A ‘mixed legal jurisdiction’ is typically a legal order where the common law and civilian traditions intermingle. So says the primary comparative legal literature (H.P. Glenn, Legal Traditions of the World, 5th ed., Oxford 2014, p. 375; V. Palmer, Mixed Jurisdictions Worldwide, 2nd ed., Cambridge 2012, p. 6, 19-92). However, the mixité may equally concern the intermingling within a particular tradition. As time goes by, the formal ingredients of the legal ‘receipt’ become less legible, but the taste of the meal will always be particular. While certainly less spectacular, such mixtures offer an inspiring lesson for legal comparatists.
À propos, in Interwar Poland, jurists became comparatists by necessity. They were all trained at the universities of former pre-1918 empires (i.e., the Austro-Hungarian, the German, or the Russian Empires) and gained their professional experience in different legal jurisdictions. At the dawn of Polish independence in November 1918, five different legal orders were in force in the territories from which the Polish Republic was born. Integration was the first problem to face (see N. Davies, God’s Playground. A History of Poland, vol. II, Oxford 1981, pp. 401-402; cf. A. Zamoyski, Poland: A History, London 2009, p. 297). There immediately appeared the question: what next?
A challenge posed by the need for legal unification was common for the newly emerged nation-states of Central Europe. All of them emerged as ‘patchwork’ states sewn together from territories governed by diverse civil codes of former empires (see M. Löhnig, in: M. Löhnig/St. Wagner [eds], “Nichtgeborene Kinder des Liberalismus?” Zivilgesetzgebung im Mitteleuropa der Zwischenkriegszeit, Tübingen 2018, pp. 363-365). The Polish experience, however, is remarkable for two reasons: firstly, no particular civil code has been chosen as a starting point; secondly, among countries of the region, Poland was the first to achieve codification. In this sense, Polish private law can be found to be exceptional.
Compared with the western parts of the continent, where the evolution of legal doctrine can be said to have been continuous and the civil codes developed organically, the same codifications were imposed vertically in the Polish territories. Throughout the 19th century, when the national legal systems in Europe were taking shape, Poland remained divided between the Empires of Prussia (Germany), Russia and Austria. In the central territory of Poland, where Napoléon Bonaparte established a satellite state known as the Duchy of Warsaw, the French Code civil was introduced in 1808, and a law school for its implementation was founded. The French law remained in force despite the Russification of law that followed the national uprisings (1831, 1863). At the end of the 19th century, the Code civil was one of the few distinctive features of the most Western Polish provinces of the Russian Empire, with the last remaining traces of its application in Poland removed only after WWII. In the Western territories of Poland, initially the General Laws for the Prussian States (Allgemeines Landrecht,ALR) and subsequently the German BGB were introduced. On the other hand, the Southern territory of Poland applied the Austrian General Civil Code (Allgemeines bürgerliches Gesetzbuch, ABGB). The Digest of Laws of the Russian Empire (Swod zakonow Rossijskoj impierii), in force in some parts of Eastern Poland, and the Hungarian customary law in Spis and Orava, had only a minor impact on the newly created Polish law.
In 1918, three options were at the table: the return to the old Polish law as it was applied until the partitions of Poland (1772-1795); the extension of one of the existing legislations onto other parts of the new country; or the creation of a distinct new legal system. The first option was quickly rejected as the uncodified, outdated, and partially customary law of the Polish-Lithuanian Commonwealth could not satisfy the requirements of modern society anymore (cf. Z. Nagorski, Codification of the Civil Law in Poland (1918-1939), in Studies in Polish and Comparative law, ed. by W. Komarnicki and others, London 1945, p. 44). Therefore, the Polish legal tradition appears as a broken tradition whose watershed came at the time of the country’s partitioning. The second option was rejected instantly as no consensus could have been drawn among politicians and jurists from the different parts of Poland, each striving to impose their own (and known) law. Attorneys from Cracow opted for the ABGB, judges from Warsaw for the updated Code Napoléon, whereas notaries from Poznań were already used to German provisions. Therefore, the first decision of the Codification Commission, established in 1919 by the parliament, was to create Polish law anew.
The Law of Obligations
The law of obligations is the only part of private law codified during the Interwar period. The major political changes initiated after WWII did not influence it. The necessity of starting from the law of obligations can be explained by the basic requirements of the country’s economy overcoming legal fragmentation in everyday transactions. The Code of Obligations of 1933 is considered the most distinctive achievement of the Polish legal science of that time. The law of obligations was unified just after the new structure of courts was introduced and the Code of Civil Procedure (1928) went into force.
Foreign laws inspired the Codification Commission in its work by necessity. References to borrowed regulations that inspired the Codification Commission can be found in other works published in that period (in part. R. Longchamps de Bérier and L. Domański). These publications were based on earlier drafts of the Code of Obligations prepared at the Jan Kazimierz University in Lwów by E. Till and R. Longchamps de Bérier (1923, 1928).
Despite numerous borrowings, the drafters of the Code of Obligations were determined to make it as modern and responsive to the influential doctrines of that time as possible. Many substantive innovations found their way into the Code of Obligations. Distinctive for the Polish Code are i.a., the regulation of hardship (art. 269) and original solutions for cases of inequality in exchange (art. 42). A specific doctrinal compromise is visible in the regulation of the transfer of ownership in the movable property (art. 155-157; see I. Adamczyk/J.F. Stagl, Der Eigentumserwerb an Fahrnis im polnischen Recht, RabelsZ 86  Issue 2, pp. 473-501). By way of another example, in the framework of contracts, the Roman conception of a loan as a real contract was abandoned, even though it was accepted in all precedent codifications, except the Swiss one and the Franco-Italian Project of the Law of Obligations and Contracts of 1927; however, in the Polish Code of Obligations all the contracts, except deposit, are consensual.
Furthermore, as far as the method of regulation is concerned, the Polish Code was guided by the French, Austrian and – in particular – Swiss method of legislating through principles instead of the German method of providing a precise solution for every possible case. The unification of the law of obligations was considered at this time essential for the economic development, as the experience of its codification in, for example, the USA, Germany, Switzerland, and the Nordic countries, demonstrates. Being neither purely Romanic nor purely Germanic, the Polish Code was also an outcome of the intense circulation of legal models on the European continent (cf. R. Sacco, Circolazione e mutazione dei modelli giuridici, in Digesto delle Discipline Privatistiche. Sez. Civ. II (1988), pp. 365-370] and of a comparative approach (cf. W. Dajczak, Die Privatrechtsentwicklung in Polen nach 1918, ZNR 41 (2019), pp. 47-64). It was, moreover, a work of compromise. With these features of the process, the Code of Obligations was designed, together with some other Polish codes promulgated between 1928 and 1934, as a code which could have been promulgated in any European country (H. Slapnicka, Österreichs Recht außerhalb Österreichs. Der Untergang des österreichischen Rechtsraums, Wien 1973, pp. 20-21). Moreover, it has been considered ‘the first truly European codification’ (F. Ranieri, Europäisches Obligationenrecht, Wien-New York 2009, p. 106) due to it being a mixture of Germanic and Romanic codification concepts. Nowadays, the paths of legal transplants and influences embodied in the Code of Obligations have become an object of a new research project by Prof. Tomasz Giaro, Dean of the Law Faculty at the University of Warsaw (the National Science Centre research project The Historical Roots of the Polish Law of Obligations). The project aims at identifying which solutions of the -Romanic and Germanic legal systems have been explicitly absorbed into the current Polish law of obligations and creating a digital database, which will include digitised versions of materials and protocols of the Codification Commission from 1919 until the enactment of the Polish Civil Code of 1964.
While the vividly disputed Franco-Italian Draft Code of Obligations and Contracts of 1927 or the Swiss Code of Obligations of 1912, both praised for their modernity and social appearance, played the role of model legislation, the drafters of the Polish Code of Obligations also wished their ideas to join the transnational discussion on the modernisation of laws. From the very beginning, preliminary drafts, authors’ drafts and final projects were translated into French, German, English or Italian (see the digitalised collection of documents, a joint project of the University of Warsaw and University of Zurich, https://rwi.app/iurisprudentia/de/polor/directory/static [accessed 18th July 2022]). Apart from the Commission members’ efforts, numerous foreign scholars saw the usefulness of involving the Polish code in their national discussions. Henri Capitant, Louis Josserand and Henri Mazeaud, Rudolf Rauscher, Stanislav Dnistrjanskyj and Ernst Swoboda, Udo Rukser, Heinrich Freund and Friedrich Korkisch or Yosif Fadenhecht commented upon in law journals and books, respectively in: France, Czechoslovakia, the German Reich and Bulgaria. In a sense, the Polish Code of Obligations, being a fruit of pragmatic comparisons between Western codes, has been received in the legal discussions of other emerging legal orders of Central and South-Eastern Europe (see country reports in M. Löhnig/St. Wagner ).
Needless to say, the Polish Code of Obligations, followed by the Civil Code of 1964, was not created in a historical vacuum. The substantive body of law was an outcome of sustained development of Polish legal concepts, initiated already on the grounds of several European civil codes (of the partitioning states and the Swiss one). In this way, the Code of Obligations gathered direct inspiration from several continental legal families.
Polish private law is often defined as a ‘hybrid system’, lying midway between the Romanic and the Germanic legal families, even if it has recently ‘moved closer’ to the latter. It belongs to the youngest layer of modern legal systems in Europe. As such, a formally autonomous Polish private law only started to develop after the re-establishment of Polish statehood in 1918, a development that reached its zenith in 1933 with the adoption of the Code of Obligations. This process was violently interrupted by the outbreak of WWII in 1939. As for 1933, the Code of Obligations was the first genuinely European codification, in the sense of deliberate fusion and modernization of ideas descending from various civil codes of Europe. As the European nature of the Code is concerned, the same holds for the post-war developments up to the Civil Code of 1964, which was the next major stage in the history of Polish Private Law. Even if promulgated under communist rule, this well-regarded piece of legislation was grounded to a large extent upon the experience acquired during the interwar period of 1918-1939. Without a doubt, the unbelievable talent and diligence of the Interwar jurists, not to mention their admirable (albeit naïve) enthusiasm for the modernising force of codification, remain a true cornerstone of the Polish (mixed) legal tradition.
Posted by Dr. iur. Aleksander Grebieniow (assistant professor, University of Warsaw – a.grebieniow[@]wpia.uw.edu.pl) and Dr. hab. Jan Rudnicki (associate professor, University of Warsaw – j.rudnicki[@]wpia.uw.edu.pl)
The publication was written within the research project no. 2021/41/B/HS5/03842 funded by the Polish National Science Centre.
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Suggested citation: A Grebieniow and J Rudnicki, “A Mixed Jurisdiction in the Middle of Europe? Poland’s Interwar Experience 1918-1939”, BACL blog available at https://wp.me/p80U0W-1k2
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This piece belongs to the “Cross-jurisdictional dialogues in the Interwar period” series dedicated to less-known legal transfers which have had a palpable impact on the advancement of the law. The Interwar period was a time of disillusionment with well-established paradigms and legislative models, but also a time of hope in which comparative dialogue and exchange of ideas between jurisdictions thrived. The series is edited by Prof Yseult Marique (Essex University) and Dr Radosveta Vassileva (Middlesex University).