On the protection of the exploited - reflections on new solutions of exploitation in Polish civil law

Abstract

The considerations in this article concerns the amendment to Art. 388 of the Polish Civil Code made by the Act of December 2, 2021. It was noted that the legislator (and the Act initiator), while interfering with the content of the provision, did not refer to fundamental issues related to exploitation, such as the legal nature of exploitation and the scope of application of Art. 388 of the Polish Civil Code. This article describes the extension of the definition of exploitation by a new feature of the subjective exploited situation, i.e. the lack of sufficient understanding of the other party as to the subject of the contract. It was noticed, inter alia, that the aforementioned premise may be equated with inexperience, and that it should be specified, e.g. by stipulating that the lack of sufficient understanding could not be prior eliminated. In addition, the study analyzed changes in the perception of gross harm (presumption of gross harm), the order of claims and the deadline for pursuing claims. It was found that although the amendment made by the Act of December 2, 2021 goes in the right direction, the provision regulating exploitation may still be debatable.