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BLANK PROMISSORY NOTE IN POLISH B2C TRANSACTIONS - STRENGTHENING OR WEAKENING THE PROTECTION OF CONSUMER RIGHTS?
Abstract
In economic relations, the equality of the parties is purely of formal nature at times, especially in the case of entering into the legal relationship with a professional whose capital and information position is implicitly stronger than the position of a non-professional contractual partner. When offering goods and services to the consumers, the entrepreneurs are encumbered with many domestic or supranational duties (for example obligation to provide information). However, the practical examples prove that the contractual relation with the consumer may be constructed in a manner preventing the consumer from taking advantage of their position against the entrepreneur. A potential measure weakening the system of consumer rights protection is the promissory note together with the specific manner of claiming damages from this abstract liability. The conducted analyses required application of the dogmatic test method, taking both the pragmatic and non-pragmatic aspects into consideration. The derivative method of law interpretation by Professor Maciej Zieli?ski was applied in order to recreate the legal norms from the universally binding provisions of law. Polish legal system refers to many solutions protecting the interest of the consumer. The actual norms, however, do not always definitively determine the existing practice. The entrepreneur recovering the receivables from the promissory note is not obliged to prove the economic basis of the claim. Issuing a promissory note creates an abstract obligation for the issuer, regardless of the reason that led the debtor to contract the note. The evaluation of the entrepreneur-creditors compliance with the rules protecting the interests of the consumer is no longer legally relevant. In the course of proceedings regarding the promissory note, the court shall not examine the facts and content of the basic relationship constituting the grounds on which the promissory note liability arose, but only the validity of completing or issuing the promissory note. To sum up, a promissory note is an excellent instrument of economic trading. In B2C trading, however, it leaves room for abuse. The scope of consumer - debtor protection will differ depending on the type of promissory note, especially in the case of blank promissory notes issued as a guarantee or security, where, in the certain circumstances, the objections to the basic relationship may be raised in a court dispute. However, it is necessary to change the existing legal status in order to create common principles for the use of promissory notes in B2C transactions in general and not in only in the case of consumer credit, as yet. De lege ferenda, the not to order clause and currency escalation clause should be mandatory under pain of nullity in the content of the consumer promissory note. The promissory note agreement should be made in writing at least under pain of certain legal consequences, and its content should precisely indicate the legal relationship secured with this promissory note or from which the future receivables secured therewith are to arise.
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References15
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