Causal share as a decisive determinant of the amount of recourse claims among multiple tortfeasors

Bibliogr. s. 88-89

The article contains a polemic with the position of many Polish legal scholars who prefer to use the fault factor to determine the recourse claims in lieu of the causal effect of individual harmful events contributing to one undivided damage. Such a tendency results from the fact that recourse claims between multiple tortfeasors serve de facto a repressive function, which in opinion of the author lacks sufficient theoretical foundations. As regards the de lege lata solution, the purpose of the article consists therefore in drawing attention to the need for a more balanced application of both criteria mentioned by the legislator in Art. 441 § 2 of the Civil Code, i.e. the criterion of fault and the criterion of causal participation. The de lege ferenda recommendations are also formulated in the article. In this respect, the view is expressed that despite the difficulties highlighted in the literature related to the formulation of criteria decisive for the amount of contribution claims in relations between multiple tortfeasors liable for the same damage, one can identify a factor that should be decisive in this respect. In the author's opinion, the only criterion adequately indicating the amount of contribution claims between multiple tortfeasors liable for the same damage is the causal effect of the individual detrimental factors that contributed to the occurrence of one undivided damage. The future Polish regulation should aim towards the admission of this criterion. This issue is also connected with the postulate of the repeal of Art. 441 § 3 of the Civil Code formulated in the introductory part of the article.