INTERVIEW

Dr Aleksandra Pokropek: The definition of ‘document’ lacks a clear statement that the method of recording information must enable saving and retrieving that information.

Can the amendment to the Civil Code and Civil Procedure Code that entered into force on 8 September be considered a good move?

It is hard for me to give a definite opinion on this reform. The changes involving, for example, introduction of the definition of ‘document’ to the Civil Code were expected and are fundamentally right. We are at the stage of informatisation and digitisation of transactions, and that will only continue in the years to come. It seems, however, that legal transaction coped with certain issues related to new technologies and the informatisation of transactions already some time ago, and contrary to what one might expect, the existing practice can remain fairly unaffected by the new regulations. It should be noted that, for example, the definition of ‘document’ appeared even in the draft of Book 1 of the Civil Code prepared several years ago. However, the Civil Code hasn’t been amended to include it until now. In turn, the amendment to the Civil Procedure Code now only provides a framework for the informatisation of courts that will happen in the future. Therefore, it’s hard for me to give an opinion on it at this moment. Also, in all honesty, it seems that the legislation is not free from certain flaws.

Please be specific.

I have doubts about one of the key newly added provisions, namely, Article 77³ CC. It states that a document is a carrier of information that enables one to know that information. Please note that the definition lacks a clear statement that the method of recording information must enable saving and retrieving that information. However, it is clear from the reasons for the amendment that the legislator considers these two elements to be constitutive features of a document. This seemingly small difference between the legislator’s intention and the effect in the form of an enacted law can give rise to many questions.

What can be the practical consequences of such a discrepancy between the wording of the provision and the reasons for the amendment?

One may try to argue that since the provision does not clearly indicate that a document is a carrier of information that enables one to know that information and the method of recording the information must enable saving and retrieving it, the legislator decided not to consider these two features essential to the definition of a document. This would lead to the conclusion that, for example, a temporary message appearing on a website could be considered a document. But this isn’t really what it’s all about. The concept of a document is mostly connected with its function as evidence and a means of legitimisation. We want to have a document to be able to prove something in the future, confirm that a given person made a specific declaration; in practice, usually in case of a dispute in court. This is why it is so important for the method of recording to enable us to save and retrieve the information in the future. It does not matter that the document can then be destroyed, burnt or deleted. It’s about the essence of a given method of recording. We have no doubt about that a signed letter that can be read in some time to retrieve its content is a document. It doesn’t matter that such a letter can be fed into a paper shredder.

Can an email or a text message be considered a document within the meaning of the new provisions?

Yes, I think an email, a fax or a text message can be considered a document and generally meets the requirements of the documentary form, regardless of the fact that the provisions are somewhat inaccurate. But is should be noted that the documentary form is only kept when the statement of intent in that form was made in a manner that enables identification of the person who made it. The legislator does not specify when the identification is supposed to take place – whether at the time of making the statement or at the time of a possible dispute. One argument in favour of considering an email or a text message a document is that ever since 1 July 2016 Polish legal order has been using the definition of an electronic document introduced under the so-called eIDAS Regulation. According to that definition, ‘electronic document’ means any content stored in electronic form, including sound, visual or audiovisual recording, among other things. It should be stressed that the definition of an electronic document from the eIDAS Regulation is narrower that the new definition of a document from the Civil Code. You could risk saying that any electronic document within the meaning of the eiDAS Regulation is a document within the meaning of the Civil Code.

We should not have any interpretative problems in practice then. It this is the primary mistake of the legislator, the legislator is not that bad after all, at least in this case.

There’s one more important problem that arises in relation to confirmation of entering into agreements or objecting to their terms and conditions. To put it simply, agreements concluded by an email, a fax or a text message will be considered as concluded in a documentary form and oral agreements will be considered agreements concluded in a non-documentary form. However, there is no question that an oral agreement is also concluded when not made in a documentary form.

That’s clear. But where’s the problem?

A doubt arises about the form used by entrepreneurs to confirm an agreement or object to that confirmation. After all, a failure to perform that action in an appropriate form makes the declaration invalid.

And now, problems may arise in practice in a situation where one of the parties to an oral agreement confirms that agreement to the other party (of course, assuming that the confirmation contains amendments or supplements to the agreement that do not substantially change its content) in writing (or with a handwritten signature), whereas the legislation says that a confirmation in a document is sufficient. This case gives rise to the question of whether the other party should object to the confirmation also in writing or it will be sufficient to observe the documentary form and object by email or fax, for example.

And what should be done?

It seems that objection in a document will be sufficient. The fact that the other party used a ‘stronger’ written form does not mean that the objecting party is obliged to observe that form, too.

However, regarding disputes – which will probably appear soon, specifically in connection with that lack of precision on the part of the legislator – it is worth considering for one’s own safety if it will be better to object someone’s written confirmation of our agreement also in writing.

And this in turn means that this element of the amendment will not be as important as previously assumed in the practice of transactions, if it seems that the most reasonable thing to do is to reply to a ‘stronger’ form of a statement of intent also in a ‘stronger’, or written, form.

Edited by: Patryk Słowik (DGP)