https://doi.org/10.31261/PPPM.2023.33.06
The District Court in Kielce asked the Supreme Court to resolve the following legal question: “Does the participation of a witness, confirming the principal’s action with his signature, belongs — pursuant to Article 25(1), second sentence, of the Act of 4 February 2011 Private International Law (i.e. Journal of Laws 2015, item 792) — to the scope of the law applicable to the form of the power of attorney granted in the State of
Illinois (USA) concerning the transfer of ownership of real property located in Poland?”. The Supreme Court refused to deal with the question, but indicated at the same time that, in the light of Articles 23 and 25 PIL Act, the applicable law for the assessment of a power of attorney is the law of the State of Illinois being the law of the place whereit was made (the law of the place where the legal act was performed — lex loci actus).
Furthermore, the Court pointed out that in posing the question, the Regional Court did not make exhaustive findings as to the content of the applicable law. The decision of the Supreme Court raises unease. In particular, doubts concern the Court’s finding that, for the purposes of resolving the legal issue presented to it, it is necessary to first prejudge the meaning and function of the requirement under consideration and the reasons for its establishment, as well as the consequences of the failure to comply with it under the law applicable to the form. The legal issue presented to the Supreme Court could have been resolved on the basis of the qualification made against the background of Article 25(1) PIL Act. For it was not necessary to undergo a detailed analysis of the provisions of the Illinois Power of Attorney Act and to determine the role of a witness to the granting of a power of attorney regulated by these provisions. The participation of witness in the legal act performed by the principal falls within the scope of the law applicable to the form of the legal act within the meaning of Article 25(1), sentences 1 and 2 PIL Act. The role of a witness in the case under consideration is to confirm with his/her signature that a power of attorney has been granted in his/her presence and that the principal has affixed his/her signature to the content of the declaration by which he/she grants this power of attorney. In this legal action, the witness plays a role similar to that of a notary public, whose participation in the execution of the action is also required, which is not disputed as a requirement covered by the law applicable to the form.
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Vol. 33 (2023)
Published: 2024-03-19
10.31261/PPGOS
English
Język Polski