Legal grounds of liability in know-how contracts : defects of the subject of performance and other types of breaches of contract

Bibliogr. s. 41-43

The main topic of the article is an analysis of the legal grounds of liability in know-how contracts in the system of the Polish private law. The author focuses on the defects of the subject of performance and other examples of breaches of a contract. In Polish practice in the field of new technologies, protection of technical solutions by know-how is used much more often than protection granted by patents. However, this kind of contracts has not been regulated in the Polish legal system. Consequently, determination of the legal regime concerning liability in know-how contracts requires application of the general principles from the private law and the detailed provisions of the Polish Copyright Act. In the author's opinion, the main defects of know-how can be characterized as physical defects, legal defects and specific defects related to the part of know-how protected under copyright law. Each of the above-mentioned defects determines a different legal basis for the liability of the contracting party. The detailed analysis concerns also other specific types of breach of contract, in particular prior user right and rebus sic stantibus clause. The article contains proposals de lege ferenda for implementation of know-how contracts in the Polish civil code, which in consequence will render the legal regime of liability under these agreements much more effective and clearer.