| Summary: | Pursuant to Article 461§1 of Polish Civil Code (hereinafter referred to as: “CC”) related to Article 461§2 CC, a person obliged to release the property belonging to somebody else may retain such property until their claims for the reimbursement of expenditures on the thing of claims to redress the damage inflicted by the thing are satisfied or secured (retention rights). The aforementioned provision shall not apply when the duty to release the property results from tort or in the case of returning the property which have been leased, rented or loaned for use.1
Hence the question about the possibility of applying an analogy to the exclusions to retention right listed in Article 461§2 CC in a situation where after the termination of the marriage (for example: by divorce) the former spouse resides on the property constituting the personal property of the other spouse, against their will, invoking the duty of reimbursement of the expenditures from the common property to the personal property of the other spouse. The author has applied a dogmatic method to the issue outlined above, analysing the current legal situation and concluding that it is permissible to extend exceptions to the right of detention. There are the following premises for application of analogy in the civil law: similarity due to important features and loophole in the law. The use of the real estate property of the ex-spouse, contrary to the will of the other spouse, fulfils all the premises for application of analogy.
The ex-spouse residence on the real estate belonging to another spouse, contrary to the others spouse’s will, is reprehensible enough to be qualified as tort and cessation of the family law title to the apartment, referred to in Article 281 FGC – similarity to the cessation of continuous legal relationships, such as lending.
As proved, in accordance with applicable law it is admissible to create the analogy to Article 461§2 CC, so that the ex-spouse using the real property of another spouse upon termination of marriage could not invoke the retention right. As for the future, the statutory extension of the scope of the exceptions to the retention right should be suggested.
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