Czy naruszenie oświadczeń i zapewnień (Representations and warranties) jest naruszeniem umowy?
- Andrzej Szlęzak
The author is of the opinion that, under Polish law, a breach of representations and warranties is, in principle, not a breach of contract; rather, it is a factual premise triggering the debtor’s duty to render performance which the debtor contractually promised to make in the event of a breach of representations and warranties. The latter breach, however, does not constitute a breach of contract, because a contract can be breached by non-performance or improper performance of acontracted obligation, i.e. afailure to act as promised. Meanwhile, abreach of representations and warranties, i.e. a discrepancy between the warranted and actual state of affairs, is not amanifestation of such failure (a breach of contract), unless the performance under such contract were to consist in taking efforts that such discrepancy does not appear. This, however, usually does not (and, sometimes, even could not) constitute the subject-matter of performance of the representing/warranting party in atypical M&A contract. Thus, if a M&A contract obligates the debtor to redress the damage resulting from the fact that the representations and warranties given in the contract turned out to be (for instance) untrue or incomplete, the debtor discharges such duty (i.e., redresses the damage) in performance of the contract, and not as a remedy (ex contractu) for non-performance or improper performance thereof.
- Record ID
- Journal series
- Przegląd Prawa Handlowego, ISSN 1230-2996
- Issue year
- Publication size in sheets
- Keywords in Polish
- o świadczenia i zapewnienia, naruszenie umowy, naprawienie szkody jako sankcja ex contractu, naprawienie szkody jako obowiązek umowny
- Keywords in English
- representations and warranties, breach of contract, redressing the damage as an ex contractu remedy, redressing the damage as a contractual obligation
- https://sip.lex.pl/komentarze-i-publikacje/artykuly/czy-naruszenie-oswiadczen-i-zapewnien-representations-and-151320467 opening in a new tab
- (pl) Polish
- Score (nominal)
- Score source
- Uniform Resource Identifier
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