Concurrence of claims in contract and in tort on the background of Article 443 of the Polish Civil Code : remarks on substantive and procedural law

The article discusses the main problems emerging on the basis of coinciding compensation claims following from ex contractu and ex delicto regimes of liability, i.e. concurrence between the compensation claim for failure or improper performance of an obligation and the compensation claim in tort. This problem is a subject of a multidirectional analysis, both in terms of substantive (in particular Article 443 of the Polish Civil Code) and procedural (Code of Civil Procedure) regulations. The analysis encompasses, inter alia, the question how to approach a situation with concurring claims for compensation. The paper argues that the injured party is entitled to choose the remedy in tort or in contract and evaluates the legal consequences of such a choice by the aggravated party for a lawsuit based on one of the regimes of liability and the limitation period for the concurring claim which is not pursued. The authors discuss also the problem of the scope of permissible interference of the court into the legal basis of the claim to be adjudicated. There are also some remarks about the concurring claim which does not become the legal basis for the judgment in the particular case. Considerations are enriched by comparative law and historical remarks (the latter made with regard to the Code of Obligations). The authors also address the very controversial issue in the legal doctrine which is the question whether the contractual provisions may exclude the possibility of raising claims in tort and what are the limits of such interference.