The proposal for the rebus sic stantibus clause regulation preapared by the Jagiellonian Univesity Civil Law scholars : a critical analysis

Over the past years the Polish Ministry of Justice, supported by the civil law scholars has been working on a new Polish Civil Code. Among many drafts prepared so far, an important role is played by the project of the law of obligations (entitled "Performance and Remedies for Non-Performance of Obligations"), delivered by the Jagiellonian University scholars, as it significantly deviates from the current law of obligations. The provision originally presented in the abovementioned project has been modified in the course of the works on the new Civil Code. The article deals with the provision on the so called rebus sic stantibus clause and discusses both versions of the regulation. However, not all the questions that might arise while analysing this problem are covered. Since the prerequisites of application of the rebus sic stantibus clause seemed to be the most problematic matter under the current regulation, the article focuses on the conditions that have to be met in order to apply the clause. A general overview as to the effects of rebus sic stantibus clause application is also to be found. Thus, it addresses the scope of the circumstances that might trigger the court's intervention in the legal relationship between the parties to a contract. Moreover, the condition, under which the change of circumstances must be the one that could not reasonably have been taken into account at the time of the conclusion of the contract, is analysed. Finally, it is argued that the applicability of the clause should not necessarily be limited to cases when the change of circumstances has occurred once the contract has been entered into. The comparison of the proposed regulation to the current one leads to the conclusion that the original version of the proposal is more comprehensive. Moreover it is in line with the current tendencies in the European private law. The same does not entirely hold true for the modified version.