14 The Decree of 1946 was criticised as being a compilation of major continental European Codes, instead of an autonomous and original work. Critics pointed out the inadequacy of the legislative patterns employed when compared with the state of the Polish economy, society, customs and laws. Undoubtedly the Polish codification arose under the influence of four commonly accepted legislative systems, formally autonomous but interacting one with another.15 The codification proposals were strongly supported by comparative analysis, which covered among other issues, the model of devolution of inheritance, the scope of succession debts and duties, the scope of entities bearing liability, and the institutes modifying the general rules of liability and limiting the scope of liability.16 Recourse to existing major European codifications, like the German BGB, French Code Napoléon and Austrian ABGB, was common in the codification process, and this was reflected in its results.17 This consequence was natural since all these Codes had replaced or supplemented previous Polish law during the time of partition and were, in the transition period, still in force in different districts of Poland. In addition, the Swiss ZGB provided a source of model provisions. The Polish legislature modelled the provisions of the new Decree on European codifications, but did not import their rules.
Succession Decree of 1946: Codification or Compilation?
The Polish legislature followed the Western systems as to the main civil law approach and principles of the law of succession. The Western models were, however, not merely transposed into the Decree. There are various examples from the general structure of the system of liability for succession debts, as well as of separate legal institutes, which demonstrate that the Western systems served as a source of inspiration for the Polish legislature in the new codification tempered by appropriate modifications in line with contemporary economic and social needs.
The primary objective of the Decree was the adoption of the Roman concept of universal succession. Despite the fact that the concept was followed by all of the systems referenced, only the French and the Austrian codes clearly mentioned that debts are transferred to the successors, while the German and Swiss codes mentioned in general that the succession is transferred, without specifying whether the transfer refers to active or passive components of inheritance.18 The Polish legislature avoided this apparent imprecision by stating in Article 1 of the Decree that the inheritance consists of all rights and obligations of the deceased and in Article 4 that the succession consists in transferring the inheritance as a whole to successors. The principle of universal succession was clearly indicated by the Polish legislature as a mechanism justifying the successor’s liability for succession debts.
Pursuant to Article 3 § 1 and Article 32 of the Decree, successors become liable at the moment of the deceased’s death, according to the doctrine le mort saisit le vif 19 which is similar to that followed by the German and French systems, but not by Austrian law, where the inheritance is regarded as hereditas iacens,20 from the moment of deceased death up to the moment of a formal statement of acceptance by the successor.
Some differences existed between the referenced systems concerning the liability of co-successors. The German and Austrian Codes followed the path of joint and several liability of co-successors, which lasts until the partitioning of the inheritance. After the partitioning of the inheritance successors were liable in proportion to their inherited shares. Under French law, co-successors were liable proportionally to their shares in the succession from the opening of the succession.21 The Decree, similarly to the French Code, rejected joint and several liability and provided that co-successors were liable proportionally to their shares in the succession.22
The essential difference among the European codifications lay in the limitation of liability for succession debts. The German, Austrian and French systems adopted the general principle of unlimited liability, contrary to Russian law, where the liability was in principle limited.23 The Polish legislature adopted the prevailing principle of unlimited liability. Despite the uniform principle of unlimited liability, the actual level of liability profoundly differed in the various legal orders. Each system created an original mosaic of legal instruments restricting or modifying the unlimited liability. The aim of these instruments is to balance the degree of protection against the economic effects of succession between creditors and debtors of the succession, and the personal creditors of successors.24 Their composition reflects the social, political and economic objectives of the national legislature.
Pursuant to French and Austrian law, the successor was allowed to limit the liability of succession debts at the moment of acceptance of the succession, by acceptance cum beneficio inventarii.25 However, the consequences of the acceptance cum beneficio inventarii differed in Austrian and French law. Under French law, the successor who accepted the succession with the benefit of an inventory was only liable for debts up to the value of, and only of, the assets of the inherited estate.26 According to Austrian law, the liability was limited up to the value of the inherited estate, but burdened the entire estate of the successor, unless the two estates, that is, that of the successor prior to the succession and the inherited estate, were separated.27 The acceptance cum beneficio inventarii was not recognised in the German legal order, where successors were allowed to reject or to accept the succession, and the inventory was used for securing the inheritance, not for limiting liability.28 In Germany the basic institute for limiting liability for succession debts was the public convocation procedure (convocation of creditors).29 The convocation was recognised in the German and Austrian legal orders.30 All of the referenced systems provided for other subsequent instruments to protect successors against the economic results of an over-indebted succession. The German legislature limited the liability of successors through the specific mechanism of prescription for claims brought later than five years after the devolution of the succession.31 The German and French law-makers allowed the successor to escape from liability by transferring the inheritance to creditors,32 but the conditions of these institutes were different in each of the systems. The German legislature was the only one that provided for insolvency proceedings.33 The French, Austrian and Swiss legislatures proposed the liquidation system instead of the highly complicated and costly insolvency procedure.
Contrary to French, Austrian and German law, the Polish Decree provided a simplified system of liability for succession debts. In accordance with leading Western codifications the Polish legislature adopted the principle of unlimited and personal liability for succession debts. However, following the French, in preference to the Austrian model, the Decree entitled the successor to accept the succession cum beneficio inventarii.