The following content kazusu, solutions and discuss their.
ABC sp. z o.o. on 04.07.2003 r. concluded with the EC S.A.. a written agreement, according to which the obligation was to focus on the farmers and provide the EC SA. a certain amount of straw serving as fuel for power plants. Straw was to be delivered on or before 31.05.2004 r. Attached to the Agreement KRS current copies of both sides, which showed, that persons, have signed an agreement should be permitted to represent both sides. On 23.08.2003 r. EC S.A. ABC paid for sp. z o.o. deposit in the amount of 100.000 zł for future deliveries. By 31.05.2004 r. delivered to EC S.A.. value of the straw 20.000 zł. During the delivery of the straw on 10.04.2004 r. the fault of the employee EC S.A. damaged vehicle belonging to the ABC sp. z o.o. On 15.05.2004 r. parties have agreed to e-mail correspondence, the date of delivery will be extended to 31.05.2005 r. On 15.06.2004 r. EC S.A. ABC informed sp. z o.o., EC law that all S.A.. between the parties arising out of the contract have been transferred to the bank as security for the Ark of the credit agreement. On 30.06.2004 r. ABC sp. z o.o. presented in a vehicle damage estimate for the amount of 30.000 zł and urged the EC S.A.. to pay the specified charges. The payment has not been made. By 31.05.2005 r. ABC sp. z o.o. failed to provide the required amount of straw.
By letter of 01.03.2008 r. ABC bank manager called Ark. z o.o. to provide the missing quantity of straw or refund in the amount of 80.000 zł within 7 days from the date of the call. ABC sp. z o.o. letter of 15.03.2008 r. wrote, that the bank can take the straw from the ABC store manager. z o.o., on what the bank did not agree. In this situation, a letter of 10.04.2008 r. bank withdrew from the agreement and demanded refund in the amount of 80.000 zł within 7 days from the date of the letter. In the absence of reimbursement lawsuit 10.05.2008 r. ABC has requested an award of sp. z o.o. amount 80.000 zł together with interest from the date of 09.03.2008 r.
In response, the defendant raised, that the bank is not entitled to claim legitimacy, since the agreement of 04.03.2003 r. was invalid because it, that on 30.06.2003 r. ABC board term expired sp. z o.o., therefore, a person, have signed, were not entitled to its representation. Moreover, contrary to the agreement of ABC sp. z o.o. this agreement had not obtained the consent of the general meeting of the company. The bank transferred the exclusive rights under the contract, and not a return of unjust enrichment.
The defendant also raised the plea of limitation of care, which on his view is two years. The defendant pointed, to the conclusion that in the form of a written amendment to the agreement made in e-mail correspondence dated 15.05.2004 r. were invalid, therefore, the time for delivery of the straw 31.05.2004. and from that date the limitation period runs.
Regardless of the above, the defendant raised a plea of set-off their claims for damage to the vehicle in the amount of 30.000 zł together with interest from the date of 01.07.2004 r.
In response, plaintiff pointed, that in his opinion the agreement and its amendments were valid, the defendant's claim for damages is time-barred and should not be taken into account, and moreover, it is entitled to claim against the EC S.A.. and not to the bank.
- What was the nature of the contract concluded between the parties?
a) cultivation contract
b) contract for delivery
c) contract of sale
Under the agreement, signed by ABC sp. z o.o. i EC S.A. ABC was the transfer of the sp. z o.o. EC to S.A.. ownership of a certain amount of straw and its release. This indicates the nature of the obligation sale agreement referred to in Article. 535 i nast. k.c.
The contract can not be considered a contract contracting, because, pursuant to Article. 613 k.c. a contracting party to the grower, and the subject of the contract is m.in. production of agricultural products. In this case, the ABC sp. z o.o. nor was a farmer, or committed to production of an agricultural product, because from the beginning it was clear, that it will purchase the product from farmers.
Similarly, the agreement can not be classified as a supply agreement, because according to Article. 605 k.c. the subject of the agreement is the creation of things labeled as to species and their delivery. In this case, the ABC sp. z o.o. committed not to produce things, but to purchase them from manufacturers.
2. Does the agreement between the parties was valid?
a) was invalid because of incorrect representation
b) was invalid due to the lack of resolution of the shareholders' meeting
c) both answers a and b are correct
d) was important
There is no doubt, that at the date of conclusion of the agreement ABC sp. z o.o. was not properly represented because of the expiry of the term of office of the Board and Failure to new. However, according to Article. 14 Act on the National Court Register entity required to file an application for registration can not rely on third parties acting in good faith on information, have not been registered or have been removed from the register. Since, according to Article. 22 ABC National Court Register Act sp. z o.o. was required to submit an application for the removal from the register of members of the Board within 7 days of the expiry of their mandates, not now to his partner to cover the charges of unfair representation.
Similarly, in case it is not disputed, that conclusion by ABC sp. z o.o. agreement with the EC S.A.. occurred without the permission required by the shareholders. None of this agreement does not affect the validity of the contract. In accordance with Article. 17 § 3 k.s.h. Legal action made without the consent of the competent authority of the company, only required by the articles of incorporation or statutes, is important, and the only consequences of this for management threaten, who has entered into such an agreement.
The agreement is therefore important.
3. Have there been significant changes in the contract between the parties confirmed email correspondence?
a) were important
b) were invalid
c) were important, if the correspondence was conducted among persons authorized to represent the two entities
The agreement does not contain any provisions concerning the form of its conclusion. However, there is art. 77 § 2 k.c. which is, that the addition or modification of the contract must be a form of, which the statute or the parties have agreed to its conclusion. Therefore, if the contract is in writing, the change should also be made in writing. However, according to Article. 74 § 1 k.c. in the absence of rigor invalidity claims, written form in this case is a form of evidence for. On the other hand, pursuant to Article. 74 § 3 k.c. rules of the form for the purposes of evidence do not apply to legal relations between entrepreneurs. Thus, changes in the agreement are valid and can be proved by all means of evidence. The condition is, that correspondence is carried out by persons authorized to represent. Otherwise, it would be a statement made by the alleged or body, which would pose their invalidity under Article. 39 k.c., or made by the alleged agent, which would require confirmation in accordance with Article. 103 § 1 k.c.
4. What is the limitation period for claims against ABC bank manager. z o.o.
a) two years
b) three years
c) ten years
As a result of the assignment there is no change of the limitation period. The term of limitation for claims against ABC bank manager. z o.o. It is therefore the same, the limitation period for claims EC S.A.. ABC to sp. z o.o. There is no doubt, EC claim that S.A.. resulted from the course of its business. W myśl art. 118 k.c. general limitation period for claims arising from the business is three years and the term will be used in our case. Will not apply, however, a two-year period of limitation resulting from Article. 554 k.c., because it refers only to the claims of the seller, rather than the buyer.
5. What is the limitation period for claims ABC sp. z o.o. to the bank
a) two years from the date of the request
b) three years from the date of the request
c) ten years from the date of the call
d) other
Claims, ABC enjoyed sp. z o.o. the EC sp. z o.o., tort claims are. Therefore, in accordance with Article. 442(1) § 1 k.c. These claims are time-barred after three years from the date of the damage to find out, no later than ten years from the harmful event.
6. Does the bank have the right to cancel the contract with ABC sp. z o.o.?
a) so
b) not
On the way to the bank transfer agreement have been transferred all the rights under the contract concluded by the EC SA. ABC sp. z o.o. Among these rights is the right to withdraw from the contract in the cases provided for in the agreement or the Act. Since the agreement did not indicate any grounds for departing, refer to the Act. In this case, the bank decided, ABC that sp. z o.o. failed to fulfill its obligation to provide straw and use of the power under Article. 491 § 1 k.c. – first called for the implementation of the commitments of the appointment date, and then withdrew from the contract. Irrelevant is the fact, ABC that sp. z o.o. bank offered the possibility of receiving straw from her magazine. According to the agreement, the straw should have been delivered to the headquarters of the EC SA.
Despite the above, the bank was not entitled to withdraw from the contract, as they were not satisfied all the conditions described in Article. 491 § 1 k.c. One of the reasons is because it, that the call to fulfill the provision should include risk, in the event that the ineffective lapse of the time limit, calling be entitled to withdraw from the contract. As described on the call did not contain this element, So the waiver is ineffective.
7. Whether the bank is legitimized to claim against ABC sp. z o.o.
a) so
b) not
Locus standi is the ability to act as a plaintiff in a proceeding arising out of the legal relationship. From this point of view, the bank was actively legitimized the investigation to ABC sp. z o.o. claims arising from the contract of sale. Fact, in this case, that the claims be unfounded (failure to withdraw), does not affect the assessment of the existence of the bank card.
8. Is the claim of the bank against ABC sp. z o.o. are barred?
a) so
b) not
As has already been indicated, ABC claims against the bank manager. z o.o. shall expire after three years. Moreover, it was important to provide an agreement extending the term of straw 31.05.2005 r. Thus, the earliest date, where you can meet the demand by ABC sp. z o.o. commitment was 01.06.2005 r. Since the lawsuit filed on 10.05.2008 r., there can be no limitation of the claim.
9. Is the claim of ABC sp. z o.o. the bank is barred?
a) so
b) not
As I mentioned earlier, ABC claims manager. z o.o. the bank had a character of tort claims, that lapse after 3 years of proving the victim of the damage and the person liable for it. Since the amount of the damage was known ABC sp. z o.o. from 30.06.2004 r., These claims were barred on 01.07.2007 r.
10. Is ABC sp. z o.o. have the right to claim for damage to a vehicle to set off to the bank?
a) so
b) not
In accordance with Article. 502 k.c. barred claim may be submitted to deduct, if at the time of, when the deduction was made possible, limitation period has not yet. As described on this condition has not been met. The first day, in which it was possible to deduct, was the day of withdrawal (assuming, it was effective) or 10.04.2008 r. By this time because the bank is not entitled to ABC sp. z o.o. claim for payment, but only a claim for a straw purchased. Only when the withdrawal (assuming the effectiveness of) ABC sp. z o.o. was required to repay advances received. Because on 10.04.2008 r. ABC claim sp. z o.o. for damage to the vehicle was already outdated, deduction can not be effective.
Net opposed by the fact, that the entity responsible for damages ABC sp. z o.o. EC was S.A.. a bank. In accordance with Article. 513 § 2 k.c. the debtor may deduct from the shed debt claim, which he is entitled against the seller, even becomes due only after the debtor a notice of transfer. This is not the case, the possibility for the vendor's claim fell due later than the claim at issue in the transfer. In this case, however, it was not possible to shed debt deduction, because at the stage of transfer claim submitted to the bank was a claim for non-pecuniary. Only when the withdrawal by the bank (assuming the effectiveness of) monetary claim was, but has not been the subject of a transfer.
11. Assuming, that the bank has the right to seek redress from the sp ABC. z o.o. from what date can charge interest:
a) 01.06.2004 r.
b) 01.06.2005 r.
c) 09.03.2008 r.
d) 18.04.2008 r.
As pointed out earlier, to the date of withdrawal (assuming the effectiveness of) the bank is not entitled to claim compensation ABC sp. z o.o. for repayment of the advance. Thus, they can not be charged interest on that amount. Charging interest was therefore not possible until after the deadline for payment laid down in the declaration of withdrawal.
The following results based on the above solution. By the way, I apologize sincerely for the mistake – There are two tests with a number 9. I marked them numbers 9(1) i 9(2). I hope, remember that the persons concerned and their answers will be able to tell, which matches the result of the test.
No. 1 – 9 points
No. 2 – 9 points
No. 3 – 9 points
No. 4 – 7 points
No. 5 – 8 points
No. 6 – 9 points
No. 7 – 9 points
No. 8 – 8 points
No. 9(1)- 4 points
No. 9(2) – 9 points
No. 10 – 7 points
No. 11 – 9 points
No. 12 – 9 points
No. 13 – 9 points
No. 14 – 4 points
No. 15 – 5 points
No. 16 – 4 points
No. 17 – 5 points
No. 18 – 7 points
No. 19 – 3 points
No. 21 – 3 points
No. 22 – 10 points
No. 23 – 10 points
No. 24 – 5 points
No. 25 – 4 points
No. 27 – 5 points
No. 28 – 11 points
No. 29 – 6 points
No. 30 – 5 points
No. 31 – 4 points
Despite, that case assignment was heavily tricky, results are decent, a few people managed to solve error-free or nearly error-free. The easiest was the question of the validity of the contract of 93,1 % correct answers, and the most difficult of the date of the payment of interest only 20,7 % correct answers.
Of course, if anyone has any comments on the results, or does not agree with the proposed solution, I invite you to comment below 🙂
By the way, thank you very much for the reliable assessment of activities and constructive criticism. Comments were extremely valuable. In many ways I am able to be taken into account (as the number of case studies, time to prepare and discuss how), however, at the same course content and form (as case studies instead of pleadings, inability to write contracts in place or lack of syllabus) This decision is beyond my competence. However, I will try to, your attention to reach the decision-makers.
Thank you also for joint activities and good luck at the test 🙂
