Judgment
of 25 January 2007 r.
The Supreme Court
V CSK 420/06
1. In accordance with Article. 774 i nast. k.c. party to the contract of carriage are only the sender (the consignor) and carrier, and not the person named in the bill of lading as the payer of Transportation charges opłacający. The Article. 47 paragraph. 2 Transport law is clear, that the sender of the consignment is not even a person given to transport the shipment to the carrier, which the legislator is a person qualifies only as authorized by the sender to perform all activities relating to a contract of carriage.
2. It is generally ruled that the principle of freedom of contract by the parties intended to conclude a contract of carriage, This, however, the result of such modification, made within the limits of art. 353 1 k.c., can not be recognized as a contract of carriage of such contract, carrier in which the counterparty is not the sender (the consignor). Modification of the legal relationship of carriage is in principle possible, However, after successfully transplanting, that such modification is subject to agreement, which can be classified as a contract of carriage.
Dz.U.2000.50.601: art. 47
Dz.U.1964.16.93: art. 353(1); art. 774
Evidence reported and conducted in violation of the principles laid down in Article. 47912 § 1 k.p.c. can not form the basis of the facts necessary for assessment by the court of second instance appeal allegations.
Dz.U.1964.43.296: art. 382; art. 479(12)
The formation
Chairman: Supreme Court judge Lech Walentynowicz.
Judges of the Supreme Court: Teresa Bielsko-Sobkowicz, Zbigniew Kwasniewski (spr.).
Sentence
The Supreme Court's action on P. Joint Stock Company in the. against S. Joint Stock Company in the. for payment, after diagnosis in closed session in the Chamber on Civil 25 January 2007 r. cassation appeal of the defendant from the judgment of the Court of Appeal on 21 April 2006 r.,
repeals the contested judgment and refer the matter to the Court of Appeals for reconsideration and settlement costs of the proceedings of cassation.
Factual
The claimant reached the defendant to pay for transportation services performed. This request the District Court granted the order for payment in full given on the writ. Having identified the defendant's objection upheld the District Court awarding claim in full amount in excess of 204 k. zł with statutory interest and costs of the process. The court of first instance found, that the submitted by the applicant during the process of bills of lading shows, asserted that the basis for plaintiff's claim was no settlement agreement 06-017-2004, under which the defendant entered the debt of so-called. transportable made by the applicant for the transportation of freight shipments. Moreover, the court held, that as a result of the settlement agreement defendant became indebted to the transport charges solidarity, because the agreement contained no record of discharge from the obligation of broadcasters to pay freightage. The legitimacy of the claim the plaintiff against the defendant moved the district court settlement agreement between the parties and Articles. 366 k.c.
Appeal the Court of Appeal dismissed the defendant's, that assessed the general findings of fact made by the District Court as correct and are justified by the evidence gathered. As a result, received no need to make a different assessment of the evidence and making findings of fact different. The appellate court affirmed, plaintiffs claim that the basis of the settlement agreement was, a basis for settlement between the parties concluded an invoice with the specification. The appellate court held that the parties remain in permanent trade relations with the circumstance that provides proof of the claim by the applicant at the time of filing a suit. Moreover, the court emphasized, that the defendant has been based on the documents accompanying the application must have an idea, about the payment terms and what transactions they arise, and the submission by the applicant in response to opposition photocopies of bills of lading was not to prove the claim, but to demonstrate, that the legal basis for this claim is a special agreement. In the opinion of the Court of appeal, at the stage of filing a suit was sufficient to submit photocopies of invoices, by which the plaintiff sufficiently documented his claims in the lawsuit, and the defendant was already in its objection to the payment order to challenge the merits of the claim, he remains in stable economic relations with the plaintiff knew the specifications and having the computation of transport charges. As a consequence, the Court of Appeal held, that the plaintiff had no need for a waybill in the lawsuit to prove the validity of their claims.
Moreover, the appellate court of appeal did not agree with the plea of infringement of Article. 6 k.c. stating, to demonstrate that the unfounded claims of the defendant is charged. The unfounded allegation of infringement of Article. 177 § 1 Item 1 k.p.c. This was justified, the case when the District Court in Warsaw and its decision can not have a direct bearing on the outcome of this case, since the contested decision of the President of the OCCP was abusing its dominant position by the applicant but only under multiannual contracts, a legal basis for the requests are special contracts and billing, contracts that are not multi-.
Further appeal defendant, contesting the judgment of the Court of Appeal in its entirety, was based on two grounds. Complaints falling within the first ground of nullity include violation of Article. 1 paragraph. 1 i art. 90 Act of 15 November 1984 r. – Transport Law (Dz. You. No. 50, Item. 601 they zm.) oraz Article. 774 k.c. by adopting, that the parties connected with the accession agreement to the debt, not a contract of carriage. Infringement of Article. 3531 k.c. misinterpretation by his justified rejection of the possibility of modifying the ratio of carriage in this way, that the defendant became his party, while the will of the parties was the establishment of a modified ratio of the content of the freedom of contract. The applicant alleges misapplication of Article. 519 k.c. as a result of, that she proceeded to the debt in the amount of transportable, while the defendant claims, that the debt has not joined, but it was a party to the legal relationship of carriage. Violation of Article. 6 k.c. justified the adoption of a defective, charged to the defendant the burden of demonstrating, that the plaintiff was not entitled to demand payment of the amount claimed by a petition.
The second ground for cassation defendant alleged violation of Article. 177 § 1 Item 1 k.p.c. through its failure to recognize the lack of grounds for suspension of proceedings, while proceedings pending before the Court of Competition and Consumer Protection have a decisive impact on the rules determining the amount of plaintiff's claims.
Violation of Article. 47912 § 1 k.p.c. justified the exclusion of, which resulted in the judgment back to a large extent on the evidence not mentioned in the lawsuit as a result of that application inadmissible evidence regarding the plaintiff's bills of lading, and the two contracts – and a special account, despite the inability to establish any indication of the evidence already in the lawsuit, or arising after the needs of their appointment.
The applicant applied to set aside the whole judgment and refer the case to the Court of Appeals for reconsideration or reformatoryjnego judgment dismissing the claim.
Plaintiff, a comprehensive response to an appeal in cassation, sought to dismiss the complaint in its entirety and award costs of the proceedings of cassation strongly opposing the defendant's claim, that the parties were related to the contract of carriage. Too, plaintiff raised, Accession to the debt that can not be equated with the acquisition of debt within the meaning of. 519 k.c. Defendant's plea of late appointment of the evidence refutes the claim the plaintiff, the need for their appointment came as a result of attempts to introduce the Court in error as to the cause of action. Unfounded allegation of infringement of Article. 177 § 1 Item 1 k.p.c. justified by his failure to the, that proceedings for a declaration of restrictive practices relating to long-term contracts, and such a character does not have a contract giving rise to plaintiff's claims.
The defendant in the statement of 28 November 2006 r. emphasizes in particular the validity of allegations of breaches of procedural rules to the letter enclosing a photocopy of the order of 30 X 2006 r. President of the OCCP to initiate antitrust proceedings against powódce.
Finally, the plaintiff in the writ of 12 December 2006 r. maintained its previous position on, referring to case law and widely adopted in the qualification of contracts with the plaintiff of the so-called. payers.
Legal Justification
The Supreme Court weighed the, The following:
Further appeal worthy of inclusion to the substance of the complaint under the second basis for appeal in cassation. Rightly criticizes the applicant, that the Court of Appeal erred in the provision of Article. 47912 § 1 k.p.c. Recognizing the relevance of decision of the Court of first instance, although his judgment was based on evidence not mentioned in the petition and without the simultaneous demonstration, the need for the appointment of such evidence arose later. In this case, a breach of Article. 47912 § 1 k.p.c. could have a significant impact on the outcome of the case, What determines the merits of an appeal in cassation in this area.
The Court of Appeal, first for the correct position of the District Court, plaintiffs claim that the basis of the settlement agreement was no 06-17-2004 concluded by parties 31 December 2003 r., and an invoice with the specification were the only documents on which the accounts between the parties. Despite the above position, the Court of Appeal then considered unreasonably, that the stage was enough to bring suit by the applicant to submit photocopies of invoices, that the plaintiff sufficiently documented their claims filed in the lawsuit. Could not agree with the Court of Appeal, that the defendant has been based on the documents accompanying the application in the form of photocopies of invoices had to orient, about the payment terms and what transactions they arise, because being in the solid business relationship with the plaintiff knew the way to calculate shipping charges. Since the settlement agreement, so no invoice, was the basis for claims asserted in this process by the applicant, This document contains wording put forward by the legal actions (contract) was evidence, which by virtue of Article. 47912 § 1 k.p.c. plaintiff should have been attached to the application under penalty of losing the right to rely on that evidence in the proceedings. The invoices were for only the accounts, not have been the basis asserted in the lawsuit claim, the fact, that the parties remained together in a permanent contractual relations, does not exempt the plaintiff from the obligation under Article. 47912 § 1 k.p.c. attach to the application of all the evidence to support its assertions about the existence of a claim against the defendant. It is obvious, that this evidence was not an invoice, which only the accounts, a settlement agreement was the aptly recognized by the courts of both instances as a basis for the request. Not be annexed to the application of the document containing the text of the agreement constituted a violation of the obligation in Article. 47912 § 1 k.p.c., differently in that, contrary to the position of the Court of Appeal. The case-law according to accepted, that the evidence presented and conducted in violation of the principles laid down in Article. 47912 § 1 k.p.c. can not form the basis of the facts necessary for assessment by the court of second instance appeal allegations, consequently recognized the merits of the claim (by. judgment of the Supreme Court of 8 September 2006 r., II CSK 86/06, unpublished.). The appellate court is in fact competent to deal with the matter and decide on the basis of such evidence only, which has been collected from the limits imposed by the so-called. preclusion of evidence (judgment of the Supreme Court of 12 May 2006 r., V CSK 41/06, unpublished.). The provision of Article. 47912 § 1 k.p.c. is the standard process of a mandatory, which results in the second instance appeal recognizes the duty to disregard evidence conducted by the Court of First Instance in violation of Article. 47912 § 1 k.p.c. (judgment of the Supreme Court of 21 April 2005 r., III CK 541/04, unpublished.; judgment of the Supreme Court of 23 mark 2006 r., IV CSK 123/05, unpublished.). Made by the Court of Appeal to appeal assessment taking into account the evidence taken by the Court of First Instance of an offense against art. 479 12 § 1 k.p.c. a violation of the mandatory standards process, which could have a significant impact on the outcome of the case. Relevance of the objection is determined the occurrence of the other grounds of nullity, resulting in regard to an appeal in cassation.
You also can not completely deny the applicant the reason for the complaint based on Article. 177 § 1 Item 1 k.p.c. Circumstance, that run on the designated ref. XVII Ama 43/05 before the District Court – Court competition and consumer protection proceedings for abuse of dominant position by the applicant only applies to multi-annual contracts, does not determine unambiguously the absence of the conditions in Article. 177 § 1 Item 1 k.p.c. just because, plaintiffs claim that the basis is a special and settlement agreement, contracts are not multi-. Weigh belongs, that the settlement agreement dated 31.12.2003 r. (k. 80 act) refers in § 1 paragraph. 3 the provisions of special agreements when determining shipping charges. The Special Agreement on 9 January 2003 r. (k. 75 act), devoted to accounting for freight charges, refers in § 5 paragraph. 3 i ust. 4 an agreement on the central billing of traffic. Has not yet been assessed, whether these arrangements for central clearing is a long-term contract, or whether it is merely a different definition (calling) long-term cooperation agreement. This circumstance may indeed be important in the context of the possible need for the application of Article. 177 § 1 Item 1 k.p.c. Weigh the need for, that the outcome of the proceedings before the District Court – court competition and consumer protection can determine the possible invalidity in whole or in part, a legal transaction underlying the claims in this process, if the act was considered by the Court as an abuse of dominance. Sanction provided for art. 8 paragraph. 3 Act of 15 December 2000 r. on competition and consumer protection (Dz. You. 2005 r. No. 244, Item. 2080).
Contrast, based on breach of those provisions of substantive law proved unfounded. The Court of Appeals did not err in art. 1 paragraph. 1 i art. 90 Act of 15 November 1984 r. – Transport Law (Dz. You. No. 50, Item. 601 they zm.), animal art. 774 k.c., because neither to interpret those provisions, nor do not legitimately applied, to the accurate recognition, that the settlement agreement between the parties was not a contract of carriage, and on the basis of that settlement agreement defendant entered the debt of so-called. transportable. Weigh belongs, that party to the contract of carriage are only the sender (the consignor) and carrier, and not the person named in the bill of lading as the payer of Transportation charges opłacający. The bills of lading contained in the file clearly shows, that in the box 9 used to indicate the entity that the sender does not list the defendant, but others. The Article. 47 paragraph. 2 Transport law is clear, that the sender of the consignment is not even a person given to transport the shipment to the carrier, which the legislator is a person qualifies only as authorized by the sender to perform all activities relating to a contract of carriage. In this situation,, if the defendant can not be treated in a juridical sense, as the sender, This fact rules out linking it with the qualification of the plaintiff as a contract of carriage agreement.
About the unfounded accusation of misinterpretation of Article. 353 1 k.c. determines that, that the Court of Appeal not to interpret this provision, and appealed to the court of first instance only. Nevertheless, that is generally not excluded that the principle of freedom of contract by the parties intended to conclude a contract of carriage, This, however, the result of such modification, made within the limits of art. 3531 k.c., can not be recognized as a contract of carriage of such contract, carrier in which the counterparty is not the sender (the consignor). Modification of the legal relationship of carriage is in principle possible, However, after successfully transplanting, that such modification is subject to agreement, which can be classified as a contract of carriage. In this case, this situation has not occurred.
Erroneous allegation was also incorrect application of Article. 519 k.c., because the Court of Appeal did not apply this provision, only tacitly approved the assessment of the contents of the contract made in this regard by the District Court, who took, that the defendant joined the debt. Neither of the two Courts did not consider the, the agreement between the parties resulted in the acquisition of debt by the defendant, in consequence of which no court reasonably applied the provisions of Article no. 519 k.c. in the absence of factual basis for doing so. Defendant's allegation of infringement of Article. 519 k.c. So seems to be based on an erroneous equating separate instruments, tj. acquisition debt and the accession to the debt.
An alleged infringement of Article. 6 k.c. proved to be unfounded, because it was based on the Court of Appeal attributed the position, the court did not express. The applicant alleged errors by the Appeal Court to adopt the defendant's obligation to demonstrate, that the plaintiff was not entitled to claim. Meanwhile, The appellate court specifically stated, that the defendant has to show, that it is not liable to pay, therefore obliged to indicate the circumstances, which would prove unfounded claims of the plaintiff against the defendant. Taka interpretacji art. 6 k.c. made by the appellate court is correct.
In view of the disclosure in the cassation appeal of the other reasonable basis for cassation, the Supreme Court has ruled as in the sentence, under Article. 398 15 § 1 k.p.c.
