Statutory right of withdrawal of a synallagmatic agreement – ex consequenti of selected jurisprudence of the Supreme Court in connection with Article 491 par.1, Civil Code

Abstract

De lege lata the Supreme Court consistently presents a view that a withdraval of a contract based on Art. 491 par. 1 cc does not transfer ownership of a real estate (użytkowanie wieczyste as well) back to a seller by itself. The Supreme Court overlooks a background factor that negligent acting of a buyer is better protected than ownership. The author thinks that theoretically it is possible to abandon a syllogistic model of a dispute settelement. Instead, it is worth to try to settle disputes by using a nonsyllogistic model with so called “value balancing”, as proposed by Robert Alexy under the name of a conditional priority principle.