NADUŻYCIE ZARZUTU PRZEDAWNIENIA ROSZCZENIA O NAPRAWIENIE SZKODY NA OSOBIE
ABUSE OF THE DEFENCE BASED ON THE LIMITATION OF CLAIM TO REDRESS PERSONAL HARM DUE TO LAPSE OF TIME

Summary/Abstract: Limitation of tortious claims due to the lapse of time always rouse moral dilemmas. The lapse of time deprives the injured of the means to compensate his/her loss, thus protecting the person responsible for the tort. The mechanism of limitation of claims due to the lapse of time is however indispensable, since it plays an important role in economical relationships. On the other side, it may occur that limitation of claims due to the lapse of time will be grossly unjust. Especially when the loss is revealed many years after the tort has been committed. In such circumstances defence based on the limitation of clams may be declared by the court to be an abuse of rights. One of the most important conditions for a defence based on a limitation of claims to be declared an abuse of rights is an exceptionality of circumstances. Taking into consideration the special features of the torts resulting in personal harm, the Highest Court and the Constitutional Tribunal judgements, different opinions of the jurisprudence, the wording of the former article 442 of the Polish Civil Code and the new article 442 of the Civil 1 Code, the vague state of law regulations on limitation of claims due to the lapse of time may constitute an exceptional circumstance, thus enabling the court to declare the defence based on limitation of claims to be an abuse of rights.

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