Paulian action — protection of the creditor in the event of insolvency of the debtor

The essence of the Paulian complaint

The Paulian complaint is simply a means of protecting the creditor in the event of disloyal behaviour of the debtor. It ensures effective satisfaction of assets which, as a consequence of the legal action taken against the creditor, exit or enter the debtor's property (yes: judgement of the Wrocław territory Court of 13 November 2019. Ref. Act XII C 2164/18).

The Paulian action is that when, as a consequence of the legal act of the debtor with the injured creditors, a 3rd organization has obtained a property benefit, each creditor may request that the action be regarded as ineffective in relation to him, if the debtor acted with the awareness of the injury to the creditors, and the 3rd organization was aware of it or, with due care, could find out (Art. 527 §1 kc).

Purpose of the Paulian complaint

The intent of the Pauline action is to extend the creditor's right to collect claims from the debtor's assets by allowing enforcement to be carried out in order to satisfy claims from certain items which, following the legal act, have been included in the property of a 3rd party. The action so allows the above-mentioned effects to be addressed and at the same time strengthens the protection of the claim (yes: ultimate Court judgement of 28 November 2014). Ref. I CSK 33/14).

Similarly, the ultimate Court stated in its judgement of 3 February 2005. Ref. Act II CK 412/04 stating that the intent of the Paulian action is to enable the creditor satisfaction of 3rd organization assets to the degree that it would have been effective in relation to the debtor had he not disposed of his assets or resigned from enlargement.

A court ruling taking into account the action constitutes a material and legal condition for a 3rd organization to be obliged to act in specified a way as to enable the creditor to get what he could anticipate in the event of the execution of a claim from the debtor's assets.

Reasons for applying the Paulian complaint

The grounds for the right to benefit from Paulian protection are:

• the existence of a legitimate interest of the creditor in the form of claims,
• the debtor has acted with a 3rd party,
• damage to the creditor due to legal action by the debtor,
• the debtor has acted with the awareness of injury to the creditor,
• gaining a 3rd party’s property benefit as a consequence of this activity,
• action of a 3rd organization in bad faith.

For effective usage of the Paulian complaint all of the above conditions must be combined (yes: Poznań Court of Appeal in judgement of 19 September 2019. Act mention I ACa 338/19). For the effectiveness of the Paulian action it is essential to prove to the court the existence of specified conditions.

Paulian action and the creditor’s claim

The first of the essential grounds for the Pauline action is the entitlement of the appellant to a cash claim against the individual who has carried out the legal action subject to the ineffective request (Article 527 k.c.). A characteristic feature of specified a claim is the anticipation of forced implementation. The existence of a contested claim refers to a claim which arose until the debtor’s legal action was taken with a 3rd party.

On the another hand, the creation of a claim as a power to request a circumstantial conduct is linked to a legal event which is the origin of the debtor's work and the date of its execution. If the time limit is defined by a legal act or act, it shall constitute a feasibility obligation. In case of non-determination, compliance with the work is subject to a request from the creditor pursuant to Article 455 k.c..

The court ruling on the creditor’s benefit of a certain amount is not of a constitutional nature, but confirms, in view of the dispute between the parties, the existence of the claimant’s claim and the first date for payment of interest, that the claim is due. It does not deserve to share the view that, for the intent of establishing the existence of the first condition provided for in Article 527(1) k.c. (assignment of the appellant's money claim against the individual who carried out the legal act covered by the request for ineffectiveness), the date of the finality of the judgement for the benefit of the creditor is of decisive importance (yes: ultimate Court judgement of 28 November 2014) Ref. I CSK 33/14).

Legal activity of the debtor with the detriment of creditors

One of the reasons for the application of the Paulian complaint is that the creditor is injured (Article 527(1) kc). The legal activity of the debtor is done with the detriment of creditors if the debtor has become insolvent or has become insolvent to a higher degree than before the action (Article 527 §2 kc).

The specified fact that a legal act is carried out does not straight affect any rights of the creditor, as it only results in the insolvency of the debtor. Consistently, the debtor insolvent is the 1 whose ability to pay has been distorted; as a consequence of a transfer of assets, the assets of the assets from which the execution can be carried out are not present. The alleged injury can be attributed primarily to the unpaid action of the debtor (yes: judgement of the Court of Appeal in Warsaw of 13 September 2013, Ref. Act I ACa 480/13).

The harm is caused by the debtor's assets which origin the debtor's inability, impediment or hold to satisfy the creditor. At the same time, it is pointed out that the actual insolvency of the debtor, assessed according to the occurrence of the creditor with the Paulian action and the time of judgment (see ultimate Court judgments of 28 November 2001, IV CKN 525/00, non-publ; of 22 March 2001, V CKN 280/00, non-publ; of 29 June 2004, II CK 367/03, non-publ; of 15 June 2005, IV CK 806/04, non-publ).

The actual (objective) nature of the debtor's insolvency means that the debtor is incapable to satisfy the creditor, even if the second is assisted by a state coercion in the execution procedure. It is crucial to examine the existence of a condition for the injury to the creditor, whether, in the event that the debtor has acted, the creditor cannot satisfy himself with the possible equivalent obtained by the debtor from a 3rd organization and, in the absence of that equivalent or inability to satisfy it, whether or not the creditor would actually have been satisfied (yes: ultimate Court judgement of 14 February 2008). Act No II CSK 503/07).

Indeed, the ultimate Court, in its judgement of 13 October 2006, III CSK 58/06 (not published), pointed out that the fact that the debtor himself obtained an equivalent from a 3rd organization as a consequence of the contested action does not destruct the state of injury to the creditor if the creditor was not able to get the satisfaction of the protected claim from the equivalent (a third-party common benefit). Even in specified a situation, the debtor's property regulation could lead to insolvency, since the debtor's equivalent of the regulation does not let the creditor to satisfy the enforceable protected debt.

In its judgement of 22 October 2004, Case II CK 128/04, LEX No 577583, the ultimate Court stated that, in order for the debtor to be regarded as having suffered harm to the creditor, he must constitute — either alone or in conjunction with another events — a conditio sine qua non as defined above, insolvency or increased insolvency of the debtor.

If, therefore, the inability to full satisfy the claim is besides possible without the debtor having carried out the contested legal action, the action for ineffectiveness should be dismissed. (yes: ultimate Court judgments of 13 October 2006, III CSK 58/06, OSNC 2007, No 9, item 138, of 31 January 2007, II CSK 384/06, LEX No 253405, of 28 June 2007, IV CSK 115/07, of 14 February 2008, II CSK 503/07).

The ultimate Court, in its judgement of 28 November 2021, No. IV CKN 525/00 lex No. 53110, indicated that the harm to creditors was caused by the fact that the debtor’s assets were ineligible, impeded or deferred.

Regional Court in Wrocław in judgement of 13 November 2019. Ref. Act XII C 2164/18 supports the position presented in the judicature, indicating that the insolvency referred to in Article 527(2) of the Code is simply a current (at the time of the ruling) failure to comply with the monetary liabilities. It means specified an nonsubjective condition of the debtor's assets in which the execution carried out in accordance with the provisions of the civilian Procedure Code cannot satisfy a monetary debt claim as the creditor is entitled to the debtor. For the creditor to benefit from the Paulian complaint, it is adequate to show that it was impossible to satisfy that creditor’s claims against the debtor’s assets. The harm arises from specified a condition of the debtor's assets which results in the inability, obstruction or postponement of the satisfaction of the creditor (yes: ultimate Court judgement of 29 June 2004, II CK 367/03, ultimate Court judgement of 24 January 2000, III CKN 554/98, LEX No 52736).

It is irrelevant to measure the merits of the application for a suit from the Paulian action whether, at the time of the action, the contested action was the only 1 of the reasons for insolvency, i.e. whether the insolvency was solely a consequence of the contested action (yes: judgement of the ultimate Court of 2 October 2007, II CSK 323/07, LEX No 319245; judgement of the ultimate Court of 9 April 2010, III CSK 273/09, LEX No 602265).

The Court of Appeal in Warsaw in its judgement of 5 April 2013, I ACa 1250/12 considered that the insolvency referred to in Article 527(2) of the Act was not synonymous with the absence of any assets on the part of the debtor. It is adequate that the legal act distorts the debtor's payment capacity and favours 1 of his creditors (LEX No 1312107).

Moment of establishing the debtor's insolvency on the Paulian complaint

The insolvency of the debtor shall be assessed for the minute erstwhile the creditor has made a complaint with a Paulian complaint, not for the minute erstwhile the action is carried out. (Yes: ultimate Court judgement of 16 December 2011, IV CSK 35/11, lex No 1130304; judgement of the Łódź Court of Appeal of 8 July 2015, I ACa 69/15, lex No 1799952).

The debtor is insolvent or insolvent to a higher degree within the meaning of Article 527(2) of the Code where the state of his assets is specified that he prevents the creditor from full or partially satisfying the debtor’s claim by way of enforcement (yes: judgement of the ultimate Court of 24 January 2000, III CKN 554/98, LEX No 52736).

Is the debtor's assets in specified a state, is assessed by the time of judgement (Article 316 of the Code), therefore, it is not adequate for the debtor's assets to be in a position that does not let the creditor to full satisfy his claims only at the time of the debtor's legal action and proceedings for its ineffectiveness (yes: ultimate Court judgments of 14 February 2008, II CSK 503/07, LexPolonica No 2136371, and of 28 June 2007, IV CSK 115/07, LexPolonica No 2424261).

Payment of legal action

The judicature assumes that the concept of payment within the meaning of the provisions of the civilian Code governing the Paulian claim should be understood in rule full equivalent of the asset benefit. The economical value of the 2 benefits depends primarily on the payment or unpaid activity. A different explanation could make illusory protection; an unpaid act would be replaced by an act in which the benefit of 1 organization would correspond to the provision of the other, but with an disproportionately lower value (so: ultimate Court judgement of 16 September 2011 IV CSK 624/10, Lex No 1102545, of 12 June 2002, III CKN 1312/00, Lex No 55503, of 12 May 2005, V CK 559/04, lex No 311327).

In the light of the above interpretative indications, it is appropriate to consider it acceptable for the Paulian process to lead free of charge in full or in part of the legal act formally paid.

Chargeable activities may be contested by an action under Article 527 k.c. In this case, insolvency may arise if the benefit which the debtor receives is little valuable than that which he has committed to or if the benefit received by the debtor is not available to the creditor (e.g. non-executive items, services – yes: “Citizen Code. Comment” edited by E. Gniewka, C. H. Beck Publishing home – Warsaw 2006, p. 905).

Both the nonsubjective criteria (the economical value of both benefits) and the subjective criteria may decide on payment or free of charge. The literature indicates that whenever the legal situation of not only parties to the action is involved, but besides 3rd parties, nonsubjective criteria should be applied (yes: ultimate Court judgments of 12 June 2002, III CKN 1312/00; of 16 September 2011, IV CSK 624/10; of 14 November 2012, II CSK 206/12; of 17 May 2013, I CSK 543/12, not published). This requires all the circumstances of the case to be taken into account in determining the applicable standards. It cannot be without prejudice to this assessment that the suspect must find the price at a level importantly different from the equivalent of benefits (yes: ultimate Court judgement of 28 November 2014 Ref. I CSK 33/14).

Thus, the conclusion of a common agreement alone does not mean harm to the debtor when, in return for his benefit, he obtained an equivalent which is inactive in his assets or served to satisfy creditors (yes: judgement of the ultimate Court of 7 December 1999, I CKN 287/98, Lex No 147235, of 6 October 2011, V CSK 493/10, Lex No 1102271, of 9 April 2010, III CSK 273/09, Lex No 602265, of 5 March 2008, V CSK 471/07, Lex No 393871, of 13 October 2006, II CSK 45/06, of 7 December 1999, I CKN 287/98, OSNC 2007/138, of 18 September 1998, III CKN 612/97, OSNC 1999/56, of 8 April 1998, III CKN 450/97, OSNC 1999/184).

On the another hand, not in all cases where a 3rd organization obtains a property benefit as a consequence of a legal act with the debtor, the creditor is harmed, even if the 3rd party’s debtor’s equivalent does not go to its assets. It cannot be considered that the debtor has become insolvent to a greater degree if, irrespective of whether he has carried out a circumstantial act that disposes of an asset belonging to his assets or not, the creditor cannot get the satisfaction of his claim anyway (yes: ultimate Court judgement of 31 January 2007, II CSK 384/06, Lex No. 253405).

Proof of the existence of the link between the action in question and insolvency in the above sense lies with the creditor (yes: ultimate Court judgement of 22 October 2004, Case No. II CK 128/04, Lex No. 577538).

Property benefit obtained by a 3rd party

The provision of Article 527 k.c. does not mention to a property benefit in the common sense, identified, for example, with the acquisition of goods at a price lower than the value of that thing. The asset advantage within the meaning of Article 527 k.c. is the acquisition by a 3rd organization of a property right representing a certain value, with the acquisition price being secondary (yes: judgement of the Court of Appeal in Gdańsk of 28 October 1999, act mention I ACa 638/9).

Third organization cognition of the action of the debtor with awareness of the injury to creditors

If, as a consequence of the legal act of the debtor with the injured creditors, a individual having a close relation with him has obtained a property benefit, it is presumed that he knew that the debtor acted with the awareness of the injured creditors (Article 527 §3 kc).

If, as a consequence of the legal act of the debtor with the injured creditors, the property benefit was obtained by an entrepreneur who remained with the debtor in constant economical relations, he is presumed to have been aware that the debtor acted with the awareness of the injured creditors (Art. 527 §4 kc).

A 3rd organization shall get the asset benefit free of charge as a consequence of the action of the debtor with the detriment of creditors.

If, as a consequence of a legal act carried out by a debtor injured by creditors, a 3rd organization has obtained a property benefit free of charge, the creditor may request that the action be declared unsuccessful, even if the individual did not know and could not, even with due care, know that the debtor acted with the awareness of the injured creditors (Art. 528 kc).

Consciousness of the debtor of the harm to creditors

The debtor is aware of the injury to creditors erstwhile he knows that, as a consequence of legal acts, certain assets will come out of his assets and that for this reason the creditors will have difficulty satisfying them and consequently will be harmed (yes: A. Ohanowicz [in:] civilian Law System, Vol. III, Part 1, p. 948; M. Pyziak-Szafnicka [in:] Private Law System, Vol. 6, p. 1259).

To be accepted that the debtor has acted with the awareness of the injury to the creditors, it is adequate for the debtor to anticipate specified injury possible limits (yes: judgement of the Poznań Court of Appeal of 12 May 2005, I ACa 1764/04).

It is not essential that awareness of the injury concerns a circumstantial creditor, in peculiar 1 who has made a Paulian complaint (yes: judgement of the Poznań Court of Appeal of 19 September 2019. Act mention I ACa 338/19).

Insolvency of the debtor and presumption of action with awareness of injury to creditors on donation

If the debtor was insolvent at the time of the donation, he is presumed to have acted with the awareness of the injury to the creditors. The same applies to an accident where the debtor has become insolvent as a consequence of a donation (Article 529 kc).

Recognising the unsuccessful legal action of the debtor with the injured creditor

The designation of an unsuccessful legal act of the debtor with the injured creditor shall be by way of an action or a plea against a 3rd organization which has obtained a property benefit as a consequence of that action (Article 531(1) kc).

Where a 3rd organization has given the benefit it has obtained, the creditor may act straight against the individual to whom the regulation has taken place, if that individual was aware of the circumstances justifying the declaration that the action of the debtor was unsuccessful or if the regulation was unpaid (§ 2).

Order to satisfy the creditor’s claim to which the debtor’s legal action has been declared ineffective

A creditor to whom the debtor's legal activity has been declared unsuccessful may, first of all, get satisfaction before 3rd organization creditors from assets which, as a consequence of an act deemed unsuccessful, have either left the debtor's property or have not entered it (Art. 532 kc).

Release of the debtor from the creditor’s claim

A 3rd organization who has obtained a property benefit as a consequence of a legal act of the debtor against the detriment of the creditors may exempt itself from compensation for claims made by the creditor requesting the action to be considered unsuccessful if it satisfies that creditor or indicates to him adequate to satisfy the debtor's property (Art. 533 kc).

Time limit for the submission of a Paulian complaint

The designation of a legal act involving the injury of creditors as unsuccessful cannot be claimed after 5 years from the date of that action (Article 534 kc).

The burden of proof of the Paulian complaint

For the application of the Paulian complaint, all the conditions laid down in Article 527 k.c. request to be made, and the burden of proving them in principle, in accordance with the rule of evidence set out in Article 6 k.c., must be demonstrated. charge the creditor, which is entitled to challenge the legal action of the debtor, but for the presumptions provided for in Articles 527(2) and (3), 528 and 529 k.c (yes: judgement of the Wrocław territory Court of 13 November 2019). Ref. Act XII C 2164/18).

Paulian action and enforcement of creditors

In the context of the Paulian complaint, it is irrelevant whether creditors (reasons) have taken all available methods of enforcement of claims. For the application of Article 527 k.c., it is not essential to show that the debtor has been declared bankrupt (yes: ultimate Court judgement of 18 September 1998, Act III CKN 612/97, OSNC 1999/3/56, Lex: 34580).

In its judgement of 18 September 1998, the ultimate Court of Justice of the United States of America, in its judgement of 18 September 1998, of Act III CKN 612/97, OSNC of 1999/3/56, stated that it was irrelevant whether the plaintiff had taken all available methods of execution. It is not essential to execute successively from the individual assets of the debtor until the effects, as this would exposure the creditor to unnecessary costs, not the request for chronicity, and entailing the transfer to the creditor of the consequences of the failure of subsequent executions, the causes of which may be different.

Action of the debtor with intent to harm future creditors

The provisions on the detriment of the creditor by a legal act (527 – 529 kc) shall apply mutatis mutandis if the debtor acted to harm future creditors. However, if a 3rd organization has obtained a benefit for a fee, the creditor may require that the action be considered unsuccessful only if the 3rd organization has known the intention of the debtor (Article 530 kc).

The future creditor and the claim came and the Paulian complaint

The extension of the scope of protection by allowing the creditor to challenge the legal action of the debtor before the occurrence of his claims is made in Article 530 k.c. The ‘future creditor’ mentioned in this provision is 1 whose claim did not be in the legal sense at the time the debtor took legal action to harm the creditor.

The ultimate Court resolution of 19 September 1997, III CZP 45/97 (OSNC 1998, No 2, item 22) indicated that the category future claimsit is not homogeneous; it includes claims:

• conditional,
• timely,
• concerning the agreed remuneration for the future performance of works, i.e. partially only the actual state of play
• claims which are entirely a substance of the future (a claim for payment of the price for the item not yet sold).

In the judgments of the ultimate Court of 28 March 2003, IV CKN 1965/00 and 9 November 2011, II CSK 64/11 (unpublished) it was pointed out that claims involving the work to pay should be treated as future claims after the debtor has entered into legal action with a 3rd party.

These positions lead to the conclusion that Article 530 k.c. refers to situations where the explanation of the concept of ‘future creditors’ is applicable to the order in which this provision may apply (legal action harming the creditor and the claim of the applicant Pauline). The future claim must arise in a subjective and factual sense at the time of the action for ineffective action of the debtor with a 3rd organization or at least at the time of judgment (yes: ultimate Court judgement of 28 November 2014 Ref. Act I CSK 33/14).

The ultimate Court in its judgement of 11 August 2021. Ref. Act II CSKP 87/21 He pointed out that it is hard to imagine a situation in which the protection of the Paulian action comes from a ‘future’ creditor with whom no legal relation exists, but this difficulty is of no importance due to the fact that it is clear that the mention point for the discrimination between ‘believers’ (Article 527(1) k.c.) and ‘future creditors’ (Article 530 k.c.) there is simply a minute erstwhile the debtor has carried out the contested action, however, Paulian protection can only be granted to the current creditor (at the time of the ruling to declare the action to be ineffective, the secured claim must already be and be circumstantial in terms of the subject and subject substance (so: judgments of the ultimate Court of 6 March 2009, II CSK 592/08, non-publ. and 28 November 2014, I CSK 33/14, non-publ.).

There is besides a consensus in doctrine and jurisprudence that, erstwhile making this distinction, it is not possible to confuse the grounds for the existence of a claim with the grounds on which it is due, and the creditor whose claim has already been established but is not yet due is not a future creditor but a current creditor. This besides applies to situations where the maturity of the claim depends on future and uncertain events. (e.g. a claim for payment of remuneration for works before their execution).

Such a narrow knowing of the word ‘future creditor’ is supported by the crucial values underlying the separate arrangement of the conditions for the protection of the Paulians in Articles 527-529 and 530 k.c. In the doctrine, it is correct to point out that, for the application of Article 530 k.c., it is crucial – unlike in the deliberations on the effectiveness of the transfer (Articles 509 and 510 k.c.) – not so much that the protected claim is already full updated (e.g. unconditional, required, independent of the performance of the performance of the counterparty) or circumstantial (cf. ultimate Court judgement of 28 November 2014, I CSK 33/14), as to whether the arguments in favour of granting the creditor a stronger (the creditor) or weaker (the future creditor) protection are valid.

In this context, it is legitimate to note that the weaker protection of the ‘future creditor’ is due to the fact that, in carrying out the activities (later contested), a non-debtor (future debtor) enjoys the freedom to dispose of assets and, in principle, does not gotta take care of the property interests of persons with whom he is not bound by a contractual bond (future creditors) and, on the another hand, that by deciding to establish a relation with specified debtor already after he has carried out the activity in question, the creditor may and should measure his current asset situation and ability to comply with the work (so: ultimate Court judgments of 28 March 2003, IV CKN 1965/00, non-publ., of 9 November 2011, II CSK 64/11, OSNC-ZD 2013, of A, item 5 and of 26 October 2017, II CSK 11/17, non-publ.).

Therefore, Paulian protection is limited in specified cases only to situations where the debtor acted ‘intendedly’ to harm future creditors, the awareness of the injury itself is not adequate — Thus, by predicting the emergence of the debt, he sought (future) insolvency by pre-depreciation, preventing creditors from being satisfied in full or in part (yes: ultimate Court judgments of 28 March 2003, IV CKN 1965/00, 9 November 2011, II CSK 64/11, 29 May 2015, V CSK 454/14, non-publ., 26 October 2017, II CSK 11/17 and 24 November 2017, III CSK 320/16, non-publ.).

These valuations clearly show that if, at the time of the action challenged by the Paulian complaint, the individual depleting his assets was already in a legal work with the Paulian creditor — In particular, it has already concluded an agreement with the creditor which gives emergence to that obligation, and the updating of its work (its due diligence) no longer depends on its free will, Article 530 k.c. does not apply.. In specified a situation, the debtor already has a contractual loyalty work and he should be obliged to satisfy the creditor, even if it depends on additional conditions (e.g. future and uncertain events). The creditor deserves more protection then besides because, after being bound by a liability node to the debtor, he has the right to trust on the execution of the work (also erstwhile the update of that work depends on him) and at the same time he can no longer depend on the debtor's property situation.

Payment by the debtor of a bill of lading and a Paulian complaint

There is besides a legal work to stay in a mandatory legal relation with a Paulian creditor if the debtor grants a note of deposit, even if it is only a warrant on an incomplete note at the time of issue (wessel in blanco), which protects the credit obligation.

According to the dominant view, the issuing of a blank note, accompanied by an agreement concerning the completion of the note (yes: judgments of the ultimate Court of 26 September 2013, II CSK 719/12, non-publ. and of 8 February 2018, II CSK 166/17, non-publ., resolution of the ultimate Court of 17 July 2020, III CZP 72/19, OSNC 2021, No. 4, item 23), is tantamount to the conclusion of an agreement addressed to the creation of an emissary note (yes: judgments of the ultimate Court of 21 September 2006, I CSK 130/06, OSNC 2007, No. 6, item 93, 15 May 2008, I CSK 548/07, OSNC-ZD 2009, p. B, item 49, of the III June 2010, ISK 481/09, non-publ. and of 29 October 2010, and CSK 699/09, non-publ.) or even in another cases, with the exception of the commitment of the II, no.

In any event, it is clear that from the minute of granting the warrant Avalista (a squire, a chandelier) who answers like the 1 whom he vouched for, so unconditionally (Article 32 in conjunction with Article 101(2) of the Act of 28 April 1936. Postage law, presently the text of the 1 Dz. U. from 2016, item 160), should be required to provide, which justifies giving the creditor the greater protection provided for in Articles 527 to 529 (yes: ultimate Court in its judgement of 11 August 2021). Ref. Act II CSKP 87/21).

Obligation to find the claim by the claimant from the Paulian complaint

The case of the plaintiff of the Paulian action should be the recognition of the claim resulting from a circumstantial legal relation which is the subject of the requested protection and thus yet the subject of a judicial decision. It is besides up to the plaintiff, where he is entitled to respective claims against the same debtor, to choose which of the claims he wants to protect, as well as to choose whether, by means of an action brought pursuant to Article 527 k.c., to defend all his claim or only a certain part of it (yes: ultimate Court judgement of 7 March 2013, IV CSK 452/12, Lex No 1314438).

The clarification of claims should include at least:

• existence,
• Legal title
• height

(yes: ultimate Court judgement of 27 November 2003, III CKN 355/01, Lex No. 359441, and ultimate Court judgement of 16 September 2021, act No. V CSKP 108/21).

A view permitting the protection of Paul is expressed without a definitive specification of the amount of the claim, if it is not yet known; however, this is not the case where the creditor, indicating the claim, appealed to the enforcement title obtained against the debtor. In determining the claim or the choice of 1 of the claims and the scope of the claim to be protected, the plaintiff cannot be replaced by the court conducting the proceedings (yes: judgement of the Court of Appeal in Warsaw of 13 September 2013, Ref. Act I ACa 480/13).

In the order of 9 November 2018, the signature of Act V CZ 79/18, the ultimate Court in a case in which the court ruling did not mention in any way to a protected claim, claimed that the application of the institution of the Paulian complaint would be counted only if the claim of the injured creditor against a peculiar debtor was realistic and specific. The aim is to guarantee that, following a judgement which takes account of the protection action in question, it is not possible for the plaintiff’s rights to be taken any closer, but simply a circumstantial claim resulting from a peculiar legal relation which is the object of a judgement sought and given, which is of peculiar importance, given that such, issued in the Paulian process, the judgement allows the creditor to satisfy his claim against the debtor by enforcementdirectly from property that came out of or did not enter the debtor's property.

The Court of Appeal in Kraków in its judgement of 11 September 2018 in the case Act mention I ACa 1521/17 he argued that the indication of a claim to be protected under the Paulian action by mention to the content of circumstantial judicial decisions judging the chief amounts, together with interest from the first day of hold to the date of payment (which did not occur) and the costs of the process (enforcement titles) meets the condition for the indication of the claim. These titles, provided with a feasibility clause, are executive titles held by the bailiff. The bailiff's tasks include, inter alia, summing up by-products (interest and costs) to calculate the final amount to be executed.

Content of the Paulian action

The Court of Justice taking into account the action in the case in the Paulian action cannot be of a general nature and should be formulated in specified a way as to exclude the anticipation of extending the protection granted to all rights of the plaintiff. Ineffectiveness may be included in the debtor's legal activity as much as possible up to the size of the circumstantial creditor’s claim.

Therefore, the operative part of a judgement given pursuant to Article 527(1) must always find the claim to be protected; this component of the judgement is essential to guarantee the correct enforceability of the judgment. This issue was the subject of many statements made by the ultimate Court (such as, among another things, judgement of 13 February 1970, III CRN 546/99, OSN 1970/10/192, resolution of 11 October 1995, III CZP 139/95, OSNC 1996/117, judgement of 5 June 2002, II CKN 1336/00, Lex No 55083).

In order to have the desired effect of the judgement taking into account the Paulian action, its operative part should find the claim to be protected, the legal act which is, in full or in part, declared to be ineffective, and that it is ineffective only in relation to the plaintiff (yes: ultimate Court judgement of 13 February 1970, III CRN 546/69; ultimate Court judgement of 28 December 1976, III CRN 302/76; ultimate Court judgement of 11 October 1995, III CZP 139/95).

In the judgement of 9 May 2019, the signature of Act IV CSK 493/18, The ultimate Court pointed out that, in the case of a Paulian action, it is essential to find in its operative part the claim to be protected.

In the order of the ultimate Court of 9 November 2018, the ref. act V CZ 79/18, The ultimate Court pointed out that since the designation of the claim constitutes a structural component of the claim itself (petitum) and its factual basis (causa petendi) in the Paulic action and sets limits on the decision given by the court in specified a process, in the event that the court fails to state in its judgement whether or not the protection of the Paulian action benefits all submitted for protection in the process of the claim and, at the same time, fails to bring an action in respect of 1 of them, there is simply a failure to make a case in part in which that decision is not taken.

The effect of the Paulian complaint

A judgement given in the case of a Paulian action shall be given to a 3rd organization who has received a property claim from the debtor with the injured creditor; the judgement shall not apply straight to the debtor. As a consequence of the judgment, a 3rd organization is obliged to abolish execution by the creditor from its circumstantial assets up to the amount in question.

Derivatives of mortgaged property in full exceeding the value of the property

The ultimate Court held in its judgement of 31 January 2007 II CSK 384/06 as well as in its judgement of 28 June 2007 IV CSK 115/07 that the establishment on a property subject to an act between a debtor and a 3rd organization of ‘hypotheticals forming an enforcement privilege for a mortgage creditor’, in peculiar erstwhile it was established prior to specified an act, constitutes a separate and sufficient obstacle to the action to be considered unsuccessful to a creditor who does not benefit from this kind of advantage. It disputes the condition that the creditor is injured, the demonstration of which is simply a essential condition to take account of that action, which is independent of the occurrence of the another conditions laid down in Article 527 k.c.

The ultimate Court so accepted that the transfer by way of a donation of mortgaged property in a full amount exceeding the value of the property does not mean that the act was not carried out against creditors due to the fact that creditors, due to the existing charges, would not have been satisfied in the enforcement proceedings.

The Court of Appeal in Gdańsk, in its judgement of 14 December 1995, I Acr 847/96/95, LEX No 23755, held that the request for specified protection (from the Paulian action) did not apply to a claim in kind secured by mortgage on an object forming part of the debtor’s assets. Where the debtor disposes of a mortgaged object of the anticipation of satisfying the creditor from the debtor's assets, in accordance with the rule of individual liability of the debtor, it is not in rule relevant. In spite of the sale of a mortgage-bearing item, the mortgage continues, and the mortgage creditor can satisfy himself with that item, although it already forms part of the property of another individual (Article 65(1) of the Law).

Consequently, it is assumed that the sale by the debtor of a mortgage-bearing object does not entail, in principle, the harm to the creditor, the action against this divestment should so be dismissed in the absence of the condition provided for in Article 527 k.c.. It can only be otherwise if the mortgage does not safe the receivables in the full range. In that case, the existence of a safety in kind for the claim does not preclude the inclusion of the Paulian action. This may depend, among others, on the tallness of the mortgage and the value of its object.

A separate conviction was expressed by the Wrocław territory Court (in its judgement of 13 November 2019. Ref. Act XII C 2164/18) stating that the above position, based solely on a comparison of the value of the property at the time of ruling on the Paulian complaint and burden values, is missed for respective reasons.

Firstly, in no case at the phase of the examination procedure for an action for declaring a legal action to be ineffective (Paulian action) there is no basis for determining what price the enforcement authority will get by selling the object of the action under appeal. At the phase of the exploratory procedure, the highest can be determined by the call price, which represents 3⁄4 of the full estimation (Article 965 k.p.c.). Practice of enforcement of immovable property under no circumstances may not give grounds to accept that the price obtained from the execution will correspond to the price of the estimate. Therefore, there are no instruments to find unequivocally whether the contested action, even though it resulted in the debtor becoming insolvent or becoming insolvent to a higher degree than before the action (so the definition of injury under Article 527(2) k.c.) did not lead to the detriment of creditors, as the existing charges outweigh the value of the property.

Whether the price obtained will let or, in view of the existence of privileged claims, will not satisfy creditors seeking protection in the Paulian complaint, may be determined only after the completion of the auction. However, the acceptance as a legitimate view presented above deprives creditors of protection – a chance to get satisfaction.

Second, the provision of Article 527 §2 k.c. which defines the insolvency of the debtor (as a consequence of the action, the debtor has become insolvent or has become insolvent to a higher degree than it had been before the action) focuses on the insolvency of the debtor alternatively than the impossible to find at this phase of the procedure the degree to which the creditor would have been satisfied if the action under appeal had not been carried out.

Thirdly, accepting the legitimate views expressed in the above-mentioned rulings would lead to circumvention of the rules on the protection of the creditor in the event of the insolvency of the debtor, making the protection granted to the creditor completely illusory. The creditor may submit a Paulian complaint no later than 5 years after the performance of the action (Article 534 k.c.). The time limit referred to is the time limit for bringing an action for declaring a legal action to be ineffective and not a time limit for the performance of the claim to be protected – the limitation is based on general rules (Article 125 k.c.). Provided that the limitation period can be interrupted respective times, there is indeed no time limit for the performance of the work laid down in the implementing title.

Burdening the property with mortgages that exceed the value of the property according to the condition at the time of ruling on the merits of the Paulian complaint or according to the condition at the time of the execution does not in any way exaggerate the ineffective execution that can be carried out in the future. The consideration of the Paulian action is intended to make the anticipation of future execution, which is limited only by the cessation of the challenge of the claim in the title (restriction).

It may happen that a 3rd organization who has acquired a mortgage-encumbered item will pay off their secured claims. At the minute of the expiry of the five-year deadline to challenge the action, mortgages will not yet be repaid, but may be repaid later. Accepting the ultimate Court’s legitimate view would mean that the creditor is deprived of any protection in the event that the property is subject to mortgages exceeding the value of the property. If an assessment of the insolvency situation at the time of the ultimate Court’s ruling is to be made, the proceedings of the creditor should be dismissed, and at a later time erstwhile the 3rd organization has repaid the secured claims, the creditor will not be able to file a Paulian action due to the expiry of the period referred to in Article 534 k.c.

As already indicated above, the ruling from the Paulian complaint is only intended to make the anticipation of future executions. In the future, there may be a situation where the mortgages expire, which will enable the creditor to satisfy his claim. The provision of Article 534 k.c. does not indicate the time limit for the commencement of execution, but the time limit for appeal. It cannot so be argued that the condition at the time of ruling on the Paulian complaint prejudges the effectiveness of the execution.

In the case under which the Court of First Instance took the above considerations, the debtor (whose work to pay for the reasons) transferred to her boy (the defendant) a mortgaged property. After the transfer of ownership, the suspect repaid claims secured by mortgages. In consequence to the lawsuit, the suspect claimed that the action was unfounded because, in the course of the enforcement proceedings, the defendants would not have been satisfied by the existing charges that favour the mortgage creditor. As a consequence of the dismissal of the action, the plaintiffs could not, in the future, re-apply with the Paulian action due to the expiry of the deadline for specified a request (Article 534 k.c.). However, after dismissing the action and the deadline (Article 534 k.c.), the suspect could proceed to repay the mortgage-backed claims, leading to the end of the charges in the future. Therefore, the Court of First Instance considers that, erstwhile the proceedings were concluded, nothing would prevent the re-fulfillment of the secured claims by definitively depriving the suspect of the anticipation of satisfaction (the suspect would have obtained the property while the claim of the grounds would not have been settled).

The suit preceded the advance of unsuccessful execution. The property under appeal was leased for 30 years. – in the light of Article 1002 k.p.c., this limits the attractiveness of the acquisition of the property. In specified a case, the possible acquirer will be able to usage the property and receive benefits from it at the earliest after the period of termination of the lease.

Paul’s complaint and the charge of deduction

To origin the creditor's inability to discharge his debt (cause of the Paulian complaint) by deducting his claim from his debtor – should be treated as a detriment if it leads to the maintenance of an adverse position for the creditor, affecting his interest. However, it is essential to find whether the claimant has made a message on the deduction of his claim against the claim which he was entitled to and, if so, against whom.

When 2 persons are both debtors and creditors at the same time, each of them may deduct its claim from the claims of the another party, if both claims are the subject of money or of the same quality marked only as regards the species and both claims are due and may be brought before a court or another state body (498 k.c.). The debtor shall be entitled against the buyer of the claim any charges he had against the seller at the time of the transfer message (Article 513.1 kc).

The anticipation to lodge a charge of deduction (Article 513 §1 in conjunction with Article 498 k.c.) is besides a form of protection of the interests of the creditor of the cedent (putting his rights to another entity).

The effectiveness of the deduction (Article 499 k.c.) arises erstwhile a message is made to the another party, which, in accordance with Article 61(1) k.c., means that a message of the deduction is reached to the addressee, in specified a way that he may have been acquainted with its content. The choice of a protection measurement by way of a Pauline action, whether the charge of deduction, which satisfies the conditions laid down in the above provisions, belongs to the creditor, but the effective usage of 1 of them, results in negative consequences for the anticipation of notifying the another (yes: ultimate Court judgement of 28 November 2014 ECR I CSK 33/14).

Value of the dispute in the Paulian action

The problem of determining the value of the subject substance in cases of the Paulian complaint is settled differently in the case law, and in this case there are 2 views. According to the first, in a case concerning a Paulian complaint, the value of the subject substance of the dispute should be defined as an amount equal to the claimant’s claim to be protected by the complaint (yes: ultimate Court in its order of 12 January 2007, act No IV CZ 105/06, LEX No 258555).

According to the second, in the case of the claim provided for in Article 527 k.c., 2 values are valid for the determination of the value of the subject-matter of the dispute: either the value of what has come or hasn't entered into it as a consequence of the contested action, or the amount of the claim, together with outstanding incidental claims, for the time preceding the filing of the action, whichever is the lower, due to the fact that the claimant will not get from the execution of the transferred assets an amount greater than their actual value (so the ultimate Court in its decision of 7 May 2008, ref. Act II CZ 25/08, LEX No 420391, the Court of Appeals in Rzeszów in its decision of 24 August 2012, Case I Acz 471/12, LEX No 1216355, ultimate Court in its judgement of 3 February 2005 in Case II CK 412/04, Court of Appeal in Krakow in judgement of 3 November 2016, Ref. Act I Acz 1862/16).

In another words, the value of the subject substance of the dispute must not exceed the value of what came out of the debtor's assets (or did not enter it), with the highest limit being the amount of the creditor's claim (similar to M. Sychowicz, comment on Article 531 kc in: J. Gudowski [ed.] civilian code. Comment. Book three. Commitments, Lex/el.).

However, it cannot be assumed that the value of the subject substance of the case in the Paulian action is in any case equal to the value of the asset which, as a consequence of the action under appeal, came out of the debtor's assets, due to the fact that this could lead to a case where the plaintiff is required to pay a court fee on a suit akin to that of the debtor of the claim to be protected by an application based on Article 527 (yes: the Court of Appeal in Krakow in its judgement of 3 November 2016), Ref. Act I Acz 1862/16).

Costs of replacing the case with the case of the Paulian complaint

The costs of replacing the case with a case of a Paulian complaint established on the basis of the provisions of § 2 of the Regulation of the Minister of Justice on the fees for legal proceedings of 22 October 2015.

Third-party creditor satisfaction

In the event of a payment of a comparative inefficiencies, the work of a 3rd organization to enable the creditor to satisfy his or her assets to the degree that it would have been effective in relation to the debtor if he or she had not disposed of his or her assets, is justified by both the concept of unlawful conduct (Article 415 k.c.) and the concept of unwarranted enrichment (Article 409 k.c.).

A 3rd organization acting in bad religion may be regarded as being complicit in harming the creditor by thwarting his ability to satisfy the debtor's assets, or as having been enriched against the creditor unwarrantedly at the expense of his object or value which, as serving to harm the creditor, should not have been included in his assets and with the return which should have been incurred (yes: ultimate Court in its judgement of 3 February 2005. Ref. Act II CK 412/04).

Disposal by a 3rd organization of the benefit obtained at the expense of the creditor and the Paulian complaint

Disposal by a 3rd organization of the object or value taken over does not change anything about its responsibility. Although it is not possible to satisfy the creditor as a consequence of the execution of a 3rd party's assets, this only means that the creditor is incapable to avail himself of a circumstantial method of forcing a 3rd organization to compensate for the failure resulting from the creditor's deprivation of the ability to enforce the debtor's claims. This does not mean that a 3rd organization is released from liability to the creditor. After the sale of the subject of the legal act with the debtor, the 3rd organization shall not cease to be an accomplice in the harm to the creditor, nor may it cover itself with the allegation that it is no longer enriched.

The harm arising, inter alia, from its reprehensible action continues to be and a 3rd organization is inactive in the situation referred to in Article 409 k.c. in fine (the work to grant a benefit or to return its value expires if the individual who has obtained, utilized it, or lost it in specified a way that it is no longer enriched, unless, by disposing of or utilizing it, he should have counted on the work to return it).

This makes it possible for the creditor to search protection against the insolvency of the debtor by straight requiring a 3rd organization to justice the amount he would have obtained from the debtor's assets. The sine qua non condition in this case is that the creditor has previously obtained a final judgement in which the legal activity of a 3rd organization with the debtor is deemed to be ineffective. specified judgement has constitutional character and cannot be replaced by a reasonable uncovering of ineffectiveness in the trial against a 3rd organization for payment.

It follows from the foregoing that a 3rd organization who, by a legal act with a debtor in bad religion within the meaning of Article 527(1) of the Law, has obtained a property benefit and subsequently has disposed of that advantage, may not only be sued by a Paulian creditor, but must be sued and must be given a final judgement against it for payment if the creditor intends to injure his claim to the debtor from the property of a 3rd party.

In any event, even though a 3rd organization has disposed of the subject substance of legal action with the debtor, it does not cease to be liable to the creditor for the fact that the creditor could not satisfy the debtor's assets. This liability may take the form of a 3rd organization abolishing the execution of its assets to the satisfaction of the creditor (such a situation has been expressly established in Article 532 of the Code), but may besides be expressed in the form of payment by a 3rd organization of an appropriate amount which, in the event of refusal, may be the subject of an investigation before a court pursuant to Article 415 of the Code or Article 409 of the Code, and subsequently of a 3rd party's assets (yes: ultimate Court in its judgement of 3 February 2005. Ref. Act II CK 412/04).

A akin view was expressed by the ultimate Court in its judgement of 30.IX.2004, IV CK 30/04 (not publ). A creditor who submits a Paulian action has no work to indicate how he intends to benefit from a judgement which takes into account the action. The right to be executed from the property of a 3rd organization derives straight from the Act (Article 532 k.c.). As to the request for payment, there are no obstacles to the creditor, next door to challenge the debtor's legal action with a 3rd party, he besides asked the 3rd organization to justice the amount in his favour. It may besides trust on a final judgement including an action for inefficiency brought against a 3rd organization to bring a separate action for payment.

As indicated above, the first of these provisions provides for 1 of the means for the creditor to usage a judgement involving a Paulian action; in the entirety of the material and legal relations between the creditor and the 3rd organization arising from the judgement of the court of ineffectiveness, this is simply a peculiar but not the only way. As regards Article 531 §2 k.c., it follows from the very wording of that provision that the usage of it is the right of a creditor who does not destruct the right to sue a 3rd organization (yes: ultimate Court in its judgement of 3 February 2005). Ref. Act II CK 412/04).

Legal action by a debtor with only 1 creditor in breach of the rights of another creditors

In the case-law of the ultimate Court, Article 527 k.c. shall besides apply to a legal act carried out by a debtor with only 1 of the creditors, if this is simply a breach of the law or contracts order to satisfy creditors. The debtor cannot freely favour any of his creditors at the expense of the others (yes: ultimate Court judgments: 12 December 2001, III CKN 496/00, not published and 23 July 2003, II CKN 299/01, not published).

As a rule, However, the legal action of the debtor in the performance of the work does not fall within the scope of the Paulian action and so there is no basis for appealing specified action by the debtor with only 1 creditor. The debtor is obliged to fulfil the benefit and, in the case of multiple creditors, has the right to freely choice the creditor to whom he will pay and, consequently, cannot be accused of harming the others (yes: ultimate Court judgement of 13 April 2018, Ref. Act I CSK 393/17).

In particular, the ultimate Court judgement of 23 November 2005, II CK 225/05 (unpublished) pointed out that the action under Article 527 § 1 k.c. could not apply to the legal activity of the debtor in fulfilling a benefit to the creditor, even if that action led to the another creditors being harmed. The debtor is obliged to carry out the service and cannot be accused of fulfilling that obligation.

However, it was stressed that this only applies to a debt repayment that closely corresponds to the work both in terms of the kind of benefit and the manner and time of repayment. Where, on the basis of an agreement with the creditor, the debtor satisfies it in a different way than the first contract provided for, there is no obstacle to the action under Article 527(1) k.c. if it has injured the another creditors.

If, therefore, a debtor who does not have the cash to repay a cash liability enters into an agreement with the creditor to delegate his claims which leads to the expiry of the obligation, this is not simply a performance of the benefit, it is simply a change in the first benefit which, if he removes assets in the form of his claims from the debtor's assets and prevents another creditors from satisfying them, may be the subject of a complaint under Article 527 k.c. In line with the above, the ultimate Court judgments of 23 July 2003, II CKN 299/01 (not published) and of 21 March 2014, IV CSK 393/13 (not published).

In its judgement of 23 November 2005, II CK 225/05, the ultimate Court stated that, the debtor has, in principle, the right to choose the creditor he wishes to repay, since, in the case of multiple creditors, the provisions do not supply for a peculiar order of repayment and the specified fact that 1 of them has been selected and that his claim has been repaid cannot be the subject of a plea under Article 527(1) of the Code, but in certain cases this provision will apply. This will be the case, among another things, erstwhile the debtor has chosen the creditor in an arbitrary way, leading to the favouring of the creditor, at the expense of the others, in circumstances which indicate the immediate anticipation of declaring the debtor bankrupt and of withdrawing the material components from his assets, which may lead to the inability to satisfy the creditors from the future bankruptcy. In fact, on the basis of which the judgement was given, the debtor was declared bankrupt, who carried out the legal action under appeal with the Pauline action.

The ultimate Court so pointed out the request to measure whether the contested act infringes the order in which the creditors in the insolvency proceedings were to be met, and thus whether the paid-up creditor would benefit from the same precedence in that proceedings and would be equally satisfied if the contested action had not taken place (such as the ultimate Court judgement of 23 July 2003, II CKN 299/01, not published). A akin position was besides taken in the ultimate Court judgments of 23 July 2003, II CKN 299/01 (not published), 5 July 2007, II CSK 118/07, (BICSN 2008, No 12, p. 52), 20 October 2011, IV CSK 39/11 (OSNC-ZD 2012, No D, item 90), 9 January 2013, III CSK 114/12 (not published), 21 March 2014, IV CSK 393/13 (not published) and 8 October 2014, II CSK 762/13 (not published).

Paul’s action and the execution of a erstwhile work by the debtor

In the judgement of the ultimate Court of 29 March 2017, I CSK 369/16 (BSN 2017, No 12, p. 11). The legal issue under consideration afraid the situation in which the undertaking was fulfilled – by establishing a separate ownership of the premises and then transferring its ownership – resulting from a preparatory agreement (preliminary, development). That judgement took the view that the Paulian action may apply to legal acts of a nature which are in conformity with an work previously entered into, i.e. those which have been made following the execution of, inter alia, a preliminary agreement.

In order to measure this action, in the event of its appeal, it is crucial that the executive act is carried out in the implementation of a preparatory agreement with a stronger or weaker effect.

Where a stronger effect agreement is concluded, it is the origin of the court’s claim to conclude the contract promised due to the fact that only specified a contract leaves the debtor no choice as to give emergence to a material harm to the creditors. In contrast, the regulation of the debtor's freedom is little intense in the case of a preparatory agreement having a weaker effect, which is not the origin of specified a claim and may only entail compensation. In this case, this means that, by concluding an agreement in implementation of an work under the Preparatory Agreement with a weaker effect, the debtor in fact proves more than is ordered to do under national coercion. It fulfills an work which, in terms of real performance, is as if incomplete (natural).

In addition, it makes a valid choice for creditors, which should be assessed separately from the grounds for the Paulian complaint. The situation is then akin to the case where, alternatively of the agreed cash benefit agreement, the debtor bears the title of datio in solutum, which is, in principle, subject to a separate appeal against the Pauline complaint.

The position expressed in the judgement cited above was besides divided in the ultimate Court judgement of 6 September 2017, I CSK 38/17 (BSN 2017, No 12, p. 12), according to which a legal act implementing an work under the Preparatory Agreement (e.g. pre-accession agreement, improvement agreement) may be contested by a Pauline complaint.

In specified a case, it is essential to examine the claims which the debtor’s creditor was entitled to, or only a compensation claim, which was the subject of a legal action under appeal by the Pauline complaint in the execution of the preparatory contract. If, by reason of its form, the undertaking did not have a claim for legal action having a material effect, but only a claim for compensation, it becomes applicable to consider whether the fulfilment of a material benefit to the creditor was not linked to an arbitrary breach of the interests of the another creditors.

The ultimate Court in its judgement of 13 April 2018. Ref. Act I CSK 393/17 considers that the fact that the debtor’s legal act to establish and transfer the premises is carried out following the execution of the pre-existing contract does not exclude the anticipation of an effective appeal against it by a Paulian action.

For the intent of assessing whether specified a legal act has been brought against a creditor who has brought an action under Article 527 k.c., it is essential that the debtor satisfy, in carrying out specified an action, a material claim on the creditor under the first contract. If the debtor’s creditor was not entitled to a claim of a material nature, but only to claims of a monetary nature, including a compensation claim which he was able to effectively recover from the debtor, the situation from the point of view of the creditor who brought the Paulian action is akin to that in which the debtor’s contractual benefit is met with the creditor’s consent by means of another benefit (date in solutum).

In specified a case, it is so essential to assess, taking into account all the circumstances relating to the debtor’s property situation, whether specified action has been taken against another creditors.

Infringement of the creditor’s interest by a debtor in difficulty

The ultimate Court in its judgement of 13 April 2018. Ref. I CSK 393/17 indicated that the anticipation of the creditor’s debtor to choose freely should be excluded, where the debtor is in a position of property justifying the legal position of the debtor initiating appropriate insolvency or sanction proceedings against him, the intent of which is usually to satisfy the creditors according to the order and proportion laid down in the applicable procedures governing those proceedings, the laws – where those provisions supply for the work for the debtor himself to submit a request to open specified proceedings to him.

The ultimate Court noted that specified conduct is punishable by criminal law. According to Article 302(1) kk, who, in the event of a insolvency or bankruptcy threatening him, cannot satisfy all creditors, repays or secures only any of the others, is subject to fines, imprisonment or imprisonment of up to 2 years.

It is not correct to deny the anticipation of injury to the claimant for the sole reason that the action taken by his debtor with a material effect corresponded to the content of the work resulting from the contents of the debtor with 1 of the creditors (the defendants) of the preliminary agreement and thus in specified conduct, in the absence of precedence in the satisfaction of the claim, the action leading to the injury of the claimant cannot be considered.