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The Concept of Modern Law

Polish and Central European Tradition

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Edited By Michał Peno and Konrad Burdziak

This book contains texts prepared by representatives of various branches of law, philosophers and dogmatists who link a general reflection on law with caselaw. This ensures that the presented approaches are versatile and insightful, and that the addressed issues vary, the most important of which is the oeuvre of the Polish jurisprudence and its contribution to building a modern state and legal theories. The context exceeds beyond a simple report on or presentation of this oeuvre and, in many cases, it only refers to it.

The primary aim of this book is to determine, as follows: 1) the source (at least the potential source) of modernist solutions in the Polish law, 2) the realness of the modernist character of the said source and 3) the refection of these modernist solutions in the currently binding Polish law.

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Sensus Spiritualis of Polish Civil Law – A Few Words on the Autonomy of the Will

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The discussion of the role and significance of the autonomy of the will in the doctrine of civil law does not bring about much controversy in this branch of law.1 It is universally accepted that in the light of the autonomy of the will participants in civil law transactions may, within the boundaries of the law, freely shape their legal situation.2 Whereas the main, though not the only, tool allowing turning the postulates resulting from this principle into reality, that is the possibility of creating legal relationships binding on the parties, is a legal act.3 Usually, the autonomy of the will rises to the rank of a civil law pillar, and is mostly conceived as one of the fundamental principles of this branch of law. Unfortunately, rarely are normative arguments confirming this phenomenon pointed to. One may get the impression that communis opinio doctorum it is an issue so obvious that it does not require any reasoning. Anywhere the consensus of the parties is necessary to bring about legal effects, naturally the autonomy of shaping this legal relationship also occurs. Despite such profound significance of ←121 | 122→this institution in mutual relations between civil law entities, the legislator did not express it directly in any provision of the Civil Code – contrary to the principle of freedom of contract, which has been explicitly pronounced in Article 3531 CC since 1990. For these reasons, one needs to ponder whether in the current legal state one should talk about legal autonomy...

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