Liability for Obligations of a Capital Company in the Process of Formation under Article 13 § 1 of the Code of Commercial Partnerships and Companies: A Partly Critical Commentary on the Judgement of the Polish Supreme Court of 10 September 2020 (V CSK 118/19, LEX no. 3080092)

Abstract

The commented judgement rightly recognizes the need to identify the liabilities of a capital company in the process of formation and their scope. This issue is of particular importance in the context of the possibility to attribute the liability under Article 13 § 1 of the Code of Commercial Partnerships and Companies to persons acting on behalf of the company. The Supreme Court, by distinguishing the obligation (debt) from the resulting legal relationship, and having regard to the legal nature of the contract concluded, assumed that the obligations of the parties had arisen at the stage of limited liability company already formed, which precludes liability from being attributed to a person acting on behalf of the company (the representative appointed by the shareholders’ resolution). The commentary outlines the Supreme Court’s position, with partial criticism thereof.