ZGODA ORGANU NA DOKONANIE CZYNNOŚCI PRAWNEJ PRZEZ ZARZĄD SPÓŁKI KAPITAŁOWEJ I SPÓŁDZIELNI. ROZWAŻANIA NA TLE UCHWAŁY SN Z 14 WRZEŚNIA 2007 ROKU
CONSENT OF GOVERNING BODIES OF A COMPANY AND COOPERATIVE FOR LEGAL ACTIONS UNDERTAKEN BY THE MANAGEMENT BOARD. REMARKS ON THE SUPREME ........

Summary/Abstract: The article presents the problem of legal actions undertaken by the management board of a company and cooperative without the consent of their respective governing bodies. The presented issue is nowadays strongly disputed in the Polish civil law doctrine. It has also been treated by the Supreme Court (SC) in the resolution of 14 September 2007 (III CZP 31/07, OSN 2008/2/14). According to the SC, a contract concluded by the cooperative’s management board without the (pre)consent of the general assembly is valid if confirmed by that assembly. The SC allowed in the presented situation the application of article 103 par. 1 and 2 of the Polish Civil Code (CC) per analogiam. The mentioned provision of the CC deals with the institution of falsus procurator. It states that legal actions undertaken by a false proxy (a proxy acting without a mandate or going beyond his mandate) can be validated if the mandatary (principal) confirms such actions. The mentioned resolution of the SC is a significant step and even a breakthrough in the evolution of the concept of moral persons’ incomplete legal actions. In the past such legal actions were treated as void and could not be validated (confirmed) by a moral person. In the presented article the author describes the general rules of the representation of moral persons and the existing regulation thereto. The article shows also the basic difference between a void legal action and the so called negotium claudicans (an incomplete legal action). The author presents the institution of regular representation (executed by a proxy) and the representation of moral persons (executed by management boards) and tries to establish whether the SC’s resolution of 14 September 2007 is applicable also in other areas of civil law, especially in the commercial companies’ law. The author of the presented article approves the examined resolution of the SC. According to the new jurisprudence, a contract concluded by the management board of a moral person without the (pre)consent of that person’s governing body (mainly general assembly) is not void, but only incomplete (negotium claudicans) and can be validated. The author represents the standpoint that there is no significant difference between the regular representati (executed by a proxy) and the representation of moral persons (executed by management boards).

• Details
• Contents