Article 1.1. Relationships governed by the Civil Code of the Republic of Lithuania
1. The Civil Code of the Republic of Lithuania shall govern property relationships and personal non-property relationships related to those relationships, as well as family relationships. In the cases provided for by law, other personal non-property relationships shall likewise be governed by this Code.
2. The provisions established by this Code shall apply to property relationships based on the legal subordination of persons to state institutions and directly resultant from their exercise of functions of public authority (realisation of subordination), or from the performance of persons’ obligations established by laws towards the State, or from the imposition of administrative or criminal sanctions established by laws, including relationships in the field of taxation and other obligatory payments or dues to the State or to its institutions, also in the field of the state budget, as well as to any other relationships governed by the provisions of public law to the extent that these relationships are not regulated by the relevant laws, also in the cases when it is expressly prescribed by this Code.
3. Employment relationships shall be regulated by special laws. The provisions of this Code shall apply to employment relationships to the extent that they are not regulated by special laws.
Article 1.2. Principles of legal regulation of civil relationships
1. Civil relationships shall be regulated in accordance with the principles of equality of their subjects’ rights, inviolability of property, freedom of contract, non-interference in private relations, legal certainty, proportionality and legitimate expectations, prohibition of abuse of rights, as well as the principles of comprehensive judicial protection of civil rights.
2. No civil rights may be limited, except in the cases established by law, or on the basis of a court judgment made in accordance with laws, where such limitation is necessary for the protection of public order, the principles of good morals, human health and life, property of persons, their rights and legitimate interests..
Article 1.3. Sources of civil law
1. The sources of civil law shall be the Constitution of the Republic of Lithuania, this Code, other laws and international treaties of the Republic of Lithuania.
2. Where there are contradictions between this Code and other laws, the provisions of this Code shall apply, except in cases where this Code gives priority to the provisions of other laws.
3. When implementing legal acts of the European Union, other laws may lay down rules regulating civil legal relationships other than those laid down by this Code. In this case, the Civil Code shall apply to the extent that other laws do not specify otherwise.
4. Civil relationships may be regulated by Government resolutions and legal acts of other state institutions only to the extent indicated by laws. Where legal acts of the Government or those of other state institutions contradict the provisions of this Code or the provisions of other laws, the provisions of this Code or those of other laws shall prevail.
5. The court shall have the right to declare a legal act or a part thereof null and void if it contradicts the Civil Code or another law in those cases where the supervision of conformity of this act to the Constitution or to other laws does not fall within the remit of the Constitutional Court. Having declared such a legal act to be null and void, the court must, within three days, send a copy of its judgment to the institution or the official that has adopted the legal act concerned. The final court judgment shall be published in accordance with the procedure for officially announcing legal acts.
Article 1.4. Customs
1. In the cases established by law or agreed on in contracts, civil relationships shall be regulated by customs.
Article 1.5. Application of the principles of justice, reasonableness and good faith
1. In exercising their rights and performing their duties, the subjects of civil legal relationships must act according to the principles of justice, reasonableness and good faith.
2. In the cases where laws do not prevent subjects of civil legal relationships from determining their mutual rights and duties upon agreement between themselves, these subjects must act in accordance with the principles of justice, reasonableness and good faith.
3. If laws or an agreement between the parties provide for certain matters to be decided by a court according to its discretion, in doing so, the court must act in accordance with the principles of justice, reasonableness and good faith.
Article 1.6. Ignorance of laws or improper understanding thereof
Ignorance of laws or improper understanding thereof shall not exempt from the application of the sanctions established therein, and shall not justify the failure to comply with the requirements of laws or improper compliance therewith.
Article 1.7. Effect of civil laws
1. Civil laws and other legal acts regulating civil relationships shall enter into force only upon their publication according to the procedure established by law.
Article 1.8. Analogy of statute and law
1. Civil relationships not governed by the rules of the civil law shall be governed by civil laws that govern similar relationships (analogy of statute).
2. In the absence of relevant civil laws governing similar relationships, general principles of law shall apply (analogy of law).
Article 1.9. Principles of interpretation of the provisions of the Civil Code
1. In order to ensure the integrity of this Code and the conformity of its separate structural parts, the provisions of this Code in the process of their application shall be interpreted by taking into account the system and the structure of this Code.
2. The words and word combinations used in this Code shall be interpreted in their general meaning, except in those cases where it is clear from the context that a word or word combination is used in a special – legal, technical or any other – meaning. Where the general meaning of a word does not coincide with its special meaning, priority shall be given to the special meaning.
Article 1.10. Application of foreign law
1. Foreign law shall apply to civil relationships where it is so provided for by the international treaties of the Republic of Lithuania, agreements between the parties or laws of the Republic of Lithuania.
2. A reference to foreign law shall include all the provisions applicable to the facts of a case under that law. It shall be prohibited to refuse to apply foreign law solely relying on the fact that the applicable legal rule is attributed to public law.
3. A reference to the applicable foreign law shall mean a reference to the national substantive law of the state concerned, but not a reference to the private international law of that state, except in cases provided for by this Code.
4. Where the legal system of the state to which the renvoi is made by the provisions of this Code comprises different legal systems based on the criteria of division into several territorial units, a reference to an applicable foreign law shall mean a reference to the legal system of the relevant territory determined in accordance with the criteria established in the law of that foreign state.
5. Where the legal system of the state to which renvoi is made by the provisions of this Code comprises several legal systems applied to different categories of persons, the applicable legal systems shall be determined in accordance with the criteria established in the law of that foreign state.
Article 1.11. Limitation of the application of foreign law
1. The provisions of foreign law shall not apply where the application thereof might be inconsistent with the public order established by the Constitution of the Republic of Lithuania and other laws. In such cases, the civil laws of the Republic of Lithuania shall apply.
2. Mandatory provisions of laws of the Republic of Lithuania or those of any other state most closely related with a dispute shall apply regardless of the fact that other foreign law has been agreed upon by the parties. In deciding on these matters, the court must take into consideration the nature of these provisions, their purpose and the consequences of application or non-application thereof.
3. In accordance with this Code, the applicable foreign law may not be given effect where, in the light of all attendant circumstances of the case, it becomes evident that the foreign law concerned is clearly not pertinent to the case or its part, with the case in question being more closely connected with the law of another state. This rule shall not apply where the applicable law is determined by the agreement of the parties.
Article 1.12. Determination of the content of foreign law
1. In the cases established by the international treaties of the Republic of Lithuania or by laws of the Republic of Lithuania, the application, interpretation and determination of the content of foreign law shall be performed by the court ex officio (on its own initiative).
2. Where the application of foreign law is established upon agreement between the parties, the burden of proof in relation to the content of the applicable foreign law in accordance with its official interpretation, practice of application and the law doctrine in the relevant foreign state shall lay on the disputing party that refers to the foreign law. At the request of the disputing party, the court may provide assistance in collecting information on the applicable foreign law.
3. Where the court or the disputing party that refers to foreign law fails to perform the obligation indicated in paragraphs 1 and 2 of this Article, the law of the Republic of Lithuania shall apply.
4. In the exceptional cases where it is necessary to take immediate interim measures to protect the rights or the property of a person, the court may decide on the urgent issues by applying the law of the Republic of Lithuania pending the determination of the law applicable to the dispute and the content thereof.
Article 1.13. International treaties
1. Where the provisions established in the international treaties of the Republic of Lithuania differ from those determined by this Code and other laws of the Republic of Lithuania, the provisions of the international treaties of the Republic of Lithuania shall apply.
2. The international treaties of the Republic of Lithuania shall apply to civil relationships directly, except in cases where an international treaty establishes that an internal legal act of the Republic of Lithuania is required for its application.
Article 1.14. Referring back and referring to the law of a third state (renvoi)
1. If the applicable foreign law refers back to the law of the Republic of Lithuania, that reference shall be observed only in the cases provided for in this Code or the foreign law.
2. If the applicable foreign law refers to the law of a third state, that reference shall be observed only in the cases provided for in this Code or the law of the third state.
3. Where, in determining the civil legal status of a person, the applicable foreign law refers back to the law of the Republic of Lithuania, such reference shall be observed.
4. Paragraphs 1, 2 and 3 of this Article shall not apply in the cases where the applicable law has been chosen by the parties to a transaction, likewise in determining the applicable law to the form of a transaction and to non-contractual obligations.
Article 1.15. Civil capacity of foreign citizens and stateless persons
1. Foreign citizens in the Republic of Lithuania shall possess the same civil capacity as the citizens of the Republic of Lithuania. Exceptions to this rule may be established by laws of the Republic of Lithuania.
2. The time of birth and death of foreign citizens shall be determined in accordance with the law of the state where the domicile of the foreign citizens (Article 2.12 of this Code) was at the moment of their birth or death.
3. Stateless persons in the Republic of Lithuania shall possess the same civil capacity as the citizens of the Republic of Lithuania. Special exceptions to this rule may be established by laws of the Republic of Lithuania.
Article 1.16. Civil active capacity of foreign citizens and stateless persons
1. Civil active capacity of foreign citizens or stateless persons shall be governed by the law of their state of domicile.
2. Where such persons have no domicile or it cannot be determined with certainty, their civil active capacity shall be determined in accordance with the law of the state in the territory of which these persons concluded a relevant transaction.
3. If a person has residence in more than one state, the law of the state with which he is most closely connected shall apply.
4. Foreign citizens and stateless persons with permanent residence in the Republic of Lithuania shall be declared legally incapable in certain areas or of limited legal capacity in certain areas and assistance to them in making decisions shall be provided in accordance with the procedure established by law of the Republic of Lithuania.
Article 1.17. Prohibition to invoke incapacity
1. A party to a transaction, who is legally incapable under the law of the state of his domicile, may not invoke his incapacity if he was legally capable under the law of the state in which the transaction was concluded unless the other party was aware or ought to have been aware of the first party’s incapacity under the law of the state of the latter’s domicile.
Article 1.18. Declaration of foreign citizens and stateless persons to be missing or dead
Foreign citizens and stateless persons shall be acknowledged missing or declared dead in accordance with the law of the state of their last known domicile.
Article 1.19. Civil capacity of foreign legal persons or any other organisations
1. Civil capacity of foreign legal persons or any other organisations shall be governed by the law of the state where these persons or organisations are founded.
2. If the procedure of founding a foreign legal person or any other organisation has been violated, its civil capacity shall be determined by the law of the state of its actual functioning.
3. Irrespective of the state of foundation of a legal person or any other organisation, the civil capacity of its subdivisions shall be determined in accordance with the law of the Republic of Lithuania if the head office, principal place of business or other activity of the subdivision is located in the Republic of Lithuania.
4. Merger, association or transfer of the head office of legal persons or any other organisations, one of which is located in the Republic of Lithuania and the other in a foreign state, shall have effect on their civil capacity in the Republic of Lithuania only if implemented in conformity with the laws of both states concerned.
Article 1.20. Matters regulated in accordance with the applicable law
1. 1.The following shall be regulated in accordance with the applicable law determined in Article 1.19 of this Code:
Article 1.21. Law applicable to the representative offices and branches of foreign legal persons or any other organisations
1. Representative offices and branches of foreign legal persons or any other organisations registered in the Republic of Lithuania shall be governed by the law of the Republic of Lithuania.
2. At least one of the persons acting on behalf of a representative office or a branch shall be bound to reside in the Republic of Lithuania. This provision shall not apply to representative offices or branches, established in the Republic of Lithuania, of the legal persons or other organisations of the Member States of the European Union and the states of the European Economic Area.
Article 1.22. Law applicable to representatives of foreign legal persons or any other organisations and to their civil liability
1. If the activities of a legal person or any other organisation founded under foreign law are conducted in the Republic of Lithuania, the civil liability of the persons acting on behalf and in the interests of those legal persons or any other organisations shall be governed by the law of the Republic of Lithuania.
2. A legal person or any other organisation may not claim for annulment or invalidity of a transaction concluded by its body or any other representatives in excess of their remit (powers) if the law of the state where the domicile or the head office of the other party to the transaction is located does not provide for any restrictions on their representative powers unless the other party was aware or, taking into account its position and the relationship with the other party, ought to have been aware of such restrictions.
Article 1.23. Law applicable to the State and state institutions as well as to local governments and local government institutions as subjects to civil legal relationships
Civil capacity of the state and state institutions as well as that of local governments and local government institutions shall be governed by the law of the state concerned.
Article 1.24. Law applicable to a promise of marriage
1. A promise of marriage and its legal effects shall be governed by the law of the state of domicile of the parties to the promise.
2. Where the parties to the promise of marriage are domiciled in different states, the promise of marriage and its legal effects shall be governed by the law of the place where the promise was made, or by the law of the state of domicile of one of the parties, or by the law of the state of citizenship of one of the parties, whichever law is most closely related with the dispute.
Article 1.25. Law applicable to the conditions to contract a marriage
1. Matrimonial capacity and other conditions to contract a marriage shall be governed by the law of the Republic of Lithuania.
2. Civil registration offices of the Republic of Lithuania shall have jurisdiction to perform the registration of a marriage if either of the persons intending to marry is domiciled in the Republic of Lithuania or is a Lithuanian citizen at the time of entering into the marriage.
3. Matrimonial capacity and other conditions to contract a marriage in respect of foreign citizens and stateless persons who do not have a domicile in the Republic of Lithuania may be determined by the law of the state of domicile of both persons intending to marry if such marriage is recognised in the state of domicile of either of them.
4. A marriage contracted lawfully abroad shall be recognised in the Republic of Lithuania, except in the cases where both spouses domiciled in the Republic of Lithuania contracted the marriage abroad with the purpose of evading grounds for the annulment of their marriage under the law of the Republic of Lithuania.
Article 1.26. Law applicable to the procedure for contracting a marriage
The procedure for contracting a marriage shall be determined in accordance with the law of the state where the marriage is contracted. Marriage shall also be recognised valid where the procedure of its contracting is in compliance with the requirements of the law of the state of domicile of either of the spouses or the law of the state of citizenship of either of them at the moment of contracting of the marriage.
Article 1.27. Law applicable to personal relations between spouses
2. Personal relations between the spouses domiciled in different states shall be governed by the law of the state of their last common domicile. Where the spouses have never had a common domicile, the law applicable to their personal relations shall be the law of the state to which the personal relations between the spouses are the most closely related. Where it is not possible to determine to the law of which state the personal relations between the spouses are the most closely related, the law of the state where the marriage was contracted shall apply.
Article 1.28. Law applicable to matrimonial property relations between spouses
1. The matrimonial property legal regime shall be governed by the law of the state of domicile of the spouses. Where the spouses are domiciled in different states, the law of their common state of citizenship shall apply. Where the spouses have never had a common domicile and are citizens of different states, the law of the state where the marriage was contracted shall apply.
2. The law applicable to contractual legal regime of matrimonial property shall be determined by the law of the state chosen by the spouses upon agreement. In this event, the spouses may choose the law of the state in which they are both domiciled or will be domiciled in future, or the law of the state in which the marriage was contracted, or the law of the state of which one of the spouses is a citizen. The agreement of the spouses upon the applicable law shall be valid if it is in compliance with the requirements of the law of the chosen state or the law of the state in which the agreement is made.
3. The applicable law chosen upon agreement of the spouses may be invoked against third persons only if they knew or ought to have known of that fact, i.e. if the third persons knew or ought to have known the chosen law that governed the matrimonial property regime when the legal relationship commenced.
4. The applicable law chosen upon agreement of the spouses may be used in resolving a dispute related to real rights in immovable property only in the event if the requirements of public registration of this property and of the real rights therein, as determined by the law of the state where the property is located, were complied with.
5. Any agreed change of the matrimonial property legal regime shall be governed by the law of the state of domicile of the spouses at the time of the change. Where the spouses were domiciled in different states at the time of the change of the matrimonial property legal regime, the applicable law shall be the law of their last common domicile, or failing that, the law governing matrimonial property relations between the spouses.
Article 1.29. Law applicable to legal separation and divorce
2. If the spouses do not have their common domicile, the law of the state of their last common domicile shall apply, or failing that, the law of the state where the case is tried.
3. If the law of the state of common citizenship of the spouses does not permit divorce or imposes special conditions for divorce, the divorce may be performed in accordance with the law of the Republic of Lithuania if one of the spouses is also a Lithuanian citizen or is domiciled in the Republic of Lithuania.
Article 1.30. Jurisdiction in the cases of annulment of marriage, divorce and legal separation
The courts of the Republic of Lithuania shall have jurisdiction over actions of annulment of marriage, divorce or legal separation in the cases provided for by the Code of Civil Procedure of the Republic of Lithuania.
Article 1.31. Law applicable to the ascertainment of the origin of a child (legitimation)
1. The origin of a child (acknowledgement, ascertainment or contest of paternity or maternity) shall be established either in accordance with the law of the state the citizenship of which the child acquired at his birth, or with the law of the state which is recognised as the domicile of the child at the time of his birth, or with the law of the state in which one of the child’s parents is domiciled, or with the law of the state the citizen of which one of the parents was at the time of the child’s birth, whichever is more beneficial to the child.
2. The consequences of legitimation shall be governed by the law of the state of domicile of the child.
3. If a child or one of his parents is domiciled in the Republic of Lithuania, the matters of legitimation shall be decided by the courts or other state institutions of the Republic of Lithuania.
4. The parents’ (the father’s or the mother’s) legal active capacity in acknowledging paternity/maternity shall be governed by the law of the state of his or her domicile at the time of the acknowledgement. The form of the acknowledgement of paternity/maternity shall be governed by the law of the state in which it is made or by the law of the state of the child’s domicile.
Article 1.32. Law applicable to relationships between the parents and the child
1. Personal and property relationships between the parents and the child shall be governed by the law of the state of the child’s domicile.
Article 1.33. Law applicable to adoption relationship
2. Where it becomes evident that the adoption performed according to the law of the state of the child’s (the adoptee’s) domicile will not be recognised in the state of domicile or citizenship of the adoptive parent(s), the adoption may be performed pursuant to the law of the state of domicile or citizenship of the adopter(s) if this will not prejudice the best interests of the child. If the recognition of adoption remains uncertain, the adoption shall not be allowed.
3. Relations between the adopted person (the adoptee) on the one side, and the adopting person(s) (the adopter(s)) and the relatives of the latter on the other side shall be governed by the law of the state of the adopter(s)’ domicile.
Article 1.34. Law applicable to protective measures in relation to minors, their guardianship and curatorship
Law applicable to the protection of minors, their guardianship and curatorship shall be determined pursuant to the Hague Convention of 5 October 1961 concerning the Powers of Authorities and the Law Applicable in Respect of the Protection of Minors.
Article 1.35. Law applicable to guardianship and curatorship of family members who have reached majority
1. Guardianship and curatorship of family members who have reached majority shall be governed by the law of the state of such incapable persons’ domicile.
Article 1.36. Law applicable to maintenance obligations (alimony relationships) within the family
Maintenance obligations (alimony) within the family shall be governed by the Hague Convention of 2 October 1973 on the Law Applicable to Maintenance Obligations.
Article 1.37. Law applicable to contractual obligations
1. Contractual obligations shall be governed by the law agreed upon by the parties. Such agreement of the parties may be expressed in the form of separate terms of the concluded contract or it may be determined in accordance with the factual circumstances of the case. The law of the state designated by agreement of the contracting parties may be applied to the whole contract or only to a part or parts thereof.
2. The initially chosen law applicable to contractual obligations may be changed by agreement of the parties at any time. A change of the applicable law shall have retroactive effect, however, such change may not be invoked against third persons and shall not render the contract void.
3. The choice of the law applicable to a contract as made by agreement of the parties may not be the grounds for refusing to apply the mandatory legal rules of the Republic of Lithuania or those of any other state that cannot be changed or waived by agreement of the parties.
4. Where no law applicable to a contractual obligation is designated by agreement of the contracting parties, the law of the state with which the contractual obligation is most closely connected shall apply. The contractual obligation shall be presumed to be the most closely connected with the state in the territory of which:
1) the party bound to perform the obligation most characteristic to the contract is domiciled or has its central administration. If the obligation is most closely connected with the law of the state where the business of the party to the obligation is located, the law of that state shall apply;
2) the immovable property is located, if the subject matter of the contract is the right in the immovable thing or the right to its use;
3) a carrier has the principal place of business at the time when the contract for carriage is concluded, if the state of the principal place of business of the carrier is also the same state where the cargo was loaded, or the head office of the sender is located, or the place the cargo was dispatched from.
5. Paragraph 4 of this Article shall not apply where it is impossible to determine the place of performance of the obligation most characteristic to the contract and the presumptions established in this paragraph may not be relied upon as it is evident from the circumstances of the case that the contract is most closely connected with another state.
6. A contract of insurance shall be governed by the law of the state where the domicile or the place of business of the insurer is located; a contract of insurance in respect of an immovable thing shall be governed by the law of the state in the territory of which the thing is located.
7. An arbitration agreement shall be governed by the law applicable to the principal contract, and in the case of invalidity of the principal contract, by the law of the place where the arbitration agreement was concluded. Where it is impossible to identify the place of conclusion, the law of the state in which arbitration is situated shall apply.
Article 1.38. Law applicable to the form of transaction
1. The form of transaction shall be governed by the provisions established in paragraph 1 of Article 1.37 of this Code.
2. Where no applicable law is designated by agreement of the parties, the form of transaction shall be governed by the law of the place where the parties entered into that transaction. A contract made by the parties residing in different states shall also be considered valid if its form corresponds to the legal requirements in respect of the form of the relevant transaction established in the national law of at least one of those states.
3. The form of transactions regarding an immovable thing or the rights therein shall be governed by the law of the state in which the immovable thing is located.
Article 1.39. Particularities of application of foreign law to consumer contracts
2. The right of the contracting parties established in paragraph 1 of Article 1.37 of this Code to make a choice of the law applicable to a contractual obligation shall not result in depriving or restricting the consumer of the right to protect his interests by the remedies determined by the provisions of the law of the state of his domicile where:
1) the formation of the contract in the state of his domicile was preceded by a special offer or by advertising in that country;
2) the consumer was induced by another contracting party to travel to a foreign state for the purpose of forming the contract;
3. Where the parties to a consumer contract have not made a choice of the applicable law, the law of the state in which the consumer is domiciled shall apply.
Article 1.40. Laws applicable to the form, period of validity and content of a power of attorney
The form of a power of attorney shall be governed by the law of the state in the territory of which it is issued. The period of validity of a power of attorney, where it is not indicated in the document itself, the powers (rights and obligations) of the agent, the bilateral liability of the principal and the agent, and their liability in respect of third persons shall be governed by the law of the state in which the agent acts.
Article 1.41. Law applicable to deeds of gift
1. Deeds of gifts shall be governed by the law of the state of the donor’s domicile or his business activities, except for deeds of gift of an immovable thing, as such contracts shall be governed by the law of the state where that immovable thing is located.
Article 1.42. Law applicable to the assignment of a claim and the assumption of a debt
1. Relations connected with the assignment of a claim and the assumption of a debt shall be governed by the law chosen by the parties upon agreement.
2. The choice of law made by the parties in the assignment of a claim may not be applied against the debtor without his consent to the application of the chosen law.
3. In the event of the parties not having made a choice of the applicable law, relations connected with the assignment of a claim and the assumption of a debt shall be regulated by the law governing the principal obligation, the claim arising from which (the debt) is to be assigned (assumed).
Article 1.43. Law applicable to delictual obligations
1. Rights and obligations of the parties resulting from tort shall be governed, at the choice of the aggrieved party, either by the law of the state where the tortious act was committed or any other tortious circumstances occurred, or by the law of the state in which the damage occurred.
2. Where it is impossible to determine the place where the act was committed or other circumstances occurred, or the state in which the damage occurred, the law of the state most closely connected with the case on reparation for damage shall apply.
3. After the incurrence of damage, the parties may agree that the law applicable to the reparation for damage shall be the law of the state where the case concerned is being heard.
4. Where both parties are domiciled in the same state, the law of that state shall be applicable to the reparation for damage.
5. An obligation to make reparation for damage caused by defective products shall be governed by the law of the state where the damage was incurred if the aggrieved person is domiciled in the same state, or it is the place of business of the person liable for the damage, or the products of inferior quality were acquired there by the aggrieved person. If the state of domicile of the aggrieved person coincides with the state of the place of business of the person liable for the damage caused, or with the state in which the defective product was acquired, the law of the state of the aggrieved person’s domicile shall apply. Where it is impossible to determine the applicable law in accordance with the criteria indicated in this paragraph, the law of the state where the business of the person liable for the damage is located shall apply, except in cases when the claim of the plaintiff is based on the law of the state in which the damage was caused.
Article 1.44. Law applicable to claims resulting from a traffic accident
Claims resulting from a traffic accident shall be governed by the Hague Convention of 4 May 1971 on the Law Applicable to Traffic Accidents.
Article 1.45. Law applicable to claims resulting from infringement of personal non-property rights
1. Claims for reparation of damage resulting from infringement of personal non-property rights by acts of the media shall be governed, depending on the choice of the aggrieved person, by the law of the state where the aggrieved person is domiciled, or has his place of business, or where the infringement occurred, or by the law of the state where the person who caused the damage is domiciled or has his place of business.
Article 1.46. Law applicable to claims for reparation of damage resulting from an act of unfair competition
Claims for reparation of damage resulting from an act of unfair competition shall be governed by the law of the state in whose market the negative effects of unfair competition occurred. If the act of unfair competition has affected exclusively the interests of an individual person, the applicable law shall be that of the state where the place of business of the aggrieved person is located.
Article 1.47. Plurality of debtors
If damage is caused by several persons, the applicable law shall be determined separately for each of them in accordance with the provisions of Article 1.43 of this Code.
Article 1.48. Law applicable to ownership legal relations
1. The ownership right and other real rights in an immovable and movable thing shall be governed by the law of the state where the thing was located at the moment of change of its legal status. Acknowledgement of a thing to be movable or immovable shall be governed by the law of the state in which the relevant thing is located.
2. Official registration of the ownership right and other real rights shall be governed by the law of the state where the thing is located at the time of its registration.
3. The ownership right and other real rights in a thing in transit (cargo) shall be governed by the law of the state of destination of this thing.
Article 1.49. Right of the parties to choose the law applicable to a movable thing
1. The parties may choose upon their agreement the law of the state of dispatch or the state of destination of the thing, or the law regulating the underlying legal transaction as the law applicable to the arisal and termination of the rights to the movable property.
Article 1.50. Law applicable to encumbrance of the right in a movable thing
1. Where a movable thing over which encumbrance of right was validly established abroad is imported into the Republic of Lithuania, that encumbrance shall be acknowledged to be likewise valid in the Republic of Lithuania.
2. Retention of title over a movable thing lawfully established abroad shall remain valid after that thing has been transported into the Republic of Lithuania, though such retention may not affect the rights of third persons in good faith.
Article 1.51. Law applicable to pledge
1. The pledge of rights, securities and claims shall be governed by the law chosen by the parties, though the choice of law may not affect the rights of third persons.
Article 1.52. Law applicable to contracts related to intellectual property rights
1. In the absence of the parties’ choice of applicable law (Article 1.37 of this Code), contracts related to intellectual property rights shall be governed by the law of the state where the party transferring the intellectual property rights or granting the use thereof has his domicile or the place of business.
Article 1.53. Intellectual property rights and the law applicable to their protection
1. Intellectual property rights and their protection shall be governed by the law of the state where the protection of the intellectual property rights is sought.
Article 1.54. Law applicable to obligations arising from the reception of a thing not due or unjust enrichment
1. Claims resulting from an obligation performed without any legal grounds for such performance shall be governed by the law of the state pursuant to the laws of which the legal grounds for the obligation are determinable.
2. Claims related to the reception of a thing not due resulting from unlawful actions shall be governed by the law of the state where such unlawful actions were performed.
Article 1.55. Law applicable to unilateral transactions
Unilateral transactions shall be governed by the law of the state where they were formed
Article 1.56. Law applicable to securities
1. Cheques and bills of exchange shall be governed by the provisions set forth in the Geneva Convention of 19 March 1931 for the Settlement of Certain Conflicts of Laws in connection with Cheques and the Geneva Convention of 7 June 1930 for the Settlement of Certain Conflicts of Laws in connection with Bills of Exchange and Promissory Notes.
Article 1.57. Law applicable to the currency in which payments are to be made
1. Currency in which payments are to be made shall be determined by the law of the state where the payment must be made unless the parties have chosen upon their agreement the currency in which the payments are to be made.
Article 1.58. Law applicable to obligations deriving from other grounds
Obligations deriving from the handling of affairs of another person, likewise obligations deriving from other grounds not specified in this Chapter, shall be governed by the law of the state where the grounds for the obligation occurred.
Article 1.59. Law applicable to prescription
Prescription shall be governed by the law applicable in determining the rights and obligations of the participants in the relevant civil legal relationship.
Article 1.60. Capacity to make a will
The capacity of making, amending or revoking a will shall be governed by the law of the state of the testator’s domicile. Where a person has no domicile or it is impossible to be determined, the capacity of such person to make a will shall be governed by the law of the state where the will is made.
Article 1.61. Form of a will
1. The form of a will, its amendment or revocation shall be governed by the law of the state where these acts are performed.
2. A will as well as its amendment or revocation shall also be valid in regard to the form if the form of the indicated acts is in compliance with the requirements of the law of the state of the testator’s domicile, or those of the laws of the state whose citizen the testator was at the time when the relevant acts were performed, or the law of the state of the testator’s residence at the time when those acts were performed or at the time of his death. A will in respect of an immovable thing, as well as any amendment or revocation thereof shall be valid if the form of the acts concerned is in compliance with the requirements of the law of the state where the immovable thing is located.
Article 1.62. Law applicable to other legal relations of succession
1. Other legal relations of succession, with the exception of those related to inheritance of immovable things, shall be governed by the law of the state of domicile of the testator at the time of his death. Relations of succession in respect of an immovable thing shall be governed by the law of the state where the immovable thing is located.
2. Where succession opens upon the death of a citizen of the Republic of Lithuania, irrespective of the law applicable, his heirs residing in the Republic of Lithuania who are entitled to the mandatory share of succession shall inherit this share in accordance with the law of the Republic of Lithuania, except for the immovable things.
Article 1.63. Concept and types of transactions
1. Transactions shall be the actions of persons intended to create, modify or abolish civil rights and duties.
3. A transaction shall be considered to be unilateral where the expression of the will of one party is a necessary and sufficient condition for its conclusion.
4. A unilateral transaction shall impose obligations exclusively on the person who concludes it. Obligations on any other persons shall be imposed by a unilateral transaction only in the cases established by laws or by agreement between the persons concerned.
5. Legal norms which regulate obligations and contracts shall apply to unilateral transactions to the extent that this does not prejudice laws and the essence of the unilateral transaction.
6. A transaction shall be considered to be bilateral where the concerted will of two parties is a necessary condition for its conclusion.
Article 1.64. Form of the expression of will
1. The free will of a person who enters into a transaction may be expressed verbally, in writing, by action or in any other manner of expressing will.
2. The will of a person may be implied subject to the special circumstances under which the transaction is concluded.
Article 1.65. Expression of will by means of a public notice
1. In the cases established by laws or a contract, a person – the declarant – shall have the right to express his will by means of a public notice (public authorisation, public annulment of authorisation, etc.) in accordance with the procedure established by this Article.
2. A public notice shall be published in a newspaper that is issued in the last known place of residence or business either of the other party to the transaction or that of the declarant of will (if such a newspaper exists), also in one of the national newspapers of the Republic of Lithuania, while in the cases provided for in the contract – on the website specified by the contract. The court may, if necessary, establish any other procedure for the expression of a person’s will by means of a public notice.
3. Expression of will by a public notice shall be presumed to have become known to the other party to the transaction upon the lapse of 14 days from the date of the last public notice. However, this presumption shall not apply if the person who expressed his will by a public notice failed to perform every possible action available to him for the ascertainment of the place of residence or business of the other party to the transaction.
Article 1.66. Conditional transaction
1. A transaction may render the appearance, modification or extinguishment of rights and duties dependent upon the fulfilment or non-fulfilment of certain conditions.
2. A transaction shall be deemed to be concluded with a suspensive condition if the arising of rights and duties therefrom is conditioned by the parties upon an uncertain event.
3. A transaction shall be deemed to be concluded with a resolutory condition if the extinguishment of rights and duties arising therefrom is conditioned by the parties upon an uncertain event.
Article 1.67. Consequences of an unfair hindering or assistance in the appearance of a condition
1. Where the appearance of a condition is unfairly hindered by a party to whom the condition is disadvantageous, this condition shall be considered as having existed.
Article 1.68. Other consequences of a conditional transaction
1. If a condition had already been fulfilled at the time when the transaction was concluded, such transaction shall be unconditional in the case of a suspensive condition, and null and void in the case of a resolutory condition.
2. If non-fulfilment of the conditions was already certain at the time when the transaction was concluded, such transaction shall be unconditional in the case of a suspensive condition, and null and void in the case of a resolutory condition.
3. A transaction subject to a suspensive condition which is objectively impossible shall be null and void; a transaction subject to a resolutory condition which is objectively impossible shall be unconditional.
Article 1.69. Place of the conclusion of a transaction
1. A unilateral transaction shall be deemed to have been concluded in the place where the will of a party to the transaction is expressed (the place where an authorisation is given or a will (a testament) is made, etc.).
2. A bilateral or multilateral transaction shall be deemed to have been concluded in the place of residence or business of the offeror unless otherwise provided by agreement between the parties or by law.
3. Where the receipt of the notice of acceptance by the offeror is not a necessary condition for the conclusion of a transaction, such transaction shall be deemed to have been concluded in the place of residence or business of the acceptor, or the place in which the factual actions of the acceptor were performed.
Article 1.70. Procedure for the conclusion of transactions
1. Natural persons shall conclude transactions themselves or through their agents. It shall not be allowed to conclude a transaction through an agent if, dependent on the nature of the transaction, it may be concluded only by the natural person himself; the same stands for any other transactions determined by laws.
Article 1.71. Form of transactions
1. Transactions shall be made in writing (in the ordinary or notarial form) or their conclusion may be implied by conduct.
Article 1.72. Verbal form of transactions
1. Where the written form is not required by laws or by agreement of the parties as a necessary condition for the conclusion of a transaction, the transaction may be concluded verbally.
Article 1.73. Written form of transactions
1. The following must be made in the ordinary written form:
1) transactions concluded by natural persons where, at the time of their conclusion, the value of the property upon which the transaction is concluded exceeds one thousand five hundred euros, except for such transactions which are performed at the time of their conclusion;
2) transactions on the foundation of legal persons, except for transactions on the foundation of partnerships, which shall be made in the notarial form;
2. Written transactions shall be made either by drawing up one document signed by all the parties to the transaction or by the parties exchanging separate documents. Documents signed by the parties and transmitted by means of telecommunications terminal equipment shall be conferred the same power as having been made in the written form, provided that the protection of the text is guaranteed and the signature can be identified.
3. The parties may agree to adopt additional requirements for the written form of the transaction (signatures of certain persons, affixation of a stamp on the document, assignment of a special form for the document, etc.) and provide for the legal effects of non-compliance with such requirements. Where the parties fail to comply with the established requirements, the transaction shall not be deemed concluded unless the parties agree otherwise.
Article 1.74. Notarised transactions
1. The following transactions must be drawn up in the notarial form:
1) transactions on the transfer of the real rights in an immovable thing and transactions on the encumbrance of the real rights and of the immovable thing, except for the transactions on the transfer of an immovable thing made in the course of the bankruptcy proceedings unless this Code provides otherwise;
3) contracts for the sale of private limited liability companies, where 25 per cent or more of the shares of a private limited liability company are sold or where the selling price of the shares exceeds EUR 14 500, except for the cases where management of personal securities accounts of the shareholders of the private limited liability company are transferred to the legal person entitled to open and manage personal accounts of financial instruments, or where the shares of a private limited liability company are sold upon conclusion of a privatisation transaction of shares held by the State or municipality by the right of ownership;
Article 1.75. Legal registration of transactions
1. The law may establish mandatory legal registration of certain transactions. A transaction shall produce its effects between the parties even if it is not registered in the mandatory order. In such cases, the rights and duties of the parties do not arise from the registration of the transaction, but from the moment established by law or by agreement of the parties, except in cases where it is established by this Code that the rights and duties of the parties arise only from the moment of registration of the transaction concerned.
2. The parties to an unregistered transaction may not invoke the fact of transaction against third persons and argue their rights against third persons by relying on other means of proof.
3. If the same real rights or the same thing is acquired by several acquirers but only one of them registers that transaction, it shall be considered that the acquirer who has registered the transaction is vested with that thing or with the real rights in that thing. If none of the acquirers registers the transaction, it shall be considered that the acquirer who is the first to form that transaction is vested with the rights indicated above.
4. If several persons register their property rights or real rights in the same thing, it shall be considered that the person who is the first to register that transaction is vested with these rights.
Article 1.76. Signing of transactions drawn up in writing
1. Transactions drawn up in writing must be signed by the contracting parties. Where a natural person, due to his physical defect, illness or any other reason, cannot sign the transaction himself, he may authorise another person to sign it on his behalf. The signature of the latter must be certified by a notary; or the head or a deputy head of the enterprise, institution or organisation where the person concerned is employed or studies; or by the head physician or a deputy head physician of the in-patient medical institution where the person concerned undergoes treatment; or by the commander of the military unit or a deputy commander thereof if the transaction is made by a soldier; or by the master of a ship during the period of a long voyage; in addition, the reason for which the person entering into the transaction is unable to sign it himself must be indicated.
2. Where the transaction is made by employing telecommunications terminal equipment, in all cases there must be sufficient data for the verification of the parties to the transaction. Where such data are not available, in the event of a dispute, the parties may not rely upon witness evidence to prove the fact of the conclusion of the transaction.
Article 1.77. Conclusion of transactions in the form other than permitted by law
1. Transactions which are permitted by laws to be concluded verbally may also be made in the ordinary written or notarial form.
Article 1.78. Null and voidable transactions
1. If the nature of nullity is clearly indicated in the law, a transaction shall be presumed to be null, irrespective of the fact of existence of a court judgment upon its annulment. The parties may not ratify a transaction which is null and void.
2. Any transaction for the declaration of voidability of which a court judgment is necessary shall be a voidable one.
4. An action for the voidability of a voidable transaction may be invoked only by the persons indicated in the laws.
Article 1.79. Ratification of a voidable transaction
1. A party possessing the right to invoke voidability of a transaction may ratify it within the time limit established by the other party or the laws. After ratifying the transaction, the party shall forfeit the right to claim voidability of that transaction.
2. It shall be presumed that a transaction is ratified by the party if, after it became possible for the party to ratify or dispute it, any of the following have taken place:
3) a security for the performance of the obligation subject to ratification has been granted to the other party;
Article 1.80. Nullity of a transaction that is contrary to the requirements of mandatory statutory provisions
1. Any transaction that fails to meet the requirements of mandatory statutory provisions shall be null and void.
2. When a transaction is null and void, each party shall be bound to restore to the other party everything they have received under that transaction (restitution), and, where it is impossible to restore in kind the received, the parties shall be bound to compensate the received to each other in money unless the laws provide for other consequences of nullity of the transaction.
Article 1.81. Nullity of a transaction that is contrary to public order and good morals
2. Where a transaction is null and void on the grounds established in paragraph 1 of this Article, the rules provided for in paragraph 2 of Article 1.80 of this Code shall not apply if both parties knew or ought to have known that the transaction was contrary to public order or good morals.
3. Unilateral or bilateral restitution may take place where its application is not contrary to the mandatory statutory provisions or good morals, i.e. where the purpose of the transaction contradicting public order or norms of good morals was not achieved, and the rules of public law do not establish any property sanctions in regard to the parties to such transaction.
Article 1.82. Voidability of a transaction contradicting the legal passive capacity of a legal person by whom the transaction was concluded
1. Transactions concluded by the management bodies of a private legal person in breach of their remit laid down in the incorporation documents or contradicting the goals of that legal person may be declared void only in the cases where the other party acted in bad faith, i.e. he was aware or ought to have been aware that the transaction was contrary to the goals of the legal person concerned. In such cases, the fact of announcement of the incorporation documents of the legal person concerned shall not be a sufficient proof of the other party’s bad faith, therefore the legal person shall be bound to prove that the other party deliberately acted in bad faith (Article 2.74 and Articles 2.83 to 2.85 of this Code).
2. Transactions concluded by public legal persons that are contrary to the goals of their activities may be declared void.
3. An action for the declaration of voidness on the grounds established by this Article may be brought by the legal person, the founder(s) or a member(s) thereof. The laws may also specify other persons entitled to bring such an action, or special requirements which have to be met by the persons bringing such an action (e.g., holding of a certain number of shares (deciding votes)).
Article 1.83. Legal effects of a transaction concluded on behalf of a legal person that is not registered pursuant to the procedure established by laws or has no licence to engage in certain activities
1. Where a transaction is concluded on behalf of a legal person that is not registered pursuant to the procedure established by laws, the natural person by whom such a transaction is concluded shall acquire the rights and assume the duties arising from that transaction, providing there are no other grounds for declaring such transaction void.
2. Where transactions are concluded on behalf of a legal person prior to its registration, the persons by whom these transactions are concluded shall be jointly and severally liable unless the legal person, after it is registered, assumes the obligations resulting from those transactions (Article 2.61 of this Code).
Article 1.84. Voidability of a transaction concluded by a legally incapable natural person
1. A transaction shall be voidable if concluded by a minor under fourteen years of age, except in cases where the minor, within the limits imposed by his age and in accordance with this Code and other laws of the Republic of Lithuania, may enter into transactions independently to satisfy his ordinary and usual needs.
2. A transaction shall be voidable if concluded by a natural person who, pursuant to the procedure established by law, has been declared legally incapable in a certain area due to his mental of behavioural disorder in that particular area.
3. In the cases established in paragraphs 1 and 2 of this Article, apart from the consequences provided for in paragraph 2 of Article 1.80 of this Code, the legally capable party shall be obliged to compensate the expenses incurred by the other party, also any damage to the latter’s property or loss thereof if the capable party was aware or ought to have been aware of the incapacity of the other party in that area.
4. The voidness of such transaction may be invoked by statutory representatives of the person incapable in a certain area as well as by a public prosecutor. Where a transaction is beneficial to the person incapable in a certain area, it may be ratified by the statutory representative of the latter in accordance with the procedure established by laws.
Article 1.85. Invalidation of transactions concluded without assistance by a natural person with limited legal capacity or by a natural person who requires assistance in exercising his decision-making capacity in a certain area
1. A transaction concluded without the consent of the curator by a natural person, whose legal capacity is limited in a certain area due to his mental and behavioural disorder, may be declared null and void by a court upon the action of the curator or a public prosecutor.
2. A transaction concluded without assistance by a natural person who requires assistance in exercising his decision-making capacity in a certain area may be declared null and void on the grounds of the invalidity of transactions provided for in this Code upon the action of the person providing assistance or a public prosecutor.
3. If a transaction indicated in the preceding paragraph of this Article is declared null and void, the provisions of paragraph 3 of Article 1.84 of this Code shall apply.
Article 1.86. Nullity of a fictitious transaction
1. A transaction made for the sake of appearance without intention to create legal effects shall not produce its effects between the parties and shall be null and void.
Article 1.87. Nullity of a simulated transaction
1. Where a transaction is concluded to cover up another transaction, i.e. where the parties’ intent to conclude a transaction is different from the simulated transaction, the rules applicable to the intended transaction shall apply.
2. Where the rights or legitimate interests of third persons are violated by a simulated transaction, the third persons in defence of their rights may plead simulation against the parties of the simulated transaction.
Article 1.88. Declaring voidable a transaction made by a minor aged between fourteen and eighteen years old
1. A transaction concluded by a minor aged between fourteen and eighteen years old without the consent of his parents or curators may be declared void in court on the action of such minor’s parents or curators, with the exception of transactions which the minor may conclude independently in accordance with this Code and other laws of the Republic of Lithuania.
2. Where the transaction specified in paragraph 1 of this Article is declared void, the provisions established in paragraph 3 of Article 1.84 of this Code shall apply.
Article 1.89. Declaring voidable a transaction concluded by a natural person who was unable to understand the meaning of his own actions
1. A transaction concluded by a legally capable natural person may be annulled in court on the action of the natural person concerned if, by reason of his state at the moment of conclusion of the transaction, he was unable to understand the meaning of his acts or to control them.
2. Where the transaction specified in paragraph 1 of this Article is declared void, besides the consequences established in paragraph 2 of Article 1.80 of this Code, the following additional consequences shall arise: the other party shall be bound to compensate to the party who, at the moment of the conclusion of the transaction, was unable to understand his own actions or to control them, the expenses incurred, also any damage to his property or loss thereof, if that other party was aware or ought to have been aware of the state of the first contracting party.
Article 1.90. Declaring voidable a transaction formed under the influence of a mistake
1. A transaction resulting from the consent given by an essential mistake may be declared void in court on the person’s whose consent is vitiated action for its voidness.
2. A mistake shall be considered to be an erroneous assumption of the essential facts of the transaction that existed at the moment of the conclusion of the transaction.
3. In the event of annulment of a transaction concluded under the influence of an essential mistake, the provisions established in paragraph 2 of Article 1.80 of this Code shall apply. In addition, the party upon whose action the transaction is declared void shall have the right to claim from the other party compensation for the expenses incurred or the damage to his property or loss thereof if this party proves that the mistake was caused through the other party’s fault. Where this is not proved, the party on whose action the transaction is declared void shall be bound to compensate to the other party the expenses incurred as well as the damage to his property or loss thereof.
4. A mistake shall be essential where it relates to the nature, object or any other essential conditions of the transaction itself, or the civil legal status of the other contracting party or any other circumstances, and where a person of normal diligence and attentiveness would not have concluded a transaction in a similar situation or would have concluded it on essentially different terms if he had known the real state of events. A mistake shall likewise be considered essential where both contracting parties erred, or an error of one party induced the other party to err without the former’s intention to deceive, or if one party was aware or ought to have been aware of the mistake made by the other party and the requirement addressed to the mistaken party to perform the transaction would contradict to the principles of good faith, justice and reasonableness.
5. A mistake may not be considered essential if caused by gross negligence of the mistaken party, or induced by the circumstances, the risk of which was taken by the party upon himself or if, taking into account the concrete circumstances, the risk of mistake falls on that party in particular.
6. A mistake resulting from the expression or transmission of a party’s will shall be deemed to be a mistake committed by that party himself.
Article 1.91. Voidability of a transaction concluded by a party whose consent was obtained by fraud, extorted by duress, economic pressure or induced by real threatening, likewise of a transaction concluded by the malicious agreement of an agent of one party with the other party, or a transaction entered into because of abusive circumstances
1. A transaction may be declared voidable by a court on the action of the aggrieved party if it was concluded by fraud, under duress, economic pressure or real threatening, or if it was concluded by the malicious agreement of the agent of one party with the other party, or if, by entering into the transaction by reason of abusive circumstances, one party assumed obligations under unfair conditions.
2. Where a transaction is declared voidable for any of the reasons specified in paragraph 1 of this Article, the other party shall be bound to restore to the aggrieved party everything he has obtained under that transaction, and, where it is impossible to restore (in kind), to compensate for its value in money In addition, the guilty party shall be bound to compensate to the aggrieved person all the expenses incurred.
3. Where a transaction is declared voidable by reason of fraud, violence, economic pressure, real threatening or the malicious agreement made between the agent of one party and the other party, the aggrieved party may, in addition to remedies provided for in the preceding paragraph of this Article, claim non-pecuniary damage caused by the actions indicated.
4. For the purposes of this Article, the term ‘real threatening’ shall mean unjustifiable or unlawful actions of the other party or a third person directed towards the person, property or reputation of the other contracting party, or that of his parents, children, spouse, grandparents, grandchildren or any other close relatives; the threatening actions must be of such nature as to impress a reasonable person and to cause him fear that the person, property or reputation of the persons concerned may be exposed to damage and there is no other reasonable alternative except to enter into the transaction. Threatening shall also be deemed to be real where one party or a third person threatens to enforce measures of economic pressure against the other contracting party that is economically weaker or is in essence economically dependent in order to compel him to conclude a transaction under exceptionally economically disadvantageous conditions. In determining the occurrence of real threatening, the court must take into account the age, economic and financial position, and the gender of the party towards whom the threat was directed, the nature of the threat, and any other conditions significant for the case.
5. In addition to the forms specified in the preceding paragraph of this Article, fraud may result from the silence of a party, i.e. from concealment of such circumstances being aware of which the other contracting party would not have formed the transaction and which, within the principles of reasonableness, justice and good faith, had to be disclosed to the other party; fraud may also result from active actions aimed at misleading the other contracting party as to the effect of the transaction, essential terms thereof, civil legal capacity of the person who enters into the transaction, and any other essential circumstances.
6. If a third person, but not the other party to the transaction is guilty of fraud, duress or threatening, the transaction shall be declared voidable only in the cases where that other party was aware or ought to have been aware of those facts.
Article 1.92. Voidability of a transaction concluded by an agent outside the authority conferred on him
A transaction concluded by an agent outside the limitations of the authority conferred on him by laws or a contract may be declared voidable upon the action of the principal unless such transaction is ratified by the principal (Article 2.133 of this Code).
Article 1.93. Voidability of a transaction resulting from the lack of requisites of its form established by laws
1. Failure to conclude a transaction in the form established by law shall render the transaction void only in the case where such consequence is expressly prescribed by law.
2. Where any dispute arises upon the fact of conclusion or performance of a transaction which fails to meet the necessary requirements for its ordinary written form, the parties shall lose the right to use testimony of witnesses as evidence to prove the facts indicated above; in the cases expressly prescribed by law, failure to adhere to the ordinary written form obligatory to a concrete kind of transaction shall result in the nullity of such transaction.
3. Failure to adhere to the notarial form required by law as a necessary condition of a transaction shall result in the nullity of the transaction.
4. Where one party in whole or in part performs his obligations arising from a transaction that must be notarised while the other party avoids the notarisation thereof, the court may, at the request of the party who has performed his obligations, declare such transaction valid. In such event, a subsequent notarisation of the transaction shall not be required.
5. Where nullity of a transaction results from the lack of necessary requisites of its form as established by laws, the consequences provided for in paragraph 2 of Article 1.80 of this Code shall arise.
6. A court may refrain from applying the provisions established in paragraph 2 of this Article where they contradict the principles of good faith, justice and reasonableness, in particular where:
1) there exists other written evidence, even though indirect, that proves the conclusion of the transaction;
2) written evidence to prove the fact of the conclusion of the transaction has been lost not through the fault of the party;
3) taking into consideration the circumstances in which the transaction was concluded, it was objectively impossible to conclude that transaction in writing;
Article 1.94. Legal effects of failure to adhere to the requirement to perform legal registration of a transaction
Failure to adhere to the requirement established by laws to perform legal registration of a transaction shall not result in the nullity of the transaction, except in the cases prescribed by this Code.
Article 1.95. Moment from which the effect of annulment arises
1. A transaction which has been annulled shall be deemed to be null and void ab initio (from the moment of its conclusion).
Article 1.96. Consequences of partial nullity of a transaction
Partial nullity of a transaction shall not import the nullity of the entire transaction where it can be supposed that the contracting parties would have entered into that transaction even without the part affected by nullity having been included.
Article 1.97. Kinds of objects of civil rights
1. Objects of civil rights shall be things, money and securities, other property and property rights, results of intellectual activities, information, actions and results thereof, as well as any other material and non-material values.
2. Things and property the turnover of which is restricted may be considered to be objects of civil rights only in the cases established by laws. Things which are withdrawn from civil use or the turnover of which is restricted must be expressly prescribed by laws. Otherwise, the civil turnover of things or property shall not be considered restricted.
Article 1.98. Things as object of civil rights
2. Land and other things which are connected with land and which cannot be moved from one place to another without a change of their purpose and essential reduction of their value shall be immovables (buildings, equipment, perennial plants and other things which, according to their purpose and nature, are deemed to be immovable).
3. Ships and aircraft, the mandatory legal registration for which is established by laws, shall also be considered to be immovables. Any other property may also be attributed to immovables by laws.
Article 1.99. Kinds of things as objects of civil rights
1. Things as objects of civil rights shall be divided into things determined by their individual features and things determined by their specific properties.
Article 1.100. Money
Money, as an object of civil rights, shall be banknotes issued by the Bank of Lithuania, coins and means in accounts, also banknotes issued by other states, treasury notes, as well as coins and means in accounts, serving as lawful means of settlement.
Article 1.101. Securities
A security, as an object of civil rights, shall be a document certifying the obligation of its issuer to the holder of this document. A security may confirm the right of the person in possession of the document (holder) to receive from the issuer interest, dividends, part of the assets of an enterprise in liquidation, or the funds lent to the issuer (shares, bonds, etc.); the right or obligation to acquire or alienate other securities, whether for payment or gratuitously, (subscription rights, futures, options, convertible bonds, etc.); the right to some income or payment obligation subsequent to a change of prices on the security market (index, etc.). A security shall also be a document by which a direct order is issued to a bank to pay a certain sum of money (cheques) or which certifies an obligation to pay a certain sum of money to the person whose name is indicated in the document (bill of exchange); or which proves the right of ownership to merchandise (mercantile securities); likewise a document which certifies the right or an obligation to acquire or alienate mercantile securities (derivative mercantile securities). Uncertificated securities shall be issued in the cases established by laws and indicated (consolidated) in a special security register.
2. The laws may also provide for other types of securities. For the purposes of protecting the rights of investors, as well as for supervising and regulating the capital market, the laws may provide for a different definition of securities (investment) to be employed in the laws which regulate these relationships. Unless provided otherwise, the provisions of this Code and the definition of securities shall apply to investment (investment securities) if the documents certifying the investment possess the features specified in paragraphs 1 and 3 of this Article.
3. The right certified by a security may be alienated to another person only where the security itself is alienated unless otherwise provided for by laws. Securities may be alienated in accordance with the laws, the ordinary practice or by custom freely and unrestrictedly. Securities shall be alienated by transfer, though it ought to be certified by means of making an inscription of transfer of the security – an endorsement.
4. Securities may be underlying or derivative. Underlying securities shall confirm their holders’ rights and duties specified in paragraph 1 of this Article, with the exception of the right or duty to acquire or alienate, for payment or gratuitously, other securities, as well as the right to receive certain income or the duty to pay a certain sum of money subsequent to a change of prices on the security market. The securities which certify these exclusive rights or duties shall be called derivative securities.
5. Securities shall be divided into registered, bearer or order securities. They shall also be divided into monetary, equity and mercantile securities.
6. A monetary security shall grant the right to receive a certain sum of money indicated therein (cheque, bill of exchange, bond).
7. An equity security shall grant the right to participate in the management of an enterprise, confirm the holding of the enterprise’s capital and entitle to receive a part of its profits (shares and certificates of shares, etc.), except in the cases provided for by laws.
8. A mercantile security shall grant the right of ownership to merchandise, also the right to receive merchandise (bill of lading, way-bill, etc.).
9. Securities must contain the requisites provided for by laws. The absence of obligatory requisites of a security shall render it null, except in the cases established by laws.
10. Upon the issuance of uncertificated securities, where the laws do not provide otherwise, it shall be considered pursuant to this Code that the holder of the securities has entrusted the person keeping the accounts with the safekeeping of the securities under the custody contract. The rights, obligations and liability of the keeper shall be determined in accordance with the provisions of Book Six of this Code applicable to the custody contract. Where accounts are kept by several persons on different levels, it shall be considered that the person who keeps the accounts of the holder of the security has transferred the safekeeping of the securities concerned to another person under the deposit contract. Such securities shall be alienated by the relevant entries in the securities accounts.
Article 1.102. Share
1. A share shall be a security certifying the right of its holder (shareholder) to participate in the management of an enterprise and, where the laws do not provide otherwise, to receive a part of the enterprise profits in the form of dividend and a part of the remaining property of the enterprise in case of its liquidation, as well as certifying other rights established by laws.
Article 1.103. Bond
A bond shall be a security certifying the right of its holder to receive from the person who issues the bond the nominal value of the bond, annual interest or any other equivalent, or other property rights within the time limits prescribed in it.
Article 1.104. Cheque
A cheque, as a security, shall be an unconditional order drawn up in a certain manner that is addressed by the drawer to a bank to pay a certain sum in money to the holder of the cheque.
Article 1.105. Bill of exchange
1. A bill of exchange, as a security, shall be an unconditional order in writing addressed by one drawer to another by which the first person pledges himself or entrusts another person to pay directly or indirectly a certain sum of money to the person whose name is endorsed therein.
3. By using an order bill (draft bill) its drawer shall entrust another person to pay to the person whose name is endorsed in the bill the sum indicated therein.
4. By using a single bill (sole bill) its drawer shall pledge himself to pay the sum indicated therein.
Article 1.106. Bill of lading
1. A bill of lading, as a security, shall be a document certifying the fact of conclusion of a contract and its holder’s right to receive from the carrier the goods specified therein (cargo) and the right to dispose of the goods (cargo) received.
Article 1.107. Certificates of deposit
1. A certificate of deposit shall be a written bank document containing a statement on the deposit of funds and granting the depositor the right to receive the deposit and interest upon maturity.
Article 1.108. State debt obligation
A state debt obligation shall be a security payable to the bearer which certifies that its holder has lent a certain sum in money to the State and grants its holder the right to receive the sum indicated therein and interest established thereby during the holding period of this security.
Article 1.109. Land plot and other resources
A land plot identified and registered in accordance with the procedure established by laws, also the defined areas of subsoil, waters and forests, as well as objects of flora and fauna, may be objects of civil rights.
Article 1.110. Enterprises and other property complexes
1. An enterprise, as a complex of assets, property and non-property rights belonging to the person who is engaged in business (seeking profit), as well as debts and other duties thereof, may be the object of civil rights. An enterprise shall be considered to be an immovable thing.
Article 1.111. Results of intellectual activities
Works of science, literature and art, patents, trademarks, design and other results of intellectual activities expressed in any objective form shall be deemed to be objects of civil rights. Patents, trademarks, design and other results of intellectual activities shall become objects of civil rights from the moment of their recognition as such made in accordance with the procedure established by laws.
Article 1.112. Property rights
1. Real rights, rights arising from obligations, also rights arising from the results of intellectual activities shall be objects of civil rights.
Article 1.113. Actions and their results
Various actions and their results (transportation of goods, repairs of things, services, etc.) shall be objects of civil rights.
Article 1.114. Personal non-property rights and values
1. Personal non-property rights and values, i.e. the name, life, health, inviolability of body, honour, dignity, the private life of an individual, the author’s name, professional reputation, business name, trade marks of goods/services and other values with which the arising of certain legal effects is linked by laws shall be objects protected by the civil law.
Article 1.115. Personal non-property rights
1. Objects protected by the civil law shall be personal non-property rights, i.e. the rights that have no economic content and are inseparably related with their holder.
Article 1.116. Commercial and professional secret
1. A commercial secret shall mean information that has all the following characteristics:
1) it is secret, that is, information as a whole or the precise composition and configuration of its components is not generally known or easily obtainable in an environment where such information is normally handled;
2. The following shall not be considered to constitute a commercial secret:
1) information which is confidential but which does not have the characteristics of a commercial secret;
2) information which is indicated as confidential by its holder but which is obvious (widely known), publicly available or easily obtainable in an environment where such information is normally handled;
3) information which, under normal working circumstances, becomes part of experience, skills, competences or knowledge acquired by employees in good faith;
4) information about the prices of services and goods as well as operating costs of entities providing services of public interest;
3. Protection of commercial secrets against unlawful acquisition, use and disclosure shall be established by law.
4. Information shall be considered to be a professional secret if, according to laws or under an agreement, it must be safeguarded by persons of certain professions (lawyers, doctors, auditors, etc.). This information is received by the indicated persons in performance of their duties provided for by laws or contracts. The cases, where the information received in exercise of professional rights and in performance of professional duties are not considered professional secret, shall be established by laws. Damage resulting from unlawful disclosure of a professional secret shall be compensated on general grounds established by this Code.
Article 1.117. Definition of a time limit
1. A time limit shall mean a period of time determined by laws or a transaction or established by a judicial authority and fixed by a calendar date or by the termination of a period expressed in years, months, weeks, days or hours.
4. A restoratory time limit shall mean a period which may be restored by the court after its expiration, providing it was exceeded due to substantial reasons.
5. An acquisitionary time limit shall mean a period after the expiration of which a certain civil right or duty is acquired.
Article 1.118. Commencement of a time limit
1. A time limit shall start at the beginning of the first hour of the day following the calendar date or an event defining the beginning of the time limit unless the laws provide otherwise.
Article 1.119. Expiration of a time limit expressed in years and months
1. A time limit expressed in years shall expire on the last hour of the corresponding day and month of the last year of the time limit.
2. A time limit expressed in months shall expire on the last hour of the corresponding day of the last month of the time limit.
Article 1.120. Expiration of a time limit expressed in weeks
A time limit expressed in weeks shall expire on the last hour of the corresponding day of the last week of the time limit.
Article 1.121. Inclusion of official holidays and non-working days
1. Official holidays and non-working days (Saturdays and Sundays) shall be included when calculating a time limit.
Article 1.122. Performance of actions on the last day of the time limit
1. An action for the performance of which a time limit is set must be performed before the expiry of the last hour of the last day of the time limit. However, where an action is to be performed in an organisation, the time limit shall expire by the end of the office hours set by the organisation in question.
Article 1.123. Legal significance of a time limit
1. Where the emergence of a duty is dependent on the expiration of a certain time limit, the performance of the duty may not be demanded before the expiry of that time limit.
2. Where certain legal effects of a transaction are dependent on the expiration of a time limit, the transaction or obligation shall terminate with the expiry of the time limit.
3. It shall be presumed that a time limit takes effect in favour of a debtor except in the cases where:
Article 1.124. Concept of prescription
Prescription shall be a time period established by laws during which a person can defend his violated rights by bringing an action.
Article 1.125. Time limits of prescription
2. In respect of concrete kinds of claims, abridged prescription shall be established by this Code and other laws of the Republic of Lithuania.
4. Abridged three-month prescription shall apply in respect of claims for declaring voidable the decisions of the bodies of a legal person.
5. Abridged six-month prescription shall apply in respect of actions for recovery of default penalties (fines, late payment interest).
6. Abridged six-month prescription shall apply in respect of claims arising from the relationships between communication enterprises and their clients regarding consignments sent within the territory of Lithuania, and one-year prescription shall apply where consignments were sent abroad.
7. Abridged one-year prescription shall apply in respect of claims arising from the legal relationships of insurance.
8. Abridged two-year prescription shall apply in respect of claims arising from defects in/inadequate quality of goods, services or digital content.
9. Abridged three-year prescription shall apply in respect of claims for compensation of damage, including claims for compensation of damage caused by products of inadequate quality.
10. Abridged five-year prescription shall apply in respect of claims for recovery of interest and other periodical payments.
11. The abridged prescription established in Book Six of this Code shall apply in respect of claims arising from defects in the work performed.
12. Claims arising from contracts for the transportation of goods, passengers or baggage shall be subject to prescription established in the codes/laws regulating individual modes of transport.
Article 1.126. Application of prescription
1. A claim to protect a violated right shall be accepted by the court irrespective of the expiry of prescription.
2. The expiration of prescription shall be effected by the court exclusively if invoked by a party to the dispute.
Article 1.127. Commencement of prescription
1. Prescription shall commence from the day on which the right to bring an action arises. The right to bring an action shall arise from the day on which a person became aware or ought to have become aware of the violation of his right. Exceptions to this rule shall be established by this Code and other laws of the Republic of Lithuania.
2. Where a time limit for the performance of an obligation is established, prescription of a claim arising from such obligation shall commence upon the expiry of the time limit allocated for the performance of that obligation.
3. Where a time limit for the performance of an obligation is not established, prescription shall run from the moment when a claim to perform the obligation is brought.
4. Prescription of claims arising from regressive obligations shall run from the moment when the principal obligation is performed.
5. In the event of continuous infringement, i.e. it happens every day (a person fails to perform the actions he is bound to perform, or performs the actions he has no right to perform, or fails to discontinue any other violation), prescription for actions concerning acts or omissions that occurred on a concrete day shall run from that every day.
Article 1.128. Prescription of claims arising from an obligation upon subrogation
Substitution of persons in an obligation shall not affect the time limit of prescription and the procedure of its calculation unless otherwise provided for by law.
Article 1.129. Suspension of prescription
1. The running of prescription shall be suspended where:
1) an extraordinary event that cannot be prevented under the circumstances (force majeure) hinders bringing of an action;
3) the plaintiff or defendant serves in a unit of the armed forces of the Republic of Lithuania in which martial law is declared;
4) no guardian or curator is appointed to a person legally incapable in a certain area or to a person whose legal capacity is limited in a certain area;
6) the parties to an obligation are a guardian and the person under guardianship, or a curator and the person under curatorship;
2. The run of prescription shall be suspended only where the circumstances indicated in paragraph 1 of this Article occurred or continued to exist during the last six months of the prescription; where the time limit of prescription is shorter than six months, the run of prescription shall be suspended if the circumstances indicated in paragraph 1 of this Article occurred or continued to exist during the whole period of the time limit of the prescription.
3. Suspended prescription shall resume its run from the day when the circumstance which gave rise to such suspension ceases to exist. In that event, the remaining part of the time limit shall be extended to six months; where the time limit of prescription is shorter than six months, it shall be extended to the full time limit of the prescription.
Article 1.130. Interruption of prescription
1. Prescription shall be interrupted by bringing an action in accordance with the procedure established by laws.
2. Prescription shall also be interrupted by actions of a debtor by which the debtor acknowledges his obligation to the creditor.
3. An interrupted time limit of prescription shall be resumed from the moment when the circumstance which gave rise to such interruption ceases to exist. An interruption of prescription resulting from bringing an action shall be resumed from the date of entry into force of the court judgment, provided that an identical claim may be forwarded from the disputed legal relationship. The period preceding the interruption of prescription shall not be included in the duration of the new time limit of prescription.
4. No interruption in the time limit of prescription shall occur where the action is discontinued by the court due to the fault of the plaintiff. Refusal to accept the action or its withdrawal by the plaintiff shall likewise have no effect of interrupting prescription.
Article 1.131. Legal effects of the expiration of a time limit of prescription
1. The expiration of a time limit of prescription prior to the date of bringing an action shall serve as valid grounds for dismissal of the action.
2. Where the court acknowledges the time limit of prescription as expired due to important reasons, the violated right must be protected and the expired time limit of prescription restored.
Article 1.132. Suspension, interruption and restoration of abridged prescription
The provisions regulating the suspension, interruption and restoration of prescription (Articles 1.129 to 1.131 of this Code) shall likewise apply in respect of abridged prescription, except in cases where laws provide otherwise.
Article 1.133. Consequences arising when a debtor performs an obligation after the expiration of a time limit of prescription
Where a debtor performs his obligation after the expiration of the time limit of prescription, he shall have no right to claim restitution even if at the time of performance of his obligation he did not know that the time limit of prescription had expired.
Article 1.134. Claims not subject to prescription
The following claims shall not be subject to prescription:
1) claims arising from the violation of personal non-property rights, except in cases established by laws;
2) claims of depositors for repayment of deposits placed with a bank or any other credit institution;
3) claims for compensation for pecuniary and non-pecuniary damage resulting from the crimes specified in paragraph 8 of Article 95 of the Criminal Code;
Article 1.135. Application of prescription with respect to accessory claims
The prescription period with respect to accessory claims (penalty, pledge, suretyship, etc.) shall expire upon the expiration of the prescription with respect to the principal claim, even though the prescription period of the former was not due to expire.
Article 1.136. Grounds giving rise to civil rights and duties
1. Civil rights and duties shall arise on the grounds established by this Code and other laws, also from actions performed by natural persons and organisations which, although not provided for by laws, create civil rights and duties within the general principles and meaning of civil laws.
2. Pursuant to paragraph 1 of this Article, civil rights and duties shall arise:
1) from contracts and other transactions provided for by this Code and other laws, as well as from transactions which are not provided for by laws but do not conflict with these laws;
5) on the grounds of damage, as well as on the grounds of the reception of property not due or of unjust enrichment;
Article 1.137. Exercise of civil rights and discharge of civil duties
2. In exercising their rights and discharging their duties, persons must obey the law, respect the rules of collective life and the principles of good morals, and act in good faith and in accordance with the principles of reasonableness and justice.
3. A person shall be forbidden from abusing his rights, i.e. there being no legal ground, no civil rights may be exercised in a manner or by means intended to violate other persons’ rights and interests protected by laws; or to restrict other persons in their rights and interests protected by laws; or with the intent of doing damage to other persons; or where this would be contrary to the purpose of a subjective right. Abuse of rights that causes damage to other persons shall be the grounds for imposing civil liability. A court may refuse to protect the subjective right which the person abuses.
4. Civil rights may not be exercised in bad faith and with the intent of unlawfully restricting competition or in abuse of a dominant market position.
5. Civil rights shall be protected by laws, except in cases where the exercise of these rights is inconsistent with their purpose, public order, good usages (bonos mores) or the principles of public morals.
Article 1.138. Protection of civil rights
Civil rights shall be protected by the court, acting within its remit and according to the procedure established by laws. The ways of protecting civil rights shall be the following:
3) prevention of unlawful actions or prohibition to perform actions that pose a reasonable threat of the occurrence of damage (preventive action);
6) recovery of pecuniary or non-pecuniary damage from the person who infringes the law and, in cases established by the law or contract, recovery of penalties (fine, default interest);
7) declaration as voidable of unlawful acts of state or municipal institutions or the officials thereof in the cases established in paragraph 4 of Article 1.3 of this Code;
Article 1.139. Self-defence
1. Self-defence may be exercised for the purposes of protecting one’s civil rights only in cases established by this Code.
2. Methods and means of self-defence must correspond to the nature of the unlawful act and cannot, on a case-by-case basis, exceed the limits of self-defence.
Article 2.1. Concept of passive civil capacity of natural persons
Every natural person shall fully enjoy his civil rights and obligations (passive civil capacity).
Article 2.2. Beginning and end of passive civil capacity of natural persons
1. Passive civil capacity of a natural person shall begin at the moment of his birth and shall end at the moment of his death.
2. The beginning of rights prescribed by law to a conceived but yet unborn child shall depend on the act of its birth.
3. Where it is impossible to establish whether a child was born alive or dead, it shall be presumed that it was born alive.
Article 2.3. Moment of birth and death of natural persons
2. Irreversible cessation of blood circulation and breathing or complete and irreversible cessation of all functions of the brain shall be considered to be the moment of death of a natural person.
Article 2.4. Content of passive civil capacity of natural persons
1. According to law, natural persons shall be entitled to property as the object of private ownership and shall enjoy the right to engage in economic and commercial activities, establish enterprises or other legal entities, inherit property and bequeath it, choose a sphere of activities and a place of residence, to have copyright of an invention or an industrial sample as well as other property and individual non-property rights, which are protected by the civil law.
2. Natural persons who, in accordance with the procedure established by laws, are engaged in economic and commercial activities shall be considered to be traders.
3. Every person engaged in business or profession must administer his property and everything related to his business or profession as well as retain documents and other information about his property, business or profession in the manner which would enable every person having a legal interest to receive, at any time, comprehensive information about the property rights and obligations of the person in question.
Article 2.5. Active civil capacity of natural persons
1. On attaining majority, i.e. when a natural person reaches the age of eighteen, he, by his acts, shall have full exercise of all his civil rights and shall assume civil obligations.
2. Where the law provides for the possibility of a natural person to enter into marriage before he is eighteen, the person who has not yet reached the given age shall acquire full active civil capacity from the moment of entering into marriage. Where, at a later date, this marriage is dissolved or annulled for reasons not related to the age of the parties to marriage, a minor shall not lose his full active civil capacity.
Article 2.6. Prohibition to impose restrictions on passive or active civil capacity of natural persons on the grounds not prescribed by law
1. Restrictions on passive or active civil capacity may not be imposed on anyone in any other manner except by express provision of law.
Article 2.7. Active civil capacity of minors under fourteen years of age
1. Transactions on behalf and in the name of minors under fourteen years of age shall be concluded by their parents or guardians.
2. Upon entering into transactions and conducting them, parents or guardians must act solely in the interests of the minor. The rights and obligations of parents and guardians in administering the property of minors shall be laid down in the provisions of Book Three of this Code.
3. Minors under fourteen years of age shall have the right to independently enter into transactions to meet their ordinary and usual needs, conclude transactions aimed at gratuitous personal gain, as well as transactions related to the use of their own earnings or funds provided by their legal representatives or other persons where the said transactions are not subject to a prescribed notarial or any other specific form.
4. Liability of legal representatives for contractual obligations of minors, who are under fourteen years of age, shall be prescribed by law if they fail to prove that the said obligations were breached through no fault of their own.
5. Where a transaction concluded by a minor under fourteen years of age is not declared null and void and where the said person becomes legally capable, the other party to the transaction may apply in writing to the party to the transaction who has become legally capable and request to approve the transaction within the set time limit, which may not be shorter than one month. Where the person fails to notify about his refusal to approve the transaction within the set time limit, he shall be deemed to have approved the transaction.
Article 2.8. Active civil capacity of minors over fourteen and under eighteen years of age
1. Minors over fourteen and under eighteen years of age shall enter into transactions upon the consent of parents or curators. The form of consent must correspond to the form of the transaction concluded. Transactions concluded without the consent of legal representatives shall be deemed valid where the consent of the legal representative is given after the transaction has been concluded.
2. Apart from the rights laid down in paragraph 3 of Article 2.7 of this Code, minors over fourteen but under eighteen years of age shall have the right to independently dispose of their income and property acquired for that income, exercise copyright to their works, inventions and industrial design as well as to enter into transactions to meet their ordinary and usual needs.
3. Where there are sufficient grounds, the court may, on an application filed by a child guardianship/curatorship institution or other interested persons, impose restrictions on or divest minors who are over fourteen but under eighteen years of age of the right to independently dispose of their income and property.
4. The right of minors over fourteen but under eighteen years of age to place deposits with credit institutions and dispose of them shall be prescribed by law.
Article 2.9. Emancipation of minors
1. Once the minor has reached the age of sixteen, the court may emancipate him on the application of his parents, institutions of guardianship/curatorship, his curator or the minor himself where there are sufficient grounds to allow him to exercise all civil rights and discharge his obligations independently. In all cases, the minor’s own consent shall be required for the minor to be emancipated.
Article 2.10. Declaration of legal incapacity of a natural person in a certain area
1. A natural person who, as a result of mental and behavioural disorder, is not able to understand the meaning of his actions in a certain area or control them, may be, by the court, declared legally incapable in that particular area. The person legally incapable in that particular area shall be placed under guardianship in regard to this area.
2. The court judgment shall include an exhaustive list of areas in which a person is declared legally incapable. Transactions on behalf of the person who is declared legally incapable in a certain area shall be concluded by his guardian. The rights and obligations of a guardian shall be laid down in the provisions of Book Three of this Code.
3. Where a person who is declared legally incapable in a certain area recovers from his illness or the state of his health improves considerably, the court shall declare him as having legal capacity in that area. After the court judgment becomes res judicata, the guardianship of the said person in regard to this area shall be revoked.
4. The spouse of a person, his parents, adult children, an institutions of guardianship/curatorship or a public prosecutor shall have the right to file an application for the declaration of the person’s legal incapacity in a certain area. They shall also have the right to apply to court requesting the declaration of the person’s full legal capacity or legal capacity in the area in which the person has been declared legally incapable. In the cases provided for in Article 2.101 of this Code, the Legal Capacity Review Commission shall also have the right to apply to court requesting the declaration of the person’s full legal capacity or legal capacity in the area in which the person has been declared legally incapable. A natural person who is declared legally incapable shall also have the right to apply, not more than once a year, to court requesting the declaration of his full legal capacity or legal capacity in the area in which he has been declared legally incapable. The one-year period shall start to run from the date of entry into force of a court judgment declaring the person legally incapable in a certain area. Subsequent one-year periods shall start to run from the date of entry into force of the last court judgment on the person’s legal capacity.
Article 2.101. Review of the condition of a legally incapable person
1. Each municipality must set up or have a functioning Legal Capacity Review Commission (hereinafter: the ‘Commission’). The Commission shall review the condition of a person legally incapable in a certain area and decide on the expediency to apply to court requesting the review of the judgment whereby a person was declared legally incapable in a certain area. Taking into consideration the number of persons with legal incapacity in a certain area who live in the territory of a municipality, one municipality may set up several Commissions or several municipalities may set up a single Commission. Model rules of procedure of Legal Capacity Review Commissions shall be approved by the Government.
2. The Commission shall act on its own initiative to review the condition of a legally incapable person where, within one year from the date of entry into force of a court judgment declaring a person legally incapable in a certain area, persons referred to in paragraph 4 of Article 2.10 of this Code or a person declared legally incapable in a certain area fail to apply to court requesting the annulment of the court judgment declaring the person legally incapable. The condition of a person legally incapable in a certain area shall be reviewed by the Commission, which is set up or functions in the municipality of residence of the person legally incapable in a certain area.
3. In its work, the Commission shall be guided by the principles of impartiality and independence, the principle of the least possible limitation of legal capacity, the principle of personalisation of measures limiting legal capacity and the principle of justification. When reviewing the condition of a legally incapable person, the Commission must hear the opinion of the person legally incapable in a certain area, except in exceptional cases where it is objectively not possible to do so. Where the Commission has doubts as to whether it is purposeful to apply to court, all doubts must be resolved in favour of a person declared legally incapable in a certain area.
4. The Commission comprising five members shall be set up by a decision of the municipal council. Where establishment of a single Commission for several municipalities is decided upon, the decision thereto shall be subject to approval by the council of each of the municipalities in which the Commission is to function. Where two of the five members of the Commission decide that it is purposeful to apply to the court which adopted a judgment declaring a person legally incapable in a certain area and request the review of the judgment, the Commission shall be deemed to have adopted the decision to apply to court. Decisions adopted by the Commission shall not affect the right of persons referred to in paragraph 4 of Article 2.10 of this Code or the right of a person declared legally incapable in a certain area to apply to court requesting the declaration of the person’s legal capacity.
Article 2.11. Limitation of active civil capacity of natural persons in a certain area
1. A natural person who, as a result of mental and behavioural disorder, is partially unable to understand the meaning of his actions in a certain area or control them may be declared by the court to be of limited legal capacity in that particular area. After a person’s legal capacity in a certain area has been limited, he shall be placed under curatorship. The rights and obligations of a curator shall be laid down in the provisions of Book Three of this Code.
2. The court judgment shall include an exhaustive list of areas in which a natural person is declared to be of limited legal capacity. A natural person with limited legal capacity may not, without the consent of the curator, enter into transactions or otherwise act in the areas in which he is declared to be of limited legal capacity. A natural person legally incapable in a certain area may, with the consent of the guardian, enter into transactions or otherwise act in those areas in which he is declared to be of limited legal capacity. In these cases, the provisions of this Code regulating the conclusion of transactions by a person with limited legal capacity in a certain area shall apply mutatis mutandis to the conclusion of transactions by a natural person legally incapable in a certain area. A court may not restrict the right of a person to apply to court requesting the court to lift the limitations imposed on the person’s limited legal capacity in a particular area, and to exercise the rights provided for in Articles 2.25 and 2.26 of this Code and the right to appeal against the acts of the curator or guardian.
3. Where the circumstances that led to the limitation of a person’s legal capacity in a certain area are no longer valid, the court shall lift the limitation on the person’s legal capacity in that particular area. After the court judgment becomes final, the curatorship in regard to this area to the said person shall be revoked.
4. A person of full age with limited legal capacity in a certain area shall be personally liable for his contractual and non-contractual obligations.
5. The spouse of a person, his parents, adult children, an institution of guardianship/curatorship or a public prosecutor shall have the right to request the imposition of a limitation on a person’s civil legal capacity in a certain area. They shall also have the right to apply to court requesting the declaration of the person’s full legal capacity or legal capacity in the area in which the person is declared to be of limited legal capacity. The person whose legal capacity has been limited shall also have the right to apply to court requesting the court to lift the limitation on his legal capacity.
6. Provisions of the articles of Part VII of Book Three of this Code shall apply mutatis mutandis to relations arising in the exercise and protection of the property and non-property rights of a natural person legally incapable in a certain area or a natural person with limited legal capacity in a certain area.
Article 2.111. Register of Legally Incapable Persons and Persons with Limited Legal Capacity
1. The Register of Legally Incapable Persons and Persons with Limited Legal Capacity shall record persons who have been declared legally incapable in a certain area by the court or whose active civil capacity is limited in a certain area; minors from the age of fourteen to eighteen in the cases provided for in paragraph 3 of Article 2.8 of this Code; guardians and curators of such persons; persons who have concluded an agreement on assistance in making decisions; persons providing assistance in making decisions; areas in which assistance in making decisions is provided to a person; and durable powers of attorney made by persons, and shall process the data on the court decisions, adopted in respect of these persons, concerning the establishment of legal incapacity or limitation of legal capacity; the areas in which a person has been declared legally incapable and/or in which a person’s legal capacity is limited, and revocation of limitation of legal capacity or legal incapacity; as well as the data on agreements on assistance in making decisions; termination of the said assistance; and durable powers of attorney. The Register of Legally Incapable Persons and Persons with Limited Legal Capacity shall be a non-public state register.
2. The data controller of the Register of Legally Incapable Persons and Persons with Limited Legal Capacity shall be the Ministry of Justice of the Republic of Lithuania (hereinafter: the ‘Ministry of Justice’). The data processor of the Register shall be appointed by the Government. The data of the Register shall be processed in accordance with the procedure laid down by the regulations of the Register of Legally Incapable Persons and Persons with Limited Legal Capacity.
3. The data of the Register of Legally Incapable Persons and Persons with Limited Legal Capacity shall be provided in accordance with the procedure laid down by the regulations of the Register of Legally Incapable Persons and Persons with Limited Legal Capacity only to the data recipients who have the statutory right to receive such data for the direct performance of their functions.
Article 2.12. Domicile of a natural person
1. Being an expression of a person’s relationship with the state or part of its territory, the domicile of a natural person shall be that state or its part, in which he permanently or ordinarily resides, regarding that state or its part to be the seat of his personal, social and economic interests.
2. A natural person shall be deemed to be domiciled in the Republic of Lithuania where, of his own will, he establishes and maintains the only or principal residence with the intention to make it the seat of his personal, social and economic interests. This intention, inter alia, may manifest itself by the person’s actual presence on the territory of the Republic of Lithuania as well as the establishment of personal or business relations between him and the persons of the Republic of Lithuania or by some other criteria.
3. A natural person may have only one domicile. A person called to a temporary or revocable public office shall retain his domicile.
4. The domicile of a natural person shall be deemed unchanged until he changes it to another domicile.
Article 2.13. Domicile of legally incapable natural persons
1. The domicile of a natural person legally incapable in a certain area shall be deemed to be the domicile of his guardian if the guardian and his ward reside in the same state.
Article 2.14. Domicile of minor natural persons
1. The domicile of minor natural persons shall be deemed to be the domicile of their parents or guardians/curators.
Article 2.15. Right of the parties to a transaction to choose domicile
The parties to a transaction shall enjoy the right to choose, in writing, their domicile for the performance of the transaction and the exercise of the rights arising from the said transaction.
Article 2.16. Place of residence of a natural person
2. Where a person has more than one residence, the seat of his principal establishment (where the person has property or a major part of property, where he has his job or where he resides the longest) shall be deemed to be his principal residence. In such a case, a person’s principal residence shall be taken into consideration in establishing his domicile.
3. A person whose domicile cannot be established with certainty in accordance with the criteria laid down in Article 2.12 of this Code shall be deemed to be domiciled at the place of his residence. This rule shall also apply to refugees from the state which was their domicile unless they were domiciled in the Republic of Lithuania in accordance with the provisions of Article 2.12 of this Code.
Article 2.17. Criteria for the establishment of residence
1. The length and continuity of actual residence at the place, data on a person’s residence in public registers as well as his own public statements about his residence shall be taken into account in establishing residence of a natural person.
2. A person whose residence is unknown or cannot be established with certainty shall be deemed to reside at the place of his last known residence.
3. A natural person must notify, in writing, the other party to the transaction as well as his creditors or debtors about the change of his residence. Where a person fails to perform this obligation, the other party to the transaction and creditors shall have the right to send notifications and perform other actions at the place of his last known residence.
Article 2.18. State registration of acts of civil status
The State shall conduct mandatory registration of the following acts of civil status:
6) recognition of paternity, establishment of paternity/maternity and challenging paternity/maternity;
Article 2.19. Procedure for the registration of acts of civil status
Acts of civil status, except for partnership, shall be registered in accordance with the procedure laid down in the law regulating the registration of acts of civil status.
Article 2.20. Right to a name
1. Every natural person shall enjoy the right to a name. The right to a name shall include the right to a surname, name(s) and pseudonym. It shall be prohibited to acquire rights and assume obligations under the cover of another person’s name.
2. A natural person shall have the right to use his full or abbreviated name(s) and request other persons not to use and not to act in his name without his authorisation.
Article 2.21. Protection of the right to a name
1. A natural person whose right to a name has been infringed because another person unlawfully acts in his name or otherwise misappropriates or obstructs the use of his name shall have the right to apply to court and request to oblige the guilty person to discontinue the said acts and redress the pecuniary and non-pecuniary damage incurred by him by such unlawful acts.
Article 2.22. Right to an image
1. A photograph (or its part) or some other image of a natural person may be reproduced, sold, demonstrated, published and the person may be photographed only with his consent. After the death of a natural person, such consent may be given by his spouse, parents or children.
2. Where such acts are related to a person’s public activities, his official post, a request of law enforcement bodies or where a person is photographed in public places, consent of a person shall not be required. A person’s photograph (or its part) produced under the said circumstances, however, may not be demonstrated, reproduced or sold if those acts were to abase the person’s honour, dignity or damage his professional reputation.
3. A natural person whose right to an image has been infringed shall have the right to request the court to oblige the discontinuance of the said acts and redressing of the pecuniary and non-pecuniary damage. After the death of a person, such claim may be presented by his spouse, children and parents.
Article 2.23. Right to privacy and secrecy
1. Privacy of a natural person shall be inviolable. Information on a person’s private life may be made public only with his consent. After the death of a person, such consent may be given by his spouse, parents or children.
2. Unlawful entry into a person’s dwelling or other private premises as well as a fenced private territory, unlawful surveillance of a person, unlawful search of a person or his property, violation of the confidentiality of a person’s telephone, post or other private communications as well as personal notes and information, publication of the data on the state of his health in violation of the procedure prescribed by laws and other unlawful acts shall be deemed to violate a person’s private life.
3. Establishment of a file on another person’s private life in violation of law shall be prohibited. A person may not be denied access to the information contained in the file, except as otherwise provided by law. Dissemination of the collected information on a person’s private life shall be prohibited unless, taking into consideration a person’s official post and his status in the society, dissemination of the said information is in line with a legitimate and well-grounded public interest to know the said information.
4. Public announcement of facts of a person’s private life, however truthful they may be, as well as making private correspondence public in violation of the procedure prescribed in paragraphs 1 and 3 of this Article as well as entry into a person’s dwelling without his consent, except as otherwise provided by law, surveillance of a person’s private life or collecting information about him in violation of law as well as other unlawful acts, infringing the right to privacy shall form the basis for bringing an action for redressing the pecuniary and non-pecuniary damage incurred by the said acts.
Article 2.24. Protection of honour and dignity
1. A person shall have the right to demand a refutation, in judicial proceedings, of the disseminated data, which abase his honour and dignity and which are false, as well as redress of the pecuniary and non-pecuniary damage incurred by the dissemination of the said data. After the death of a person, this right shall pass on to his spouse, parents and children if the dissemination of false data about the deceased person also abases their honour and dignity. The disseminated data shall be presumed to be false until the person who disseminated them proves the opposite.
2. Where false data were disseminated by a mass medium (press, television, radio etc.), the person about whom the data were disseminated shall have the right to file a refutation and demand the given mass medium to publish the said refutation free of charge or make it public in some other way. The mass medium must publish the refutation or make it public in some other way in the course of two weeks from its receipt. The mass medium shall have the right to refuse to publish the refutation or make it public only in such cases where the content of the refutation contradicts good morals.
3. The claim to redress the pecuniary or non-pecuniary damage shall be examined by the court irrespective of the fact whether the person who has disseminated such data refuted them or not.
4. Where a mass medium refuses to publish the refutation or make it public in some other way or fails to do so within the time limit provided in paragraph 2 of this Article, the person shall be entitled to apply to court in accordance with the procedure established in paragraph 1 of this Article. In such a case, the court shall establish the procedure and time limits for the refutation of the data, which are false or abase another person’s reputation.
5. The mass medium, which disseminated false data abasing a person’s reputation, must redress pecuniary and non-pecuniary damage incurred by the person only in those cases where it was aware or ought to have been aware that the disseminated data were false as well as in those cases where the data were made public by its employees or the data were disseminated anonymously and the mass medium refuses to name the person who supplied the said data. In all other cases, the person who has disseminated the data and his undertaking must redress the pecuniary and non-pecuniary damage.
6. The person who has disseminated false data shall be exempted from civil liability in cases where the disseminated data are related to a public person and his state or public activities and the person who has made them public proves that his actions were in good faith and meant to introduce the person and his activities to the public.
7. Where the court judgment, which obliges the refutation of false data abasing a person’s honour and dignity, is not executed, the court may issue an order to recover a fine from the defendant for each day of default. The amount of the fine shall be determined by the court. It shall be recovered in favour of the plaintiff, irrespective of the redress for the inflicted non-pecuniary damage.
8. The provisions of this Article shall also apply to protect the tarnished professional reputation of a legal person.
Article 2.25. Right to the inviolability and integrity of the person
1. A natural person shall be inviolable. No one shall be subjected, against his will and without his free consent, (or without the consent of a legal representative where a person is legally incapable in this area) to scientific and medical testing or examination. The consent must be given in writing.
2. Intervention into a human body, removal of a person’s body parts or organs shall be possible only with his consent. Consent to a surgical operation must be given in writing. Where a person is legally incapable in this area, the consent may be given by his guardian; however, castration, sterilisation, termination of pregnancy, operation, removal of organs of a person incapable in this area shall be subject to judicial authorisation. The consent and judicial authorisation provided for in this paragraph shall not be necessary in emergency cases where a person’s life is endangered and has to be saved while the person himself is unable to express his will.
3. A person may determine, in writing, the manner of use of his body after death and funeral arrangements.
4. The procedure for the donation and transplantation of human tissues and organs shall be established in a separate law.
5. Human body, its parts or organs and tissues may not be subjects of commercial transactions. Such transactions shall be null and void.
Article 2.26. Prohibition to restrict the freedom of a natural person
1. Freedom of a natural person shall be inviolable. A legally capable person may be placed under any supervision or imposed any restrictions only upon his consent and in other cases prescribed by law.
2. Where a person’s life is endangered or he has to be hospitalised to protect the public interests, the person’s consent to the medical care shall not be required.
3. Psychiatric examination of a person may be conducted only with his consent or judicial authorisation. Consent to conduct psychiatric examination of a person incapable in this area may be given by his guardian or by the court. Where a person’s life is seriously endangered, urgent psychiatric care may be provided without the person’s consent.
4. Placement of a person in a mental health care institution shall be subject to his consent or judicial authorisation. Where a person has a mental or behavioural disorder and there is a real threat that his acts or omissions may cause substantial damage to his health, life and property, or to that of other people, the person may be subject to compulsory hospitalisation for the period not exceeding three working days. Compulsory hospitalisation may be extended only after the judicial authorisation is granted in accordance with the procedure prescribed by law. Where a person is incapable in the relevant area, his guardian may give his consent to the said person’s compulsory hospitalisation for the period not exceeding three working days. Compulsory hospitalisation of a person incapable in the relevant area may be extended only after the judicial authorisation is granted in accordance with the procedure prescribed by law.
5. A mental health care institution must, no later than within 48 hours from the placement of a person in the mental health care institution, apply for judicial authorisation to extend, with the consent of a guardian, compulsory hospitalisation or placement of a person legally incapable in the relevant area.
Article 2.27. Right to gender reassignment
1. An unmarried natural person of full age shall have the right to gender reassignment if that is medically possible. The application to the given effect must be made in writing.
Article 2.28. Recognition of a person’s absence
1. Where for the period of one year in a person’s domicile there is no information about his whereabouts, the court may recognise the person to be an absentee.
Article 2.29. Protection of the property of an absentee
1. After an application of the interested persons or the public prosecutor has been filed, the court shall appoint a temporary administrator of an absentee’s property. An absentee’s spouse, close relatives or persons with an interest in preserving his property may be appointed temporary administrators. The temporary administrator must take the inventory of the property and take measures to safeguard it. The court shall establish the amount of remuneration for the administrator’s services, with the exception of cases where the temporary administrator is a person’s spouse or a close relative. They shall perform the said functions free of charge.
2. The temporary administrator shall administer the property, maintain the persons whom the absentee is obliged to maintain and pay the absentee’s debts. The temporary administrator shall have to obtain judicial authorisation to dispose of the property, mortgage it or restrict the rights to property in some other manner.
3. Where an absentee’s property is an enterprise, the court shall appoint its administrator. The administrator shall act on behalf of its owner.
4. Where the court issues a judgment that a person is recognised an absentee, a permanent administrator to his property shall be appointed by a court order.
Article 2.30. Revocation of the judgment to recognise the person an absentee
1. Where a person recognised an absentee returns or his whereabouts become known, the court shall revoke its judgment to declare the person an absentee and terminate the administration of his property.
Article 2.31. Declaratory judgment of death
1. Where no information on a person’s whereabouts is obtained in his domicile for a period of three years and where he disappeared under such circumstances, which posed a mortal threat or give the grounds to suspect that he was killed in an accident, and no information about the person has been obtained for a period of six months, a declaratory judgment of the natural person’s death may be pronounced in court. The commencement of the said periods shall be established in accordance with the rules laid down in paragraph 2 of Article 2.28 of this Code.
2. A soldier or any other person who disappeared as a result of military actions may be declared dead by the court but not earlier than two years as of the day of the end of military actions.
3. A declaratory judgment of death may be pronounced for a person irrespective of whether or not he has previously been declared an absentee.
4. The date of death of a person for whom a declaratory judgment of death was pronounced shall be deemed to be the date when the court judgment declaring the person to be dead enters into force. Where a declaratory judgment of death is pronounced for a person who disappeared under such circumstances, which posed mortal threat or give grounds to suspect that he was killed in an accident, the court may recognise the alleged date of the accident to be the date of his death.
5. A specific location indicated in the court judgment shall be considered to be the location of such person’s death. Where it is impossible to establish a specific location of a person’s death, the last known location of his whereabouts shall be deemed to be the location of his death.
Article 2.32. Consequences of the return of a person who was declared dead
1. Where a person who was declared dead returns or his whereabouts become known, the court shall revoke its judgment to declare the person dead.
2. The person who has returned shall not have the right to request the recovery of his property, which has been inherited after the declaratory judgment of death was pronounced. However, in cases where a person was absent for serious reasons, he shall have the right, irrespective of the time of his return, to request the recovery of his property which is in possession of his heirs.
3. A person who has returned shall also have the right to request either the recovery of his property, which was gratuitously received by the third persons, or its value. However, the acquirer of the property in good faith must be compensated for any losses incurred in the recovery of the said property or its value.
Article 2.33. Concept of a legal person
1. A legal person shall be an enterprise, agency or an organisation which has its business name and which may, in its name, acquire and have rights and assume obligations as well as act as a defendant and as a plaintiff in courts.
2. The provisions of Part II of this Book shall apply to individual legal forms of legal persons, except as otherwise provided by the provisions of this Code.
3. The establishment, management, reorganisation, conversion, restructuring or liquidation of legal persons specified in the Law of the Republic of Lithuania on the Protection of Objects Critical for National Security shall be regulated by this Code to the extent that the Law of the Republic of Lithuania on the Protection of Objects Critical for National Security does not provide otherwise.
Article 2.34. Public and private persons
2. Public legal persons shall be legal persons established by the State or municipalities, their institutions or other non-profit-seeking persons whose goal is to meet public interests (state and municipal enterprises, state or municipal institutions, public institutions, religious communities, etc.).
Article 2.35. State and municipalities
2. State and municipal institutions the existence whereof is prescribed by the Constitution of the Republic of Lithuania shall be legal persons in the cases prescribed by law.
3. With the exception of Articles 2.36, 2.74, 2.76, 2.80, 2.84 and 2.85 of this Code, the provisions of Part II of this Book shall not apply to the State and municipalities.
Article 2.36. Participation of the State and municipalities in civil relations
1. The State, municipalities and their institutions shall be subjects of civil relations on equal terms with other participants thereof.
Article 2.37. Religious communities and associations
1. Traditional religious communities and associations shall be legal persons. Other religious communities and associations shall acquire the rights of a legal person in accordance with the procedure established in Chapter V of this Book as well as in other laws.
2. Structural units of religious communities and associations which, pursuant to the regulations, statutes or other norms of religious communities and associations, fulfil the requirements provided for in Article 2.33 of this Code shall be legal persons. These structural units shall submit to the Register of Legal Entities documents testifying to their compliance with the requirements specified in this paragraph.
3. Religious communities and associations and their structural units, which enjoy the rights of a legal person, shall act pursuant to their regulations, statutes and other norms to the extent they do not contradict the law, and only Chapters IV and VI, Articles 2.84 and 2.85 of this Book, and, to the extent it does not contradict the provisions of paragraph 1 of this Article, Chapter V shall apply to the said legal persons.
Article 2.38. Trade unions
1. Where the requirements of paragraph 2 of this Article are fulfilled, trade unions shall be considered to be legal persons.
2. A trade union shall be established where it has at least 20 founders or where the founders would account for at least one tenth of all employees in an enterprise, an institution or an organisation (while one tenth of all employees would comprise at least three employees) and where the general meeting of the trade union approves its statute and elects its management bodies.
3. Citizens of the Republic of Lithuania and foreigners with general legal capacity in employment relationships may be founders of a trade union.
4. The provisions of Chapter V of this Book shall apply to trade unions to the extent they do not contradict the provisions of paragraph 1 of this Article. Trade unions shall submit to the Register of Legal Entities documents testifying to their compliance with the requirements laid down in paragraph 2 of this Article.
Article 2.39. Business name of a legal person
1. A legal person must possess its business name enabling to distinguish it from other legal persons.
2. The business name of a legal person shall be its property, which, however, may not be sold or conveyed in any other manner to become the property of another person separately from the legal person.
3. The business name of a legal person may not contradict the public order or good morals or mislead the public as to its incorporator, participant, registered office, purpose of activities, legal form, identity or similarity to the business names of other legal persons or the names of foreign enterprises, institutions and organisations as well as trademarks and service marks that are better known to the Lithuanian public. The business name of a legal person may not mislead as to its identity or similarity to well-known trademarks and service marks which were submitted for registration, registered or recognised in the Republic of Lithuania prior to the said legal person.
4. In the case of application of paragraph 3 of Article 2.46 of this Code, the business name of a legal person shall not be registered separately and shall be protected as of the day on which an application for the registration of a legal person is submitted to the Register of Legal Entities or from the date of adoption of a legal act.
Article 2.40. Composition of the business name of a legal person
1. The business name of a legal person shall be composed of words or word combinations used in their figurative or direct meaning.
2. The business name of a legal person shall be composed by taking into consideration the norms of the standard Lithuanian language and may not be composed of a generic word(s) denoting directly the sort of objects or services of activity or a single toponym or of some other word with no distinctive feature.
3. The business name of a legal person may be composed only of letters, which may not be understood as words and numerals or their combinations only in cases when such business name is customary in society. Where the consent has been given, the business name of a legal person which is related to a foreign legal person or other organisation may be composed in such a manner which would make the said name identical or similar to the business name of a foreign legal person or other organisation.
Article 2.41. Business name of a legal person which is in the process of incorporation
1. Incorporators of a legal person may apply to the Register of Legal Entities and request to make a temporary entry, in the Register of Legal Entities, of the business name of a legal person which is in the process of incorporation.
2. The business name of a legal person which is in the process of incorporation shall be subject to the same rules as the business name of a legal person, with the exception of paragraph 4 of Article 2.39 and Article 2.42 of this Code.
Article 2.42. Right to the business name of a legal person
1. It shall be prohibited to acquire rights and assume obligations by using another legal person’s business name as a cover or to use another legal person’s business name without the latter’s consent.
2. Where a legal person’s right to a business name has been infringed by another person’s unlawful use of the said person’s business name or where the other person has or uses a business name which fails to meet the requirements laid down in Article 2.39 of this Code, the legal person shall have the right to apply to court and request the court to oblige the legal person to discontinue the said unlawful acts or to alter the business name and to redress the pecuniary and non-pecuniary damage incurred by the said acts, while where the provisions of paragraph 1 of this Article have been infringed, also request the person to return everything he has acquired by using another person’s business name as a cover or using the said name without the latter’s consent.
Article 2.43. Alteration of the business name of a legal person
1. Prior to the alteration of the business name, a legal person must make a public announcement thereof once or give all creditors written notification thereof.
2. Where a legal person fails to discharge its obligation stipulated in paragraph 1 of this Article, it shall have to bear the risk of ensuing negative consequences related to its failure to notify about the alteration of its business name.
3. The business name of a legal person shall be altered by altering the incorporation documents, which are registered in the Register of Legal Entities only after the requirements of paragraph 1 of this Article have been fulfilled.
Article 2.44. Information supplied in the documents of a legal person
1. Documents of a legal person used in its business relations with other entities (business letters, invoices, trade documents, etc.) must include the following information:
4) address of the electronic delivery box of the National Information System for Delivery of Electronic Messages and Documents Using Post Infrastructure (hereinafter: the ‘e-delivery box’) of a legal person;
2. Where a legal person has declared bankruptcy or is liquidated, the information thereof must be indicated in the documents specified in paragraph 1 of this Article.
4. Where the capital of a legal person is mentioned in the documents specified in paragraph 1 of this Article, the authorised capital and the amount of paid-in authorised capital must be indicated as well.
Article 2.45. Participant of a legal person
A participant (shareholder, member, interest holder, etc.) of a legal person shall be a person who has the right of ownership to the property of a legal person, or a person who, irrespective of his failure to maintain the right of ownership to the property of a legal person, acquires the obligatory rights and/or duties related to the legal person.
Article 2.46. Documents of incorporation of a legal person
1. Legal persons shall act in accordance with the documents of their incorporation: articles of incorporation and incorporation contract or general regulations in cases provided for by law. According to the provisions of this Code, articles of incorporation shall have equal status with the regulations, statutes and other incorporation documents of legal persons.
2. Provisions of incorporation documents shall be valid to the extent they do not contradict the mandatory provisions of laws.
3. Public legal persons may act in accordance with the law or, where it is provided for by law, in accordance with the legal act on the incorporation of a public legal person adopted by the state or municipal institutions if the said act does not provide for the obligation of a public legal person to act in accordance with the statutes approved by the state or municipal institutions.
4. In case of failure to file the incorporation documents of a legal person with the Register of Legal Entities within six months of the date on which they were drawn up, they shall be deemed void unless other laws provide for a different time limit. The legal acts referred to in paragraph 3 of this Article must be filed with the Register of Legal Entities within the time limits prescribed by these legal acts.
Article 2.47. Articles of incorporation of a legal person
1. Articles of incorporation of a legal person or, where there are none, the incorporation transaction or general regulations, where a legal person acts in accordance with the general regulations, or a legal act, where a legal person acts in accordance with the legal act, must include the following information:
6) bodies of a legal person and the remit thereof, the procedure for their formation and dissolution or a participant of a legal person, where the bodies are not formed and the legal person exercises its rights through a participant of the legal person;
2. Goals of activities of public legal persons must be defined in a clear and comprehensive manner, indicating the field and type of activities.
3. It shall not be necessary to indicate the procedure for convening a meeting of participants of a legal person and the remit of the meeting, the procedure for setting up and dissolving other bodies of a legal person and the remit thereof and the procedure for alteration of the documents of incorporation if such procedure is identical to the procedure provided for by law and where the given fact is indicated in the articles of incorporation.
Article 2.48. Property of legal persons
1. Property of legal persons shall be managed, used and disposed of on the basis of the ownership right or the right of trust.
Article 2.49. Registered office of a legal person
1. The registered office of a legal person shall be the seat of its permanentmanagement body. The registered office of a legal person shall be defined by indicating the address of the premises in which the head office is located.
2. Where the registered office of a legal person, as indicated in the Register of Legal Entities or the contract, and the seat of its permanent management body do not coincide, the third parties shall have the right to consider the seat of its permanent management body to be the registered office of a legal person.
3. All correspondence with a legal person shall be deemed appropriate where the address of the registered office or the address of the e-delivery box of the legal person is used as well as where due regard of paragraph 2 of this Article is taken, except as otherwise expressly provided by the legal person.
4. A decision regarding the registered office of a legal person shall be taken by its incorporators. A decision to change the registered office of a legal person shall be taken in accordance with the procedure laid down in the incorporation documents of a legal person unless laws regulating activities of individual legal persons provide otherwise.
Article 2.50. Contractual liability of legal persons
1. A legal person shall be liable for its obligations to the extent of its property, which it owns on the basis of the ownership right or the right of trust.
2. A legal person shall not be liable for the obligations of its participant and the latter shall not be liable for the obligations of the legal person, with the exception of cases provided by law and the incorporation documents of a legal person.
3. Where a legal person fails to perform its obligations due to acts in bad faith of a participant of the legal person, the participant of a legal person shall, in a subsidiary manner, be liable for the obligations of a legal person to the extent of his property.
4. Legal persons shall be divided into those with limited and unlimited civil liability. Where the property of a legal person with unlimited civil liability is not sufficient to discharge its obligations, a participant of a legal person shall be liable for the said obligations unless the laws provide otherwise.
Article 2.51. Term of activities of a legal person
1. A legal person may be incorporated for a fixed or indefinite period. The date as well as presence or absence of certain conditions may be considered to be the term.
Article 2.52. Financial year of a legal person
2. Any other period of twelve months may be considered to be the financial year of a legal person. It must be indicated in the incorporation documents of a legal person.
3. Where the financial year is changed, the end of the financial year shall be considered to be the end of a new financial year if the period from the beginning of the financial year to the end of the new financial year is not longer than eighteen months. Where this period exceeds eighteen months, a transitional financial year shall be established, starting at the end of the old financial year and ending at the beginning of the new financial year.
4. Upon the incorporation of a legal person, the first financial year of a legal person shall be the period from the day of its incorporation to the end of the financial year. Upon the termination of a legal person, the period from the beginning of the financial year to the date of termination of a legal person shall be considered to be the last financial year.
Article 2.53. Branch office of a legal person
1. A branch office of a legal person shall be its structural unit, which has its registered office and performs all or part of a legal person’s functions.
Article 2.54. Regulations of a branch office of a legal person
1. A branch office of a legal person shall act in accordance with the regulations approved by a legal person. The regulations must contain the following information:
2. Regulations of a branch office of a legal person must also provide information specified in points 1, 2, 5 and 6 of paragraph 1 of Article 2.44 of this Code on the founder of the branch office and on the management body of a legal person, which has the right to appoint or remove the management bodies of the branch office and make decisions on the legal status of the branch office.
Article 2.55. Regulation of branch offices
1. Provisions of Part II of this Book shall apply to branch offices and their activities to the extent they do not contradict the essence of a branch office and with due regard to the specificities laid down in this Article.
2. Documents of a branch office listed in Article 2.44 of this Code must also contain analogous information about the legal person, with the exception of information specified in paragraph 3 of Article 2.44 of this Code, in cases where the founder of the branch office is a foreign legal person or other organisation.
3. Upon the registration of a branch office, a foreign legal person or other organisation must notify the Register of Legal Entities about the alterations in the legal person’s or other organisation’s documents and data which were submitted to the Register, and the legal status of a legal person or other organisation, must present a set of annual financial statements of a legal person, other organisation or a branch office, where a set of annual financial statements of a foreign legal person or other organisation is compiled in accordance with the requirements other than those applied in the European Union, and financial reporting is mandatory under laws of the Republic of Lithuania which apply to a foreign legal person or other organisation.
Article 2.56. Representative office of a legal person
1. The representative office of a legal person shall be a unit of a legal person, which has its registered office and enjoys the right to perform the actions specified in paragraph 2 of this Article.
2. The representative office of a legal person shall have the right to represent the interests of a legal person and protect them, to enter into transactions as well as to perform other actions on behalf of that legal person, to conduct import and export operations exclusively between foreign legal persons and other organisations, which have established the branch office or related enterprises, institutions or organisations and the branch office.
Article 2.57. Regulations of a representative office of a legal person
1. The representative office of a legal person shall act pursuant to the regulations approved by a legal person which must include the following information:
2. Regulations of the representative office of a legal person must also include information specified in Article 2.44 of this Code on the founder of the representative office and on the management body of a legal person, which has the right to appoint or remove the management bodies of the representative office and make decisions on the legal status of the representative office.
Article 2.58. Regulation of the representative office of a legal person
1. The provisions of Part II of this Book shall apply to representative offices to the extent they do not contradict the essence of a representative office and with due regard to the specificities laid down in this Article.
2. The documents of a representative office listed in Article 2.44 of this Code must also contain the same information about a legal person, with the exception of information specified in paragraph 3 of Article 2.44 of this Code, in cases where the founder of the representative office is a foreign legal person or other organisation.
Article 2.59. Procedure for the incorporation of a legal person
Legal persons shall be incorporated pursuant to the procedure established by law and this Code. Matters relating to the incorporation procedure which are not regulated by law may be determined by incorporators.
Article 2.60. Incorporators of a legal person
1. The incorporator of a legal person shall be a person who has concluded a contract for the incorporation of a legal person. Upon passing a respective law or, where it is provided for by law, other legal act, the State, or, where it is provided for by law, also a municipality, state or local authorities, upon passing a respective legal act, which forms the basis for the incorporation of a public legal person, shall also be considered the incorporators of a legal person.
Article 2.61. Transactions concluded prior to the incorporation of a legal person
1. A particular management body of a legal person or any other body specified in the incorporation document shall have the right to approve transactions which were concluded by other persons in the name of and on behalf of a legal person prior to the incorporation of the legal person. When concluding such transaction, it must be indicated that it is concluded in the name of and on behalf of the legal person which is in the process of incorporation. Where such reference is not included, the person who has concluded the transaction and the legal person, whose management body or any other body specified in the incorporation document approved the transaction concluded on his behalf, shall be liable jointly and severally for the discharge of obligations arising from the said transaction.
2. Where such transaction is not approved by the body of the legal person which was incorporated at a later date, all obligations arising from the transaction shall have to be discharged by the person who has concluded the said transaction. Where such transaction has been concluded by several persons and where a legal person fails to approve it, all persons shall be liable jointly and severally for the discharge of obligations arising from the said transaction.
Article 2.62. Register of Legal Entities
2. The Register of Legal Entities shall contain the names of legal persons and accumulate the data and documents related to legal persons. The Register of Legal Entities shall be the main state register.
3. The Register of Legal Entities must be supplied with all data prescribed by law on legal persons themselves and their activities (the principle of disclosure).
Article 2.63. Moment of incorporation of a legal person
1. A legal person shall be deemed incorporated as of the moment of its registration in the Register of Legal Entities.
2. A law or, in cases prescribed by law, any other legal act forming the basis for the incorporation of a public legal person, may establish that a legal person is deemed incorporated as of the date of entry into force of the legal act forming the basis for its incorporation. In such cases, that legal act must contain the data referred to in Article 2.66 of this Code and the said legal act must be made public and transmitted to the Register of Legal Entities.
Article 2.64. Registration of legal persons
1. A legal person shall be registered in the Register of Legal Entities after the documents listed in paragraph 2 of this Article have been submitted, except as provided otherwise by this Code or other laws in the cases specified by this Code.
2. The following documents must be submitted to the Register of Legal Entities for the registration of a legal person:
3) the licence, where issuance of a licence prior to the incorporation of a legal person is provided for by law;
4) the documents verifying the authenticity of documents which are submitted to the Register and the compliance of incorporation documents with the provisions of laws as well as the documents verifying the fact that a legal person may be registered because contractual obligations assumed under law or the incorporation transaction have been fulfilled and the circumstances prescribed by law or the incorporation documents have emerged. Those documents shall be drawn up or attested by a notary, except in the cases provided for in the regulations of the Register of Legal Entities;
3. A legal person must be registered within three working days from the day on which all documents listed in paragraph 2 of this Article are submitted and a registration fee is paid.
4. The procedure for the registration of legal persons shall be established in the regulations of the Register of Legal Entities. They shall be approved by the Government.
Article 2.65. Registration number of a legal person
Upon registration of a legal person, the data processor of the Register shall assign a registration number to the legal person and shall issue an extract from the Register of Legal Entities.
Article 2.66. Data stored in the Register of Legal Entities
1. The Register of Legal Entities must contain the following information:
7) members of the management bodies of a legal person (name, surname, personal number, place of residence);
8) members of the management bodies of a legal person and participants of a legal person having the right to conclude contracts in the name of the legal person, limits of their authority;
9) branch offices and representative offices of a legal person (names, codes, registered offices, members of management bodies of branch offices and representative offices);
2. When registering legal persons whose participants are liable for the obligations of a legal person, additional information must be furnished, namely: the name, surname, personal number and the place of residence of the participant being a natural person, or the business name, legal form, code and registered office of the participant being a legal person.
3. Where the data listed in paragraphs 1 and 2 of this Article have been altered and where the incorporation documents or other data listed in paragraphs 1 and 2 of this Article haves been altered, a legal person must (except in the cases referred to in paragraph 5 of this Article, where the procedural documents are filed by the court) file an application of the established form requesting the registration of the alterations in the Register of Legal Entities within 30 days from the day the alterations have been made. The documents listed in point 4 of paragraph 2 of Article 2.64 of this Code and full text of the altered document, where the document has been altered, must be submitted together with the application requesting the registration of the alterations.
4. In the cases prescribed by laws, a set of annual financial statements (a set of consolidated annual financial statements) and/or an annual report (a consolidated annual report), or activity report, or an annual report of an enterprise shall be submitted to the Register of Legal Entities every year within 30 days from their approval, except as otherwise provided for by law. In the cases where the audit of financial statements has been performed, an audited set of annual financial statements (a set of consolidated annual financial statements) must be accompanied by an auditor’s report. 5. In cases provided for in the Law of the Republic of Lithuania on Insolvency of Legal Persons, where the insolvency process is conducted through court proceedings, the data referred to in points 10 and 11 of paragraph 1 of this Article, as well as any other data related to the registration/de-registration of the legal status of a legal person, shall be registered in the Register of Legal Entities on the basis of the court’s procedural documents (rulings, judgments).
Article 2.67. Persons responsible for the submission of documents of a legal person and the data of the Register to the data processor of the Register
The management body of a legal person shall be responsible for the timely submission of documents of a natural person, data and other information to be submitted to the Register of Legal Entities, except as otherwise provided by law or incorporation documents.
Article 2.68. Refusal to register
1. The data processor of the Register may refuse to register a legal person or the alterations in the data and documents of a legal person only in the cases where:
1) the application to register a legal person (alterations in the data and documents to be registered in the Register, removal of data) fails to conform to the established form or not all documents specified in Articles 2.63 and 2.64 of this Code are submitted;
2. Where obstacles for the registration of the submitted documents and data arise, the data processor of the Register shall set a time limit for the elimination of defects. Where the defects are not eliminated within the established time limit and corrected documents are not submitted to the data processor of the Register, the data processor of the Register shall take a motivated decision to refuse the registration of a legal person (alterations in the data or documents).
Article 2.69. Rectifications in the Register of Legal Entities
1. Rectifications in the Register of Legal Entities shall be made on the application of a legal person or a person whose data have been entered in the Register or on the initiative of the data processor of the Register.
2. Upon the detection of an error in the Register, the data processor of the Register must, without delay, notify in writing a legal person thereof. Where a legal person fails to raise objections within the time limit set by the data processor of the Register for the rectification of the error, the data in the Register shall be rectified by the data processor of the Register.
3. Where a legal person, the data whereof have been registered in the Register, requests the rectification of an error in the Register, the data processor of the Register must rectify the data in the Register within three working days from the date of receipt of the application and the documents verifying the facts specified therein.
Article 2.70. Liquidation of a legal person on the initiative of the data processor of the Register of Legal Entities
1. The data processor of the Register of Legal Entities shall have the right to initiate the liquidation of a legal person, if at least one of the following conditions is fulfilled:
1) the legal person has failed to submit the documents specified in paragraph 4 of Article 2.66 of this Code within twelve months from the expiry of the time limits set by this Code or other laws for submission of these documents to the Register of Legal Entities;
2) the management bodies of a legal person have not been set up thus making it impossible for them to adopt decisions for more than six months;
3) members of the management bodies of a legal person may not be contacted at the registered office of a legal person or addresses indicated in the Register of Legal Entities;
4) a legal person fails to update its data in the Register of Legal Entities within five years and there are grounds to believe that the said legal person does not pursue any activities;
5) a political party fails to submit the list of its members within one year in accordance with the procedure established by the Law on Political Parties;
6) the authorised capital of a public limited liability company or a private limited liability company is below the minimum authorised capital established by laws;
7) a court issues a ruling to refuse to open bankruptcy proceedings against an insolvent legal person and to order the initiation of liquidation of the legal person of the motion of the data processor of the Register of Legal Entities, and notifies the data processor of the Register of Legal Entities thereof.
2. In the presence of the circumstances provided for in paragraph 1 of this Article, the data processor of the Register of Legal Entities must send a notification of the intended initiation of liquidation of a legal person to the registered office of the legal person and to the addresses of members of the management bodies of the legal person indicated in the Register of Legal Entities. Where it is not possible to send a notification of the intended initiation of liquidation of a legal person to the registered office of the legal person and/or to the addresses of members of the management bodies of the legal person indicated in the Register of Legal Entities, the data processor of the Register shall make a public announcement of the intended initiation of liquidation of a legal person in the source provided for in the regulations of the Register of Legal Entities and shall serve the said notification by other means specified in the regulations of the Register of Legal Entities.
3. Where, within three months from the date of dispatch of a notification of the intended initiation of liquidation of a legal person or public announcement thereof, the legal person fails to produce, to the data processor of the Register, the documents specified in paragraph 1 of this Article or in the regulations of the Register of Legal Entities and refuting the presence of the circumstances specified in paragraph 1 of this Article, the data processor of the Register shall, in accordance with the procedure established in the regulations of the Register of Legal Entities, take a decision to initiate the liquidation of the legal person and the legal person shall acquire the status of a legal person in liquidation. The data processor of the Register shall make a public announcement thereof in the source specified in the regulations of the Register of Legal Entities.
4. In the presence of the circumstances provided for in point 7 of paragraph 1 of this Article, a person who has filed a petition with the court for the opening of bankruptcy proceedings against a legal person and who has failed to pay, in accordance with the law governing the insolvency of legal persons, the amount determined by the court for the payment of the costs of bankruptcy administration, shall not have the right to refute the presence of the circumstances forming the basis for the liquidation of the legal person in the manner specified in paragraph 3 of this Article.
5. The initiated liquidation of a legal person may be revoked by a court judgment in accordance with the procedure laid down in Chapter XXXIX of the Code of Civil Procedure. A participant of a legal person or a member of the management body of a legal person may file an application with a court requesting to revoke the initiated liquidation of the legal person within one year of the acquisition of the status of a legal person in liquidation. Upon accepting the said application, as well as upon passing a judgment revoking the initiated liquidation of a legal person, the court must, not later than on the following working day, inform the data processor of the Register thereof. Upon receipt of a notification of a court judgment revoking the initiated liquidation of a legal person, the data processor of the Register shall, in accordance with the procedure established by the regulations of the Register of Legal Entities, remove the status of a legal person in liquidation from the Register. The data processor of the Register shall make a public announcement thereof in the source specified in the regulations of the Register of Legal Entities.
6. Creditors of a legal person shall have the right to bring an action before court for the discharge of the debtor’s obligations or initiation of bankruptcy proceedings within a one-year limitation period from the date of the acquisition of the status of a legal person in liquidation. Upon accepting the action provided for in this paragraph, the court must, not later than on the following working day, notify the data processor of the Register of Legal Entities thereof. Upon receipt of the said notification from the court, the data processor of the Register shall, in accordance with the procedure established by the regulations of the Register of Legal Entities, remove the status of a legal person in liquidation from the Register.
7. Where the court does not accept the application specified in paragraph 5 of this Article and the action specified in paragraph 6 of this Article, or where the court does not revoke the initiated liquidation of a legal person, the data processor of the Register of Legal Entities shall, in accordance with the procedure established by the regulations of the Register of Legal Entities, take a decision to liquidate the legal person and the legal person shall acquire the status of a legal person in liquidation. The data processor of the Register shall make a public announcement thereof in the source specified in the regulations of the Register of Legal Entities.
8. Where a legal person is liquidated on the initiative of the data processor of the Register of Legal Entities, a liquidator shall not be appointed. The management bodies of the legal person which is liquidated on the initiative of the data processor of the Register of Legal Entities shall lose their powers as of the adoption of the decision provided for in paragraph 7 of this Article. In this case, the data processor of the Register of Legal Entities shall perform the actions specified in this Article and the regulations of the Register of Legal Entities necessary for deregistering the legal person which is liquidated on the initiative of the data processor of the Register of Legal Entities.
9. Participants of a dissolved legal person shall be, for the period of three years, jointly and severally liable and must compensate for the damage incurred by creditors due to unfair practices of participants of the legal person which has been liquidated on the initiative of the data processor of the Register of Legal Entities.
Article 2.71. Access to the public of the Register of Legal Entities
1. Data in the Register of Legal Entities, documents contained in the Register as well as any information submitted to the Register shall be made public.
2. A separate file shall be made up for each legal person. The documents, copies thereof, data and other information relating to that legal person submitted to the Register shall be accumulated and stored in the said file.
3. Where the Register produces written extracts of the data and information stored in the Register, a mark ‘attested extract’ must be applied, and where it produces copies of the documents, a mark ‘attested copy’ must be applied, except in cases where an applicant does not request the said mark. Extracts of the data and information and copies of the documents stored in the Register, which are issued by the data processor of the Register of Legal Entities shall have prima facie authority. When publishing and providing these extracts of the data and information and copies of the documents, the data processor of the Register of Legal Entities must indicate that the extracts of the data and information and copies of the documents stored in the Register and issued by the data processor of the Register of Legal Entities have a prima facie effect.
Article 2.72. Procedure and manner of publication of the data stored in the Register of Legal Entities
1. The data processor of the Register must publish the registration of a legal person and alteration of the data stored in the Register in accordance with the procedure established by the regulations of the Register of Legal Entities and in the source designated by the said regulations.
2. The data and copies of the documents stored in the Register of Legal Entities shall be issued pursuant to the procedure established by the regulations of the Register of Legal Entities.
3. Every person shall have the right to receive, for a fee, any data and copies of documents or information stored in the Register.
Article 2.73. Liability for unlawful refusal to register a legal person and for errors in the Register of Legal Entitites
1. Where a legal person and the data submitted to the Register or documents to be registered in the Register are unlawfully refused registration, a legal person shall have the right to seek redress for the damage inflicted on him by the said actions.
2. Damage caused by the actions specified in paragraph 1 of this Article to a legal person as well as damage caused to other persons in the administration of the Register of Legal Entities shall be redressed by the State. The said damage shall be recovered in court. An institution authorised by the Government shall represent the State in civil cases for the award of damages.
Article 2.74. Legal capacity of legal persons
1. Private legal persons may have or acquire any civil rights and assume obligations, except those which may arise only when such characteristics of a natural person as gender, age and kinship are in place.
2. Public legal persons shall have a special legal capacity, i. e. they may have or acquire only those civil rights and assume those obligations which do not contradict the incorporation documents or goals of activities of public legal persons.
Article 2.75. Restrictions on legal capacity of legal persons
1. Legal capacity of legal persons may not be imposed limitations in any other manner except as by express provision and procedure of law.
Article 2.76. Prohibition of discrimination
It shall be prohibited to establish in legal acts, for discrimination purposes, different rights, obligations or privileges for individual legal persons.
Article 2.77. Licensing of activities of legal persons
1. In cases provided by laws, legal persons may engage in a certain type of activities only after a licence has been granted in accordance with the procedure established by law.
Article 2.78. Licensing rules
1. The Government shall approve licensing rules for each type of licensed activities established by law unless other laws provide otherwise.
2. Licensing rules shall indicate the following:
Article 2.79. Issuance of a licence
1. Where the conditions specified in the licensing rules are fulfilled, an open-ended licence shall be issued.
2. A licence for the engagement in a certain activity or a written motivated refusal to issue a licence must be given to an applicant within thirty days of receipt of the documents required for the issuance of a licence, except as otherwise provided by law.
3. Refusal to issue a licence may not be based on the inexpediency of activities and must be motivated.
5. Upon the issuance of a licence, a legal person must supply information specified in the licensing rules and related to the licensed activities or conditions predetermining the issuance of the licence, and allow the supervisory authority for licensed activities to verify such information.
Article 2.80. Prohibition to use administrative methods
1. State or municipal authorities shall be prohibited from regulating the activities of legal persons through administrative methods not prescribed by law.
Article 2.81. Bodies of a legal person
1. Legal persons shall acquire civil rights, assume civil obligations and fulfil them through their bodies which are set up and act in accordance with the law and documents of incorporation of legal persons.
2. In cases prescribed by laws and incorporation documents, legal persons may acquire civil rights and assume obligations through their participants.
3. Participants of a legal person shall have the right to bring an action before court requesting to prohibit the management bodies of a legal person to enter into future transactions which contravene the goals of activities of a legal person or extend beyond the remit of the management body of a legal person.
Article 2.82. Remit and functions of the bodies of legal persons
1. The remit and functions of the bodies of legal persons shall be established by laws regulating legal persons of a respective legal form and incorporation documents of a legal person.
2. Where incorporation documents and laws regulating the activities of a legal person do not provide for a different structure of the bodies, each legal person must have a single-person or a collegial management body and the meeting of participants. Laws regulating individual legal forms of legal persons may establish that the management body and the meeting of participants shall be considered to be a single body of a legal person, where the incorporation documents of a legal person so provide.
3. The management body shall be responsible for convocation of the meeting of participants of a legal person, notification of the participants of a legal person about the essential events which are important for the activities of a legal person, organisation of the activities of a legal person, accounting of the participants of a legal person and actions specified in paragraph 3 of Article 2.4 of this Code, except as otherwise provided in laws regulating the activities of individual legal persons.
4. Decisions of the bodies of a legal person may be declared void by the court where they contravene the imperative provisions of the law, incorporation documents of a legal person or principles of reasonableness and good faith. Where a decision infringes their rights or interests, an action may be brought by the creditors of a legal person, a respective management body of a legal person, a participant of a legal person or other persons prescribed by law. Three-month limitation period shall be set for the said actions. It shall run from the day on which the defendant became aware or ought to have become aware of the contested decision unless this Code and other laws provide for a different limitation period of the action or a different procedure for challenging the decision.
Article 2.83. Transactions concluded in breach of the remit of management bodies of a private legal person
1. Transactions concluded by the management bodies of a private legal person in breach of their remit shall impose obligations on a legal person, except in cases where it is proved that, when concluding the transaction, the third person was aware or, due to certain circumstances, could not have been unaware of the fact that the transaction had been concluded by the management body of a legal person that was not authorised to conclude it.
2. Paragraph 1 of this Article shall not apply where quantitative representation has been established, i.e. only several members of the management body together, or a member of the management body and a representative together, or a member of the management body and a member of another body together, or a member of the management body and a participant together are authorised to act in the name of a legal person. Quantitative representation must be provided for in the incorporation documents of a legal person, specified in the Register of Legal Entities and published in accordance with the procedure established by the regulations of the Register of Legal Entities.
Article 2.84. Transactions concluded in breach of the remit of management bodies of a public legal person
1. Transactions concluded by the management bodies of a public legal person in breach of their remit shall not impose obligations on a legal person.
2. Where, at a later date, the legal person approves the transaction, the transaction shall become valid as of the day of its conclusion.
3. A person who, under the circumstances laid down in paragraph 1 of this Article, has concluded a transaction which is not approved by a legal person must redress the damage incurred by the third person if he fails to prove that, when concluding the transaction, the third person was aware or, due to certain circumstances, could not have been unaware of the fact that the transaction had been concluded in breach of the remit of the management body of a legal person.
Article 2.85. Public announcement of the remit
Public announcement and indication in the Register of Legal Entitites of the remit of the management bodies of legal persons, as provided for in incorporation documents, shall not affect the application of the provisions of Articles 2.83 and 2.84 of this Code.
Article 2.86. Equality of members of the management bodies of a legal person
Members of the management body of a legal person shall enjoy equal rights and obligations, with the exception of the case specified in paragraph 2 of Article 2.93 of this Code.
Article 2.87. Obligations of members of the management bodies of a legal person
1. A member of the management body of a legal person must act in good faith and in a reasonable manner in respect of the legal person and other members of the legal person’s bodies.
2. A member of the management body of a legal person must be loyal to the legal person and maintain confidentiality.
3. A member of the management body of a legal person must avoid a situation where his personal interests are contrary or may be contrary to the interests of the legal person.
4. A member of the management body of a legal person may not confuse the property of the legal person with his own property and, without consent of participants of the legal person, use the property or the information, which he obtains in the capacity of a member of the legal person’s body, for personal gain or for a third person’s gain.
5. A member of the management body of a legal person must notify other members of the management body of the legal person or participants of the legal person about the circumstances laid down in paragraph 3 of this Article and define their nature and, where possible, their value. Such information must be supplied in writing or included in the minutes of the meeting of a legal person’s bodies.
6. A member of the management body of a legal person may enter into a transaction with a legal person being in the capacity of a member of the said legal person’s body. He must, without delay, notify other bodies of a legal person about the said transaction in accordance with the procedure established in paragraph 5 of this Article or participants of a legal person unless incorporation documents of a legal person or laws regulating legal persons of a respective legal form expressly provide for a different procedure of notification.
Article 2.88. Agreements on voting of the participants of a legal person
1. Participants of a legal person may conclude an agreement on general voting at the meeting of the participants of a legal person. Agreements on voting shall be null and void where an obligation is assumed:
2. An agreement on voting may establish that parties to the said agreement grant an authorisation to a third person to vote at the meetings of participants of a legal person in the name of the parties to the agreement on voting, and such authorisation may be revoked only in cases provided for in the said agreement.
3. Upon the issuance of the authorisation as referred to in paragraph 2 of this Article, the parties to an agreement on voting shall be deprived of the right to vote themselves or to issue authorisations to other persons to vote at the meeting of participants of a legal person on the issues specified in the authorisation.
4. Where provisions of an agreement on voting have been infringed by one party to the agreement, the court shall have the right to oblige re-counting of the results of voting at the meeting of participants of a legal person in accordance with the agreement on voting, or reverse the decision taken at the meeting of participants of a legal person in cases where voting in violation of the agreement had a decisive influence on the adoption or non-adoption of a decision.
Article 2.89. Transfer of the voting right
1. A participant of a legal person may transfer his voting right at the meeting of participants of a legal person to other persons and establish the procedure and modes of exercising the voting right.
2. An agreement on the transfer of the voting right shall enter into force as of the disclosure to a legal person of the agreement and of the data on the number of transferred votes, the term of transfer, the grounds for the entitlement to the voting right, the participant of a legal person who transfers the voting right and the person who acquires the voting right (to the extent required by the incorporation documents of a legal person, laws or the established practice of a legal person).
3. A legal person must notify the participant of the legal person who transfers the voting right and the person who acquires it of the receipt of the documents and information specified in paragraph 2 of this Article and announce thereof at the nearest meeting of participants of the legal person. Obligations of a legal person related to convening of the meeting of participants of a legal person shall be fulfilled in respect of the person who has acquired the voting right.
4. The term for an agreement on the transfer of the voting right may not exceed a period of ten years.
Article 2.90. Minutes
2. The minutes must include the time and place of a meeting, the number of participants, the fact of having a quorum, the results of voting, and decisions. The minutes must be accompanied by a list of participants and information on the convening of the meeting. At the request of the persons attending the meeting, the information requested by them must be included in the minutes. All alterations and supplements to the minutes must be deliberated.
3. Minutes must be stored for at least ten years and, at the request of each participant or other member of the management body who participated or was entitled to participate in the meeting, a copy of the minutes must be issued. A legal person shall have the right to receive from a participant of a legal person a fee for the issuance of a copy of minutes, not exceeding the costs of its issuance.
4. Where a decision is signed by all members of the body of a legal person, or where the body of a legal person consists of a single person and, in this case, a decision made by that member of the body of a legal person equals a decision made by the body of a legal person, minutes shall not be taken.
Article 2.91. Taking and signing of minutes
1. Minutes shall be taken by the secretary of a meeting, the chairman of a meeting, where a secretary is not elected, or by the chairman of a collegial management body of a legal person, where a chairman and a secretary of a meeting are not elected.
2. Minutes shall be signed by the person who has taken them and by the chairman of a meeting and, in cases where he is not elected, by the chairman of a collegial management body of a legal person.
Article 2.92. Remarks on the minutes
1. Persons who attended the meeting shall have the right to make remarks on the minutes within three days as of the moment they have read them, but neither the period of three days nor the maximum time limit for taking the minutes established in incorporation documents may be exceeded.
2. Remarks on the minutes shall be attached to the minutes, together with an indication of whether the persons who signed the minutes agree or disagree with them.
Article 2.93. Voting
2. A tie vote shall mean that the same number of votes ‘for’ and the same number of votes ‘against’ have been received. In the event of a tie vote, the chairman of a collegial body shall have a deciding vote. Where the chairman of a collegial body has not been designated or fails to participate in the adoption of a decision, in the event of a tie vote, the decision shall be deemed not adopted.
3. Where none of the members of a collegial body raises objections, voting may be done by way of a written survey.
5. A member of a body of a legal person may vote himself or may authorise other persons to vote on his behalf, except as otherwise provided in incorporation documents of a legal person.
6. The decision of the chairman of a meeting of a legal person’s collegial body on the results of the voting shall be decisive, except in the cases where the voting is held in writing or a commission for counting of votes is established. In such cases, the decision of the commission shall be final. Where, upon the announcement of the results of voting by the chairman of the meeting or the commission for counting of votes, doubts are expressed as to the lawfulness of voting, a repeat voting must be held if the majority of members of a collegial body so request. Where voting was taken without counting individual votes, a repeat voting must be held if at least one member so requests. After the repeat voting, the results of the first voting shall be null and void.
7. Laws and incorporation documents of a legal person may provide for a different procedure of voting.
Article 2.94. Verification of a decision
Where, for purposes of validity of a decision, approval of the body of another legal person is required, the said approval may be effected at a later date within a reasonable period of time.
Article 2.95. Termination of legal persons
Article 2.96. Reorganisation of legal persons
1. A decision to reorganise a legal person shall be adopted by participants of a legal person or the court, in cases provided by law.
2. A decision to reorganise, by way of merger by acquisition, a legal person into which another legal person is to be merged by acquisition may also be taken by the management bodies of a legal person where the following circumstances exist:
1) public announcement about the terms of reorganisation of legal persons, as laid down in paragraph 2 of Article 2.99 of this Code, is made no later than thirty days prior to the meeting of participants of a legal person which is to be merged by acquisition;
2) any participant of a legal person has the right to access the documents specified in paragraph 4 of this Article;
3. The decision to reorganise a legal person shall be adopted by a qualified majority vote. It shall be set in the incorporation documents and may not be less than 2/3 of the votes of all the participants present at the meeting. The decision to reorganise a legal person may be adopted only upon the expiry of a thirty-days period following the public announcement that the terms of reorganisation have been set, as specified in paragraph 1 of Article 2.101 of this Code. The terms of reorganisation must be approved by the decision to reorganise a legal person and documents of incorporation must be altered or new documents of incorporation must be adopted.
4. No later than thirty days before the meeting of participants of a legal person regarding the reorganisation, participants of a legal person shall have the right to access the terms of reorganisation, the documents of incorporation or draft documents of incorporation of legal persons to be continued or to be newly incorporated after the reorganisation, as well as the reports drawn up by all the management bodies of legal persons participating in the reorganisation, the assessments of experts and financial statements for the last three financial years. Where the terms of reorganisation were set six months after the end of the financial year of at least one legal person participating in the reorganisation, an interim financial statement must be drawn up in accordance with the same rules applied to the earlier financial statements and must be presented to the participants of a legal person. It shall be drawn up no earlier than three months prior to the setting of terms of the reorganisation. Each participant of a legal person shall have the right to receive copies of all the said documents.
5. The management bodies of legal persons must notify participants of legal persons about all substantive changes after the terms of reorganisation have been set and prior to adopting a decision on the reorganisation, and attach this written notification to the documents specified in paragraph 4 of this Article as well as orally inform about any substantive changes at the meeting of participants of legal persons.
Article 2.97. Modes of reorganisation of legal persons
2. The possible modes of merger of a legal person shall be merger by acquisition and merger by formation of a new company.
3. Merger by acquisition shall be the merger of one or more legal persons into another legal person, which becomes a successor to all rights and obligations of the legal person under reorganisation.
4. Merger by formation of a new company shall be the merger of two or more legal persons into a new legal person, which becomes a successor to all rights and obligations of the reorganised legal persons.
5. The possible modes of division of legal persons shall be division by acquisition and division by formation of a new company.
6. Division by acquisition shall be the assigning of rights and obligations of a legal person under reorganisation to other legal persons in operation.
7. Division by formation of a new company shall be the incorporation, on the basis of a single legal person under reorganisation, of two or more legal persons, which become successors to certain parts of the reorganised legal person’s rights and obligations.
8. Where the decision to liquidate a legal person was not adopted by the meeting of participants of a legal person or where at least one participant of a legal person became a successor to a part of property of a legal person in liquidation, it shall be prohibited to reorganise such a legal person in liquidation.
Article 2.98. Reorganisation of legal persons of different legal forms
1. Only legal persons of the same legal form may participate in the reorganisation, with the exception of derogations provided by laws regulating individual legal forms of legal persons.
2. Upon termination of a legal person under reorganisation whose participants are liable for the obligations of the legal person, irrespective of the terms of reorganisation, participants of the terminated reorganised legal person shall assume subsidiary liability, for a period of three years, for the obligations of the terminated legal person which emerged prior to the legal person’s, which will continue activities, becoming a successor to the rights and obligations of the terminated legal person. Where a participant of a legal person fails to become a participant of the legal person continuing activities after the reorganisation, he shall not, either at the time of the reorganisation or thereafter, be exempt from the liability referred to in this paragraph.
Article 2.99. Terms of reorganisation and report on the reorganisation
1. The management bodies of legal persons participating in the reorganisation must prepare the terms of reorganisation which have to include the following:
1) the information specified in Article 2.44 of this Code on all the legal persons participating in the reorganisation;
2) the mode of reorganisation, terminated legal persons and legal persons continuing activities after the reorganisation;
3) the procedure, conditions and time limits for a participant of the legal person under reorganisation to become a participant of the legal person continuing after the reorganisation, as well as payments to the participants of a legal person;
4) the moment from which the legal person continuing after the reorganisation becomes a successor to rights and obligations of a terminated legal person;
2. The terms of reorganisation must be published according to the provisions of paragraph 1 of Article 2.101 of this Code and submitted to the Register of Legal Entities no later than on the first day of publication, applying the provisions of paragraph 3 of Article 2.66 of this Code mutatis mutandis.
3. The management bodies of each legal person participating in the reorganisation must draw up written reports indicating the goals of the reorganisation, explaining the terms of the reorganisation, the continuity of activities of the legal person, and specifying the time limits and economic grounds for the reorganisation.
Article 2.100. Assessment of the terms of reorganisation
1. The terms of reorganisation of legal persons shall be assessed by independent experts who have the necessary qualifications, provided that this is set out in laws regulating activities of individual legal persons.
Article 2.101. Protection of rights of creditors of the legal persons under reorganisation
1. The drawing up of the terms of reorganisation must be published three times at intervals of at least thirty days or published once and notified in writing to all the creditors of the legal person. The notification must contain the data specified in points 1, 2 and 4 of paragraph 1 of Article 2.99 of this Code and indicate where and from when the documents listed in paragraph 4 of Article 2.96 of this Code are available.
2. A creditor of a legal person under reorganisation shall have the right to request termination of the contract or performance of obligations before the expiry of the time limit as well as redress of damages where this has been provided for in the transaction and where there are grounds to presume that the performance of obligations may become more difficult due to the reorganisation, and where, at the request of the creditor, a legal person has failed to extend an additional guarantee for the performance of obligations.
Article 2.102. Invalidity of reorganisation
1. Reorganisation may only be declared invalid by a court and only in the following circumstances:
1) the relevant documents of the reorganisation procedure have not been published or submitted to the Register of Legal Entities;
2) decisions on the reorganisation adopted by participants of a legal person or other management body of a legal person are invalid;
2. Where the period following the termination of a legal person to its application to the court exceeds six months, reorganisation may not be declared invalid.
3. Where possible, the court must grant a reasonable time limit to rectify the errors which gave grounds for declaring the reorganisation invalid.
4. The judgment of the court to declare the reorganisation of a legal person invalid shall not invalidate the activities of a legal person continuing after the reorganisation or of a newly incorporated legal person prior to the alteration of the respective data in the Register of Legal Entities. All legal persons who participated in the reorganisation shall be jointly and severally liable for the obligations arising from the transactions of such legal persons.
Article 2.103. Simplified reorganisation of legal persons
Where a legal person under reorganisation is merged by acquisition into a legal person which is the sole participant of the legal person under reorganisation or where public legal persons participate in the reorganisation, paragraph 3 of Article 2.99 and Article 2.100 of this Code shall not apply.
Article 2.104. Restructuring of legal persons
1. Restructuring shall be an alteration of the legal form of a legal person whereby a legal person of a new legal form becomes the successor to all rights and duties of the restructured legal person.
2. In the case of restructuring of a legal person whose participants are liable for the obligations of the legal person, participants of the restructured legal person, irrespective of the new legal form chosen, shall assume subsidiary liability, for a period of three years, for the obligations of the restructured legal person which emerged prior to the registration of a legal person of a new legal form in the Register of Legal Entities. Where a participant of a restructured legal person fails to become a participant of the legal person of a new legal form, he shall not, either at the time of the restructuring or thereafter, be exempt from the liability referred to in this paragraph.
3. A public legal person, except state and municipal enterprises, may not be restructured into a private legal person.
4. In restructuring of legal persons, provisions of paragraph 2 of Article 2.101, Article 2.102, paragraph 1 of Article 2.107 and paragraphs 1 and 2 of Article 2.112 shall apply mutatis mutandis.
Article 2.105. Mandatory restructuring of legal persons
2. Where, within the time limit established by law which may not be shorter than nine months, participants of a legal person fail to adopt a decision on the alteration of the legal form of a legal person, it shall be considered that the legal form of a legal person has been altered and the legal person acts according to the documents of incorporation inasmuch as they do not conflict with the laws regulating activities of legal persons having the legal form into which the said legal person had to be restructured.
Article 2.106. Grounds for the liquidation of a legal person
Grounds for the liquidation of a legal person may only be the following:
1) participants of a legal person have adopted a decision to terminate the activities of a legal person;
2) the court or the creditors’ meeting has adopted a decision to liquidate a legal person due to bankruptcy;
3) the court has passed a judgment to liquidate a legal person in accordance with the provisions of Article 2.131 of this Code;
4) the data processor of the Register of Legal Entities has adopted a decision to liquidate a legal person in accordance with the provisions of Article 2.70 of this Code;
6) the number of participants of a legal person has decreased below the permitted minimum prescribed by law, where a participant of a legal person fails to adopt a decision, within six months following the decrease, to reorganise or restructure a legal person;
Article 2.107. Decision of participants of a legal person on liquidation
1. A decision to liquidate a legal person shall be adopted by a qualified majority vote of participants of a legal person. It shall be established in the incorporation documents of a legal person and it may not be less than 2/3 of the votes of all the participants of the meeting.
Article 2.108. Appointment of a liquidator
1. After adopting a decision to liquidate a legal person, participants of legal persons, the meeting of creditors or the court must appoint a liquidator.
2. Incorporation documents of a legal person or laws may provide for different rules for the appointment of a liquidator or designate a specific liquidator. These rules shall not be binding on the court and the meeting of creditors.
3. A liquidator shall be a person having the necessary qualifications. Several liquidators may be appointed. If several liquidators are appointed, a liquidation commission shall be set up and one of the liquidators shall be appointed the chairperson of the liquidation commission.
4. Where points 5 and 6 of Article 2.106 of this Code constitute grounds for the liquidation and where a participant of a legal person fails to appoint a liquidator, the management bodies of a legal person or participants of a legal person with at least 1/20 of all votes and the data processor of the Register of Legal Entities shall have the right to apply to court requesting the appointment of a liquidator.
5. Where points 3 or 7 of Article 2.106 of this Code constitute grounds for the liquidation, the duties of a liquidator shall be discharged by an institution authorised by the Government until a liquidator is appointed by a participant of a legal person. Subject to the approval of the court, this institution shall have the right to assign another person to discharge the duties of a liquidator.
Article 2.109. Revocation of a liquidator of a legal person
1. A liquidator of a legal person appointed by participants of a legal person may be revoked by a simple majority vote of the participants of the legal person present at the meeting.
2. Participants of a legal person with at least 1/10 of all votes, a creditor with a right of claim of at least fourteen thousand five hundred euros, or at least 1/5 of all the employees of a legal person shall have the right to apply to court requesting to change the liquidator where he fails to act in a proper manner, is dishonest in effecting settlements with creditors and participants of the legal person, is dishonest in discharging other duties or infringes the rights of the participants, creditors or employees of the legal person.
Article 2.110. Powers of a liquidator
1. The management bodies of a legal person shall lose their powers and the powers of participants of a legal person to conclude transactions shall pass to a liquidator as of the day of his appointment or, in cases specified in paragraph 5 of Article 2.108 of this Code, as of the entry into force of the decision on the liquidation of a legal person.
Article 2.111. Transactions of a legal person in liquidation
A legal person in liquidation may conclude only those transactions which are related to the termination of the legal person’s activities or which are provided for in the decision to liquidate the legal person.
Article 2.112. Notification about liquidation
1. The person who has adopted a decision to liquidate a legal person must, in accordance with the procedure established in the incorporation documents of legal persons, make a public announcement thereof three times at intervals of at least thirty days or make a public announcement once and notify all creditors in writing. The notification must include all data listed in paragraph 1 of Article 2.44 of this Code.
2. The Register of Legal Entities shall also be notified about the liquidation no later than on the first day of public announcement thereof in accordance with the procedure established in paragraph 3 of Article 2.66 of this Code.
Article 2.113. Sequence of and procedure for the satisfaction of creditors’ claims of a legal person in liquidation
1. In the event of liquidation of a legal person, the following sequence of and procedure for the satisfaction of creditors’ claims shall be established:
1) priority in satisfying creditors’ claims shall be given to claims secured by the mortgage of property of a legal person in liquidation – from the value of the mortgaged property;
2) first in sequence for the satisfaction of claims shall be employees’ claims related to employment relationships; claims to compensate for mutilation or other physical injuries, occupational disease or death as a result of an accident at work as well as claims of natural persons for payment for agricultural produce purchased for processing;
3) second in sequence for the satisfaction of claims shall be claims related to taxes and other payments to the budget as well as compulsory state social insurance and health insurance contributions and foreign loans covered by a guarantee of the State or the Government;
2. The claims of creditors of each successive sequence shall be fulfilled upon fully satisfying the claims of creditors of the preceding sequence. Where assets are insufficient to fulfil all the claims of one sequence in full, the said claims shall be satisfied in proportion to the amount of claims due to each creditor.
Article 2.114. Unlawful incorporation of a legal person
1. The incorporation of a legal person may be declared unlawful only by the court and only in cases where:
1) all incorporators were legally incapable in this particular area or the provision establishing the minimum number of incorporators has been violated;
2) the documents of incorporation prescribed by law have not been drawn up or mandatory provisions of the regulations for the incorporation of a legal person have been violated;
4) the minimum authorised capital has not been formed in accordance with the procedure established by law and within the established time limit;
5) the incorporation documents of a legal person fail to indicate its business name, goals, amounts of authorised capital and personal contributions of participants of a legal person, where such requirements are laid down in the mandatory provisions of the laws regulating individual legal forms of legal persons.
2. Where a court declares the incorporation of a legal person unlawful, the said legal person must be liquidated in accordance with the procedure established by law.
3. Where possible, the court must grant a reasonable period of time to rectify the errors due to which the incorporation of a legal person was declared unlawful.
4. In deciding whether to declare the incorporation of a legal person unlawful, the court must take into consideration the interests of the employees and participants of a legal person who did not take part in the incorporation of the legal person.
Article 2.115. Content of forced sale of shares (rights, member shares)
1. The participants of a legal person listed in Article 2.116 of this Code shall have the right to file an application to the court requesting to sell, to the applying participant of a legal person, the rights of a participant of a legal person or the shares (member shares) of a legal person which are in possession of a legal person’s participant (hereinafter: ‘shares (rights, members shares)’) whose actions are contrary to the goals of the legal person’s activities and where there are no grounds to expect any changes in the said actions in the future.
2. An action for the forced sale of shares (rights, member shares) shall be brought before a regional court according to the location of the registered office of a legal person. The court must notify the legal person whose shares (rights, member shares) are to be sold in a forced manner about the action and the judgments.
3. Participation of a lawyer in the process of litigation of the parties to the given cases shall be compulsory.
Article 2.116. Persons entitled to file an application for forced sale of shares (rights, member shares)
1. The following participants of a private legal person shall have the right to file an application for forced sale of shares (rights, member shares):
1) one or several shareholders of a private limited liability company whose nominal value of shares held accounts for at least 1/3 of the authorised capital;
2) one or several members of a partnership whose contributions account for at least 1/3 of all contributions to the partnership;
3) one or several members of an agricultural company or co-operative society whose member share accounts for at least 1/3 of all member shares;
2. A participant of a legal person shall have no right to file an application for forced sale of shares (rights, member shares) under the circumstances laid down in Article 2.115 of this Code where the incorporation documents of a legal person or contracts concluded by its participants provide for different rules of forced sale of shares (rights, member shares) and the said rules may apply.
3. A participant of a legal person shall have no right to file an application for forced sale of shares (rights, member shares) where he is controlled by a legal person the shares (rights, member shares) whereof are to be sold in a forced manner.
Article 2.117. Restrictions on the transfer of title to shares (rights, member shares)
1. A defendant shall have no right, without a claimant’s consent, to sell or otherwise transfer the title to shares (rights, member shares), to pledge them or otherwise restrict the rights to them, as well as transfer or otherwise restrict the rights or the rights attached to the shares (member shares) from the day of adoption of the court judgment on the forced sale of shares (rights, member shares) unless the court decides otherwise. The court shall have the right to authorise the acts referred to in this paragraph if a plaintiff fails to give his consent to such acts.
2. A defendant shall have no right to sell, except according to the provisions of this Section, or otherwise transfer the title to shares (rights, member shares), to pledge them or otherwise restrict the rights to them, as well as transfer or otherwise restrict the rights or the rights attached to the shares (rights, member shares) from the day of entry into force of the court judgment unless the court decides otherwise.
3. The court that issued the judgment may, upon a plaintiff’s request, prohibit a defendant from exercising his right to vote without the consent of the court or the plaintiff.
Article 2.118. Appointment of experts
1. Upon satisfaction of an action, the court must appoint experts to set the price of shares (rights, member shares).
2. Experts must start their activities only after the court judgment becomes final. Experts must present a written report on the price of shares (rights, member shares) to the court and the parties to the case.
Article 2.119. Setting of a price
1. After the experts’ report on the price of shares (rights, member shares) has been submitted, the court must issue an order on the setting of a price and determine who remiburses for the experts’ work and other expenses borne. The court may decide that such expenses shall be reimbursed by a legal person.
Article 2.120. Procedure for forced sale
1. After the court order on setting a price becomes final, the defendant must, within two weeks, transfer the title to his shares (member shares) to the plaintiff and the plaintiff must accept the shares (member shares) and pay the set price. The price must be paid upon the transfer of title to the shares (member shares) to the plaintiff. The transfer shall take place in the registered office of a legal person whose shares (member shares) are transferred or in some other place agreed upon by the plaintiff and the defendant.
2. In the case of a forced sale of rights, the plaintiff must pay to the defendant the set price within two weeks from the date on which the court order on setting a price became final. The contribution of the plaintiff who has paid the set price shall be increased by the amount of the defendant’s contribution and the legal person must issue to the plaintiff the documents certifying the increase of his contribution.
3. Where the defendant fails to discharge his duty to transfer the title to his shares (member shares), a legal person must transfer the title to the shares (member shares) in the defendant’s name and issue to the plaintiff the documents certifying the plaintiff’s title to the shares (member shares) sold in a forced manner and declare the respective documents of the defendant invalid as well as make a public announcement thereof in the source prescribed by the legal acts. Upon receipt of the documents certifying the title to the shares (member shares), the plaintiff shall pay the price into the deposit account of a notary, bank or other credit institution.
4. Where there are several plaintiffs, the shares (member shares) sold in a forced manner shall be allotted as proportionally as possible to the legal person’s shares (member shares) held by the plaintiffs. In case of a forced sale of rights, the contributions of the plaintiffs shall be increased by the amount of the contribution that is as proportionate as possible to the amount of the contribution of each defendant.
Article 2.121. Procedure for forced sale of shares in the presence of pre-emptive right
1. Where other participants of a legal person or persons hold a pre-emptive right to acquire the shares (rights, member shares) sold in a forced manner, the legal person, upon receipt of a final court order on setting a price, must make a proposal to the said persons to acquire the shares (rights, member shares) at the price set by the court. After the court judgment on the forced sale of shares (rights, member shares) becomes final, the defendant must notify the legal person about the persons who enjoy the pre-emptive right to acquire shares (rights, member shares) sold in a forced manner in accordance with the contracts concluded by the plaintiff.
2. Upon receipt of a legal person’s proposal to exercise the pre-emptive right, the persons must accept or reject the proposal in writing within thirty days. Where a person fails to reply to the said proposal, the proposal shall be deemed unaccepted.
3. Upon the expiry of a thirty-day time limit, the legal person must notify the plaintiff and the defendant of the number of accepted shares (member shares) or whether the rights have been accepted. Upon receipt of the said notification, the defendant must transfer the title to the shares (member shares) to the persons specified in the notification and the title to the remaining shares (member shares) must be transferred to the plaintiff in accordance with the provisions of Article 2.120 of this Code. Shareholders or other participants of legal persons who purchase shares (rights, member shares) must pay for them in accordance with the provisions of Article 2.120 of this Code. Where the persons enjoying the pre-emptive right fail to pay for the shares (rights, member shares) in due time, the shares (rights, members shares) must be transferred to the plaintiff.
Article 2.122. Transfer of the voting right
1. The persons listed in Article 2.116 of this Code shall have the right to file an application to the court requesting to reinstate the owner of shares (rights, member shares) in his right to vote in cases where the right to vote has been assigned to another person whose actions contradict the goals of a legal person and there are no grounds to expect any changes in the actions in the future.
Article 2.123. Forced sale of shares (rights, member shares) due to the failure to properly exercise the rights
1. Where the participants of a legal person listed in Article 2.116 of this Code fail to properly exercise the rights as participants of a legal person due to the actions of another participant of a legal person and there are no grounds to expect that such actions will cease in the future, the said participants may bring an action to the court requesting the participant of a legal person, whose actions obstruct the proper exercise of their rights, to purchase their shares (rights, member shares). In this case, paragraphs 2 and 3 of Article 2.115 and Articles 2.116 to 2.121 of this Code shall apply mutatis mutandis.
Article 2.124. Content of an investigation into the activities of a legal person
The persons listed in Article 2.125 of this Code shall have the right to request the court to appoint experts to investigate whether a legal person or the legal person’s management bodies or their members acted in a proper way and, if improper actions are established, to apply measures specified in Article 2.131 of this Code.
Article 2.125. Persons entitled to apply for an investigation into the activities
1. The following persons shall be entitled to apply for an investigation into the activities of a legal person:
1) one or several shareholders who hold or manage shares the nominal value of which accounts for at least 1/10 of the authorised capital;
2) one or several members of a partnership whose contributions account for at least 1/10 of all contributions to the partnership;
3) one or several members of a small partnership whose contributions account for at least 1/10 of all contributions to the small partnership;
4) one or several members of an agricultural company or a co-operative society (co-operative) whose member shares account for at least 1/10 of all member shares;
5) participants of a legal person, except for the participants of legal persons referred to in Articles 2.35 and 2.37 of this Code and the persons referred to in points 1, 2, 3 and 4 of this paragraph, who have at least 1/5 of all votes;
Article 2.126. Filing of an application
1. An application for an investigation into the activities shall be filed with a regional court according to the location of the registered office of a legal person.
2. An application may be filed only after a claimant has applied to the legal person (the legal person’s management body or its member) with a request to terminate inappropriate activities and has granted a reasonable time limit to remedy the circumstances. A request, which either fails to specify inappropriate activities or bad faith in discharging the duties or give reasons why the activities are considered to be inappropriate, shall not be deemed to be an application.
3. Participation of a lawyer shall be obligatory in drawing up a request and an application for an investigation into the activities. Representation of a claimant by a lawyer shall be obligatory in the course of proceedings concerning an investigation into the activities. Where an application for an investigation into the activities is filed by a public prosecutor acting in the public interest, the provisions of this paragraph shall not apply.
4. Upon receipt of an application and after hearing the submissions of the parties, the court shall either make an order on the investigation into the activities of a legal person, if there are grounds for believing that the circumstances specified in Article 2.124 and paragraphs 2 and 3 of Article 2.125 of this Code may be present, or reject the application.
Article 2.127. Appointment of experts
1. The court may appoint any independent persons as experts, who have the necessary qualifications to carry out an investigation into the activities of a legal person and submit a written report on inappropriate activities, as well as to draw up guidelines for the application of measures specified in Article 2.131 of this Code.
2. Prior to the appointment of experts, the court must make a proposal to the parties to reach a consensus on the appointment of specific experts. Once a consensus is reached, the court shall appoint the jointly chosen experts if they meet the requirements set in paragraph 1 of this Article. Where the parties fail to reach a consensus on the appointment of experts, the court shall appoint experts at its discretion from the list of proposed experts submitted by the parties. Each party shall submit a list containing at least ten experts and shall have the right to remove five experts from the list of the other party for whatever reasons, as well as to give their opinion as to compliance of the remaining five experts with the requirements set in paragraph 1 of this Article.
Article 2.128. Rights of experts
1. Experts shall have the right to examine the documents of a legal person and to interview participants, members of bodies and employees of the legal person, as well as persons who were members, members of bodies or employees of the legal person in the period under investigation.
2. On the instruction of experts, a legal person must make it possible to verify the assets of the legal person. The judge may, without prior notification to the parties, issue an order thereby granting experts the right to take the actions laid down in paragraph 1 of this Article with respect to other legal persons as well as receive documents and information from respective state institutions.
Article 2.129. Remuneration for experts’ work
1. The experts appointed by the court must notify the court about the terms of remuneration for their work and the reimbursement for work-related expenses. Where the court accepts the terms and amount of remuneration for work and reimbursement for expenses incurred, the court shall, without prior notification to the parties, determine the sum, which may not be less than 70 per cent of the amount of remuneration for work and reimbursement for expenses indicated by the experts. The claimant must pay the said sum into a special account of the court.
2. Where the claimant fails to pay the sum indicated by the court into a special account of the court, the court shall not proceed with the application. In such cases, other parties to the case shall have the right to the reimbursement of court expenses incurred by them.
Article 2.130. Experts’ reports and dissemination of recommendations
1. Upon receipt of the experts’ report and recommendations, the court must notify the parties and their representatives thereof and send the copies of the experts’ report and recommendations to each party and their representatives as well as convene a court sitting to discuss the said report and recommendations.
2. Experts’ report and recommendations must be sent to respective state institutions which, consistent with the law, exercise the supervision of activities of a legal person.
Article 2.131. Measures applied by the court
1. Where the experts’ report indicates that the activities of a legal person (management bodies of a legal person or their members) are inappropriate and the court approves the said conclusion, the court may, upon hearing the opinions of the parties and state institutions referred to in Article 2.130 of this Code, apply one of the following measures:
2) temporarily suspend the powers of members of the legal person’s management bodies or remove a person from the legal person’s management bodies;
2. Upon the appointment of a member of the management body, the court may determine his remuneration.
3. A decision to liquidate a legal person may not be taken where such decision is contrary to the interests of other participants or employees of the legal person or contravenes the public interest. A decision to revoke decisions of the legal person’s bodies may not be taken where the limitation period for bringing an action provided for by this Code or other laws has expired.
Article 2.132. Conclusion of transactions through agents
1. Persons shall enjoy the right to enter into transactions through agents, except for those transactions which, due to their nature, may be entered into only personally, as well as other transactions provided for by law.
2. Agency shall be possible on the basis of a transaction, law, court judgment or administrative act.
Article 2.133. Legal effects of a transaction concluded through an agent
1. A transaction concluded by one person (agent) in another person’s (principal’s) name, disclosing the fact of agency and without exceeding the rights conferred, shall directly create, modify and abolish the civil rights and obligations of a principal.
2. The rights of an agent may also arise from the circumstances under which an agent acts (salesperson in retail trade, cashier, etc.). Where the behaviour of a person gives reasonable grounds for third persons to assume that he has appointed another person to act as his agent, transactions concluded by the said person in the principal’s name shall be binding for the principal.
3. Where, at the time of the transaction, the agent fails to inform that he acts in the name of and on behalf of the principal, the principal shall acquire the rights and assume the obligations arising from the transaction only if the other party to the transaction was in a position to understand, from the circumstances of the conclusion thereof, that the said transaction was concluded with an agent, or if the identity of the person with whom the transaction was concluded was of no importance to the said party.
4. Where the validity of a transaction concluded through an agent is challenged due to a mistake, deceit, duress or threat, the existence or non-existence of the said facts shall be established with due regard to an agent’s will.
5. Where a transaction has been concluded as per principal’s instructions, the principal may not challenge its validity by arguing that at the time of the transaction the agent ignored certain circumstances if the principal was aware of the said circumstances or ignored them due to his own negligence.
6. Where a transaction in the name of another person is concluded by a person who has not been authorised to do so, the principal shall bear the legal consequences thereof only when the principal approves the said transaction. Where this is the case, the other party to the transaction may request, in writing, to approve or not to approve the transaction within its established time limit, which may not be shorter than fourteen days. Where no reply has been received within the established time limit, the transaction shall be deemed not approved. The approval of a transaction shall have a retroactive effect, i.e. it shall be deemed valid as of the day of its conclusion.
7. The other party to the transaction that concluded a transaction with a person who was not authorised to do so may withdraw from the transaction prior to the approval of the transaction by the principal, except in cases where, at the moment of its conclusion, the said party was aware or ought to have been aware of the fact that he concluded the transaction with a person who was not granted the requisite authority.
8. Where a transaction was concluded without due authorisation, the person who concluded the transaction shall be liable for his contractual obligations to the other party to the transaction, except in cases where the said party to the transaction was aware or ought to have been aware of the fact that the latter was not entitled to conclude the transaction.
9. Where an agent acted in excess of his powers, but in the manner which gave a third person reasonable grounds to believe that he was concluding a transaction with a duly authorised agent, the transaction shall be binding on the principal, except in cases where the other party to the transaction was aware or ought to have been aware that the agent was exceeding his powers.
Article 2.134. Restriction imposed on an agent’s rights to conclude transactions
1. An agent may not conclude transactions in the principal’s name either with himself or with the person whom he represents at the given time, as well as his spouse, parents, children or other close relatives. Such transactions, upon the principal’s request, may be deemed null and void.
2. Restrictions specified in paragraph 1 of this Article shall not be imposed in the cases where other laws provide otherwise and where an agent acts as a statutory agent.
Article 2.135. Conflict of interests
1. Where, in violation of the rights conferred, an agent enters into a transaction which runs counter to the interests of the principal, such transaction may be deemed void at the request of the principal in the cases where a third person was aware or ought to have been aware of the conflict of interests.
2. A person may not act simultaneously as an agent of both parties to the transaction. This provision, however, shall not apply in the cases where contractual obligations are performed as well as in the cases where both parties to the transaction express their will explicitly that the agent has to act in the interests of both parties.
Article 2.136. Legal effects of a transaction concluded in another person’s name without express authorisation or in excess of authority
1. A transaction which is concluded by a person in another person’s name without express authorisation or in excess of his authority shall create, modify and abolish rights and obligations of a principal only in the case where, at a later date, the principal approves all or the part of the transaction which is in excess of his authority (paragraph 6 of Article 2.133 of this Code).
2. The principal’s approval of a transaction at a later date shall render the transaction valid as of the date of its conclusion.
3. Upon conclusion of a transaction, which is not approved by the principal, under circumstances laid down in paragraph 1 of this Article, an agent must redress the damage incurred by a third person in the cases where the said third person was not aware, nor ought to have been aware, of the said circumstances.
Article 2.137. Power of attorney
1. A power of attorney shall be a written document granted by a person (principal) to another person (authorised agent) to represent a principal in establishing and maintaining relations with third persons. A power of attorney may also be drawn up by means of information technology and granted by registering it in the Register of Powers of Attorney.
Article 2.1371. Durable power of attorney
1. Any natural person of full age and legal capacity may issue a durable power of attorney for handling his affairs related to the exercise of his property and personal non-property rights and obligations, should he be declared legally incapable in a certain area or of limited legal capacity in a certain area in the future.
2. In his durable power of attorney, the person may:
1) indicate persons he wishes to be appointed as his guardians or curators by the court, should he be declared legally incapable in a certain area or of limited legal capacity in a certain area;
2) indicate persons whom the court should not appoint as his guardians or curators, should he be declared legally incapable in a certain area or of limited legal capacity in a certain area;
3) express his will concerning the place of residence (placement in a guardianship or care institution);
4) designate a specific person to handle his affairs related to the exercise of his property and personal non-property rights and obligations;
3. Durable powers of attorney must be made in a notarial form and shall be registered in the Notarial Register and the Register of Legally Incapable Persons and Persons with Limited Legal Capacity. Notaries and consular officers of the Republic of Lithuania shall be entitled to attest durable powers of attorney. One copy of a durable power of attorney shall be handed in to the person issuing the durable power of attorney, while the other shall remain with the institution which has attested it. Information related to the issuing and the content of the durable power of attorney shall be deemed confidential until its entry into force.
4. The durable power of attorney shall enter into force upon the entry into effect of the court judgment whereby a person is declared legally incapable in a certain area or a person is declared to be of limited legal capacity in a certain area, and shall be valid for the period specified in the durable power of attorney. Unless the durable power of attorney has a specific expiration date, it shall remain valid until the revocation of the court judgment whereby a person was declared legally incapable in a certain area or a person was declared to be of limited legal capacity in a certain area.
5. Once the durable power of attorney enters into force, its provisions must be applied by all persons and institutions performing actions related to the exercise of the property and personal non-property rights and obligations of the person who has issued the durable power of attorney, except in the cases where, due to a change in circumstances, the application of the provisions of the durable power of attorney is clearly no longer in the interest of the person who has issued it. The fact that the durable power of attorney is no longer in the interest of the person who has issued it must be established by the court. Any interested persons or institutions performing actions related to the exercise of the property and personal non-property rights and obligations of the person who has issued the durable power of attorney shall have the right to apply to court for authorisation to refrain from acting in accordance with the durable power of attorney.
Article 2.1372. Registration of durable powers of attorney
1. Durable powers of attorney attested by notaries and consular officers of the Republic of Lithuania shall be registered in the Register of Legally Incapable Persons and Persons with Limited Legal Capacity.
2. Notaries and consular officers shall, in accordance with the procedure laid down by the Register of Legally Incapable Persons and Persons with Limited Legal Capacity, submit to the Register of Legally Incapable Persons and Persons with Limited Legal Capacity data on the issued, amended and revoked durable powers of attorney.
3. The data on the issued durable power of attorney from the Register of Legally Incapable Persons and Persons with Limited Legal Capacity shall be transmitted to the court upon its request when judging matters related to the limitation of a person’s legal capacity in a certain area or the declaration of legal incapacity of a person in a certain area.
Article 2.1373. Amending, supplementing and revoking of a durable power of attorney
1. A person shall have the right to amend or supplement his power of attorney at any time by issuing a new durable power of attorney. A person shall have the right to revoke his durable power of attorney at any time.
2. The durable power of attorney issued at a later time shall revoke the whole previous durable power of attorney or the part thereof which is contrary to the later durable power of attorney.
Article 2.138. Attestation of the power of attorney by a notary
1. The following powers of attorney must be attested by a notary:
2) the power of attorney to perform, on behalf of a natural person, the actions related to legal persons;
2. Powers of attorney attested by a notary shall be comparable to:
1) powers of attorney of servicemen attested by the commanders (heads) of military units, formations, military establishments and military schools;
2) powers of attorney of persons in places of imprisonment attested by the heads of the places of imprisonment;
3. Attestation of the power of attorney specified in point 2 of paragraph 1 of this Article shall not be required where it has been drawn up by a natural person by means of information technology and has been granted by registering it in the Register of Powers of Attorney and in other cases prescribed by law.
Article 2.1381 . Register of Powers of Attorney
1. Powers of attorney attested by a notary, powers of attorney comparable to those attested by a notary, as specified in paragraph 2 of Article 2.138 of this Code and powers of attorney set out in paragraph 2 of Article 2.139 of this Code must be registered in a public Register of Powers of Attorney. In addition, the Register of Powers of Attorney may, in accordance with the procedure established by the regulations of the said Register, contain other powers of attorney, drawn up by means of information technology and granted by registering them in the Register of Powers of Attorney.
2. When registering the powers of attorney referred to in paragraph 1 of this Article, the Register of Powers of Attorney shall be provided with the data on the person who has granted the power of attorney, the agent, the person who has attested the power of attorney (except where, in the cases provided for in this Code, the power of attorney does not have to be and is not attested), the dates of attestation and expiration of the power of attorney, the content of the power of attorney and other data established by the regulations of the Register of Powers of Attorney.
3. The data controller of the Register of Powers of Attorney shall be the Ministry of the Justice, and the data processor of the Register shall be designated by the Government.
Article 2.139. Simplified attestation of the power of attorney
1. A power of attorney given by a natural person to receive correspondence (namely, money orders and parcels), salaries, other payments related to employment relationships, pensions, benefits, and scholarships or for accessing public or administrative services may be attested by the organisation in which the natural person is employed or studies, the chairman of the association of owners of multi-apartment residential buildings, in the building belonging to which the natural person resides, the warden of the ward in the territory assigned to which the natural person resides, or the master of a seagoing ship engaged on a long-distance voyage.
Article 2.140. Power of attorney granted by a legal person
1. A power of attorney granted by a legal person shall be signed by the head thereof. A power of attorney that is drawn up by means other than information technology shall bear a seal of that legal person if the legal person is required to have it.
2. Additional requirements for a power of attorney granted by a legal person may be prescribed by law.
Article 2.141. Rights and obligations of a legal person conferred under the power of attorney
A legal person may be granted a power of attorney to conclude only such transactions the right of conclusion whereof has been provided for in its incorporation documents.
Article 2.142. Term of the power of attorney
1. The term of the power of attorney may be fixed or open-ended. Where the term of the power of attorney is not indicated, the power of attorney shall be valid for one year as of the day on which it was drawn up.
2. The power of attorney, attested by a notary, to perform certain actions abroad, which does not specify its term, shall be valid until the person who granted the power of attorney revokes it.
Article 2.143. Right to request the power of attorney and its copy
A third person with whom the principal concludes a transaction shall have the right to request an agent to produce the power of attorney granted to him and its copy, and, in the case of the power of attorney drawn up by means of information technology and granted by registering it in the Register of Powers of Attorney– the data identifying the power of attorney.
Article 2.144. Obligation to return the power of attorney
Upon the expiry of the term of the power of attorney or revocation thereof prior to the expiry of the term, an agent must return the power of attorney to the principal or successors to his rights, except where the power of attorney is drawn up by means of information technology and granted by registering it in the Register of Powers of Attorney.
Article 2.145. Re-authorisation
1. An authorised agent must perform the acts that he has been authorised to perform. He may re-authorise another person to perform the said acts only in the cases where such right has been conferred upon him by the power of attorney he was granted or where he is compelled to do so by the circumstances in order to protect the interests of the principal. A re-authorised person shall enjoy the same rights and assume the same obligations as an agent in respect of the principal and the third persons.
2. The power of attorney given by re-authorisation shall be granted in the same manner and form as the power of attorney which has been granted.
3. The term of the power of attorney given by re-authorisation may not exceed the term of the power of attorney which formed the basis for granting it.
4. A person who delegates his authority to another person must notify a principal thereof and supply the necessary data about the person who is delegated the authority. Where the authorised agent fails to discharge this obligation, he shall be liable for the actions of the person to whom he has delegated the authority as for his own actions. Where an authorised agent has been appointed under the principal’s instructions, an agent shall not be liable for the authorised agent’s actions, except in the cases where the agent was aware of the fact that the person who was appointed as an authorised agent was dishonest and unreliable but failed to notify the principal thereof.
Article 2.146. Right to revoke the power of attorney and re-authorisation and the right to waive them
1. A principal shall have the right to revoke, at any time, the power of attorney, whereas an authorised agent – to waive it. Both a principal and an authorised agent may, at any time, revoke re-authorisation. The person who has been given the power of attorney by re-authorisation may, in his turn, waive it at any time. Where the power of attorney has been registered in the Register of Powers of Attorney, a request by a principal or an authorised agent for the termination of the power of attorney or re-authorisation may be made by means of information technology by registering the termination of the power of attorney or re-authorisation in the Register of Powers of Attorney in the manner provided for in the regulations of that Register.
Article 2.147. Expiry of the power of attorney
1. A power of attorney shall expire:
5) upon the termination of the legal person to which the power of attorney has been granted, or upon the institution of bankruptcy proceedings against the said legal person;
6) upon the death of the natural person who has granted the power of attorney, or upon the declaration of the natural person legally incapable or of limited legal capacity in the area in which the power of attorney has been granted, or upon the declaration of that natural person missing;
2. The data about the expiry of the term of the power of attorney must be submitted to the data processor of the Register of Powers of Attorney.
3. Upon the expiry of the term of the power of attorney, power of re-authorisation shall likewise cease to have effect.
Article 2.148. Obligation of a principal to notify about the expiry of the power of attorney
1. A principal must notify an authorised agent and the third persons known to the authorised agent, for whom the power of attorney has been granted for the purpose of establishing and maintaining relations, about the revocation of the power of attorney specified in point 2 of paragraph 1 of Article 2.147 of this Code. Where the power of attorney expires on the basis of provisions laid down in points 4 and 6 of paragraph 1 of Article 2.147 of this Code, successors to the rights of the principal shall have the same obligation.
2. Rights and obligations of a principal and successors to his rights, arising as a result of the authorised agent’s actions prior to the date on which the said agent became aware or ought to have become aware of the expiry of the power of attorney, shall remain valid for the third persons. This provision shall not apply if the third person was aware or ought to have been aware of the expiry of the power of attorney.
3. Upon the expiry of the power attorney, an authorised agent or successors to his rights must forthwith return the power of attorney to the principal or successors to his rights, except where the power of attorney has been drawn up by means of information technology and has been granted by registering it in the Register of Powers of Attorney.
Article 2.149. Subsidiary application of provisions regulating agency
Provisions regulating agency respectively shall apply in the cases where a person whose affairs have been handled by another person without due authorisation approves the actions of the said person at a later date.
Article 2.150. Obligation of an agent to report
An agent must present a report to a principal about his activities and account to the principal for everything he has received in the performance of the mandate.
Article 2.151. Obligation of a principal to reimburse the expenses and offer remuneration
1. A principal must reimburse the expenses incurred by the agent related to the performance of the mandate unless otherwise provided by the contract or laws.
Article 2.152. Concept of a commercial agent
1. A commercial agent shall be an independent person whose main economic activity is to act, on a regular basis, for remuneration, as intermediary for a principal in conclusion of contracts or conclusion of contracts in the name of and at the expense of the principal. Bodies of a legal person and persons having the rights and duties of a body of the legal person, as well as partners acting in accordance with the agreement on joint activities (partnership) shall not be regarded as commercial agents.
2. A principal and an agent may, in a mutual contract, establish only such conditions restricting competition which are not prohibited by the provisions of competition law.
Article 2.153. Preconditions for the activities of a commercial agent
Prior to commencing his activities, a commercial agent must insure his civil liability against possible damage which, as a result of his activities, may be incurred by the principal or the third persons.
Article 2.154. Establishment of the rights and obligations of a commercial agent
2. At the request of a commercial agent or a principal, their contract must be concluded in writing. Waiver of the right to conclude the contract in writing shall be null and void.
3. Only upon conclusion of a contract in writing, the following conditions shall be valid and shall establish:
1) restrictions on the civil liability of an agent or a principal or complete exemption from civil liability;
Article 2.155. Term of validity of a contract
1. A contract between a commercial agent and a principal may be concluded for a fixed term or for an indefinite term.
Article 2.156. Obligations of a commercial agent
A commercial agent must:
1) carry out in good faith and with due care all assignments and reasonable instructions given by a principal, be loyal to the principal and act solely in the principal’s interests;
2) notify, on a regular basis, the principal about contracts which are being or have been concluded, and supply other important information related to his own and the principal’s business;
3) protect the commercial secrets of the principal, both during the term of validity of a contract and upon its expiry;
Article 2.157. Obligations of a principal
A principal must:
1) supply the commercial agent with the relevant documents and information (price lists, samples of commodities, advertising materials, standard terms and conditions of contracts, etc.);
2) notify, without delay, the commercial agent about his consent or refusal to enter into a specific contract or perform it, as well as about alterations of or supplements to the contractual terms and conditions;
3) notify, without delay, the commercial agent about the approval or refusal to approve the contract which the commercial agent concluded without due authority;
Article 2.158. Remuneration of a commercial agent
1. A principal shall remunerate a commercial agent for every successfully concluded transaction as provided for in the agency contract. The commercial agent shall also be entitled to remuneration where a transaction has been concluded by the principal himself but owing to the activities of the commercial agent, even in the event that the transaction has been concluded after the expiry of the agency relationship.
2. A contract may provide that the commercial agent’s remuneration is dependent on how successfully the principal’s instructions have been carried out or that the commercial agent is offered remuneration only in the cases where the third person has performed the contract. A commercial agent shall also be offered remuneration for the sums of money recovered from third persons for the benefit of the principal.
3. Where a commercial agent gives a guarantee to the principal that the other party to a particular transaction will perform the transaction properly, the commercial agent shall be entitled to an additional remuneration (del credere). Agreement of the parties to abolish the given right of a commercial agent shall be null and void. The right to additional remuneration (del credere) shall arise upon the proper performance of the contract.
4. Where remuneration of a commercial agent is not provided for in the contract, he must be offered the remuneration which is paid to commercial agents employed in the sphere of the said commercial agent’s activities, and for the goods which are provided for in the agency contract, whereas in the absence of such practice, the commercial agent shall be entitled to a reasonable remuneration, determined by taking into consideration all peculiarities of the transaction.
Article 2.159. Determination of the amount of remuneration of a commercial agent
1. The amount of remuneration shall be specified in the contract between a commercial agent and a principal, either as a specific sum of money or as a percentage of the transaction value or the amount recovered.
2. A commercial agent must also be reimbursed for any additional expenses incurred by him if the other party to the transaction failed to cover them (transportation of goods, warehousing, storage and packaging expenses, customs duties paid, as well as other dues and fees, etc.) and these expenses are not included into the expenses of the commercial agent’s independent activities.
Article 2.160. Procedure for the remuneration of a commercial agent
1. A commercial agent shall acquire the right to remuneration as of the moment of conclusion of a transaction on condition that the principal has performed the transaction or should have performed the transaction in accordance with the contract concluded with the third party, or the third party has performed the transaction, but, in all cases, at the latest when the third party has performed its part of the contract, or would have done so if the principal had performed his part of the contract.
2. Where a contract provides that the remuneration to a commercial agent is paid only after a third person has performed a contract, the commercial agent shall be entitled to an advance payment. An advance payment may not be less than 40 per cent of the remuneration and must be paid no later than on the last day of the month following the month in which the contract is concluded, except as otherwise provided in the contract.
3. Where it is obvious that the third person will fail to perform a contract, a commercial agent shall forfeit the right to request remuneration. Where the remuneration has already been paid or an advance payment has been made, the principal shall have the right to recover the sums paid from the commercial agent. The given provision shall not apply where the principal is at fault for failure to enforce the contract.
4. A principal must remunerate a commercial agent on a monthly basis and no later than on the last day of the month following the accounting period. The parties may, by written agreement, extend the term of payment, but no longer than for three months from the last day of the accounting period.
5. Every month, or at least every three months where agreed in writing, a principal must submit to a commercial agent the accounting documents, the data of which serves as the basis for calculation and payment of remuneration, as well as inform a commercial agent about any circumstances leading to a refusal to pay the commercial agent’s remuneration or to a reduction in the remuneration.
6. In the event of a dispute related to the payment of remuneration, a commercial agent shall have the right to request an audit to determine the accuracy of remuneration and payments. Waiver of the right to audit shall be null and void. Where a principal refuses to allow an audit to be carried out or in the event of disagreement about the auditor, the commercial agent shall have the right to file a request with the court for the mandatory appointment of an audit.
7. Claims for recovery of a commercial agent’s remuneration shall be subject to a three-year limitation period.
8. Where a commercial agent has been granted an exclusive right to conclude contracts in a certain territory or with certain consumers, a commercial agent shall be entitled to payment by commission, which is calculated by taking into account the transactions concluded within the period of validity of the agency contract with the persons from the said territory or the said consumers.
9. A commercial agent shall also be entitled to payment by commission in the cases where the order of the third party has reached the principal prior to the expiry of the agency contract or within a reasonable period of time after the expiry of the agency contract and the transaction is related to the agency contract.
Article 2.161. Right of retention
1. A commercial agent shall have the right to retain the principal’s things which are in his possession and the documents confirming the rights to them until the principal pays the remuneration to the commercial agent.
Article 2.162. Rights of a commercial agent
1. A commercial agent shall have the right to perform, in the name of the principal, any actions necessary for the proper execution of the principal’s instruction, without the principal’s special authority. A commercial agent shall have the right to alter provisions of the contract and accept the performance of the contract only in the cases where the given right has been specifically provided for in the agency contract or in a separate power of attorney.
2. Even though a commercial agent is not vested with authority to conclude contracts, he shall be vested with authority to receive claims related to the quantity and quality of goods as well as other statements from third persons in connection with the performance of the contract, and to exercise, in the principal’s name, the latter’s rights in relation to preserving evidence.
Article 2.163. Liability for obligations arising under contracts concluded by a commercial agent
1. Where a commercial agent, acting in the principal’s name, concludes a contract without authority to do so and where the other party to the transaction did not know and could not have known about it, the principal shall be considered to have approved the contract if he, upon notification about the said contract by the commercial agent or the third person, has failed to inform, without delay, the third person of his disapproval thereof.
Article 2.164. Prohibition of competition
1. A commercial agent and a principal may provide in the contract that upon expiry of the contract the commercial agent will not compete with the principal for a maximum of two years. Such a contractual term must be expressed in writing.
2. The restriction of competition may be limited only to a certain territory or certain kinds of goods and services or to a group of customers and a territory, which were entrusted to the commercial agent.
3. A principal shall enjoy the right to unilaterally waive, in writing, the prohibition of competition before the expiry of a contract.
4. Where a contract provides for the prohibition of competition, a commercial agent shall enjoy the right to compensation for the entire period of prohibition of competition. The amount of compensation shall be determined by agreement between the parties. The amount of compensation may be expressed by the sum of annual remuneration of the commercial agent.
5. Where the contract has been terminated through the commercial agent’s fault, the commercial agent shall forfeit the right to compensation provided for in paragraph 4 of this Article.
6. A principal shall forfeit the right to refer to the contractual clause on the prohibition of competition where:
1) a principal has terminated the contract without the consent of a commercial agent whereby violating the term of prior notification about the termination of the contract, or has failed to notify the commercial agent without delay about important reasons for the termination thereof;
2) a commercial agent has terminated the contract for important reasons for which the principal is held liable and has notified the principal about those reasons without delay;
7. The court shall have authority, upon a commercial agent’s request, to declare full or partial invalidity of the contractual clause on the prohibition of competition where, taking into consideration the commercial agent’s legitimate interests, the said clause causes him serious damage.
Article 2.165. Termination of a contract concluded for an indefinite period
1. An agency contract concluded for an indefinite period may be terminated on the initiative of either party, provided that prior notice of the termination of the contract is given to the other party within the following time limits:
2. The parties may not establish shorter time limits for notification by agreement but may establish longer time limits for notification; in all cases, however, the same time limits for notification shall apply to both parties. The notification must be made by the end of a calendar month.
3. The party who has terminated a contract without the other party’s consent and has violated the time limits for prior notification must compensate the other party for the losses incurred by its actions, except in the cases where the contract has been terminated for compelling reasons, of which the other party has been notified without delay.
4. Unless otherwise agreed upon by the parties, the last day of notification and the day of termination of a contract must coincide with the end of a calendar month.
Article 2.166. Termination of a fixed-term contract
1. Each party shall have the right to terminate a fixed-term contract before the expiry of its term where there are compelling reasons for doing so. Waiver of the given right shall be null and void.
Article 2.167. Right to compensation and damages
1. Upon the expiry of a contract between a commercial agent and a principal, the commercial agent shall be entitled to compensation under paragraph 2 of this Article unless the parties have agreed that, upon the expiration of the contract, the commercial agent shall be entitled to damages under paragraph 6 of this Article. Waiver of the right to compensation or damages shall be null and void.
2. A commercial agent shall be entitled to compensation where:
1) upon the termination of the contract, the principal benefits substantially from business relationships with clients who have been found by the commercial agent or with whom, because of the commercial agent, the volume of the principal’s business has increased significantly; and
3. The maximum amount of compensation shall be the average annual amount of a commercial agent’s remuneration, calculated for the entire term of validity of the contract where the contract was valid for no more than five years. Where the contract was valid more than five years, the average annual amount of remuneration for the last five years shall be calculated. Payment of compensation shall not abolish the right of the commercial agent to claim damages for the breach of the contract.
4. A commercial agent shall be divested of the right to compensation where, during the period of one year after the expiration of the contract, he fails to inform the principal about his intention to exercise such right.
5. A commercial agent shall not be entitled to compensation where:
1) the contract has been terminated on the commercial agent’s initiative, except in the cases where the commercial agent terminates the contract due to the unlawful actions of the principal or due to his illness, age or disability which prevent him from discharging his obligations properly;
2) the contract has been terminated on the principal’s initiative due to the fault of the commercial agent;
6. A commercial agent shall have the right to claim damages for the termination of the contract with the principal, in particular where the commercial agent loses the commission which he would have received as a result of the proper performance of an agency contract and the principal derives substantial benefit from the commercial agent’s activities, and/or where the principal fails to reimburse the expenses incurred by the commercial agent in the course of carrying out the instructions of the principal. In the event of damages being awarded, paragraphs 4 and 5 of this Article shall apply.
Article 2.168. Exemptions
Laws may provide for exemptions to the provisions of this Section where they are deemed necessary due to the specific character of commercial agent’s activities in different fields of business.
SECTION TWO
PECULIARITIES OF COMMERCIAL AGENCY IN CONCLUSION AND EXECUTION OF INTERNATIONAL CONTRACTS FOR THE SALE OF GOODS
Article 2.169. Scope
1. Provisions of this Section shall apply only in the cases where both of the following conditions are met:
2. Provisions of this Section shall apply only to the relationship between a principal and a commercial agent, on the one hand, and the third person, on the other.
3. Provisions of this Section shall not apply to:
Article 2.170. Rights and obligations of an agent
2. An agent shall be vested with authority to perform any acts which, under specific circumstance, are necessary to carry out properly the instructions of the principal.
Article 2.171. Validity of transactions concluded by an agent
1. Where an agent acts in the name and on behalf of a principal without overstepping his authority and where the third person knew or ought to have known that he was concluding the contract with an agent, the principal shall acquire the rights and assume the obligations arising under the contract.
2. A contract concluded by an agent shall create rights and obligations for the agent and not for the principal where:
1) the third person did not know nor ought to have known that the contract was being concluded with an agent (undisclosed agency);
3. Notwithstanding the circumstances laid down in paragraph 2 of this Article, the principal may exercise the rights acquired by the agent in relation to the third person where the agent fails to discharge his obligations to the principal, taking into consideration the right of the third person to use remedies against the agent. Where the agent fails to discharge his obligations to the third person, the said person shall have the right to exercise his rights in relation to the principal, acquired against the agent, taking into consideration the right of the agent to use remedies against the third person as well as the right of the principal to use remedies against the agent.
4. The rights provided for in paragraph 3 of this Article may be exercised if the principal, the agent and the third person have been respectively notified thereof. Upon receipt of the said notification, the third person or the principal may not waive the obligations linking them to the agent.
5. Where an agent fails to discharge his obligations to the third person through a principal’s fault, the agent must reveal the principal’s name to the third person.
6. Where the third person fails to discharge his obligations to the agent, the agent must reveal the third person’s name to the principal.
Article 2.172. Conclusion and execution of a contract without due authority or outside one’s authority
1. Where a person acts without due authority or outside his authority, his actions shall have no legal effects for the principal. In such cases, the rights and obligations of the said person and the third person shall arise.
Article 2.173. Approval of an agent’s actions
1. A principal shall have the right to approve the actions taken by the person who was not authorised to do so or acted outside his authority. Approval may be granted in any form. In addition, approval may be implied in a principal’s behaviour. Approval shall enter into force as of the moment of its receipt by the third person. Approval may not be revoked once it has entered into force.
2. Where, at the moment of entering into the transaction, the third person did not know and could not have known that the agent was not vested with authority or acted outside it, the third person shall not be liable to the principal if, prior to the approval of the agent’s actions, he notifies the principal that the transaction is not binding on him even after it has been approved. Where the principal approves the actions of the agent but fails to do so within a reasonable time limit, the third person may withdraw from the transaction upon immediate notification thereof to the principal.
3. Where, at the time of entering into a transaction, the third person knew or ought to have known that the agent was not vested with authority or acted outside it, the third person may not withdraw from the transaction, either prior to the approval of the agent’s actions or thereafter.
4. The third person may, in all cases, refuse to accept only a partial approval of the agent’s actions.
Article 2.174. Legal consequences of a failure to approve an agent’s actions
1. Where a person has acted without due authority or outside his authority and the principal has refused to approve his actions, the person must compensate the third person for such losses as would enable the third person to be restored to the position in which he would have been if the agent had possessed the due authority or had acted without overstepping his authority.
Article 2.175. Termination of an agent’s authority
1. Authority of an agent shall be terminated:
2) upon conclusion of the transaction or performance of any other action for which the authority was granted;
2. Termination of an agent’s authority shall not affect the authority of the third person, except in the cases where the third person knew or ought to have known about the termination of the agent’s authority, or about the circumstances which formed the basis for the termination thereof.
Article 2.176. Concept of procuracy
1. Procuracy shall be a power of attorney which a legal person (trader) grants to his employee or other person to perform, in the name of and on behalf of a principal, all legal acts relating to the business of the legal person (trader).
2. In addition, procuracy shall grant the right to perform, in the name of and on behalf of the principal, legal acts in the court or other non-judicial institutions.
Article 2.177. Issuance of procuracy
1. Procuracy shall be issued by a respective management body of a legal person or the owner of a legal person or a person authorised by him in accordance with the procedure established in the incorporation documents of the legal person.
Article 2.178. Form of procuracy
1. Procuracy must be issued in writing and signed by a person vested with authority to issue procuracy.
Article 2.179. Rights of a procurator
1. A procurator shall not have the right to perform and he may not be authorised to perform the following acts:
Article 2.180. Restrictions on procuracy
1. Procuracy may be restricted. Procuracy may be restricted to a branch office of a legal person, respective fields and types of a legal person’s activities, certain circumstances, time or territory.
Article 2.181. Entering into force of procuracy
1. Procuracy establishing the relationship between a principal and a procurator shall enter into force as of the moment of its issuance.
Article 2.182. Signature of a procurator
When signing documents in a principal’s name, a procurator must indicate that he is acting as a procurator, i.e. to include the word “procurator” or its abbreviation “pp”.
Article 2.183. Liability of a procurator
A procurator shall be liable to a principal and the third persons in the same manner as a commercial agent.
Article 2.184. Termination of procuracy
1. Procuracy shall be terminated when:
Article 2.185. Acts performed without procuracy
1. A principal may instruct his employees to perform acts which are routine and customary in a certain field of business without issuance of procuracy. In such cases, provisions of this Code regulating procuracy shall apply by analogy.
2. It shall be presumed that employees working in a shop or a warehouse have the right to sell, issue or receive goods, as well as to accept claims concerning the quantity and quality of goods, without a special authorisation.
Article 3.1. Relationships governed by Book Three of the Civil Code of the Republic of Lithuania
1. The provisions of Book Three of the Civil Code of the Republic of Lithuania shall define the general principles of the legal regulation of family relationships and govern the grounds and procedures for entering into marriage, validity and dissolution of marriage, property and non-property personal rights of spouses, filiation, mutual rights and responsibilities between children, parents as well as other family members, the basic provisions on adoption, guardianship, curatorship and on the procedures of registering acts of civil status.
Article 3.2. Sources of family law
1. Family relationships shall be governed by the Constitution, the Civil Code and other laws of the Republic of Lithuania as well as by the international treaties of the Republic of Lithuania.
2. The Government of the Republic of Lithuania or other state institutions may adopt legal acts on family law matters only in the cases and to the extent provided for by this Code or other laws.
Article 3.3. Principles of the legal regulation of family relationships
1. In the Republic of Lithuania, the legal regulation of family relationships shall be based on the principles of monogamy, voluntary marriage, equality of spouses, priority of protecting and safeguarding the rights and interests of children, upbringing of children in the family, mutual complementarity of motherhood and fatherhood, comprehensive protection of motherhood and other principles of the legal regulation of civil relationships.
2. Family laws and their application must ensure the strengthening of the family and its significance in society, mutual responsibility of family members for the preservation of the family and upbringing of children, the possibility for all family members to properly exercise their rights and protect minors from the undue influence of other family members or other persons and any other factors.
Article 3.4. Analogy of statute or law
1. Where family relationships are not governed by this Book or other Books of the Civil Code, they shall be governed by the provisions of other civil laws applicable to similar legal relations. The application by analogy of special legal provisions stipulating derogations from the general rules shall be prohibited.
2. Where it is not possible to apply statute by analogy and also where the resolution of the matter is left to judicial discretion, the rights and duties of the subjects of family relationships shall be determined on the basis of the principle of justice, good faith, reasonableness and other general principles of law.
3. Where there are no mandatory rules of law, also in the cases provided for by this Code and other laws, the subjects of family relationships may determine their rights and duties by mutual agreement in accordance with the principles established in paragraph 2 of this Article and Article 3.3 of this Code.
Article 3.5. Implementation and protection of family rights
1. Persons shall be free to implement and exercise their family rights at their own discretion, including the right to the protection of family rights. A waiver from a family right or its implementation shall not abolish the right, except in cases provided for by law.
2. In exercising family rights and performing family duties, persons must comply with the law, respect the rules of community life, observe the principles of good morals and act in good faith.
3. It shall be prohibited to abuse family rights, i. e. it shall be prohibited to exercise them in such a way and by such means which would violate or restrict other persons’ rights or interests protected by law, or would inflict harm on other persons. If a person abuses a family right, the court may refuse to protect it.
4. Family rights shall be protected by the court, institutions of guardianship and curatorship as well as other governmental or non-governmental bodies in the ways provided for by this Code. Courts and other institutions must seek that the parties to a dispute resolve their dispute peacefully by mutual agreement and must assist the parties in every possible way to reach such an agreement.
Article 3.6. Limitation period
1. Claims arising from legal family relationships shall be subject to statutory limitations, except for the exemptions provided for in this Book.
Article 3.7. Concept of marriage
1. Marriage shall be a voluntary agreement between a man and a woman to establish a legal family relationship executed in accordance with the procedure provided for by law.
Article 3.8. Agreement to marry (engagement)
1. An agreement to marry shall not be binding and may not be enforced by coercion, although it may give rise to legal consequences set out in Articles 3.9 to 3.11 of this Code.
Article 3.9. Return of gifts
1. Where the engagement is terminated, both parties to the public agreement to marry shall have the right to demand that the other party return everything he or she has received from the other party as a gift in consideration of the intended marriage, except where the value of the gift is under three hundred euros or where the party who had received a gift died before the registration of the marriage and the marriage has not been contracted due to the death of one of the parties.
2. Claims for the return of gifts shall be governed by the rules of Book Six of this Code regulating the relations pertaining to unjust enrichment or acquisition of assets not due.
Article 3.10. Compensation for damages
1. The party to the agreement to marry that has refused to contract the marriage without sufficient reason must compensate the other party for the losses incurred as a result of the failure to adhere to the agreement to marry.
2. The damages shall include the actual expenses of the party in preparation to marry and the actual expenses incurred in the discharge of the obligations related to the intended marriage.
3. Where a party refuses to marry due to substantive reasons that have emerged through the fault of the other party, the party at fault must pay damages in accordance with the provisions of paragraphs 1 and 2 of this Article.
Article 3.11. Compensation for non-pecuniary damage
1. Where the parties made a public agreement to marry, the party entitled to damages under Article 3.10 of this Code may also claim compensation for non-pecuniary damage.
Article 3.12. Prohibition of same-sex marriage
Marriage may be contracted only with a person of the opposite sex.
Article 3.13. Voluntary nature of marriage
Article 3.14. Legal age of consent to marriage
1. Marriage may be contracted by persons who by or on the date of contracting a marriage have attained the age of eighteen.
2. At the request of a person who intends to marry before the age of eighteen, the court may, in a summary procedure, reduce for him/her the legal age of consent to marriage, but by no more than two years.
4. While deciding on the reduction of a person’s legal age of consent to marriage, the court must hear the opinion of the minor’s parents or guardians or curators and take into account his or her mental and psychological state, financial situation and other important reasons that require the reduction of the person’s legal age of consent to marriage. Pregnancy shall provide an important ground for the reduction of the person’s legal age of consent to marriage.
5. In the process of deciding on the reduction of the legal age of consent to marriage, the state institution for the protection of the child’s rights must present its opinion on the advisability of the reduction of the person’s legal age of consent to marriage and whether such a reduction is in the interests of the minor concerned.
Article 3.15. Active capacity
1. A person who has, by a final court judgment, been declared legally incapable in this area may not enter into marriage.
2. A person with limited legal capacity in this area may not enter into marriage without a written consent of the curator. Where the curator does not give his or her consent, the consent to contract a marriage may be given by the court at the request of a person with limited legal capacity in this area.
Article 3.16. Prohibition to violate the principle of monogamy
A married person who has not terminated his or her marriage in accordance with the procedure laid down by law may not enter into another marriage.
Article 3.17. Prohibition to contract a marriage between close relatives
Marriage between parents and children, adopters and adoptees, grandparents and grandchildren, real or foster brothers and real or foster sisters, cousins, uncles and nieces, and aunts and nephews shall be prohibited.
Article 3.18. FORMATION OF MARRIAGE
Marriage shall be formed upon filing, by the intended spouses, an application to register a marriage and registering the marriage in accordance with the procedure laid down in the law regulating the registration of acts of civil status or in accordance with Article 3.24 of this Code.
Article 3.19. No longer effective from 1 January 2017.
Article 3.20. No longer effective from 1 January 2017.
Article 3.21. No longer effective from 1 January 2017.
Article 3.22. No longer effective from 1 January 2017.
Article 3.23. No longer effective from 1 January 2017.
Article 3.24. Formation of religious marriages in accordance with the procedure established by the Church (confessions)
1. A religious marriage shall be formed in accordance with the procedure established by the internal law (canons) of the respective religion.
2. The formation of a marriage in accordance with the procedure established by the Church (confessions) shall entail the same legal consequences as the formation of a marriage in the register office in accordance with the procedure established by the law regulating the registration of acts of civil status provided that:
2) the marriage has been formed in accordance with the procedures established by the canons of a religious organisation registered in the Republic of Lithuania and recognised by the State;
3. Where a marriage has been formed in accordance with the procedure established by the Church (confessions), the religious community or religious association must, within ten days of the formation of this marriage, present to the local register office a notification, in the form prescribed by the Minister of Justice, of the religious marriage solemnised in accordance with the procedure established by the Church (confessions). In such a case, the marriage shall be deemed to have been contracted from the day of formation of the marriage in accordance with the procedure established by the Church (confessions).
4. Where a notification about the formation of a religious marriage in accordance with the procedure established by the Church (confessions) is not submitted within the time limit set in paragraph 3 of this Article, the marriage shall be deemed to have been contracted as of the day on which it was recorded at the register office.
Article 3.25. No longer effective from 1 January 2017.
Article 3.26. Equality of spouses
1. Having contracted a marriage, the spouses shall acquire the rights and obligations defined in this Book.
2. Spouses shall have equal rights and equal civil liability in respect of each other and their children in matters related to the formation, duration and termination of their marriage.
Article 3.27. Duty of spouses to support each other
1. Spouses must be loyal to and respect each other; they must also support each other morally and financially and contribute toward the common needs of the family or the needs of the other spouse in proportion to their respective capabilities.
Article 3.28. Creation of a family relationship
By contracting a marriage, the spouses shall create a family relationship as a basis for their life together.
Article 3.29. Passive and active capacity of spouses
Marriage shall not restrict the passive and active capacity of spouses; the possibility of the spouses to exercise certain rights may, however, be restricted by the marriage contract or the mandatory rules of this Code.
Article 3.30. Obligations of the spouses in respect of their children
Spouses shall be obliged to maintain and bring up their children of minor age, take care of their education and health, ensure the child’s right to personal life, inviolability of his or her personality and freedom, the child’s property, social and other rights provided for by domestic and international law.
Article 3.31. Surnames of the spouses
Both spouses shall have the right to retain their respective surnames or to choose the surname of the other spouse as their common surname or to have a double surname by adjoining the surname of the other spouse to one’s own surname.
Article 3.32. Representation
2. Where certain acts require the consent of the other spouse, but he or she is unable tot give such consent for objective reasons, the court may, upon the interested spouse’s request, authorise the performance of those acts. Before granting such authorisation, the court must satisfy itself that the consent of the other spouse is really unobtainable and that it is in the best interests of the family to grant such authorisation. The court’s authorisation shall be valid only for the act specified in the court’s order to be performed in the specified period of time. Where the court finds that the spouse’s actions are contrary to the interests of the family or to those of the children of minor age, it may, on the application of the state institution for the protection of the child’s rights or the public prosecutor, amend or revoke the authorisation granted. The amendment or revocation of the authorisation shall be effective only from the date of the court’s order to that effect. On the day of its adoption, such an order of the court must be sent to the Chamber of Notaries or, if the authorisation is related to the disposition of immovable property, to the public register.
Article 3.33. Disputes of spouses relating to the discharge of their obligations or exercise of their rights
1. Where the spouses are unable to agree as to the discharge of their obligations or the exercise of their rights, either of them shall have the right to apply to court for the resolution of their dispute.
2. In resolving a dispute between the spouses, the court must take measures for the reconciliation of the spouses.
Article 3.34. Temporary restriction on the property rights of a spouse
1. Where one of the spouses substantially violated his or her marital obligations provided for in this Book and poses a threat to the property interests of the family by his or her acts, the other spouse shall have the right to apply to court for an order prohibiting the other spouse from disposing of their matrimonial property without the consent of the other spouse. The term of such prohibition may not exceed two years.
2. Transactions which a spouse was not entitled to conclude without the consent of the other spouse may be declared null and void on the latter’s action provided that the third person with whom the transaction was concluded acted in bad faith. Such an action may be brought within a limitation period of one year from the date on which the spouse became aware or ought to have become aware of the transaction.
Article 3.35. Rights and obligations of spouses in the household
1. Neither spouse shall have the right, without the consent of the other spouse, to alienate, pledge or lease any movable thing used in the household or encumber the right to it in any other way.
2. The movable property serving for the use of the household shall include household things and furniture, except for works of art, collections or home libraries.
Article 3.36. Rights and obligations of spouses in respect of the dwelling considered to be family property
1. Where spouses live in a rented dwelling under a lease agreement, the spouse in whose name the dwelling is rented may not, without a written consent of the other spouse, terminate the lease agreement before its term, sublease it or transfer the rights under the lease agreement. The spouse having neither consented to nor ratified such a transaction shall have the right to seek a declaration of its invalidity.
2. A spouse who is the sole owner of the family dwelling may not, without a written consent of the other spouse, alienate, pledge or lease this dwelling. The spouse having neither consented to nor ratified such a transaction shall have the right to seek a declaration of its invalidity provided that the disputed dwelling was registered in the public register as a family asset.
Article 3.37. Grounds and procedure for declaring marriage null and void
1. A marriage may be declared null and void where the conditions for the formation of a valid marriage set out in Articles 3.12 to 3.17 of this Code have been violated as well as on the grounds provided for in Article 3.39 and Article 3.40 of this Code or where one of the intended spouses failed to inform the other that he or she was suffering from a sexually transmitted disease or AIDS.
Article 3.38. Persons entitled to petition for a decree of nullity of marriage on the grounds of violation of the requirements for the formation of marriage
1. A marriage formed in violation of the conditions for the formation of marriage set out in Article 3.16 and Article 3.17 of this Code may be declared null and void on the petition of the spouse who was not aware of the impediments to the marriage, a public prosecutor or any other person whose rights and legitimate interests have been violated by the marriage.
2. A marriage formed in violation of the condition for the formation of marriage set out in Article 3.14 of this Code may be declared null and void on the petition of a minor spouse, his or her parents, guardians or curators, public institutions for the protection of the child’s rights or a public prosecutor. After the minor spouse attains the age of eighteen, he or she shall be the only person who may petition for a decree of nullity.
3. A marriage formed in violation of the condition for the formation of marriage set out in Article 3.15 of this Code may be declared null and void on the petition of the guardian of the spouse legally incapable in this area, the curator of the spouse with limited legal capacity in this area, a public prosecutor or any other person whose rights and legitimate interests have been violated by the marriage.
4. A marriage formed in violation of the condition for the formation of marriage set out in Article 3.13 of this Code may be declared null and void on the petition of the spouse who failed to express his or her free will at the time of the marriage or a public prosecutor. Where the spouse who failed to express his or her free will is a minor, the nullity of the marriage may be sought by his or her parents, guardians, curators or a state institution for the protection of the child’s rights.
Article 3.39. Nullity of a fictitious (‘sham’) marriage
A marriage formed fictitiously without the true intention of creating a legal family relationship may be declared null and void on the petition of either spouse or a public prosecutor.
Article 3.40. Declaring a marriage null and void due to the lack of free will
1. A marriage may be declared null and void on the petition of a spouse where the spouse proves that at the time of the marriage he or she was incapable of understanding the true meaning of his or her actions and controlling them.
2. Nullity of marriage may be sought by a spouse if he or she entered into the marriage under threat, duress or fraud.
3. A spouse who gave consent to the marriage in consequence of an essential mistake may seek the annulment of the marriage. The mistake shall be essential where the mistake was made due to the circumstances related to the other spouse, the knowledge of which would have been a sufficient reason for the spouse not to enter into the marriage. The mistake shall be presumed to be essential if it is about:
1) the health condition or the sexual abnormality of the other spouse which makes the normal family life impossible;
Article 3.41. Bars to the nullity of marriage
1. The court may refuse to declare a marriage null and void if the circumstances which had constituted an impediment to the marriage hereunder disappeared during the proceedings of the case.
2. The court may refuse to declare a marriage contracted by a minor person null and void if the declaration of nullity of the marriage would be contrary to the interests of the minor children of the minor spouse or spouses.
3. A marriage may not be declared to be a fictitious marriage if prior to the petition for nullity of the marriage the spouses had created a family relationship or had cohabited for over a year from the date of marriage or had given birth to or were expecting a child together.
4. A marriage may not be declared null and void after divorce, except where the marriage had been contracted in violation of the monogamy principle or the marriage had been contracted with a close relative (Articles 3.16 and 3.17 of this Code).
5. A marriage which was contracted without the expression of a free will of one of the spouses may not be declared null and void if, after the formation of the marriage or after coming into light of the circumstances which give rise to grounds for declaring the marriage null and void, the spouses had cohabited for over a year or they had given birth to or were expecting a child together.
Article 3.42. Limitation period
1. A spouse who entered into a marriage under the age of eighteen may petition for annulment of the marriage within a limitation period of one year from the date of his or her attaining full age.
2. A petition for annulment of a marriage contracted without a free will may be presented within a limitation period of one year from the date on which the circumstances constituting the grounds for declaring the marriage null and void disappeared or transpired.
3. A petition for annulment of a fictitious marriage may be presented within one year from the date on which the marriage was contracted. A public prosecutor may petition for annulment of a marriage on the grounds set out in Article 3.39 of this Code within five years from the date on which the marriage was contracted.
Article 3.43. Legal separation of spouses and maintenance order
1. In an effort to protect the legitimate interests of one of the spouses, the court may, circumstances permitting, order the spouses to separate pending the proceedings on the annulment of their marriage.
Article 3.44. Extinguishment of the right to petition
1. The right to petition for annulment of the marriage may not be devolved by succession or any other way.
Article 3.45. Legal effects of marriage annulment
1. Any children born of a marriage subsequently declared null and void by the court shall be treated as born in wedlock.
2. Where both spouses were in good faith, i. e. they were not aware, nor could have been aware, of the impediments to their marriage, the legal effects of their marriage, although it has been declared null and void, shall be the same as those of a valid marriage, except for the right of succession. Evidence of the good faith of the spouses must be indicated in the judgment of the court.
Article 3.46. Legal effects of marriage annulment where one or both spouses were in bad faith
1. With a null and void marriage where only one of the spouses was in good faith, the spouse in good faith shall be entitled to all the rights a spouse is entitled to by virtue of a valid marriage.
Article 3.47. Rights of the spouse in good faith
1. If in need of maintenance, the spouse in good faith shall have the right to petition for maintenance from the spouse in bad faith for a period not exceeding three years.
2. The amount of maintenance shall be determined by the court, taking into account the financial situation of both spouses. The court shall make a maintenance order for periodical monthly payments or a lump sum of a fixed amount. Where the financial situation of one of the spouses changes, the interested spouse may apply to court to have the maintenance increased, decreased or have maintenance claims terminated.
Article 3.48. Mandatory participation of guardianship/curatorship institutions
Where one or both spouses are minors or have been declared legally incapable or of limited legal capacity in this area by a court judgment, guardianship/curatorship institutions or the state institution for the protection of the child’s rights must attend the proceedings relating to the annulment of marriage of such persons and give their opinion as to whether or not the annulment of the marriage would prejudice the rights and interests of such persons or their children, except where the case is heard in court on the basis of an action brought by the state institution for the protection of the child’s rights.
Article 3.49. Cases of dissolution of marriage
1. A marriage shall be dissolved by the death of one of the spouses or by termination in accordance with the procedure established by law.
Article 3.50. Dissolution of marriage by the death of one of the spouses
1. A marriage shall be dissolved by the death of one of the spouses or by a court declaration of presumed death of one of the spouses.
2. Where one of the spouses is declared dead, the marriage shall be considered dissolved from the date on which the court declaration becomes final or from date of death of the person specified therein.
3. Where the spouse who has been declared dead by the court turns up, the marriage may be renewed by mutual application of the spouses to be filed, after the annulment of the court’s declaration of death, with the register office which registered the dissolution of the marriage.
Article 3.51. Conditions for obtaining divorce
1. A marriage may be dissolved by mutual consent of the spouses provided all the following conditions have been satisfied:
2) both spouses have made a contract in respect of the consequences of their divorce (property adjustment, maintenance payments for the children, etc.);
Article 3.52. Application for divorce
1. A mutual application of the spouses for divorce shall be lodged with the court of a district where one of the spouses resides.
2. The application must be accompanied by the contract in respect of the consequences of the divorce.
Article 3.53. Divorce procedure
1. The court shall grant a judgment of divorce if it is satisfied that the marriage has broken down irretrievably. A marriage shall be considered to have broken down irretrievably if the spouses no longer live together and it is not likely they will live together again.
2. An irretrievable breakdown of a marriage shall be presumed if the spouses have been separated from bed and board for over a year.
3. When granting a divorce decree, the court shall also approve the contract of the spouses in respect of the consequences of the divorce whereby the spouses agree on maintenance payments for their children of minor age and each other, the residence of minor children, shared parenting and child contact arrangements with a separated parent and their other property rights and obligations. The content of the contract shall be incorporated in the decree of divorce. In the case of a significant change in the circumstances (illness of one of the former spouses, incapacity for work, etc.), the former spouses or one of them may petition the court to reconsider the terms and conditions of their contract in respect of the consequences of divorce.
4. Where the contract in respect of the consequences of divorce is in conflict with the public order or substantially violates the rights and legitimate interests of the minor children of the spouses or of one of the spouses, the court shall not approve the contract and shall suspend the divorce proceedings until the spouses conclude a new contract. Where the spouses fail to comply with court instructions regarding the content of the contract within six months of the suspension of the proceedings, the court shall not resume the consideration of the application for divorce.
Article 3.54. Reconciliation of spouses
2. At the request of one of the spouses or on its own initiative, the court may set a time limit of up to six months for the spouses to reconcile. In that event, the divorce proceedings shall be suspended. After the expiry of the time limit set by the court, the divorce proceedings shall be resumed at the request of one of the spouses.
3. If neither of the spouses petitions for divorce within a year from the beginning of the reconciliation period, the court shall not resume the divorce proceedings.
4. Where the spouses have lived apart for over a year or the setting of a reconciliation period would be essentially contrary to the interests of one of the spouses or of their children, or where both spouses request a consideration of the merits of their case, the reconciliation period shall not be set.
Article 3.55. Conditions for obtaining divorce
1. A marriage may be dissolved on the application of one of the spouses filed with the court of the district where the applicant resides, if at least one of the following conditions is satisfied:
2) after the formation of the marriage one of the spouses has been declared legally incapable in this area or of limited legal capacity in this area by the court;
2. Where one of the spouses is legally incapable in this area, an application for divorce may be filed on his or her behalf by his or her guardian, a public prosecutor or a guardianship and curatorship institution. Where one of the spouses is of limited legal capacity in this area, he or she may file an application for divorce with the consent of the curator. Where the curator does not give his or her consent, the permission to file an application for divorce may be granted by the court at the request of the person with limited legal capacity in this area.
Article 3.56. Content of the application
1. The application must contain one of the grounds for divorce under paragraph 1 of Article 3.55 of this Code.
2. The application must also indicate the ways the applicant is going to fulfil his or her obligations towards the other spouse and their minor children.
Article 3.57. Examination of the application
2. Where divorce proceedings are commenced on the application of one of the spouses, the reconciliation measures referred to in Article 3.54 of this Code shall not apply.
3. Having regard to the age of one of the spouses, the duration of the marriage and the interests of the spouses’ minor children, the court may refuse to grant a divorce decree if the divorce would cause significant pecuniary and non-pecuniary damage to one of the spouses or their minor children.
4. The other spouse or his or her guardian shall have the right to declare that the marriage has broken down through the applicant’s fault and demand that the court grant divorce on the basis of the applicant’s fault. Where the court considers the declaration to be well grounded, divorce shall be granted on the basis of the fault of the spouse who initiated the divorce proceedings (Article 3.60 of this Code).
Article 3.58. Mandatory participation of guardianship/curatorship institutions
Where one of the spouses is legally incapable in this area or of limited legal capacity in this area, a guardianship/curatorship institution must present its opinion to the court on how to safeguard the property rights of the spouse who is legally incapable in this area or of limited legal capacity in this area following the divorce.
Article 3.59. Matters to be resolved by the court in granting a divorce
In granting a divorce, the court must establish the residence of minor children of the spouses and shared parenting and child contact arrangements with a separated parent as well as deal with the issues related to the maintenance of the spouses’ minor children, the maintenance of one of the spouses and the division of their community property, except in cases where the property has been divided under a notarised mutual agreement of the spouses.
Article 3.60. Conditions for divorce
1. A spouse may apply for divorce on the grounds provided for in this Section where the marriage has, in fact, broken down through the fault of the other spouse.
2. The fault of a spouse for the breakdown of the marriage shall be established if he or she has seriously breached the duties as a spouse set out in this Book, which is the reason why their matrimonial life has become impossible.
3. A marriage shall be presumed to have broken down through the fault of the other spouse where he or she has been convicted of a pre-meditated crime or has committed adultery or is violent toward the other spouse or other members of the family or has deserted the family and has not taken any care of it for over a year.
Article 3.61. Both spouses at fault
1. The respondent in a divorce suit may argue against his or her fault and adduce facts to prove that the other spouse is at fault for the breakdown of the marriage.
2. Having regard to the circumstances of the case, the court may declare that both parties are at fault for the breakdown of the marriage.
Article 3.62. Divorce procedure
1. A divorce on the basis of the fault of one of the spouses shall be granted by the court under contentious procedure.
Article 3.63. Omission of the specific causes of a divorce from the court judgment
At the request of both spouses, the court, in granting a divorce, shall omit the specific facts evidencing the fault of one or both of the spouses for the dissolution of the marriage from the judgment and merely indicate that the marriage has broken down through the fault of one or both of the spouses.
Article 3.64. Reconciliation of spouses
2. The court must propose that the spouses reach an amicable settlement of their property matters and issues related to the maintenance and residence of their minor children, shared parenting, and child contact arrangements with a separated parent as well as other consequences of divorce. If the spouses reach an agreement, paragraphs 3 and 4 of Article 3.53 of this Code shall apply.
Article 3.65. Provisional protection measures
1. Having regard to the interests of the spouses’ children as well as the interests of one of the spouses, the court may make orders for provisional protection measures pending the outcome of the divorce suit.
2. The court may make the following orders for provisional protection measures:
3) to order one of the spouses to refrain from impeding access for the other spouse to certain property;
5) to seize property until its ownership by one of the spouses is determined or in order to enforce maintenance payments;
6) to seize the property of one of the spouses the value of which could be used to compensate for the litigation costs to the other spouse;
7) to prohibit one of the spouses from having contact with his or her minor children or visiting certain places;
Article 3.66. Moment of the dissolution of marriage
1. A marriage shall be considered to be dissolved on the date when the divorce judgment becomes final.
Article 3.67. Consequences of divorce to the property rights of the spouses
1. Legal consequences of divorce to the property rights of the spouses shall be produced from the moment of the commencement of divorce proceedings.
Article 3.68. Invalidation of transactions concluded after the commencement of the divorce proceedings
Transactions related to the joint community property of the spouses concluded by one of the spouses after the commencement of the divorce proceedings may be invalidated by the court in an action brought by the other spouse provided the other spouse can prove that the transaction was concluded with the aim of prejudicing his or her property rights while the third party was in bad faith.
Article 3.69. Surnames of former spouses
1. Upon divorce, a spouse may retain his or her married surname or the surname he or she had before the marriage.
Article 3.70. Legal consequences of a divorce on the basis of the fault of one of the spouses
1. Where a divorce is granted on the basis of the fault of one of the spouses, the spouse at fault shall lose the rights of a divorcee under the law or under the marriage contract, including the right to maintenance.
2. The other spouse shall have the right to claim, from the spouse responsible for the breakdown of the marriage, damages related to the divorce as well as compensation for non-pecuniary damage done by the divorce. This provision shall not apply where both spouses are responsible for the breakdown of the marriage.
3. At the request of the other spouse, the spouse at fault for the breakdown of the marriage must return the gifts received from him/her, except for the wedding ring unless the marriage contract provides otherwise.
4. Where both spouses are responsible for the breakdown of the marriage, both of them shall have the right to demand the return of gifts of immovable property given to each other unless more than ten years have elapsed from the deed of gift and the immovable property has been transferred to third parties.
Article 3.71. Retention of the right to use the matrimonial dwelling
1. Where the matrimonial dwelling is owned by one of the spouses, the court may make a usufruct order and allow the other spouse to live in the matrimonial dwelling if their minor children remain to live with him/her after the divorce.
Article 3.72. Mutual maintenance of the former spouses
1. When making a divorce judgment, the court shall also make a maintenance order in favour of the former spouse in need of maintenance unless the matters of maintenance are settled in the contract of the spouses in respect to the consequences of divorce. A spouse shall have no right to maintenance if his or her assets or income are sufficient to fully support him or her.
2. Maintenance shall be presumed to be necessary if the spouse is bringing up a minor child of the marriage or is incapacitated for work because of his or her age or state of health.
3. A spouse who was not able to obtain any qualifications for work (complete his or her studies) because of the marriage, common interests of the family or the need to care for the children shall have the right to demand from the former spouse to cover the costs related to the completion of his or her studies or retraining.
5. While making a maintenance order and deciding on its amount, the court must take into account the duration of the marriage, the need for maintenance, the financial situation of both of the former spouses, their state of health, age, capacity for work, the possibility of the unemployed spouse of finding employment and other important circumstances.
6. The amount of maintenance shall be reduced, made temporary or refused if at least one of the following circumstances exist:
2) the spouse entitled to maintenance has committed a crime against the other spouse or his or her next of kin;
3) the spouse entitled to maintenance has created his or her difficult financial situation through his or her own irresponsible acts;
7. The court may require the spouse obliged to provide maintenance to the other spouse to produce an adequate guarantee of fulfilment of this obligation.
8. Maintenance shall be ordered as a lump sum of a fixed amount or periodical monthly payments or the award of certain property.
9. Where the marriage is dissolved on the application of one of the spouses due to the other spouse’s legal incapacity in this area or limitation of legal capacity in this area, the spouse at whose initiative the marriage has been dissolved must cover the treatment and care expenses of the former spouse who is legally incapable or of limited legal capacity in this area unless the expenses are covered from state social security funds.
10. The maintenance order shall be the basis for the statutory pledge (hypothec) of the respondent’s assets. If the former spouse defaults on his or her obligation to pay maintenance, his or her assets shall be used to make payments in accordance with the procedure laid down by law.
11. Where the maintenance order is issued for periodical payments, a significant change in the circumstances referred to in paragraph 5 of this Article may warrant the application of either of the former spouses for an increase, reduction or termination of maintenance payments. Periodical payments shall be for life of the creditor and shall be inflation-indexed annually in accordance with the procedure laid down by the Government.
12. Where the former spouse obliged to pay maintenance dies, the obligation to pay maintenance shall be devolved on his or her successors to the extent of his or her estate, irrespective of the way the estate is accepted.
13. Where the former spouse receiving maintenance dies or remarries, the payment of maintenance shall be terminated. In the event of death of the former spouse receiving maintenance, the right to claim arrears or outstanding maintenance payments shall pass to the successors of the deceased person. The dissolution of the new marriage shall create the right to demand the renewal of maintenance payments provided that the spouse in need of maintenance is bringing up a child by his or her former spouse or is caring for a disabled child by his or her former spouse. In all other cases, the duty of the subsequent spouse to maintain the other spouse shall take precedence over that of the former spouse.
Article 3.73. Application for legal separation
1. One of the spouses may apply to court for the approval of legal separation if due to certain circumstances, although not dependent on the other spouse, their life together has become intolerable (impossible) or can seriously prejudice the interests of their minor children or the spouses are no longer interested in living together.
2. Both spouses may jointly apply to court for the approval of their legal separation if they have made a contract in respect of the consequences of their legal separation thereby providing for the residence, maintenance and shared parenting of their minor children, as well as for the division of their community property and mutual maintenance.
Article 3.74. Counter-claims
2. The defendant in a divorce case shall have the right to lodge a counter-claim for legal separation.
Article 3.75. Procedure for legal separation
2. Having regard to the interests of the minor children of the spouses as well as to the interests of one of the spouses, the court must take measures to seek reconciliation of the spouses (Article 3.54 of this Code).
Article 3.76. Matters to be resolved in making a separation judgment
1. When making a separation judgment, the court must establish the spouse with whom the minor children of the spouses are to live, as well as resolve issues related to the maintenance of the children and shared parenting and child contact arrangements with a separated parent.
2. Where there are compelling reasons, the court may temporarily establish the residence of the children with other persons or in a child guardianship/curatorship institution.
3. In deciding which of the spouses should retain the right to live in their matrimonial dwelling, priority must be given to the spouse with whom the minor children are to live or to the spouse lacking capacity for work.
4. Where the spouses have made a contract in respect of the consequences of legal separation (paragraph 2 of Article 3.73 of this Code), the court shall approve the contract provided that it is consistent with public order or does not substantially prejudice the rights and legitimate interests of the minor children or of one of the spouses. Having approved the contract, the court shall incorporate its content in the separation judgment.
5. If, after the entry into force of the court judgment, there is a substantial change in the circumstances significant for the matters related to the legal separation of the spouses, either spouse may seek the reconsideration of the previous judgment and a different resolution of matters referred to in paragraph 1 of this Article, in the light of the substantial change in the circumstances.
Article 3.77. Legal consequences of separation
1. When the court makes a separation judgment, it shall release the spouses form the obligation to live together, but other rights and obligations of the spouses shall not be extinguished, except in cases provided for in this Code.
2. Legal separation shall not produce any effects on the rights and obligations of the spouses in respect of their minor children, except in cases provided for in this Code.
3. When making a separation judgment, the court must, in all cases, decide on the matters related to the division of the community property of the spouses unless those matters are settled in the marriage contract of the spouses.
4. The legal consequences of separation for the property interests of the spouses shall be produced from the initiation of the separation proceedings. However, the spouse other than the one declared by the court to be at fault for the legal separation may request the court to make the legal consequences of separation retroactive to the date on which the spouses actually ceased to live together.
5. Where one of the separated spouses dies, the survivor shall retain all the rights of a surviving spouse under the law, except where the surviving spouse has been declared by the court to be at fault for the legal separation. The same rule shall also apply where the court makes a separation order on the basis of the joint application of the spouses unless the marriage contract of the spouses stipulates otherwise. However, the surviving spouse shall lose the right of succession to the property of the deceased spouse.
Article 3.78. Mutual maintenance of the spouses
1. When issuing a separation order, the court may order the spouse at fault for the legal separation to pay maintenance to the other spouse in need of maintenance unless the matters of maintenance are settled in the contract concluded by the spouses.
2. While making a maintenance order and deciding on its amount, the court must take into account the duration of the marriage, the need for maintenance, the financial situation of both of the spouses, their state of health, age, capacity for work, the possibility of the unemployed spouse of finding employment and other important circumstances.
3. The court may rule that the spouse obliged to pay maintenance to the other spouse must provide a security that the obligation will be fulfilled.
4. Maintenance shall be ordered as a lump sum of a fixed amount or periodical monthly payments or the award of certain property.
5. The maintenance order shall be the basis for the statutory pledge (hypothec) of the respondent’s assets. Where a spouse defaults on his or her obligation to provide maintenance, his or her assets shall be used to make payments in accordance with the procedure laid down by law.
6. Where maintenance has been ordered in the form of periodical payments, a significant change in the circumstances referred to in paragraph 2 of this Article may warrant the application of either of the spouses for an increase, reduction or termination of the maintenance payments. Periodical payments shall be indexed annually in accordance with the procedure laid down by the Government.
Article 3.79. End of legal separation
1. Legal separation shall end when the spouses resume living together and their life together proves their intention to live together permanently. Legal separation shall end when the court issues a judgment granting a joint application by the spouses on ending their legal separation and revoking its previous separation order.
2. On the resumption of their life together, the property of the spouses shall remain separate until they make a new marriage contract and set a new matrimonial property regime.
3. The end of legal separation shall produce legal effects for third parties only if the spouses make a new marriage contract and register it in accordance with the procedure provided for in Article 3.103 of this Code.
Article 3.80. Mandatory participation of the state institution for the protection of the rights of the child
Where the spouses have children of minor age, the state institution for the protection of the child’s rights must participate in the proceedings and present its conclusion on the possible violation of the children’s rights in taking decisions on separation matters.
Article 3.81. Kinds of matrimonial property regimes
2. The statutory matrimonial property regime shall be governed by Articles 3.87 to 3.100 of this Code.
Article 3.82. Application of the statutory matrimonial property regime
Where the spouses have not concluded a marriage contract, their property shall be subject to the statutory matrimonial property regime.
Article 3.83. Right of the spouses to determine their matrimonial property regime under the marriage contract
1. When concluding a marriage contract, the spouses shall have the discretion to determine their matrimonial property regime.
Article 3.84. Family assets
1. Any assets referred to in paragraph 2 of this Article owned by either spouse before or during the marriage shall be considered to be family assets. Family assets must be used only to meet the needs of the family.
2. The following assets owned by one or both spouses shall be family assets:
4. Assets referred to in paragraphs 2 and 3 of this Article shall acquire the legal status of family assets on the date of the registration of marriage, but the spouses may use this fact in respect of third parties in good faith only if an immovable thing is registered in the public register as a family asset.
Article 3.85. Legal regime of family assets
1. Assets referred to in paragraph 2 of Article 3.84 of this Code, which are the personal property of one of the spouses, may be used, managed or disposed of only in accordance with the procedure laid down in this Article.
2. The spouse who is the owner of an immovable thing considered to be a family asset may transfer the ownership rights to it, charge it or encumber the rights to it in any other way only with the written consent of the other spouse. Where the spouses have minor children, transactions in respect of an immovable thing considered to be a family asset shall be subject to judicial authorisation.
3. Family assets may not be used against creditors’ claims if the creditors knew or ought to have known that the transaction is not related to meeting the needs of the family and is contrary to the interests of the family.
Article 3.86. End of the legal regime of family assets
1. The legal regime of family assets shall end upon divorce, declaration of nullity of the marriage or legal separation of the spouses.
2. The court may award the right to use family assets or part thereof (usufruct) to the spouse with whom the minor children of the marriage are to live. The usufruct shall be valid until the children attain majority.
3. Where the spouses rented a family dwelling, the court may transfer the lessee rights to the spouse with whom the minor children are to live or to the spouse lacking capacity for work.
Article 3.87. Substance of the statutory matrimonial property regime
1. Under the statutory matrimonial property regime, the property acquired by the spouses after the commencement of their marriage shall be their joint community property.
Article 3.88. Joint community property
1. Joint community property shall be:
3) income derived from the joint activities of the spouses, and income derived from the activities of one of the spouses, except for the funds required for that spouse’s occupation;
4) an enterprise and income derived from the operations of the enterprise or any other business provided that the spouses took up such business activities after the commencement of the marriage. Where before the marriage the enterprise was owned by one of the spouses, the joint community property after the marriage shall include the income derived from the operations of the enterprise or any other business and the increase in the value of the enterprise (business);
5) income from the work or intellectual activities, dividends, pensions, benefits or other payments collected by both spouses or one of them after the commencement of the marriage, except for payments received for specific purposes (such as damages for moral or corporal injury, support, allowance or other benefits paid specifically to only one of the spouses, etc.).
2. Property shall be presumed to be joint community property until it is proved that it is the individual property of one of the spouses.
3. Both spouses must be indicated as the owners of the joint community property in the public register. Where the property is registered in the name of only one spouses, it shall be considered to be joint community property provided it is indicated in the register as joint community property.
Article 3.89. Individual property of the spouses
1. The individual property of spouses shall consist of:
2) property devolved to a spouse by succession or gift during the marriage unless the will or the deed of gift indicates that the property is devolved as joint community property;
3) a spouse’s personal effects (footwear, clothing, instruments required for the spouse’s occupation);
4) the rights to intellectual or industrial property, except for the income derived from those rights;
5) funds and things required for the personal business of one of the spouses, other than the funds and things used in the business conducted jointly by both spouses;
6) damages and compensation payments received by one of the spouses for non-pecuniary damage or personal injury, payments as financial aid for specific purposes and other benefits related specifically to only one of the spouses, rights that may not be transferred;
2. The fact that certain property is the separate individual property of one of the spouses may be proved only by written evidence, except in cases where the law permits the testimony of witnesses or the nature of the property constitutes sufficient proof of it being the separate individual property of one of the spouses.
Article 3.90. Declaration of individual property to be joint community property
1. The court may declare the individual property of one of the spouses to be joint community property where it is established that during the marriage the property was fundamentally improved with the joint funds of the spouses or with the funds of or due to the work of the other spouse (major repairs, reconstruction, redevelopment, etc.).
2. Where a spouse used both his or her separate individual resources and the funds owned jointly with the other spouse to acquire property for his or her own personal needs, the court may declare the property so acquired to be joint community property provided the value of the joint community funds used to acquire such property exceeded the value of the separate individual funds of the spouse so expended.
Article 3.91. Enterprise (farm, business)
Property required for the operation of an enterprise (farm, business) established by one of the spouses after the formation of the marriage as well as the income of the enterprise (farm, business) established by one of the spouses before the formation of the marriage, except for the funds required for the operation of the spouse’s personal enterprise (farm, business) shall be joint community property provided that the property exists or the income is generated at the moment of divorce.
Article 3.92. Management, use and disposal of joint community property
1. Joint community property shall be used, managed and disposed of by mutual agreement of the spouses.
2. The consent of the other spouse shall not be required for:
3. When concluding transactions, a spouse shall be presumed to have the consent of the other spouse, except in cases where entering into a transaction requires a written consent of the other spouse. In exceptional cases, where delay would cause substantial damage to the interests of the family while the other spouse is unable to express his or her consent due to illness or other objective reasons, a spouse may enter into a transaction without the consent of the other spouse in accordance with the procedure laid down in paragraph 2 of Article 3.32 of this Code.
4. Transactions related to the disposal or encumbrance of jointly co-owned immovable property or rights in rem in the joint community property, transactions related to the transfer of a jointly co-owned enterprise or rights to it, as well as transactions related to the transfer or the encumbrance of the securities or rights therein may be made only by both spouses, except where one of the spouses has been given the power of attorney by the other spouse to enter into such a transaction.
5. Each spouse shall have the right to open a bank deposit account in his or her name without the consent of the other spouse and to dispose freely of the funds on the account unless those funds have been made joint community property.
6. Where a transaction has been concluded without the consent of the other spouse, that other spouse may ratify the transaction within a month of the date when he or she learnt about the transaction. Before its ratification, the other party may withdraw from the transaction. If the other spouse does not ratify the transaction within a month, the transaction shall be deemed to have been concluded without the consent of the other spouse. If the other party to the transaction knew that the person with whom it was entering into the transaction was married, it can withdraw from the transaction only if the spouse had falsely stated that the consent of the other spouse existed.
Article 3.93. Authorisation to enter into a transaction
1. Where one spouse does not give the other spouse the consent to enter into a transaction for which the consent of the spouse is required, the interested spouse may apply to court for judicial authorisation to enter into such a transaction.
Article 3.94. Power of attorney to manage property
1. A spouse may grant a power of attorney to the other spouse to manage, use and dispose of their joint community property.
2. Where one of the spouses is away or cannot participate in the management of the community property for important reasons, the other spouse may apply to court for judicial authorisation to manage such property alone.
3. Where the spouse is negligent or unreasonable and careless in managing joint community property alone, he or she shall be liable for the losses sustained through his or her fault and must compensate for them against his or her individual property.
Article 3.95. Challenging the competence of managing joint community property
1. Where one spouse is unable to manage community property or does that in a way that incurs losses, the other spouse may apply to have the court remove the spouse from managing the property. The court shall grant the requested removal if the applicant proves that it is necessary to ensure the needs of the family or those of their joint business.
Article 3.96. Avoidance of transactions
1. Transactions concluded without the consent of the other spouse and subsequently not ratified by him/her may be avoided in an action brought by the non-consenting spouse within a year of the date when he or she learnt about the transaction provided it is proved that the other party to the transaction was in bad faith.
2. Transactions for the conclusion of which the written consent of the other spouse is required or which could only have been concluded jointly by both spouses (paragraph 4 of Article 3.92 of this Code) may be declared void irrespective of the other party to the transaction being in good or bad faith, except in cases where one or both of the spouses used fraud in concluding the transaction or made misrepresentations to institutions in charge of public registers or to any other institutions or officials. In such cases, the transaction may be declared void only if the other party to the transaction was in bad faith.
Article 3.97. Management of the individual property of a spouse
1. A spouse shall use, manage or dispose of his or her individual property at his or her own discretion. Management, use or disposal of property defined in this Code as family assets shall be subject to the restrictions laid down in this Book.
2. Where a spouse manages his or her individual property in such a negligent or unreasonable way that it endangers the interests of the family because the property may be lost or substantially reduced, the other spouse shall have the right to apply to court for the appointment of an administrator for the management of such property. The court may appoint the applicant to be the administrator.
3. After the circumstances leading to the appointment of an administrator disappear, either spouse may apply to court to have the appointment of an administrator revoked.
4. A spouse shall have the right to grant a power of attorney to the other spouse to manage his or her individual property. In such a case, the mutual relations of the spouses in property shall be subject to the rules of Book Two of this Code regulating legal agency relationships.
5. Where one spouse is unable to manage alone his or her individual property and contribute to the needs of the household due to an illness or any other objective reason, the other spouse shall have the right to use the individual funds and assets of the spouse who is unable to manage alone his or her property for the needs of the household. This rule shall not apply in cases where the spouses are separated or an administrator has been appointed for the individual property of the spouse unable to manage it alone and make a contribution towards meeting the needs of the household.
Article 3.98. Entitlement to compensation
1. Where the value of the joint community property is increased by adding the individual property of one of the spouses, the spouse the addition of whose property has increased the value of the joint community property shall be entitled to compensation against the community property.
2. A spouse shall be entitled to compensation also in cases when his or her individual resources have been used for the acquisition of joint community property.
3. Each of the spouses must compensate for the reduction of the joint community property if he or she has used it for purposes unrelated to fulfilling the obligations referred to in Article 3.109 of this Code, except in cases where he or she proves that the property has been used to satisfy the needs of the family.
Article 3.99. Gifts of the spouses
1. Spouses shall have the right to make gifts of assets to each other in accordance with the rules of Book Six of this Code regulating deeds of gift.
2. A deed of gift of an immovable shall give rise to legal consequences for the creditors of the donor only after the deed of gift has been registered in a public register.
3. The beneficiary spouse shall be liable to the creditors of the donor for the obligations of the donor that existed at the time the deed of gift was made, but only to the extent of the value of the gift. Where the gift is lost through no fault of the beneficiary spouse, his or her liability for the obligations of the donor shall be extinguished.
Article 3.100. Grounds for termination of joint community property of the spouses
Joint community property of the spouses shall be terminated on the following grounds:
Article 3.101. Marriage contract
A marriage contract shall mean an agreement of the spouses defining their property rights and obligations during the marriage as well as upon divorce or separation.
Article 3.102. Making a marriage contract
1. A marriage contract may be made before the registration of the marriage (pre-nuptial contract) or at any time after the registration of the marriage (post-nuptial contract).
2. A marriage contract made before the registration of the marriage shall come into effect on the day of the registration of the marriage. A post-nuptial contract shall come into effect from the moment of its conclusion unless the contract provides otherwise.
4. A spouse declared by the court to be of limited legal capacity in this area may enter into a marriage contract only with a written consent of his or her curator. If the curator does not give his or her consent, the consent to conclude a marriage contract may be granted by the court at the request of the spouse.
Article 3.103. Form of a marriage contract
2. A marriage contract as well as amendments thereto must be registered in the Register of Marriage Settlements. The data controller of the Register of Marriage Settlements shall be the Ministry of Justice, and the data processor of the Register shall be designated by the Government. The data of the Register of Marriage Settlements shall be processed in accordance with the procedure laid down by the regulations of the Register of Marriage Settlements. A marriage contract may be amendment only subject to judicial authorisation. Amendments to the marriage contract shall have no retroactive effect.
3. A marriage contract and its amendments may be used against third parties provided the marriage contract and its amendments have been registered in the Register of Marriage Settlements. This rule shall not apply where at the time of the conclusion of the transaction the third parties knew of the marriage contract and its amendments.
Article 3.104. Content of a marriage contract
1. Spouses shall have the right to stipulate in the marriage contract that:
1) property acquired both before and during the marriage shall be the individual property of each spouse;
2) individual property acquired by each spouse before the marriage shall become joint community property after the registration of the marriage;
2. In their marriage contract the spouses may stipulate that one of the matrimonial property regimes referred to in paragraph 1 of this Article shall apply to the entire property or only to a certain part of it or only to specific things.
3. In their marriage contract the spouses may define a matrimonial property regime both in respect of their existing and future property.
4. In their marriage contract the spouses may stipulate rights and obligations related to the management of property, mutual maintenance, participation in the provision for family needs and expenses as well as the procedure for dividing property in the event of divorce and other matters related to the mutual property relations between the spouses.
Article 3.105. Nullity of conditions in a marriage contract
Conditions stipulated in a marriage contract shall be null and void where they:
2) change the legal regime in respect of the individual property of one of the spouses or in respect of their joint community property (Articles 3.88 and 3.89 of this Code), where the matrimonial legal regime the spouses have chosen provides for joint community property;
3) violate the principle of equal parts in joint community property enshrined in Article 3.117 of this Code;
Article 3.106. Amendments to and termination of a marriage contract
1. A marriage contract may be amended or terminated by mutual agreement of the spouses at any time and in the same form as the one laid down for its conclusion.
2. An amendment to a marriage contract or its termination may be used against third parties provided the amendment or termination of the marriage contract has been registered in the Register of Marriage Settlements. This rule shall not apply where at the time of the conclusion of the transaction the third parties knew of the amendment to the marriage contract or its termination.
3. At the request of one of the spouses, the marriage contract may be amended or terminated by a court judgment where there are grounds for the amendment of the marriage contract or its termination provided for in Book Six of this Code.
4. The creditors of one or both of the spouses whose rights have been violated by the amendment of the marriage contract or its termination shall have the right, within a year of becoming aware of the amendment or termination of the marriage contract, to challenge in court such an amendment or termination and demand the restoration of the violated rights.
Article 3.107. Termination of a marriage contract
A marriage contract shall terminate upon divorce or separation, except in respect of the obligations which, under the marriage contract, remain in force following divorce or separation. The termination of a marriage contract shall be registered in the Register of Marriage Settlements.
Article 3.108. Nullity of a marriage contract
1. In addition to the grounds provided for in Article 3.105 of this Code, a marriage contract may be declared null and void, in whole or in part, also on the grounds for nullity of transactions provided for in Book One of this Code.
2. At the request of one of the spouses, the court may declare a marriage contract null and void, in whole or in part, where the marriage contract substantially violates the principle of equality of the spouses and is especially unfavourable to one of the spouses.
Article 3.109. Obligations discharged from community property
1. The following obligations shall be discharged from the community property of the spouses:
1) obligations related to the encumbrances of property acquired in co-ownership that existed at the time of acquisition or were created later;
4) obligations related to the reimbursement of legal expenses where the lawsuit is related to community property or the interests of the family;
5) obligations arising from transactions concluded by one of the spouses with the consent of the other spouse or ratified by the latter subsequently as well as obligations arising from transactions for which no consent of the other spouse was required provided that the transactions were concluded in the interests of the family;
2. Either spouse shall have the right to enter into transactions necessary to maintain the family household and to secure the upbringing and education of the children. Both spouses shall be jointly and severally liable for the obligations arising from such transactions irrespective of their matrimonial property regime, except in cases where the price of the transaction is clearly too high and unreasonable.
3. Joint and several liability of the spouses shall not arise where one of the spouses, without the consent of the other spouse, takes a loan or acquires goods under credit purchase, which is not necessary for the needs of the family.
Article 3.110. Liability of spouses for obligations created prior to the registration of marriage
1. Community property may not be used to discharge the obligations of spouses created prior to the registration of marriage, except those charged against the relevant spouse’s share in community property.
Article 3.111. Obligations arising from deeds of gift or succession
Where one of the spouses receives a gift or comes into inheritance, the obligations arising therefrom may not be paid from community property unless the gift or the inheritance has been received as community property.
Article 3.112. Liability for the obligations of one of the spouses
1. Claims arising from the transactions concluded after the registration of marriage by one of the spouses without the consent of the other spouse may be discharged from community property if the individual property of the spouse is not sufficient to satisfy the claims of the creditors.
Article 3.113. Enforcement against the individual property of spouses
Where the community property is not sufficient to meet the joint and several claims of creditors, the claims shall be settled from the individual property of the spouses.
Article 3.114. Separation of the liability of spouses
1. Where the marriage contract stipulates that property acquired both before and during the marriage is to be treated as the individual property of one and the other spouse, the spouses shall be liable for their obligations only by their individual property. In such cases, the spouses shall be jointly and severally liable for their joint obligations and the obligations in the interests of the family.
Article 3.115. Entitlement to compensation
1. The spouse whose fines for breaches of law or damages incurred through his or her actions have been paid from the joint community property shall be obliged to compensate for the reduction of the joint community property.
Article 3.116. Ways of division
1. On the application of one of the spouses or their creditors, joint community property may be divided by mutual agreement of the spouses or by a court judgment during the marriage and upon divorce or separation.
Article 3.117. Shares of the spouses in joint community property
2. Departure from the principle of equality of the shares of the spouses in joint community property shall be permitted only in cases provided for in this Code.
3. Where the value of the property awarded by the court to one of the spouses exceeds his or her share in the joint community property, that spouse shall be obliged to pay compensation to the other spouse. Upon the presentation of an adequate security for this liability, the court may defer the payment of the compensation for a period not exceeding two years.
Article 3.118. Balance of property
1. Before dividing the joint community property of the spouses, first the community property and the respective individual property of the spouses shall be established.
2. The community property must be used first to pay (award) the debts that have fallen due and are payable from this property. Where the time limit for meeting the liabilities from the community property has not expired or the liabilities are disputed, the value of the community property to be divided shall be reduced by the amount equal to these liabilities (debts).
3. After establishing the individual property of the spouses and deducing their personal debts from it, a balance sheet of compensations shall be drawn up, indicating the amounts one and the other spouse must pay by way of compensating for the community property or receive from the community property.
Article 3.119. Assessment of the value of property
The value of the community property to be divided shall be established at its market value on the date of the termination of the joint community property of the spouses.
Article 3.120. Property not to be divided
1. Property to be divided shall not include things intended for the needs of the minor children of the marriage or the spouses’ clothing, personal effects, personal property rights and non-property rights related only to that particular spouse.
2. Property intended to meet the needs of the minor children referred to in paragraph 1 of this Article shall go, without deducing any compensations, to the spouse with whom the minor children are to live, while the remaining part of the property of personal nature shall go to one and the other spouse.
Article 3.121. Attribution of individual property to joint community property
1. By mutual consent of the spouses, property defined as the individual property of the spouses in the marriage contract may be attributed to the joint community property subject to division.
2. Arrangements referred to in paragraph 1 of this Article shall be prohibited if they may cause damage to the creditors of the spouse. Where, due to such arrangements between the spouses, the claims of the creditor cannot be fully covered from the individual property of a spouse, the debt shall be charged against the spouse’s share in the community property.
Article 3.122. Security for the claims to a share in the community property
At the request of one of the spouses or spouses’ creditors, the court may seize the joint community property of the spouses or to appoint an administrator for the property if that is necessary to protect the interests of the spouses in the community property or the rights of their creditors. These measures shall not apply where the other spouse submits an adequate security for the claims of the spouse requesting the seizure of the property or the appointment of an administrator or for the claims of the creditors.
Article 3.123. Departure from the principle of equality of the shares of the spouses in the community property
1. Having regard to the interests of the minor children, the state of health or the financial situation of one of the spouses or other important circumstances, the court may depart from the principle of equality of the spouses’ shares in the community property and award one of the spouses a greater share of the property. These criteria must also be taken into consideration by the court in deciding on the way of division of the community property.
2. The share of the community property of the spouse obliged to make maintenance payments to the other spouse may be reduced by the amount of the maintenance where the maintenance is awarded in the form of a lump sum of a fixed amount or certain property.
3. Where, less than a year before the institution of the action for the division of the property, one of the spouses reduced the value of the community property without the consent of the other spouse by donating some of it or by using it to increase his or her own individual property, the share belonging to this spouse in the community property may be reduced while establishing the respective shares of the spouses in the community property by the value of the community property that was lost.
4. The share of one of the spouses in the community property may also be reduced by the amount of income unrealised due to the spouse’s negligence or because he or she concealed the income from the family and used it for his or her personal needs. The period for which such unrealised income is calculated may not exceed the last five years preceding the institution of the action for the division of property before court.
Article 3.124. Division of property by a court judgment without divorce
Where one of the spouses has been declared incapable or of limited legal capacity in a certain area, or where he or she manages the community property at a loss or his or her actions jeopardise the joint community property of the spouses or the interests of the family, or where he or she, without any justified reason, fails to contribute to the needs of the family, the other spouse shall have the right to bring an action seeking division of the property.
Article 3.125. Registration of division of property
The agreement of the parties or the court judgment whereby the joint community property of the spouses is divided must be registered in the Register of Marriage Settlements.
Article 3.126. Guarantees of the rights of the creditors
1. The creditors of one or both of the spouses shall have the right to join the action for the division of joint community property as third parties and present their individual claims.
Article 3.127. Property to be divided
1. The court shall divide the property the spouses acquired as joint community property before the institution of the proceedings or before the adoption of the court judgment.
2. On the application of one of the spouses, the court may decide to divide only the property acquired jointly before the separation of the spouses.
3. If possible, the property shall be divided in kind, having regard to its value and the share of each spouse in the community property. Where the property cannot be divided in kind between the spouses, it shall be awarded in kind to one of the spouses, who is ordered to compensate for the other spouse’s share in money. The decision on the ways the property is to be divided and the actual division of property in kind shall be taken having regard to the interests of the minor children, the state of health and the financial situation of one of the spouses as well as to other important circumstances.
Article 3.128. Mutual obligations of spouses after the division of property without divorce
1. The spouse upon whose application the property has been divided must contribute, in so far as possible, to the maintenance of the household and the upbringing and education of the children.
2. Where the other spouse is unable, for objective reasons, to contribute to the maintenance of the household and the upbringing and education of the children, all such expenses must be covered by the spouse upon whose application the property has been divided.
Article 3.129. Limitation period for actions
Claims for the division of joint community property, except for immovables, shall be subject to a limitation period of five years from the date of the separation of the spouses.
Article 3.130. Concept of consanguinity
1. Consanguinity shall mean a relationship by blood of persons descended from the same stock or a common ancestor.
Article 3.131. Lines of consanguinity
Two lines of consanguinity – direct and collateral consanguinity – shall be distinguished.
Article 3.132. Direct consanguinity
1. Direct consanguinity shall mean the relation subsisting between the ancestor and the descendants in the direct line from one of the other (great-grandparents, grandparents, parents, children, grandchildren, great-grandchildren, etc.).
2. Consanguinity upwards from the descendant to the ancestor shall be the direct ascending line (grandchildren, children, parents, grandparents, etc.).
Article 3.133. Collateral consanguinity
Collateral consanguinity shall mean the relation subsisting between persons who have the same ancestors, but who do not descend one from the other (siblings, cousins, uncles or aunts, nephews and nieces, etc.).
Article 3.134. Degree of consanguinity
1. A degree of consanguinity shall be measured by the number of births that link relatives, excluding the birth of the common ancestor(s).
Article 3.135. Close relatives
Close relatives shall include persons related by direct consanguinity up to the second degree of consanguinity inclusively (parents and children, grandparents and grandchildren) and persons in the second degree of kinship by collateral consanguinity (siblings).
Article 3.136. Affinity
1. Affinity shall mean a relationship that exists, as a result of marriage, between one of the spouses and the kindred of the other spouse (stepson, stepdaughter, stepfather, stepmother, father-in-law, mother-in-law, daughter-in-law, etc.) as well as between the kindred of both spouses (the husband’s brother or sister and the wife’s brother or sister, the husband’s father and mother and the wife’s father or mother, etc.).
Article 3.137. Legitimate filiation of a child
1. Legitimate filiation of a child shall be proved in accordance with the procedure laid down in Articles 3.138 to 3.140 of this Code.
2. The mutual rights and duties of a child and his or her parents shall be based on the legitimate filiation of the child.
Article 3.138. Proof of legitimate filiation
The parents of a child shall be proved by the record of birth, made in accordance with the procedure laid down in the law regulating the registration of acts of civil status.
Article 3.139. Maternal filiation
1. A woman indicated in a birth certificate of a child shall be entered as the child’s mother in the record of birth.
2. A birth certificate of a child shall be drawn up by a health care institution in accordance with the procedure established by the Government. According to the birth certificate of the child, the mother of the child shall be the woman in respect of whom there is no doubt that it was she who gave birth to the child.
3. Where the record of a child’s birth contains no data on the child’s mother or where the maternity of the child has been successfully contested, the child’s mother may be established by the court in an action filed by the woman who considers herself to be the child’s mother, by the adult child, by the child’s father or guardian/curator or by the state institution for the protection of the child’s rights.
Article 3.140. Paternal filiation
1. Where a married woman gives birth to a child, although the child has been conceived before the marriage, the spouse of the child’s mother shall be identified as the child’s father in the record of the child’s birth.
2. Where a child is born within 300 days of the date of separation or the annulment of the marriage or divorce or the death of the husband, the former spouse of the child’s mother shall be recognised as the child’s father.
3. Where a mother who contracted a new marriage within 300 days of the dissolution of her previous marriage gives birth to a child, the new spouse of the mother shall be considered to be the child’s father.
4. Where an unmarried woman gives birth to a child more than 300 days after the dissolution of her previous marriage, the man who has acknowledged his paternity in accordance with the procedure laid down in this Book or whose paternity has been established by a court judgment may be entered as the child’s father in the record of the child’s birth.
5. Where a divorced mother gives birth to a child within 300 days of the divorce, the child’s mother, her former spouse and the man who acknowledges his paternity of the child shall have the right to file a joint application seeking that the man who acknowledges his paternity of the child be identified as the child’s father. After the court approves such a joint application, the man who acknowledges his paternity of the child rather than the former spouse of the child’s mother shall be entered in the record as the child’s father.
Article 3.141. Conditions for the acknowledgement of paternity
1. Where the record of a child’s birth contains no data on the child’s father, the paternity of the child may be established on the basis of the application of the man who considers himself to be the father of the child.
2. Where a child is born to a married mother or a child is born within 300 days of the dissolution of the marriage, the paternity of the child may be established on the basis of an application, provided the paternity of the present or former spouse of the mother has been successfully contested.
3. If paternity established on the basis of an application acknowledging paternity has been contested, establishment of paternity on another application acknowledging paternity shall be inadmissible.
Article 3.142. Procedure for acknowledging paternity
1. The man who considers himself to be the father of a child together with the mother of the child shall have the right to refer to a notary public for approval of an application acknowledging paternity.
2. Where a child has attained the age of ten, an application for acknowledging paternity may be approved only with a written consent of the child.
3. Where the person acknowledging paternity is a minor, the approval of an application acknowledging paternity shall require the written consent of the minor’s parents, guardians or curators. Where the parents, guardians or curators refuse to give their consent, such a leave may be handed down by the court at the minor’s request.
4. An application acknowledging paternity may not be approved without the consent of a child who is of full age.
Article 3.143. Acknowledgement of paternity before a child’s birth
1. Where there are circumstances that will prevent the man who considers himself to be the father of a child conceived but not yet born from applying to a notary public for the acknowledgement of paternity after the birth of the child, he and the child’s future mother may apply to a notary public for the approval of the application acknowledging paternity during the period of pregnancy.
2. An application acknowledging paternity before a child’s birth shall be accompanied by a certificate of pregnancy issued by a medical institution.
3. Where, before a child’s birth, the child’s mother marries the man who has filed an application acknowledging paternity of the child or another man, the paternity of the child may not be proved after the birth of the child on the basis of that application.
4. Where a child’s mother or the man withdraws an application acknowledging paternity which is approved in accordance with the procedure laid down by this Article before the birth of the child is recorded with a register office, the child’s paternity on the basis of that application shall not be registered.
Article 3.144. Acknowledgement of paternity without the consent of a child’s mother
1. Where a child’s mother is dead, legally incapable in this area or otherwise unable to file together with the child’s father a joint application acknowledging paternity, or the parents or guardians/curators of the man who considers himself to be the father of the child, but who is a minor, legally incapable or of limited legal capacity in this area refuse to recognise his paternity, or a child who has attained the age of ten does not give his or her written consent, the application acknowledging paternity may be considered a valid basis for the registration of paternity if the court approves the application.
2. In examining an application acknowledging paternity, where a child’s mother is dead, legally incapable in this area or otherwise unable to file a joint application with the man who considers himself to be the father of the child, the court must require that the child’s father adduce evidence proving his paternity of the child.
Article 3.145. Examination of an application acknowledging paternity
1. The court shall examine an application acknowledging paternity in accordance with the simplified procedure.
2. No later than on the next working day after the entry into force of a court judgment approving an application acknowledging paternity, the court must send this judgment electronically to the register office that has registered the birth of a child.
3. Where an application acknowledging paternity is contested by the parents or guardians/curators of the man who considers himself to be the father of the child, but who is a minor, legally incapable or of limited legal capacity in this area, the application shall be submitted to the court to be examined in contentious proceedings.
Article 3.146. Conditions for establishment of paternity
1. Where a child is born to an unmarried mother and in the absence of acknowledgement of paternity, paternity may be established by the court.
2. Where a child is born to a married woman or the child’s paternal filiation has been proved on the basis of an application acknowledging the child’s paternity, establishment of paternity shall be possible only after successfully contesting the data on the child’s father contained in the record of the child’s birth.
Article 3.147. Persons entitled to apply for establishment of paternity
1. Where a child is born to an unmarried mother or the data on the father contained in the record of the child’s birth have been successfully contested, an action for establishment of paternity may be filed by the man considering himself to be the father of the child. The child and the child’s mother shall act as defendants in such an action.
2. If a child’s father refuses to acknowledge his paternity by an application acknowledging paternity or if a child’s father is dead, an action for establishment of paternity may be filed by the child’s mother or the child after having attained full legal capacity or the child’s guardian/curator or a state institution for the protection of the child’s rights or the descendants of a deceased child.
Article 3.148. Grounds for establishing paternity
1. Grounds for establishing paternity shall be scientific evidence (conclusions of expert examinations on consanguinity determination) and other means of proof provided for in the Code of Civil Procedure. If the parties refuse to undergo expert examination, a child’s paternity may be established on the basis of facts that have a sufficient evidential value, such as cohabitation between the child’s mother and the presumed father of the child, their joint participation in the upbringing and maintenance of the child and other evidence.
Article 3.149. Conditions for contesting paternity or maternity
1. Data on the mother or father of a child contained in the record of the child’s birth may be contested only in court.
Article 3.150. Grounds for contesting paternity or maternity
1. The paternity of a child born to a married couple or within 300 days of the dissolution of marriage may be contested only by proving that the person cannot be the father of the child.
Article 3.151. Persons entitled to file an action for contesting paternity or maternity
1. Actions for contesting paternity or maternity may be filed by a person entered in the record of the child’s birth as the child’s mother or father, or a person who, although not recorded as the child’s mother or father in the record of the child’s birth, considers himself the mother or the father of the child, or the parents or guardians/curators of the minor entered in the record of the child’s birth as the child’s father, or a child who is of full age, or a minor on attaining full legal capacity.
2. Where a child’s mother or father is legally incapable in this area or of limited legal capacity in this area, an action for contesting maternity or paternity may be filed by his or her guardians/curators.
Article 3.152. Limitation period
1. The limitation period for filing an action for contesting paternity or maternity shall be one year. The period shall be calculated from the day on which the plaintiff became aware of the disputed data in the record of the child’s birth or on which certain circumstances giving reason to believe that the data are false transpired.
2. Where the persons entered in the record of the child’s birth as a child’s mother or father became aware of such a record at the time when they were minors or legally incapable in this area or of limited legal capacity in this area, the one-year limitation period shall be calculated from the day on which they attained full age or full legal capacity in this area.
Article 3.153. Mandatory participation of the state institution for the protection of the child’s rights
In hearing disputes over contesting of paternity or maternity or over establishment of paternity or maternity, the participation of the state institution for the protection of the child’s rights shall be mandatory.
Article 3.154. Legal regulation of artificial insemination
The conditions, mode, procedures of artificial insemination as well as matters related to paternity or maternity of a child born from artificial insemination shall be regulated by other laws.
Article 3.155. Substance of parental authority
2. Parents shall have the right and the duty to properly bring up and care for their children, care for their health, maintain them and, having regard to their physical and mental state, create favourable conditions for their full and harmonious development in order to prepare the child for an independent life in society.
Article 3.156. Equality of parental authority
2. Parents shall have equal rights and duties in respect of their children irrespective of whether a child was born to a married or unmarried couple, after divorce or judicial nullity of the marriage or separation and irrespective of whether the child’s domicile is determined by a court judgment awarded in favour of one of the parents.
Article 3.157. Representation of children
1. Legally incapable minor children shall be represented by their parents under the law, except where the parents have been declared legally incapable in this area or of limited legal capacity in this area by a court judgment and in other cases specified in this Code.
Article 3.158. Authority of minor parents
1. Minor parents with full legal capacity shall have all personal rights and duties in respect of their children.
2. Minor parents who are legally incapable or of limited legal capacity shall have the right to live together with their child and be involved in the child’s upbringing. In such cases, a guardian/curator shall be appointed for the child in accordance with the procedure laid down in this Book.
Article 3.159. Mandatory exercise of parental authority
1. A father’s or mother’s surrender of the rights and duties in respect of his or her minor children shall be null and void.
Article 3.160. End of parental authority
Article 3.161. Children’s rights
1. Every child shall have the inalienable right to life, healthy development and a name and surname from birth.
2. A child shall have the right to know his parents unless that prejudices his interests or the law provides otherwise.
3. A child shall have the right to live with his parents, be brought up and cared for in his parents’ family, have contact with his parents irrespective of whether the parents live together or separately and have contact with his relatives unless that prejudices the child’s interests.
4. Children shall have no ownership rights to the property of their parents and the parents shall have no ownership rights to the property of their children. Children’s property rights shall be defined in this Book and the other Books of this Code.
Article 3.162. Children’s duties
Children shall owe respect to their parents and perform their duties to their parents diligently.
Article 3.163. Assurance of children’s rights
2. The rights of children deprived of parental care shall be assured by the guardian/curator in accordance with the procedure laid down in this Book.
3. Where decisions relating to a minor child give rise to a conflict of interest between the child and his parents or guardian/curator or between the parents of the child, the court may appoint, ex officio or at the request of either of the parents or guardian/curator of the child or the state institution for the protection of the child’s rights, an ad hoc guardian to represent the child in a specific dispute. The procedure for selecting the ad hoc guardian shall be established by the Government or an institution authorised by it. The rules of Chapters XVII and XVIII of this Book shall apply mutatis mutandis to the activities of the ad hoc guardian.
4. After a minor attains full legal capacity, the protection of his rights shall be his own responsibility.
Article 3.164. Involvement of a minor in the assurance of his rights
1. In considering any issue related to a child, the child, if capable of formulating his views, must be heard directly or, where that is impossible, through a representative. Any decisions on such an issue must be taken with regard to the child’s wishes unless they are contrary to the child’s interests. In making a decision on the appointment of a child’s guardian/curator or on a child’s adoption, the child’s wishes must be given paramount consideration.
Article 3.165. Substance of personal parental rights and duties
1. Parents shall have the right and duty to bring up their children; they shall be responsible for their children’s upbringing and development, their health and spiritual and moral guidance. Parents shall have priority over other persons in performing these duties.
Article 3.166. Giving a child a name
3. A child shall be given a name(s) by mutual agreement of the parents. Where the mother and the father fail to agree on the child’s name, the child shall be given a name by a judicial order.
Article 3.167. Giving a child a surname
2. Where the surnames of a child’s parents differ, the child shall be given, by parental agreement, the mother’s or the father’s surname or a double surname consisting of the surnames of the father and the mother. Where the mother and the father fail to agree on the child’s surname, the child shall be given a surname by a judicial order.
3. When registering the birth of a child whose parents’ identity is not known, the child shall be given a surname by the state institution for the protection of the child’s rights.
Article 3.168. Child’s residence
1. A minor child’s residence shall be determined in accordance with the rules of Book Two of this Code.
2. A child may not be separated from his parents against his will, except in cases provided for in this Book.
Article 3.169. Child’s residence where the parents are separated
1. Where the parents are separated, a child’s residence shall be determined by mutual agreement of the parents.
2. In the event of a dispute over a child’s residence, the child’s residence shall be determined by a judgment awarded by the court in favour of one of the parents.
Article 3.170. Right of a separated parent to have contact with the child and be involved in the child’s upbringing
1. The father or the mother who lives separately from a child shall have the right and duty to have contact with the child and be involved in the child’s upbringing.
2. A child whose parents are separated shall have the right to have constant and direct contact with both parents irrespective of their residence.
3. Where the parents fail to agree as to the involvement of the separated father or mother in the upbringing of and contact with the child, the procedure of the separated parent’s contact with the child and involvement in the child’s upbringing shall be determined by the court.
4. The father or the mother with whom a child resides and/or with whom the child’s domicile has been determined by a court judgment may not interfere with the other parent’s contacts with the child or involvement in the child’s upbringing. Failure to comply with this obligation shall be regarded as an abuse of parental authority, which will make the father or the mother liable in accordance with the procedure established by law.
5. The father or the mother who lives separately from a child shall have the right to receive information about the child from all the institutions and authorities concerned with the child’s upbringing, education, healthcare and protection of the child’s rights, as well as other institutions and authorities that have contact with the child. Such information may be denied only in cases where the child’s life or health is imperilled by the mother or the father and in cases provided for by law.
Article 3.171. Contact with a child and involvement in the child’s upbringing under special circumstances
Parents shall maintain contact with and be involved in the upbringing of a child under special circumstances (detention, arrest, imprisonment, in-patient healthcare institution, etc.) in accordance with the procedure laid down by law.
Article 3.172. Contact of other relatives with a child
Parents (or, in their absence, guardians/curators) shall be obliged to create conditions for a child to associate with his close relatives and other relatives with an emotional connection to the child provided that it is consistent with the child’s interests.
Article 3.173. Disputes over the name or surname of a child
1. If a child’s parents fail to agree on a name or surname to be given to the child, the child’s father, mother or the parents (guardians/curators) of the child’s legally incapable minor parents shall have the right to refer to the court for giving the child a name or a surname.
Article 3.174. Disputes over the determination of a child’s residence
1. A child’s father or mother, as well as the parents or guardians/curators of the child’s minor parents who do not have full legal capacity may refer to the court for determination of the child’s residence.
2. The court shall resolve a dispute acting in the interest of a child and having regard to the child’s wishes. The child’s wishes may be disregarded only if they are contrary to the best interests of the child.
3. The right to take a minor child domiciled in the Republic of Lithuania to a foreign state for permanent residence shall be vested in the parent with whom the child’s residence is determined only upon the written consent of the other parent. Where the other parent refuses to give the consent, the dispute shall be settled by the court.
Article 3.175. Disputes of separated parents over contact with a child or involvement in the upbringing of the child
1. A child’s father, mother or the parents (guardians/curators) of the child’s legally incapable minor parents may refer to the court for establishing a procedure for contact with or involvement in the child’s upbringing.
2. The court shall establish the procedure for a separated parent’s contact with a child by having regard to the child’s interests and by creating a possibility for the separated parent to be involved in the upbringing of the child to the greatest extent possible. Minimum contact with the child may be ordered only in cases where constant maximum contact is prejudicial to the child’s interests.
Article 3.176. Disputes over a child’s contact with his or her relatives
1. If the parents refuse to create conditions for a child to have contact with his or her close relatives and other relatives with an emotional connection to the child, the state institution for the protection of the child’s rights may obligate the parents to create such conditions for the child’s contact with his or her close relatives and other relatives with an emotional connection to the child.
2. The state institution for the protection of the child’s rights may refuse to obligate the parents to create conditions for their child’s contact with his or her close relatives and other relatives with an emotional connection to the child where such contact is contrary to the child’s interests.
3. Where the parents fail to comply with the obligation of the state institution for the protection of the child’s rights or the child’s close relatives and other relatives with an emotional connection to the child do not agree with the decision of the state institution for the protection of the child’s rights refusing to obligate the child’s parents to create conditions for their contact with the child, the child’s close relatives and other relatives with an emotional connection to the child may refer to the court.
Article 3.177. Child’s right to express his or her views
When examining disputes over children, the court must hear the child capable of expressing his or her views and ascertain the wishes of the child.
Article 3.178. Mandatory participation of the state institution for the protection of the child’s rights
1. The state institution for the protection of the child’s rights must participate in the examination of disputes over children.
2. Having investigated the conditions of the family environment, the state institution for the protection of the child’s rights shall present its conclusion to the court unless the case is heard on the basis of an action brought by the state institution for the protection of the child’s rights. In adjudicating on the dispute, the court shall take into consideration not only the conclusion of the state institution for the protection of the child’s rights, but also the wishes of the child and other evidence adduced by the parties. The requirements for the content of the conclusion referred to in this paragraph shall be approved by an institution authorised by the Government.
Article 3.179. Separation of parents and children
1. Where the parents (the father or the mother) do not live together with a child for objective reasons (illness, etc.) and the court has to decide where the child is to live, the court may decide to separate the child from the parents (the father or the mother). Where only one of the parents is affected by unfavourable circumstances while the other parent can live with and bring up the child, the child shall be separated only from the former parent.
2. A child separated from the parents shall retain all the personal and property rights and duties based on consanguinity.
3. When a child is separated from the parents (the father or the mother), the parents shall lose their right to live together with the child or demand the return of the child from other persons. The parents may exercise their other rights in so far as that is possible without living together with the child.
Article 3.180. Conditions, modes and consequences of the restriction of parental authority
1. Where the parents (the father or the mother) fail in their duties to bring up their children, abuse their parental authority, subject their children to cruel treatment, produce a harmful effect on their children by their immoral conduct or neglect their children, the court may award a judgment on temporary or indefinite restriction of parental authority (that of the father or the mother).
2. Where, on the basis established in point 3 of Article 3.254 of this Code, a child is placed under temporary guardianship, the state institution for the protection of the child’s rights shall, within 60 calendar days from placing the child under temporary guardianship, refer to the court for the restriction of parental authority (that of the father or the mother) unless, after placing the child under temporary guardianship, the parents (the father or the mother) are trying to change their conduct or there are other reasons allowing the state institution for the protection of the child’s rights to reasonably assume that there is a real opportunity for returning the child to the family.
3. The court shall make judgments for temporary or indefinite restriction of parental authority having regard to the specific circumstances due to which the restriction of parental authority is sought. Parental authority may be restricted indefinitely where the court makes a conclusion that the parents (the father or the mother) cause particular harm to the development of the child or neglect the child and there is no indication that the situation is likely to change.
4. Temporary or indefinite restriction of parental authority shall involve the suspension of the personal and property rights of the parents based on consanguinity and stipulated by law. The parents, however, shall retain the right of visitation, except where that is contrary to the child’s interests. In the event of indefinite restriction of parental authority, the child may be adopted without the consent of the parents.
Article 3.181. Lifting of the restriction of parental authority or change of the mode of restriction
1. The separation of a child from the parents (the father or the mother) shall be revoked upon disappearance of the circumstances that caused separation.
2. Temporary or indefinite restriction of parental authority may be lifted if it is proved that the parents (the father or the mother) have changed their conduct and can bring up their child and if the lifting of the restriction is not contrary to the interests of the child.
3. Where the circumstances have changed, but there are insufficient grounds for complete lifting of the indefinite restriction of parental authority, the indefinite restriction of parental authority may be replaced with the temporary restriction of parental authority.
4. If it transpires that the conditions preventing a child from living together with the parents remain after the lifting of the temporary or indefinite restriction of parental authority, the temporary or indefinite restriction of parental authority may be replaced with the separation of the child from the parents.
5. Where the parents (the father or the mother) separated from their children exercise their parental authority contrary to the interests of the children, their parental authority may be subject to temporary or indefinite restriction.
Article 3.182. Persons entitled to seek restriction of parental authority or lifting of the restriction of parental authority
1. An application for the separation of a child from the parents (the father or the mother) may be filed by the child’s parents or close relatives or the state institution for the protection of the child’s rights or a public prosecutor.
2. An action for temporary or indefinite restriction of parental authority may be brought by one of the parents or close relatives or the state institution for the protection of the child’s rights or a public prosecutor or the guardian/curator of the child.
3. An action for lifting of the restriction of parental authority may be brought by the parents (the father or the mother) in respect of whose parental authority the restriction has been applied.
4. An application for cancellation of the separation of a child from the parents (the father or the mother) may be filed by the parents or one of the parents, or the guardian/curator or close relatives of the child or the state institution for the protection of the child’s rights or a public prosecutor.
Article 3.183. Examination of applications for the restriction of parental authority
1. Applications for cancellation of the separation of children from the parents shall be examined in a simplified procedure. If it transpires that there is a ground for temporary or indefinite restriction of parental authority, an application shall be referred to the court to be adjudicated in contentious proceedings.
2. In examining actions for the restriction of parental authority or applications for the separation of a child from the parents referred to it for adjudication in contentious proceedings, the court shall not be bound by the claims made and shall award a judgment in the light of the situation in hand and the interests of the child.
3. The court shall hear a child capable of expressing his or her views and take such views into account.
4. Having made a judgment to restrict parental authority, the court shall simultaneously, by the same judgment, determine the domicile of a child before the judgment on guardianship/curatorship of the child comes into force, and award maintenance to the child.
5. No later than six months after the coming into force of the judgment to temporarily restrict parental authority (that of the father or the mother), the state institution for the protection of the child’s rights and, where appropriate, a public prosecutor shall refer to the court for extension of the temporary restriction of parental authority (that of the father or the mother) or for the indefinite restriction of parental authority (that of the father or the mother).
Article 3.184. Mandatory participation of the state institution for the protection of the child’s rights
1. The state institution for the protection of the child’s rights must participate in the examination of cases for the restriction of parental authority.
2. Having investigated the conditions in the family environment, the state institution for the protection of the child’s rights shall present its conclusion to the court unless an action is brought by the same state institution for the protection of the child’s rights. The court shall take the said conclusion into consideration together with the evidence adduced in the case.
Article 3.185. Management of the property owned by minor children
1. Property owned by minor children shall be managed by the parents by the right of usufruct. The parents’ right of usufruct may not be pledged or sold or otherwise assigned or encumbered; no execution may be made against it.
2. Parents shall manage by mutual agreement the property owned by their minor child. In the event of a dispute over the management of the child’s property, either parent may refer to the court for a judicial order establishing the procedure for the management of the property.
3. Where the parents, or one of the parents mismanage the property owned by their minor child to the detriment of the minor child’s interests, the state institution for the protection of the child’s rights or a public prosecutor may refer to the court for the removal of the parents from the management of the property owned by their minor child. Where warranted, the court shall remove the parents from the management of their minor child’s property, revoke their right of usufruct to the child’s property and appoint another person as an administrator of the minor’s property. Where the grounds for the removal are no longer existent, the court may allow the parents to resume the management of their minor children’s property by the right of usufruct.
Article 3.186. Duties of the parents in managing their minor children’s property
1. Parents must manage their minor children’s property by acting exclusively in the interests of the children.
2. The parents may use the fruits and income derived from the property owned by the minor child to meet the needs of the family by taking into account the child’s interests.
3. In managing the property of their minor child, the parents shall have no right to acquire, directly or through intermediaries, this property into their ownership or any rights thereto. This rule shall also be applicable to auctioning the minor’s property or rights thereto. An action to have such transactions declared null and void may be brought by the child or the child’s successors.
Article 3.187. Property of minor children not subject to the right of usufruct
Parents shall have no right to manage the property of their minor children by the right of usufruct if that property:
Article 3.188. Transactions relating to a minor child’s property
1. Without the prior leave of the court, parents shall have no right to:
3) enter into a lease agreement in respect of their minor children’s property for a period longer than five years;
5) enter into a loan agreement on behalf of their minor children for an amount exceeding four minimum monthly wages;
2. If a transaction causes a conflict of interests between the minor children of the same parents or between a minor child and the child’s parents, the court shall, on the application of either of the parents, appoint an ad hoc guardian as to the transaction.
3. Where there is a conflict of interests between a minor child and one of the child’s parents, the child’s interests shall be represented and transactions shall be entered into by the parent whose interests do not conflict with those of the child.
Article 3.189. Prohibition to assign or encumber the right of usufruct
1. Parents who manage their minor children’s property by the right of usufruct may not assign or pledge or otherwise encumber the right of usufruct.
Article 3.190. Right of usufruct where the property is managed by only one of the parents
1. Where parental authority is exercised only by one of the parents of a minor child, the child’s property shall be managed by the right of usufruct only by that parent. In the event of divorce or legal separation of the parents, the right to manage the minor child’s property shall be exercised by the parent with whom the domicile of the child has been established by a court judgment.
2. If the father or mother of a minor child enters into a new marriage, he or she shall retain the right of usufruct in respect of the minor child’s property, but shall be obliged to transfer all the fruits and income derived from the property to the child’s bank account and to maintain separate accounts for the fruits in excess of the expenses for the child’s development (upbringing, education, maintenance). If the new spouse of the child’s father or mother adopts the child, he or she shall also acquire the right to manage the property.
Article 3.191. End of the property management and right of usufruct
1. Parents shall lose the right to manage their minor children’s property by the right of usufruct when:
2. Where the parents (or one of the parents with whom the child resides) continue to use the child’s property after the end of the right of usufruct, they shall be obliged to return the property and all the income and fruits derived from the child’s property to the child from the moment when the child or the child’s representative requests so.
Article 3.192. Parents’ duty to maintain their children
1. Parents shall be obliged to maintain their minor children. The procedure and form of maintenance shall be determined by mutual agreement of the parents.
2. The amount of maintenance must be commensurate with the needs of the minor children and the financial situation of their parents; it must ensure the existence of conditions necessary for a child’s development.
Article 3.1921. Parents’ duty to maintain their full-age children
1. If circumstances permit, parents shall be obliged to maintain their full-age children who study under a secondary education programme or under a formal vocational training programme to acquire their first qualification or study at a higher education institution under a programme of full-time studies and who are under twenty-four years of age and need material support, taking into account the financial situation, income and earning opportunities of full-age children and other important circumstances. Parents shall not be obliged to support full-age children who pursue a subsequent education degree or professional qualification.
2. Where the parents (or one of the parents) fail in the duty to maintain their full-age child, the child shall be entitled to refer to the court for obtaining a maintenance order.
3. In issuing a maintenance order and determining the amount of maintenance, the court shall have regard to the financial situation of the child’s family and that of his or her parents as well as other important circumstances of the case.
Article 3.193. Parental agreement on the maintenance of their minor children
1. On divorce by mutual agreement (Article 3.51 of this Code) or on separation (Article 3.73 of this Code), the parents of minor children shall conclude an agreement providing for their mutual duties in maintaining their minor children as well as the procedure, amount and form of such maintenance. The agreement shall be approved by the court (Article 3.53 of this Code).
2. Parents of minor children may conclude an agreement on the maintenance of their children also when their divorce is based on other grounds.
Article 3.194. Maintenance orders
1. Where the parents (or one of the parents) fail in the duty to maintain their minor children, the court may issue a maintenance order in an action brought by one of the parents or the child’s guardian/curator or the state institution for the protection of the child’s rights.
2. A maintenance order may also be issued if on divorce or on separation the parents did not agree on the maintenance of their minor children in accordance with the procedure provided for in this Book.
3. The court shall issue a maintenance order until a child attains majority, except in cases when the child lacks capacity for work due to a disability determined before the age of majority.
4. The enforcement of a maintenance order shall be terminated when a child:
Article 3.195. Maintenance duty when children are separated from their parents
The parents’ duty to maintain their minor children shall be retained after the separation of the children from their parents or the restriction of parental authority, except in cases where the child is adopted.
Article 3.196. Form and amount of maintenance
1. The court may issue a maintenance order obligating the parents (one of the parents) who fail in their duty to maintain their children to provide maintenance to their minor children in the following ways:
Article 3.197. Judicial pledge (hypothec)
If necessary, in issuing a maintenance order the court may institute pledge (hypothec) against the property of the parents (one of the parents). If the court judgment on the enforcement of the maintenance order is not executed, the enforcement shall be levied against the property subject to the pledge (hypothec) in accordance with the procedure laid down by law.
Article 3.198. Maintenance orders in respect of two or more children
1. In issuing a maintenance order in respect of two or more children, the court must determine the amount of maintenance sufficient to meet at least the minimum needs of all the children.
Article 3.199. Categories of income subject to recovery under maintenance orders
Maintenance payments for minor children shall be recovered from the wages and all the other categories of income of the father or mother obliged to pay maintenance.
Article 3.200. Date on which a maintenance order becomes operative
A maintenance order shall become operative from the date on which the right to maintenance arises; the arrears in maintenance payments, however, may not be enforced for a period exceeding three years from the date of bringing an action.
Article 3.201. Changing the amount and form of maintenance
1. In an action brought by a child, the child’s father or mother, the state institution for the protection of the child’s rights or a public prosecutor, the court may reduce or increase the amount of maintenance if, after the award of the maintenance order, the financial situation of the parties has changed substantially.
2. An increase in the amount of maintenance may be ordered if there are additional expenses related to the care for the child (illness, injury, need for nursing or permanent attendance). If necessary, the court may issue an order for covering the future expenses related to the medical treatment of the child.
Article 3.202. Enforcement of maintenance when a child is placed under guardianship/curatorship
1. If a child is placed under guardianship/curatorship, maintenance shall be paid to the guardian/curator, who must use it exclusively for the interests of the child.
2. If a child receiving maintenance under a judicial order resides at a child care institution, the maintenance shall be paid to the child care institution. In such a case, the child care institution shall open a bank account for every child receiving maintenance with a credit institution controlled by the State. The funds on the bank account may be used, in accordance with the procedure established by law, only by the child for his or her own needs or the child’s guardian/curator in the child’s interests.
Article 3.203. Use of maintenance
2. Under a judicial order issued in an action brought by the representatives of the child, the state institution for the protection of the child’s rights or a public prosecutor, maintenance used by the child’s parents, guardians/curators for purposes other than the child’s interests shall be recovered against the property of the person who has used the child’s maintenance not in the interests of the child.
Article 3.204. Children maintained by the State
1. The State shall maintain minor children receiving no maintenance, for a period of more than one month, from their parents or other adult close relatives who are in a position to maintain the children.
3. After providing maintenance to minor children under this Article, the State shall have the right of recourse to recover the maintenance provided to a child from the child’s parents or his other adult close relatives if they failed to provide maintenance to the child for reasons the court declared to be insufficient.
Article 3.205. Duty of adult children to maintain their parents
1. Adult children shall be obliged to maintain and care for their parents lacking capacity for work and in need of support.
2. Maintenance shall be paid according to a mutual agreement between the children and parents or on the basis of the court order issued in an action brought by the parents.
4. The amount of maintenance shall be determined by the court having regard to the financial situation of the children’s family and that of the parents as well as other important circumstances of the case. In establishing the amount of the maintenance, the court must take into account the duty of all the adult children of the parent(s) to maintain their parent(s), irrespective of whether the action for maintenance has been brought against all the children or only one of them.
Article 3.206. Rejection of the parents’ claims to maintenance
1. The court may relieve adult children of their duty to maintain their parents lacking capacity for work if it establishes that the parents had failed in their duties in respect of their minor children.
Article 3.207. Compensation for additional expenses of parents lacking capacity for work
1. If adult children do not care for their parents lacking capacity for work, the court may issue an order, in an action brought by the parents, for the compensation of the additional expenses incurred by the parents due to severe illness, injury or indispensable attendance performed by strangers for a consideration.
Article 3.208. Indexation of maintenance
Where maintenance has been ordered in the form of periodical payments, the amount of maintenance shall be indexed annually, in accordance with the procedure established by the Government, in line with inflation.
Article 3.209. Children eligible for adoption
2. Only the children who have been included in the list of children available for adoption may be adopted, except in cases where a spouse adopts the other spouse’s child or the child lives in the family of the adopter.
Article 3.210. Persons entitled to adopt a child
1. The adopter may be an adult working age woman or man duly prepared for adopting a child in accordance with the procedure laid down in the Regulations on the Organisation of Adoption approved by the Government. In exceptional cases, the court may give leave for older persons to adopt a child.
2. The right to adopt a child may be exercised by married couples. In exceptional cases, an unmarried person or one of the spouses may be allowed to adopt a child.
4. Persons declared by the court to be legally incapable in this area or of limited legal capacity in this area, persons whose parental authority has been restricted, the former guardians/curators whose guardianship/curatorship has been revoked through their fault in the cases provided for in Article 3.246(3) of this Code, persons from whom the child is separated, and persons with mental and behavioural disorders or other diseases, the list whereof is approved by the Government or an institution authorised by it, shall not be allowed to adopt a child. Persons who have been convicted of a premeditated crime against humanity, human life, liberty, freedom of sexual self-determination and sexual inviolability, child and family, public security, morals, crime endangering human life and health, serious impairment to health, and a crime related to possession of narcotic or psychotropic, toxic or highly active substances, irrespective of whether the conviction has expired or has been expunged in accordance with the procedure laid down by the laws, shall not be allowed to adopt a child. The right of the person convicted for other criminal acts to adopt a child shall be determined by the court, having assessed the nature and gravity of the committed criminal act(s) and having taken account of the child’s interests.
5. Persons who wish to adopt a child (except a parent’s spouse or the relatives) must be put on the list of prospective adopters managed by the state institution for the protection of the child’s rights.
Article 3.211. Age difference between the adopter and the child to be adopted
1. The age difference between the adopter and the child to be adopted must be no less than eighteen years.
Article 3.212. Consent of the parents to adoption
2. Where the parents of a child to be adopted are minors or legally incapable in this area, adoption may be effected only with the written consent of their parents or guardians/curators approved by the court. Where the parents of a child to be adopted are of limited legal capacity in this area, adoption may be effected only with their written consent and that of their curators approved by the court. Where the curator does not give his or her consent, the written consent to adoption may be approved by the court at the request of a person with limited legal capacity in this area. In this case, additional court approval shall not be required. In all cases referred to in this paragraph, the court must, when examining the case, hear the opinion of the parents of the child to be adopted where the person is able to express the opinion and understand the process, objectives and consequences of adoption. Where the child to be adopted has a permanent guardian/curator appointed in accordance with the procedure laid down by laws and has been placed under guardianship/curatorship of a family, adoption may be effected only with the written consent of the guardian/curator approved by the court. Grounds for refusal to give consent to adoption must be justified. Where the court has established that the grounds for refusal to give consent to adoption are unjustified, the court may make a decision on adoption without the consent of the guardian/curator.
3. The child’s parents may give their consent for the adoption of the child by a specific person only if that person is a relative.
4. Having approved the parents’(guardians’/curators’) written consent to adoption, the court shall issue a ruling in which it shall explicate to the parents (guardians/curators) the consequences of adoption referred to in Article 3.227 of this Code and their right to revoke their consent to adoption.
Article 3.213. Revocation of the parents’ consent to adoption
1. The parents may revoke their consent to adoption before a court judgment is made on the adoption of the child. The consent of the parents who are legally incapable in this area may be revoked by the guardians. The parents declared to be of limited legal capacity in this area may revoke their consent to adoption only jointly with the curators. Where the curators refuse to revoke their consent to adoption, the revocation of consent to adoption may be approved by the court at the request of the persons with limited legal capacity in this area. In this case, additional court approval shall not be required.
2. The application for the revocation of the consent to adoption must be filed by the parents (guardians of the parents legally incapable in this area or the parents with limited legal capacity in this area jointly with their curators) with the state institution for the protection of the child’s rights. Where the child has already been adopted, the state institution for the protection of the child’s rights shall notify the parents of the fact without disclosing the identity of the adopters. Where the application is filed before the day scheduled for the court’s consideration of the application for adoption, the state institution for the protection of the child’s rights shall notify the respective court of the revocation of the consent and refer the application for the revocation of the consent for consideration to the court that approved the consent. The consideration of the application for adoption shall be suspended until the issue of the revocation of the consent is resolved.
3. The court shall not approve the revocation of the consent to adoption where a year has elapsed since the restriction of parental authority, which has not been lifted, or where the court establishes that the parents (guardians of the parents legally incapable in this area or the parents with limited legal capacity in this area jointly with their curators) revoke their consent to adoption only for material gain.
Article 3.214. Adoption without the consent of the parents
The consent of the parents of the child to be adopted shall not be required where the identity of the parents is not known or where they are dead or where the parental authority has been restricted for an indefinite period or where the parents are declared dead.
Article 3.215. Consent of the child to be adopted
1. Where the child to be adopted has reached the age of ten, the child’s written consent to adoption shall be required. The child shall file his or her consent with the court; adoption without such a consent shall not be permitted.
Article 3.216. Consent to adoption by the adopter’s spouse
1. Where a child is adopted by one of the spouses, the written consent of the other spouse shall be required. Where the other spouse is of limited legal capacity in this area, the written consent of the spouse with limited legal capacity and his curator shall be required. Where the curator does not give his or her consent, the written consent to adoption may be approved by the court at the request of the spouse with limited legal capacity in this area.
Article 3.217. Verification of the readiness for adoption
1. Social workers certified by the state institution for the protection of the child’s rights shall ascertain if there are any bars referred to in Book Three of this Code for the prospective adoptive parents to adopt the child, investigate their living conditions and way of life, collect information on the status of their health and submit a conclusion on the readiness of the prospective adopters to adopt the child.
2. Where the prospective adoptive parents do not agree with the conclusion of the social workers certified by the state institution for the protection of the child’s rights on their readiness to adopt, they may appeal against it in court.
3. The decision on whether the adoptive parents have suitable conditions and are adequately prepared for adoption shall be taken by the court examining the application for adoption.
Article 3.218. Provision of data on the child to be adopted
1. The state institution for the protection of the child’s rights shall submit to the court data on the origin, development, state of health and family of the child to be adopted.
Article 3.219. Registration of adoptions
1. The registration of prospective adoptive parents and children available for adoption shall be administered by the state institution for the protection of the child’s rights in accordance with the procedure established by the Government. The regulations of the institution shall be approved by the Government.
2. Having taken a decision on the indefinite restriction of parental authority or having confirmed, by an order, the written consent of the parents to the adoption of their child, the court shall send its final decision or order to the state institution for the protection of the child’s rights within three working days.
Article 3.220. No longer effective from 1 July 2018.
Article 3.221. Confidentiality of adoption
2. Until the child attains majority, data on the child’s adoption may not be disclosed without the consent of the adoptive parents.
3. Information on a child’s adoption may be provided to the child from the age of fourteen, to the child’s former close relatives by blood or to other persons with the leave of the court which considered the case for adoption provided that the information is necessary for the child’s health or the health of the child’s close relatives or of other persons as well as for other important reasons.
Article 3.222. Placement of the child with the adoptive family before adoption
1. At the request of the prospective adoptive parents or the state institution for the protection of the child’s rights or at its own discretion, the court may order a probationary period of six to twelve months prior to the adoption and place the child with the family of the prospective adoptive parents for residence, upbringing and maintenance. If an order is made to place the child with the family of the prospective adoptive parents, the hearing of the adoption case shall be suspended.
2. The probationary period may be ordered taking into consideration the psychological preparedness of the child and the prospective adoptive parents for adoption, the duration of contact between the child and the prospective adoptive parents before the application for adoption, and other circumstances which may give rise to doubts whether the child will fit in with the family of the adoptive parents.
3. After the child is placed with the family by a court order before the adoption, the mutual rights and duties, except those of succession, of the child and the prospective adoptive parents shall be treated as the mutual rights and duties of children and natural parents.
Article 3.223. Priority for adoption
1. If there are several persons who wish to adopt the same child, the priority shall be determined in the light of the child’s interests in the following order:
4) persons in whose family the child to be adopted is placed under permanent guardianship/curatorship;
Article 3.224. Adoption by persons whose domicile is in a foreign state and by foreign nationals and stateless persons whose domicile is in the Republic of Lithuania
1. Persons whose domicile is in a foreign state and nationals of a foreign state and stateless persons whose domicile is in the Republic of Lithuania who adopt a child shall be subject to provisions of Articles 3.209 to 3.223 of this Code.
2. In addition to the provisions of Articles 3.209 to 3.223 of this Code, persons referred to in paragraph 1 of this Article may adopt a child when all of the following conditions are fulfilled:
1) within six months from the registration of the child in the list of children available for adoption, no application has been received from citizens of the Republic of Lithuania, whose domicile is in the Republic of Lithuania, to adopt the child or place the child under their guardianship/curatorship;
2) the guardian/curator of a child for whom a permanent guardian/curator has been appointed and who has been placed under guardianship/ curatorship of a family presents to the court a written consent to the adoption. Grounds for refusal to give consent to the adoption must be justified;
3. The court, having regard to the interests of the child, shall have the right to decide on the adoption of the child without the consent of the guardian/curator.
4. Where a child is adopted in another state, all the necessary measures must be taken to prevent persons involved in the placement of the child in another state from gaining any unjustified material gain.
5. In adjudicating on the adoption of a child by the person referred to in point 1 of this paragraph, consideration must be given to the hereditary continuity of the child’s upbringing, the child’s ethnic origin, religious and cultural affiliation and mother tongue, as well as the compliance of the legislation of the recipient country with the requirements of the 29 May 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption.
Article 3.225. Recognition of adoption carried out in a foreign country
Adoption carried out in a foreign country shall be recognised in accordance with the procedure and under the conditions laid down in international treaties and agreements and the provisions of Book One of this Code.
Article 3.226. Adoption of children who are nationals of a foreign country
1. Children who are nationals of a foreign country residing in the Republic of Lithuania shall be adopted in accordance with the procedure laid down in this Chapter unless an international treaty or agreement between the respective foreign state and the Republic of Lithuania provides for a different procedure for their adoption.
Article 3.227. Consequences of adoption
1. Adoption shall invalidate the mutual personal and property rights and duties of the natural parents and children and their relatives by blood while creating mutual personal and property rights and duties for the adoptive parents, their relatives and adopted children and their descendants as relatives by blood.
Article 3.228. Name and surname of the adopted child
1. The adopted child shall be given the surname of the adoptive parents by a court judgment; the child’s name may be changed with the consent of the child capable of expressing his or her views.
2. At the request of the adoptive parents and the adopted child capable of expressing his or her views, the child may be allowed to retain the surname of his or her natural parents.
Article 3.229. Scope of application
The provisions of this Chapter shall determine the relations in property of a man and a woman who, after registering their partnership in accordance with the procedure laid down by the law, have been cohabiting at least for a year with the aim of creating a family relationship without having registered their union as a marriage (cohabitees).
Article 3.230. Assets subject to the legal regime set in this Chapter
1. The provisions of this Chapter shall determine the legal regime of the assets referred to in this Article provided the assets have been acquired and used jointly by the cohabitees.
2. The community property of cohabitees shall include:
2) the rental, usufruct or any other right of one of the cohabitees to use the dwelling house or apartment which the cohabitees use for cohabitation;
3) jointly acquired immovable property related to the dwelling house or apartment used for cohabitation provided the immovable property is used by the cohabitees jointly;
Article 3.231. Legal regime of assets jointly used by cohabitees
1. Where the immovables or the rights to the immovables referred to in Article 3.230 of this Code are registered in the name of one of the cohabitees, both cohabitees may require, by submitting a joint application to the respective public register, the addition of a record to the effect that the cohabitees use these immovables or the rights to these immovable jointly. The signatures of the cohabitees adduced to such an application must be certified by a notary public.
Article 3.232. Division of assets acquired and used jointly
At the request of one of the cohabitees, the court may divide all the assets, acquired and used jointly by the cohabitees, after the death of one of the cohabitees or at the end of their cohabitation provided the cohabitees had not made an agreement on the division of assets certified by a notary public.
Article 3.233. Limitations of the right to dispose of the assets used jointly
1. A cohabitee shall have no right, without the written consent of the other cohabitee, to sell, donate or alienate in any other way, lease or charge the assets acquired and used jointly or to encumber the rights to such assets in any other way.
2. Paragraph 1 of this Article shall not apply if a cohabitee is incapable of giving such a consent due to legal incapacity or it is impossible to obtain the consent of the other cohabitee due to other important reasons. In such a case, the permission to conclude a transaction may be granted by the court at the request of the other cohabitee.
3. Transactions concluded in violation of the rules set out in paragraphs 1 and 2 of this Article may be declared null and void in an action brought by the cohabitee who has not given his or her consent to the transaction, except in cases where a third party recipient of the assets alienated, charged or leased was in good faith. The time limit for bringing an action for the avoidance of such a transaction shall be one year from the date on which the cohabitee became aware or ought to have become aware of the transaction.
Article 3.234. Procedure for the division of assets used jointly
1. For the purpose of dividing the assets acquired and used jointly by cohabitees in cases referred to in Article 3.232 of this Code, the court shall first determine the assets acquired and used jointly by the cohabitees and the separate assets of each cohabitee. When determining the assets acquired and used jointly by the cohabitees, debts contracted jointly by the cohabitees and outstanding at the end of their cohabitation shall be deducted.
2. The assets acquired and used jointly remaining after the deduction of the joint outstanding debts of the cohabitees shall be divided into two equal shares, except in cases provided for in this Article.
3. The court shall have the right to depart from the principle of equal shares if it is just and reasonable to award one of the cohabitees a bigger share of the assets taking account of the interests of their minor children, the duration of their cohabitation, their age, health, financial situation, personal contribution to the accumulation of joint assets and other important circumstances.
4. A dwelling house or an apartment may be awarded to the cohabitee who is in greater need of it taking into consideration his or her age, health, financial situation, the interests of his or her minor children and other important circumstances. In this case, this cohabitee’s share in the other assets shall be reduced. Where the value of the dwelling house or the apartment exceeds the value of the cohabitee’s share in the assets, he or she must compensate in money to the other cohabitee for the difference in the value.
5. The dwelling house or the apartment which was owned by one of the cohabitees before their cohabitation began may be left to the other cohabitee by the right of usufruct if he or she has minor children born to the cohabitation or, due to health, age or other important reasons, does not have his or her own dwelling place.
Article 3.235. Right to use a dwelling place
1. Having regard to the duration of cohabitation, the interests of the minor children of the cohabitees, the age, health, financial situation of the cohabitees and other important circumstances, the court shall have the right to award the use of the rented dwelling place to the cohabitee who is in greater need of the dwelling place.
Article 3.236. Duty of an adult sibling to maintain his or her minor sibling
1. Circumstances permitting, an adult sibling shall be obliged to maintain his or her minor sibling who is in need of support and is deprived of parents or of their maintenance.
Article 3.237. Mutual maintenance of grandchildren and grandparents
1. Circumstances permitting, adult grandchildren shall be obliged to maintain their grandparents lacking capacity for work and in need of support.
2. Circumstances permitting, grandparents shall be obliged to maintain their minor grandchildren in need of support and deprived of parents or of their maintenance.
Article 3.238. Guardianship
1. Guardianship shall be established with the aim of exercising, protecting and defending the rights and interests of a natural person legally incapable in a certain area.
Article 3.239. Curatorship
1. Curatorship shall be established with the aim of protecting and defending the rights and interests of a natural person with limited legal capacity in a certain area.
Article 3.240. Legal status of the guardian or curator
1. The guardian and the curator shall be the legal representatives of persons under their guardianship/curatorship and shall defend the rights and interests of persons legally incapable in a certain area or persons with limited legal capacity in a certain area without any special authorisation.
2. The guardian shall be entitled to enter into, in the interests and on behalf of the represented person legally incapable in a certain area, all necessary transactions in that area.
3. The curator shall give consent for the person with limited legal capacity in a certain area to enter into a transaction the person would not be permitted to enter into independently and shall also help the person with limited legal capacity in a certain area to exercise his or her other rights and fulfil the duties as well as protect his or her rights and legitimate interests against abuse from third parties in that area.
Article 3.241. Institutions of guardianship and curatorship
1. Institutions of guardianship and curatorship shall mean municipal institutions concerned with the supervision and control of the actions of guardians, curators and persons providing assistance in making decisions.
2. The functions of guardianship and curatorship in respect of inmates of medical, educational or guardianship/curatorship institutions who have been declared legally incapable in a certain area or of limited legal capacity in a certain area by the court shall be performed by the respective medical, educational or guardianship/curatorship institution until a permanent guardian or curator is appointed.
Article 3.242. Designation of a guardian or a curator
1. Having declared a person legally incapable in a certain area or of limited legal capacity in a certain area, the court must forthwith designate the person’s guardian or curator in that area.
2. The guardian or curator of a minor shall be designated in accordance with the procedure established by the rules of Chapter XVIII of this Book.
3. Only a natural person legally capable in that area may be designated a guardian or a curator provided he or she gives a written consent to that effect. While designating a guardian or a curator, account must be taken of the person’s moral and other qualities, his or her capability of performing the functions of a guardian or curator, his or her relations with the person placed under guardianship/curatorship, the guardian’s or curator’s preferences and the preferences of the person under guardianship/curatorship, as well as other relevant circumstances.
Article 3.243. Performance of the duties of a guardian or a curator
1. A guardian who is the parent or any other close relative of the person under guardianship shall perform his or her duties as a guardian without any remuneration. In other cases, the guardian shall be entitled to recover necessary expenses related to his or her duties as a guardian against the assets of the person legally incapable in a certain area. The amount to be recovered and the procedure for its recovery shall be established by the court on the application of the guardian.
2. A curator who is the parent or any other close relative of the person with limited legal capacity in a certain area shall, in all cases, perform his or her duties as a curator without any remuneration. In other cases, the curator shall be entitled to recover necessary expenses related to his or her duties as a curator against the assets of the person with limited legal capacity in a certain area. The amount to be recovered and the procedure for its recovery shall be established by the court on the application of the curator.
3. This Article shall not apply to cases where the functions of guardianship or curatorship are performed by a medical, educational or guardianship/curatorship institution.
4. The guardians and curators of a minor must live together with the minor, except in cases provided for in point 4 of Article 3.265 of this Code. After the ward attains the age of sixteen, the curator may live separately provided the state institution for the protection of the child’s rights gives its consent.
5. Guardians and curators must notify the institution of guardianship/curatorship of any change in their place of residence.
Article 3.244. Use of the assets and income of the person legally incapable in a certain area or the person with limited legal capacity in a certain area
1. The guardian or the curator must use the assets and the income generated by the assets of the person legally incapable in a certain area or the person with limited legal capacity in a certain area exclusively in the interests of the person legally incapable in a certain area or the person with limited legal capacity in a certain area.
2. Transactions exceeding one thousand and five hundred euros shall require a prior leave of the court.
3. A prior leave of the court shall be required in all cases where the guardian intends to sell, donate or alienate in any other way the immovable property or property rights of the ward, to lease it, transfer for use without remuneration, charge or encumber in any other way the rights to the immovable property or property rights, or to enter into any other transaction which would result in a reduction of the ward’s assets or the property rights of the ward would be assigned or encumbered. These rules shall apply also in cases where the curator intends to give his or her consent for the person with limited legal capacity in a certain area to enter into a similar transaction.
Article 3.245. Administration of the assets of the person legally incapable in a certain area or the person with limited legal capacity in a certain area
1. In cases where a person legally incapable in a certain area or a person with limited legal capacity in a certain area has movable or immovable property requiring constant care (an enterprise, land, facility, etc.), the court shall issue an order for the appointment of an administrator of the property. The administrator may be the guardian/curator or any other person. The administrator of the property shall be subject to the rules laid down in this Code on the limitation of the actions of the guardian or the curator.
Article 3.246. Relief and removal from the duties of the guardian and curator
1. The guardian or curator may be relieved of the duties if he or she is unable to perform these duties due to his or her illness or the illness of his or her close relatives, the deterioration of his or her financial situation or other important reasons.
2. The guardian or curator who is negligent in his or her duties, fails to ensure the protection of the rights and interests of the ward, uses his or her rights for personal gain may be removed from the duties of the guardian or curator. Where the actions of the guardian or curator have caused damage to the person legally incapable in a certain area or the person with limited legal capacity in a certain area, the guardian or curator must compensate for the damage.
3. The guardian or curator may be relieved of or removed from the duties by a court order, except in cases where the child has been placed under temporary guardianship or curatorship. In these cases, the guardian or curator may be relieved of or removed from the duties by decision of the director of a municipal administration upon the recommendation of the institution for the protection of the child’s rights.
4. The guardian or curator as well as institutions of guardianship and curatorship shall have the right to apply to the court for relief from the duties of the guardian or curator. The person legally incapable in a certain area or the person with limited legal capacity in a certain area as well as institutions of guardianship and curatorship or a public prosecutor shall have the right to apply to the court for removal from the duties of the guardian or curator; in the case of removal from the duties of a child’s guardian, the right to apply to the court shall have institutions of guardianship and curatorship or a public prosecutor; and in the case of removal from the duties of a child’s curator, the right to apply to the court shall have institutions of guardianship and curatorship or a public prosecutor, or the person under curatorship.
Article 3.247. End of guardianship and curatorship
1. Guardianship and curatorship shall end when the court judgment declaring the person legally capable or lifting the limitation of his capacity becomes final.
2. When a minor attains the age of fourteen, his or her guardianship shall come to an end, while the guardian of the minor becomes a curator without any additional judgement of the court.
Article 3.248. Purpose and objectives of guardianship/curatorship of a child
1. The purpose of guardianship/curatorship of a child shall be to ensure the child’s upbringing and care in an environment which would facilitate the child’s growing up, development and progress.
2. The objectives of guardianship/curatorship of a child shall be as follows:
1) to appoint a guardian/curator for the child whose duty it would be to care for, bring up and represent the child and protect the child’s rights and legitimate interests;
2) to provide the child with living conditions which would be adequate for his age, state of health and development level;
Article 3.249. Principles of establishing guardianship/curatorship of a child
1. The establishment of guardianship/curatorship of a child shall be governed by the following principles:
2) priority in becoming guardians/curators of the child must be accorded to the child’s relatives and other persons with an emotional connection to the child, provided this is in the child’s best interests;
Article 3.250. Determination of children in need of guardianship/curatorship
1. Employees of educational, health care, social, police and other institutions as well as any person in possession of any knowledge of minors deprived of parental care or of the necessity to protect a minor’s rights and interests (abuse of parental authority, violence against a child, illness, death, departure or disappearance of the parents, refusal of the parents to take back their children from educational or health care institutions, etc.) must notify immediately the state institution for the protection of the child’s rights of the child’s district of residence or their own district of residence.
2. Having received the information on possible violations of the child’s rights, the state institution for the protection of the child’s rights shall assess the validity of such information and take the measures specified in the Law of the Republic of Lithuania on Fundamentals of Protection of the Rights of the Child.
3. The state institution for the protection of the child’s rights shall be responsible for the determination of children in need of guardianship/curatorship and keeping records of such children. Having determined a child in need of guardianship/curatorship on the grounds referred to in points 2 or 3 of Article 3.254 of this Code, this institution must, within three working days from the date of obtaining leave of the court to take the child away from his or her statutory representatives, while having determined a child in need of guardianship/curatorship on the grounds referred to in points 1, 4 or 5 of Article 3.254 of this Code, within three working days from the date of determining the child in need of guardianship/curatorship, submit to the municipal administration an instruction to place the child under temporary guardianship/curatorship and appoint a temporary guardian/curator.
The state institution for the protection of the child’s rights shall, within one working day from the date of the application for leave of the court to take the child away from his or her statutory representatives, inform the municipal administration about the application to the court.
4. The state institution for the protection of the child’s rights shall be a statutory representative of the child deprived of parental care until such time as a guardian or curator is appointed for the child.
5. The heads and other officials of the institutions referred to in paragraph 1 of this Article shall be held liable under law for any misrepresentations, concealment of a child in need of guardianship/curatorship, creating obstacles for the establishment of guardianship/curatorship or any other violations of the rights and interests of the child.
Article 3.251. Establishment of guardianship and curatorship
Article 3.252. Types and forms of guardianship/curatorship of a child
1. The types of guardianship/curatorship of a child shall be as follows:
2. The forms of guardianship/curatorship of a child shall be as follows:
Article 3.253. Temporary guardianship/curatorship of a child
1. Temporary guardianship/curatorship of a child shall mean care for and upbringing of a child temporarily deprived of parental care, also representation and protection of the child’s rights and legitimate interests in the family, social family, guardianship organisation centre or child guardianship/curatorship institution. The purpose of temporary guardianship/curatorship of the child shall be to return the child to the family.
2. Temporary guardianship/curatorship of a child shall last for a maximum of 12 months. Having established that the parents (father or mother), who are provided with social services and other comprehensive assistance, are making efforts to change their conduct or there are other reasons allowing to reasonably assume that there is a real possibility of returning the child to the family, the state institution for the protection of the child’s rights may take a decision to extend temporary guardianship/curatorship, but not longer than for six months. The total duration of temporary guardianship/curatorship with an extension may not exceed eighteen months.
Article 3.254. Fundamentals of placing a child under temporary guardianship/curatorship
A child shall be placed under temporary guardianship/curatorship if the child’s:
1) parents or single parent are missing and attempts are made to trace them (pending the court judgment declaring them missing or dead);
2) parents or single parent are temporarily incapable of taking care of the child because of both parents’ or one of the parents’ illness, arrest, enforced sentence, or due to other compelling reasons;
3) parents or single parent do not take care of the child, neglect him or her, do not bring him or her up properly, use violence or abuse their parental authority thereby endangering the child’s physical, mental, spiritual or moral development and safety;
Article 3.2541. Taking a child away from his or her statutory representatives
1. Where the grounds set out in Article 3.254 of this Code are established, the state institution for the protection of the child’s rights may take a child away from his or her statutory representatives in accordance with the procedure laid down in the Law on Fundamentals of Protection of the Rights of the Child.
2. Having taken a child away in the case referred to in paragraph 1 of this Article, the state institution for the protection of the child’s rights must, within three working days or, in exceptional cases where it is objectively not possible to do so, within five working days, apply to the court for leave to take the child away from his or her statutory representatives. An application for leave to take the child from his or her statutory representatives shall be examined in accordance with the procedure laid down in Chapter XXXIX of the Code of Civil Procedure.
Article 3.255. End of temporary guardianship/curatorship of a child
Temporary guardianship/curatorship of a child shall end when the child:
Article 3.256. Permanent guardianship/curatorship of a child
Permanent guardianship/curatorship shall be established for children deprived of parental care who, under the existing conditions, are unable to return into their family, and whose care, upbringing, representation and protection of rights and legitimate interests are entrusted to another family, social family, guardianship organisation centre or guardianship/curatorship institution.
Article 3.257. Fundamentals of placing a child under permanent guardianship/curatorship
A child shall be placed under permanent guardianship/curatorship when:
2) both parents or the single parent of the child have been declared missing or dead by a court judgment;
3) the child has been separated from the parents in accordance with the procedure established by law;
4) the paternity or consanguinity has not been established within three months of the date on which the child was found;
5) both parents or the single parent of the child are declared legally incapable in this area in accordance with the procedure established by law;
Article 3.258. End of permanent guardianship/curatorship of a child
Permanent guardianship/curatorship of a child shall end when the child:
Article 3.259. Guardianship/curatorship of a child in a family
1. Guardianship/curatorship of a child in a family shall involve no more than three children placed under guardianship in the environment of a natural family (the total number of children in the family including the parents’ natural children may not exceed six).
2. The total number of children may exceed the number specified in paragraph 1 of this Article where that is due to keeping siblings together.
3. When appointing a guardian of the child, priority shall be given to the child’s relatives provided they have adequate living conditions and do not belong to the persons or the group of persons listed in Article 3.269 of this Code.
4. Where a child is placed under guardianship/curatorship in a family, one person or spouses may be appointed as guardians/curators.
Article 3.260. Guardianship/curatorship of a child in a social family
1. Guardianship/curatorship of a child in a social family shall be the form of guardianship where a legal person (social family) has under its guardianship or curatorship four or more children in a family environment (the total number of children in a social family including the parents’ natural children may not exceed eight).
2. The total number of children may exceed the number specified in paragraph 1 of this Article where that is due to keeping siblings together, or the total number of children may be less where one of the children under guardianship or curatorship is disabled.
3. Guardianship/curatorship of a child in a social family shall be established by laws, the Social Family Regulations approved by the Government and other legal acts.
Article 3.261. Institutional guardianship/curatorship of a child
1. A child deprived of parental care shall be placed under institutional guardianship only in exceptional cases, where there is no possibility of placing the child under guardianship/curatorship in a family, guardianship organisation centre or social family.
2. A child under three years of age may be placed under institutional guardianship in accordance with the procedure established by law only in exceptional cases, with the approval of the state institution for the protection of the child’s rights. The state institution for the protection of the child’s rights shall approve the institutional guardianship of a child under three years of age only in exceptional cases upon establishing at least one of the following reasons:
1) the child requires specialised services of health care and/or nursing, which cannot be ensured by placing the child under guardianship in a family, guardianship organisation centre or social family;
3) the child is placed under guardianship due to urgent removal of the child from his or her statutory representatives and there is no possibility to place the child under guardianship in a family, guardianship organisation centre or social family;
3. A child under three years of age may be placed under institutional guardianship on the grounds specified in point 3 of paragraph 2 of this Article for no longer than three months. A child under three years of age may be placed under institutional guardianship on the grounds specified in point 4 of paragraph 2 of this Article for as long as the guardianship/curatorship of his or her minor parents is ongoing. When the circumstances referred to in points 1 and/or 2 of paragraph 2 of this Article disappear, the institutional guardianship of a child under three years of age may last for no longer than three months from the disappearance of these circumstances.
Article 3.262. Placing a child under temporary guardianship/curatorship
A child shall be placed under temporary guardianship/curatorship by a decision of the director of the municipal administration within three working days from the date of registration at the municipal administration of the instruction of the state institution for the protection of the child’s rights specified in paragraph 3 of Article 3.250 of this Code.
Article 3.263. Placing a child under permanent guardianship/curatorship
A child shall be placed under permanent guardianship/curatorship by a court order on the application filed by the state institution for the protection of the child’s rights or a public prosecutor.
Article 3.264. Appointing a guardian/curator for a child
1. Where a child is placed under temporary guardianship/curatorship, the child’s guardian/curator shall be appointed by a decision of the director of the municipal administration. Where no specific person is designated in the instruction of the state institution for the protection of the child’s rights to place the child under temporary guardianship/curatorship and to appoint a temporary guardian/curator, the recommendation on the appointment of a guardian/curator shall be made to the director of the municipal administration by the guardianship organisation centre.
2. The decision of the director of the municipal administration on the appointment of the child’s guardian/curator shall specify the name of the institution which has adopted the decision, the date of adoption of the decision, the type of guardianship/curatorship the child is placed under, the guardian/curator of the child, the standby guardian of the child when the child is placed under guardianship in a guardianship organisation centre, the child placed under guardianship/curatorship, the place of guardianship/curatorship, the institution responsible for the protection of assets owned by the child placed under guardianship/curatorship, other important circumstances which affect the guardianship/curatorship of the child and the establishment thereof. Where it is necessary to ensure the best interests of the child when he or she is placed under temporary guardianship/curatorship, the personal data of the natural person appointed as a guardian, curator or standby guardian shall not be disclosed at that person’s written request and/or by a decision of a legal entity placing the child under temporary guardianship/curatorship to the parents (father or mother) of the child deprived of parental care. In such cases, the guardian/curator shall perform the duties specified in Articles 3.271(1)(5) and 3.271(1)(6) of this Code through the mediation of the state institution for the protection of the child’s rights.
3. Where a child is placed under permanent guardianship/curatorship, the guardian/curator of the child shall be appointed by a court order on the application of the state institution for the protection of the child’s rights.
4. The guardianship/curatorship of the child shall be established taking into consideration the wish of the child’s dead parents/adoptive parents expressed in their will regarding the appointment of the child’s guardian/curator provided it is in conformity with Article 3.269 of this Code.
5. When placing a child under guardianship/curatorship, priority shall be determined in the light of the child’s interests in the following order:
3) families that have the child’s sibling placed under their guardianship/curatorship or have adopted the child’s sibling;
Article 3.265. Place of guardianship/curatorship of a child
The place of guardianship/curatorship of a child may be:
Article 3.266. Organising guardianship/curatorship of a child
1. Guardianship/curatorship of a child shall be organised by the state institution for the protection of the child’s rights and municipal administrations within the remit established by this Code and the laws.
2. When organising guardianship/curatorship of a child, a municipal administration and the state institution for the protection of the child’s rights shall cooperate among themselves and with a guardianship organisation centre, as well as other institutions of the same municipality and non-governmental and other organisations involved in the protection of the child’s rights.
3. In accordance with the procedure laid down by the Government, municipal administrations shall cooperate among themselves, exchange information on children under institutional guardianship, who have been placed under guardianship/curatorship by the decision of the director of the municipal administration, inform each other of persons who have expressed their wish to become a guardian/curator of a child or children, and provide information about the children who are placed under guardianship/curatorship in their municipality as well as other municipalities to persons who have expressed their wish to become a guardian/curator.
Article 3.267. Supervision of guardianship/curatorship of a child
1. The guardianship/curatorship of a child in a family, social family, guardianship organisation centre or child guardianship institution shall be supervised by the state institution for the protection of the child’s rights.
2. In supervising guardianship/curatorship of a child, the state institution for the protection of the child’s rights shall cooperate with a municipal administration, guardianship organisation centre, other state and municipal institutions and agencies, and non-governmental organisations working in the area of protection of the child’s rights.
Article 3.268. Procedure for selecting a guardian/curator for a child
1. A child’s guardian/curator shall be selected by taking into consideration his or her personal qualities, state of health, abilities to function as a guardian/curator, relations with the child deprived of parental care, and the interests of the child.
2. The prospective guardian/curator of the child shall file the following documents with the state institution for the protection of the child’s rights:
1) an application specifying the number of children he or she wishes to assume the guardianship and upbringing of, their age and the type of guardianship;
2) a health certificate, in the form prescribed by the institution authorised by the Government, for himself or herself and persons over sixteen years of age living together with him or her;
3. In order to protect the best interests of the child, the state institution for the protection of the child’s rights must assess whether the prospective guardian/curator of the child meets the requirements laid down in Article 3.269 of this Code, whether his or her spouse or cohabitee meets the requirements laid down in points 2, 4, 5, 6, 8, 9 and 10 of Article 3.269 of this Code, and whether the other persons over sixteen years of age living together with him or her meet the requirements laid down in points 4, 5, 6, 8 and 9 of Article 3.269 of this Code.
Article 3.269. Persons who may be appointed guardian/curator of a child
The following persons may be appointed guardian/curator of a child:
1) a person who is at least twenty-one years of age unless it is a close relative who wishes to assume the guardianship of the child;
2) a person who has not been declared legally incapable in this area or of limited legal capacity in this area;
5) a person whose authority as the child’s guardian/curator has not been terminated on the grounds provided for in Article 3.246(2) of this Code;
6) a person who has not been convicted of a premeditated crime against humanity, human life, liberty, freedom of sexual self-determination and sexual inviolability, child and family, public security, morals, a crime endangering human life and health, serious impairment to health, and a crime related to possession of narcotic or psychotropic, toxic or highly active substances, irrespective of whether the conviction has expired or has been expunged in accordance with the procedure laid down by the laws. The right of a person who has been convicted of other criminal acts or who has been subject to administrative penalties and/or administrative sanctions to be a guardian/curator of a child shall be determined by having assessed the nature and gravity of the committed criminal act(s) and administrative offence(s) and having taken account of the child’s interests;
7) a person who is under sixty-five years of age, except for a close relative if he or she wishes to assume temporary guardianship of a child under ten years of age;
8) a person with no mental and behavioural disorders or other diseases, the list whereof is approved by the Government or an institution authorised by it;
9) a person where the contract for cooperation and provision of services concluded between him or her and a guardianship organisation centre has not been terminated due to improper execution;
10) a person who is adequately prepared for the guardianship/curatorship of the child in accordance with the procedure laid down in the Regulations for the Organisation of Child Guardianship, as approved by the Government;
11) a person whose spouse or cohabitee meets the requirements laid down in points 2, 4, 5, 6, 8, 9 and 10 of this Article, and the other persons over sixteen years of age living together with him or her meet the requirements laid down in points 4, 5, 6, 8 and 9 of this Article. The state institution for the protection of the child’s rights shall decide on the appointment as a child’s guardian/curator of a person whose spouse or cohabitee, or other persons over sixteen years of age living together with him or her do not meet the requirement laid down in point 8 of this Article, having assessed the nature and seriousness of the disorder(s) of these persons and having taken account of the child’s interests.
Article 3.270. Preparation for guardianship/curatorship of a child
The preparation of a child’s guardian/curator for guardianship/curatorship shall be organised by municipal administrations, guardianship organisation centres and other organisations and agencies with relevant work experience.
Article 3.271. Duties of a child’s guardian/curator
1. A child’s guardian/curator must:
4) decide issues relating to the child’s interests in cooperation with a municipal administration, a guardianship organisation centre, the state institution for the protection of the child’s rights, and other state and municipal institutions concerned;
5) create no obstacles for the child’s contact with his or her parents provided this is not detrimental to the child’s interests;
6) maintain contact with the child’s parents, inform the child’s parents and close relatives, if they so request, about the child’s development, health, education and other important issues;
7) organise the child’s leisure activities, taking into account the child’s age, health, development level and inclinations;
Article 3.272. Rights of a child’s guardian/curator
1. A child’s guardian/curator shall be the child’s statutory representative and shall defend the child’s rights and legitimate interests.
Article 3.273. Liability of a child’s guardian/curator
Article 3.274. Maintenance of a child under guardianship/curatorship
Maintenance of a child under guardianship/curatorship in a family, social family, guardianship organisation centre and child guardianship/curatorship institution shall be regulated by law.
Article 3.275. Disposal of the income of the child under guardianship/curatorship
Funds intended for the maintenance of the child under guardianship/curatorship shall be disposed of by the child’s guardian/curator exclusively in the interests of the child in accordance with the rules of Book Four of this Code governing the administration of assets.
Article 3.276. Relations between the child and the child’s guardian/curator in property
1. The child under guardianship/curatorship shall acquire no property rights to the assets of his or her guardian/curator.
Article 3.2761. Record keeping of child guardianship/curatorship
Child guardianship/curatorship records shall be kept centrally in accordance with the procedure laid down by the Government or an institution authorised by it. The centralised record keeping of child guardianship/curatorship shall include data on children placed under guardianship/curatorship, guardians/curators, guardians/curators who have been removed from their duties as guardians/curators, persons with whom a contract for mutual cooperation and provision of services has been terminated due to improper execution, and persons ready for guardianship/curatorship of a child.
Article 3.277. Placing under guardianship or curatorship
1. An adult person declared legally incapable in a certain area by the court shall be placed under guardianship by a court judgment.
Article 3.278. Monitoring of activities of the guardian or curator
1. Guardianship and curatorship institutions must monitor whether the guardian/curator fulfils his or her duties properly.
Article 3.279. Curatorship of a person with full legal capacity
1. At the request of a natural person with full legal capacity incapable of exercising his or her rights or of performing his or her duties due to health reasons may be placed under curatorship.
2. The curator of a person with full legal capacity shall be appointed by a court order at the request of the person with full legal capacity or on the application of a guardianship/curatorship institution.
3. A curator may be appointed only with his or her written consent. The person with full legal capacity and the curator shall conclude an agency agreement or an agreement on the management of assets in trust setting forth the rights and duties of the curator related to the management, use and disposal of the assets of the person with full legal capacity.
4. Curatorship shall be cancelled by a court order at the request of the person with full legal capacity.
Article 3.2791. Assistance in making decisions
1. A full-age natural person with full legal capacity may enter into a written contract with a full-age natural person with full legal capacity whom he or she trusts for assistance in making decisions in certain areas of life. A contract for assistance in making decisions may be concluded where a person has difficulties in taking decisions which are best suited to his or her interests due to a mental and behavioural disorder or other circumstances (age, illness, etc.). A contract for assistance in making decisions in the areas where he or she is legally capable may also be concluded by a natural person who is legally incapable in a certain area or of limited legal capacity in a certain area.
2. Contracts for assistance in making decisions shall be concluded in the notarial form. Contracts for assistance in making decisions or amendments thereto shall be registered in the Register of Legally Incapable Persons and Persons with Limited Legal Capacity. A notary public or consular officer who has approved the contract for assistance in making decisions or amendments thereto shall provide the Register of Legally Incapable Persons and Persons with Limited Legal Capacity with the data necessary for registering the contract or amendments thereto in accordance with the procedure laid down in the Register of Legally Incapable Persons and Persons with Limited Legal Capacity. A contract for assistance in making decisions may be used against third parties and give rise to legal consequences against them only where it is registered in the Register of Legally Incapable Persons and Persons with Limited Legal Capacity.
3. The person providing assistance must avoid any conflict of interest between himself and the person to whom assistance is provided. Where the provision of assistance gives rise to a conflict of interest, the provisions of Article 2.135 of this Code shall apply mutatis mutandis.
Article 3.2792. Legal effect of decisions taken with assistance
1. Decisions of a person who has concluded a contract for assistance in making decisions shall be his or her personal decisions.
Article 3.2793. Termination of provision of assistance in making decisions
1. Any party to a contract for assistance in making decisions may file an application for termination of the contract with a notary public or consular officer. An application for termination of a contract for assistance in making decisions shall be approved by a notary public or consular officer. A notary public or consular officer who has approved the application for termination of a contract for assistance in making decisions shall provide the Register of Legally Incapable Persons and Persons with Limited Legal Capacity with the data necessary for the registration of termination of the contract in accordance with the procedure laid down in the Register of Legally Incapable Persons and Persons with Limited Legal Capacity.
2. Termination of a contract for assistance in making decisions may be used against third parties and give rise to legal consequences against them only where it is registered in the Register of Legally Incapable Persons and Persons with Limited Legal Capacity.
PART 8 No longer effective from 1 January 2017.
Article 4.1. Definition of things
Objects of the material world either obtained from nature or manufactured shall be considered things.
Article 4.2. Movable and immovable things
1. Things immovable by nature and things movable by nature but considered immovable by law shall be deemed immovable things.
2. A parcel of land and things related thereto which cannot be moved from one place to another without altering their essence and without significantly reducing their value shall be considered things immovable by nature.
3. Things that can be moved from one place to another without altering their essence and without significantly reducing their value shall be considered things movable by nature.
4. A movable thing which has been incorporated into an immovable thing and which has lost its individual characteristics shall be deemed a part of an immovable thing.
5. A movable thing that is physically fastened or otherwise attached to an immovable thing, also making a part thereof, but without losing its individual characteristics, shall not be considered a part of an immovable thing.
6. Consistent parts of an immovable thing separated therefrom temporarily shall maintain their properties of an immovable thing if these parts are to be restored thereto.
Article 4.3. Fungible and non-fungible things
1. Things for which only the properties of a kind are taken into consideration and which do not possess individual characteristics shall be deemed fungible things.
Article 4.4. Things with individual characteristics and things with properties of a kind
1. Things shall be deemed to have individual characteristics when they are, in one way or another, distinguishable from other things of the same kind by some characteristics.
Article 4.5. Consumable and non-consumable things
1. Things shall be deemed consumable when they are immediately destroyed or lost or when they undergo an essential change once used for their intended purpose.
Article 4.6. Divisible and indivisible things
1. Things shall be deemed divisible when they may be divided physically without changing their intended purpose and when each part thereof may be used as a self-contained unit.
2. Things that change their intended purpose once divided physically as well as things divisible by nature but considered indivisible by law shall be deemed indivisible things.
Article 4.7. Things taken out of circulation, things in limited circulation and things remaining in circulation
1. Each person may own any things provided these are not taken out of circulation or are not in limited circulation.
Article 4.8. Household things
All movable things, furniture and decorative items used in household activities, with the exception of book collections (libraries), collections of art works and other valuable collections, as well as items of scientific or historical value, shall be considered household things.
Article 4.9. Encumbrances of real rights
2. Encumbrances of real rights shall pass on to the new owner together with the thing. Where the encumbrances of real rights have to be registered, only the registered encumbrances shall be passed on to the new owner together with the thing. In cases established by law or by mutual consent of the persons involved, encumbrances of real rights together with the thing may be transferred to another person.
Article 4.10. Expenses of a thing
2. The expenses that are necessary for the security of the thing or protection of the thing from destruction or marked deterioration shall be considered common expenses.
Article 4.11. Things by value
1. In terms of their value, things shall fall into those of common value, those of special value, and those that have a value based on personal considerations.
3. The special value of a thing shall depend on the benefit that a person obtains from possessing, using or disposing of the thing.
Article 4.12. Principal things
Things that may be independent objects of legal relationships shall be considered principal things.
Article 4.13. Auxiliary things
1. Things that exist only in conjunction with principal things or that belong to principal things or that are otherwise related thereto shall be considered auxiliary things.
Article 4.14. Treatment of auxiliary things
1. Auxiliary things shall be treated in the same way as principal things unless otherwise provided by law or a contract.
Article 4.15. Essential parts of a principal thing
Things that are inseparably connected to and incorporated into the principal thing in a way that without them the principal thing could not be used for its intended purpose or would be recognised as incomplete shall be considered the essential parts of a principal thing.
Article 4.16. Fruit
Things which are bound to separate, which separate or which are separated from the principal thing, without damaging the integrity and purpose of the principal thing as the latter matures organically, shall be considered fruit.
Article 4.17. Output
Things that are produced as a result of work using principal things in the manufacturing process shall be considered output.
Article 4.18. Income
1. Money and other material goods which are obtained by using the principal thing in civilian circulation shall constitute income obtained from a thing.
Article 4.19. Appurtenances
1. Independent auxiliary things which are meant for serving the principal thing and which are permanently linked to the principal thing by their qualities shall be considered appurtenances.
Article 4.20. Definition of real rights
An absolute right that manifests itself by the possibility of the right holder to implement the rights of possessing, using and disposing of the thing or only some of these rights shall be considered a real right.
Article 4.21. Legal regime of real rights
Real rights in immovable things shall be subject to the legal regime established for immovable things, and real rights in movable things shall be subject to the legal regime established for movable things unless otherwise stipulated by law.
Article 4.22. Possession
1. Possession as an independent real right to things, which is the basis for acquiring the right of ownership by acquisitive prescription, shall be the actual holding of a thing with a purpose to have it as one’s own.
Article 4.23. Legal and illegal possession
2. Possession of a thing shall be considered legal when the thing is acquired on the same basis as the right of ownership. Possession shall be considered legal until the opposite is proven.
Article 4.24. Object of possession
Any thing that may be the object of the right of ownership may be the object of possession.
Article 4.25. Acquisition of possession
1. Possession may be acquired by taking over a thing, or by transferring or inheriting the right of possession.
2. Possession shall be acquired by taking over a thing physically, when the person who has taken over the thing may affect it as he wishes. The person who is taking over the thing must also express one’s will to have the thing as one’s own.
Article 4.26. Acquisition of possession in good faith and in bad faith
3. Possession shall be deemed to have been acquired in good faith when the person who takes possession of a thing is convinced that no one has more rights to the thing that he is taking over than himself.
Article 4.27. Acquisition of possession of an immovable thing
1. Possession of an immovable thing may be acquired not only by taking over the thing physically, but also when the person relinquishing the immovable thing indicates that the thing has been relinquished, provided there are no impediments to accessing the thing or taking it over physically in some other way.
2. Possession of an immovable thing shall be acquired as of the moment of the registration of possession in the public register.
Article 4.28. Acquisition of possession of a movable thing
Possession of a movable thing shall be acquired:
1) when the person wishing to acquire the possession of a movable thing takes the thing into his hands;
2) when the person wishing to acquire the possession of a movable thing has started the safekeeping of the thing or the safekeeping is being carried out upon his instruction;
3) when, upon the instruction of the person wishing to acquire the possession of a thing, the latter is given to a person nominated by him;
4) when a thing is placed in the premises owned by the person wishing to acquire the possession of the thing;
5) when the person wishing to acquire the possession of a thing is given the keys to the premises containing the thing;
Article 4.29. Acquisition of possession through another person
If a person relinquishing the possession of a thing through another person had the intention to relinquish the thing to a specific person, the latter shall acquire the possession of the thing so relinquished even if the person through whom the thing is relinquished would like to acquire the thing for himself or for yet another person.
Article 4.30. Actual possession through another person
The possessor may possess a thing through another person, who must follow the instructions of the possessor.
Article 4.31. Termination of possession
1. Possession shall be terminated when the possessor relinquishes his rights of possession to the thing, i.e. when he relinquishes the actual possession of a thing or keeping it as his own, and in other cases provided by law.
Article 4.32. Termination of possession of a movable thing
Possession of a movable thing shall terminate upon the possessor’s loss of the ability to affect the thing as he wishes when:
1) another person takes over the possession of the thing, including the takeover of the thing in a clandestine manner or by force;
Article 4.33. Termination of possession of an immovable thing
1. Possession of an immovable thing shall terminate when the possessor not only loses the ability to affect the thing as he wishes but also undertakes no means to restore such ability.
2. Possession of an immovable thing shall terminate when the efforts of the possessor to restore the effect upon the thing have been unsuccessful.
Article 4.34. Defence of possession
1. Each possessor shall be entitled to protect his current possession and to retake the possession that has been taken away forcefully.
2. The possessor may demand in court the recovery of losses incurred not only as a result of protection of possession but also due to violation of possession.
3. A possessor in good faith must be compensated for the expenses incurred due to the holding of possession, with the exception of cases where such expenses are indemnified by the income received from the possession of the thing. A possessor in good faith shall also have the right to keep the parts that have been added to the thing to improve it, provided that this does not cause damage to the thing. If these parts cannot be separated from the thing, the possessor in good faith shall have the right to demand compensation for the expenses incurred due to the improvement of the thing, but not in excess of the increase in the value of the thing.
Article 4.35. Violation of possession
1. Possession may be violated by taking or attempting at taking the thing or a part thereof, as well as the rights thereto, or by impeding the possession of the thing. Violation of possession may be expressed by threats that cause real danger to the possession.
2. Actions coinciding formally with the description referred to in paragraph 1 of this Article shall not be considered violations of possession provided the person indicated as the violator of possession proves that the possession by the plaintiff has originated from him illegally.
Article 4.36. Disputes regarding possession
1. In the event of a dispute regarding possession where two or more persons claim to be the possessors of the same thing and where they furnish facts proving that their possession continues, the possession by the person who proves that he is the legitimate possessor of the thing must be defended.
Article 4.37. Definition of the right of ownership
1. The right of ownership shall mean the right to possess, use and dispose of, at one’s own discretion, an object of the right of ownership, without violating the laws and the rights and interests of other persons.
Article 4.38. Object of the right of ownership
The object of the right of ownership may be things and other property.
Article 4.39. Limitation of the right of ownership
Article 4.40. Content of the rights of owners of a land parcel
1. The owner of a land parcel shall have in his ownership the topsoil of the land parcel, the construction works constructed thereon and their appurtenances, as well as other immovable things unless the law or the contract provide otherwise.
2. The owner of a land parcel shall enjoy the rights of ownership to the space above his land parcel in as much as they do not contradict the laws and to the extent necessary for the intended use of the land parcel.
Article 4.41. Content of the rights of owners of animals
In exercising his right of ownership, the owner of animals must abide by the laws governing the protection and keeping of animals, and other requirements stipulated by laws.
Article 4.42. Right to parts of trees, bushes and other vegetation of neighbouring parcels and their fruit
1. The owner of a land parcel shall have the right to cut off and take the roots and branches of trees, bushes and other vegetation growing in a neighbouring parcel that extend on to his parcel, when he has requested in advance the owner of the neighbouring parcel that such removal should be carried out, establishing the time limit for their removal and seeing the failure to remove them within the time limit established.
2. This right shall not pertain to the owner of a land parcel if the roots and branches of trees, bushes and other vegetation growing in a neighbouring parcel that extend on to his parcel do not impede the cultivation of the land parcel.
3. In all cases, the owner of a land parcel shall acquire the right of ownership to the fruit received from the branches of trees and bushes growing on the neighbouring parcel that extend on to his parcel, and to the fruit obtained from the stalks, twigs and roots of other plants growing on a neighbouring parcel that extend on to his parcel.
Article 4.43. Temporary use of another’s land parcel for transport
1. The owner of a land parcel that has lost access to a public road, necessary for the intended use of his land parcel, may require the owners or users of neighbouring parcels to allow him to use their parcels for transport purposes until such time as the obstacle that has interrupted access is removed. Disputes regarding the direction of the temporary road and the right to use it, if necessary, shall be decided in court.
Article 4.44. Impossibility of temporary use of another’s land parcel for transport
The owner of a land parcel which has lost access to a public road, necessary for the intended use of the parcel, may not require his neighbours to allow him to use their parcels for transport purposes if his own intentional acts have interrupted access from his parcel to the public road.
Article 4.45. Delimitation of a land parcel
1. Where the owners of land parcels fail to agree on the disputed limits of their parcels and the limits are not clear from the existing documents, the parcels shall be delimited by the court on the basis of pertinent documents, the limits of the actual parcels, and other evidence. If it is not possible to establish the limits, each parcel must be given an equal part of the plot under dispute, but none of the parcels thus formed can differ in size from the existing legally established parcel.
Article 4.46. Right to immovable things marking the limits of a land parcel
1. Owners whose parcels are separated by a fence, trees, bushes, a wall or other immovable things that serve both parcels and mark the limits of these parcels shall have the right to jointly use these objects if it cannot be established that these objects belong to one specific owner.
2. The owner that jointly uses immovable things marking the limits of his land parcel shall have the right to use them for their intended purpose in so far as this does not interfere with the owner of the neighbouring parcel. Expenses related to the maintenance and protection of such objects shall be paid in equal parts by the owners of the neighbouring parcels unless agreed otherwise.
3. The owner of one parcel cannot remove or alter the jointly used immovable things marking the limits of the land parcels without the consent of the other owner.
Article 4.47. Provisions regarding the acquisition of the right of ownership
The right of ownership may be acquired in the following ways:
9) by expropriating, upon compensation and on grounds of public interest, inappropriately kept cultural goods and other things (property);
10) by confiscating or otherwise alienating things (property) as a retribution for the violation of laws;
Article 4.48. Acquisition of the right of ownership by transfer
1. The right of ownership may be transferred to another person only by the owner of a thing or by a person given such powers by the owner.
Article 4.49. Moment from which the acquirer of the thing by contract acquires the right of ownership
1. The acquirer of a thing (property) shall acquire the right of ownership to the thing (property) as of the moment these are transferred to him, provided the laws or the contract do not stipulate otherwise.
2. The right of ownership to an immovable thing by contract shall be acquired as of the moment established by law.
3. The contract may stipulate that the right of ownership shall pass to the acquirer only after the latter has satisfied a condition established in the contract.
Article 4.50. Transfer of a thing to the acquirer
1. The transfer of a thing shall give the acquirer the opportunity to use the thing transferred for its intended purpose, with due regard to the condition of the thing and to its legal status.
2. The transfer shall be considered the passing into ownership of a thing to the acquirer, as well as the passing over of a thing, given without the obligation to deliver it to the destination, to a transport company for delivery to the acquirer and the delivery by post to the acquirer unless the laws or the contract stipulate otherwise.
Article 4.51. Acquisition of things having a special import
Things having a special import to the economy, the public or the national security of the Republic of Lithuania, or things having a special import for other reasons (weapons, heavily poisonous substances, etc.) may be acquired only under special permits. Such things and the procedure for obtaining permits necessary to acquire them shall be laid down by law.
Article 4.52. Risk of accidental perishment or damage of a transferred thing
1. The risk of accidental perishment or damage of a thing being transferred shall pass to the acquirer at the moment when he acquires the ownership rights unless the laws or the contract stipulate otherwise.
2. If the transferor misses the time limit for transferring the thing or the acquirer misses the time limit for receiving the thing, the risk of accidental perishment or damage of the thing shall be borne by the party that has missed the time limit unless the laws or the contract stipulate otherwise.
Article 4.53. Right of ownership to fruit and income
1. The fruit borne by a thing and increase in animal stock shall belong to their owner unless the laws or the contract establish otherwise.
Article 4.54. Things arising from the joining of movable things
1. Where movable things, which are the property of several owners, join to form a new thing and there is no possibility to return them to their original state by partitioning them, or the partitioning thereof is fraught with excessive costs, while the owners have not agreed specifically upon the joining of the things, the new movable property arising therefrom shall be considered joint property whose parts belong to each of the co-owners in proportion to the value of their property so joined.
Article 4.55. Making of a thing from another’s material
1. A person who has made a new thing from another’s material shall become its owner if the value of producing the thing is higher than the value of the material and if the person was not aware nor ought to have been aware that the material is under somebody else’s ownership. In this case, the person who has made use of another’s material must compensate the owner of the material for its value.
2. Where the value of the material is higher than the value of producing the thing, the owner of the material shall be the owner of the thing. He shall have the right either to keep the thing and recompense the value of its making, or to renounce the thing in favour of the maker and claim compensation from the latter.
Article 4.56. Making of a thing from own and another’s material
1. A person who has made a new thing from his own and another’s material shall become the owner of the thing if the value of producing the thing and the value of own material is higher than the value of another’s material and if the person was not aware nor ought to have been aware that the material is under somebody else’s ownership. In this case, the person who has made use of another’s material must compensate the owner of the material for its value.
2. If the value of another’s material is higher than the value of producing the thing and that of the own material, the owner of another’s material shall be considered the owner of the thing. He shall have the right either to keep the thing and recompense the value of its making and that of the material owned by the maker of the thing, or to renounce the thing in favour of the maker and claim compensation from the latter.
Article 4.57. Ownerless thing
1. A thing that does not have an owner or whose owner is unknown shall be considered an ownerless thing.
2. A thing acquired in good faith and legally possessed, even though the possessor has not yet acquired the right of ownership to the thing by acquisitive prescription, shall not be considered ownerless.
Article 4.58. Acquisition of the right of ownership to an ownerless thing
1. An ownerless thing may be transferred to the ownership of only the State or municipalities by a court judgment, adopted on the basis of an application by a state or municipal institution. The application shall be submitted after the lapse of one year from the day on which the thing was included in the register unless the laws provide otherwise.
2. The procedure for disclosure of and accounting for an ownerless thing shall be established by the Government.
3. Ownership of an ownerless thing may not be acquired if this is prohibited by law or if the appropriation of the thing violates another person’s right to appropriate the thing (right to a treasure trove, find, etc.).
Article 4.59. Wild animals
Wild animals living in the wild which have been caught or shot as provided by law shall become property of the person that caught or shot them unless the laws provide otherwise.
Article 4.60. Wild and domestic bees
1. A colony of wild bees shall be considered property of the person on whose land parcel it was caught.
2. The owner of bees shall have the right to pursue a swarm of bees, including the right to pursue it on another person’s land, provided he indemnifies the owner of the land plot for the damage caused by such pursuit.
3. The owner of a swarm of bees shall lose the ownership right thereto if he has not pursued the bees within 24 hours as of the moment the bees were adopted by another person or the bees have settled on another person’s land.
Article 4.61. Untended and stray domestic animals
1. A person that captures an untended or stray domestic animal must immediately inform thereof the owner of the animal and restitute such animal to him, or, if he does not know the owner of such animal or his address, inform the police or a municipal institution within three days of the capture of the animal.
2. The police or a municipal institution shall take measures to find the owner of the domestic animal and, in line with veterinary rules, during this period shall turn the animal over for keeping and using to its finder or shall turn it over for keeping and using to the nearest person engaged in agricultural activities and capable of duly tending to the animal when the finder of the domestic animal does not engage in agricultural activities or does not have adequate conditions for keeping the animal.
3. Where the owner of untended and stray working domestic animals (and their offspring) is found within one month and that of small domestic animals (and their offspring) within two weeks from the day they were turned over for keeping and using, such animals shall be returned to the owner. The owner must repay all the expenses of keeping the animal, including the profit borne by using it, to the person that has tended the animal in the meantime.
Article 4.62. Finds
2. A person who has found a find must restitute it to the owner, if known. Where such person is not known, the finder must report and submit the find to the police within a week of the act of finding if he is unable or unwilling to store the thing himself.
3. The finder or the police must store the find for six months. Using of the find during this period shall be prohibited. If during this time the owner of the thing is found, the thing shall be restored to the owner with prior compensation by the owner for the expenses of keeping the thing and other expenses related thereto. If the owner of the thing is not found within the specified period, the thing shall gratuitously become property of the finder, on condition that the finder agrees to cover the expenses of keeping the thing and other expenses related thereto when the find was stored elsewhere. If the finder does not agree to cover such expenses, the find shall gratuitously become property of the State, while the finder shall be recompensed for the expenses related to the find.
Article 4.63. Perishable ownerless goods and finds
1. Where ownerless goods and finds may perish or lose a part of their inherent qualities due to long storage, the police or a financial, supervisory or municipal institution must take measures to sell the things, when that is possible, while keeping the money received for the things for the person who has lost or has been otherwise deprived of the things. When the things cannot be sold, they shall be destroyed.
2. Where the owner of the things is found after the things have been sold, the owner shall receive the money obtained for the things, less the amount for storing, selling and notifying about the find.
3. Where the owner of a perishable ownerless thing is not found within the time limit established in paragraph 1 of Article 4.58 of this Code, the money received from selling such thing shall be transferred to the state budget in accordance with the procedure established by laws.
Article 4.64. Compensation for the find
1. The person who has found a thing and restored it to the owner or submitted it to the police in the manner established by law shall have the right to compensation from the owner of the lost thing for expenses related to the storage and handing over of the find and a pay for the find. The owner who has lost the thing must pay the finder a fee of five per cent of the value of the find if the owner has not promised publicly a higher recompense for the find or if he has not agreed upon a higher pay with the finder.
Article 4.65. Treasure trove
1. A treasure trove shall mean money or valuables dug in the ground or otherwise hidden, whose owner cannot be established, mostly because a considerable period of time has passed since the concealment.
2. A person who has found a treasure trove in his own land or in another thing owned by the person shall become the owner of the find.
3. It shall be prohibited to search for a treasure trove in another person’s land or property. A person who violates this provision shall not receive any part of the treasure trove found, and the entire treasure trove found shall become property of the person in whose land or other property the treasure trove was found.
4. The person who has found a treasure trove in another person’s land or other property, either accidentally or with the permission of the owner to look for a treasure trove, shall receive one-fourth of the treasure trove, while the remaining three-fourths shall be given to the owner of the land or other property where the treasure trove was found unless they have agreed otherwise. The agreement must be made in writing.
5. Where the digging of or search for valuables is part of the job description of the person who has found the treasure trove, such person shall not acquire the right of ownership to the treasure trove or a part thereof.
Article 4.66. Improper keeping of cultural heritage
1. Where a person keeps improperly the property which is of great historical, artistic or other value to the public, the public institution charged with the protection of such heritage shall give a warning to the owner about the improper keeping of such things. If the owner fails to fulfil this requirement, such property may be taken from him by a court judgment following a claim by a relevant institution. Such taken things shall become the property of the State. The person shall be recompensed for the value of the things taken, upon establishing such value by agreement between the former owner and the relevant institution, or, in case of a dispute, by court.
Article 4.67. Expropriation of a thing
The State may expropriate a thing from an owner for the benefit of the public good, with due recompense or without recompense as a sanction for violation of the law, only in cases and in accordance with the procedure established by law.
Article 4.68. Concept of acquisitive prescription
1. A natural or legal person who is not the owner of a thing, but has acquired the thing in good faith and has possessed it in good faith, legitimately, openly, and continuously as his own immovable thing for at least ten years or as his own movable thing for at least three years, where during the entire such period the owner of the thing had the legal possibility to exercise his rights to the thing but has not used them once, shall acquire the right of ownership to such thing.
Article 4.69. Things acquired by acquisitive prescription
1. Only the things that may be objects of private ownership may be acquired into ownership by acquisitive prescription.
2. Ownership by acquisitive prescription shall not apply to things obtained by force or in a clandestine manner, irrespective of whether the person who has obtained the thing by force or in a clandestine manner himself or somebody else seeks to acquire the right of ownership in this manner.
Article 4.70. Property acquired and possessed in good faith
1. A person acquiring ownership of a thing by acquisitive prescription must not only act in good faith, that is, when taking possession of the thing he must have been reasonably convinced that no one else has more rights to the thing than he has, but he must also remain a possessor in good faith during the entire period of acquisitive prescription, and even upon acquiring the thing into ownership by acquisitive prescription, he must not be aware of any impediments that hinder his acquisition of the said ownership, if such impediments exist.
2. The acquisition and possession in bad faith of a part of a thing or several parts thereof shall not prevent the possessor from acquiring into ownership by acquisitive prescription other parts of the thing acquired and possessed in good faith.
Article 4.71. Continuous possession
1. Possession of a thing shall be deemed continuous when a person has possessed the thing uninterruptedly from the moment of acquiring the right of possession to the moment of acquiring the right of ownership to the thing by acquisitive prescription.
2. If during the period of acquisitive prescription the possession of a thing passed on to several persons and the possession by each of these persons met the requirements indicated in Article 4.68 of this Code, the time of possession by these persons shall be calculated together.
3. Acquisitive prescription shall not be interrupted by the loss of possession of a thing without the volition of the possessor, provided the possession has been restored within a year.
Article 4.72. Concept of the right of co-ownership and its subjects
1. The right of co-ownership shall be the right of two or several owners to possess, use, and dispose of the object of the right of ownership held by them as common property.
Article 4.73. Kinds of the right of co-ownership
1. The right of partial co-ownership shall be the kind of ownership when shares of each co-owner are established in the co-ownership, while the right of joint co-ownership shall be the kind of ownership when such shares are not established.
Article 4.74. Object of the right of co-ownership
Any thing or other property may be the object of the right of co-ownership unless otherwise provided by laws.
Article 4.75. Exercise of the right of co-ownership
1. The object of the right of partial co-ownership shall be possessed, used and disposed of by agreement between the co-owners. In case of disputes, the order of possessing, using or disposing of the object thereof shall be established by court on the basis of a claim by either of the co-owners. Pending the resolution of the dispute, the court may appoint an administrator for the object of the dispute.
2. If the object of the right of partial co-ownership has been directly possessed, used and disposed of by not all of the co-owners, the other co-owners shall have the right to receive a respective report, either annually or immediately after they have ceased to directly possess, use and dispose of the object held in partial co-ownership.
Article 4.76. Rights and obligations of co-owners in possession and maintenance of property held in partial co-ownership
Each of the co-owners in proportion to their respective shares shall have the right to the profits obtained from a co-owned thing (property), shall be liable towards third persons in respect of the obligations pertaining to the co-owned thing (property), and must pay the expenses arising from its maintenance and preservation, as well as taxes, dues and other payments. If one of the co-owners fails to fulfil the obligation to maintain and take care of the thing (property), the other co-owners shall have the right to compensation for losses thus incurred.
Article 4.77. Change of rights of co-owners upon increasing property held in partial co-ownership
1. If a co-owner, with the consent of the other co-owners and in keeping with the rules established by law, increases the co-owned thing or the value thereof at his own expense, the share of such co-owner in the partial co-ownership and the order of use of such co-owned thing must, at his request, be changed respectively.
2. If a co-owner increases the co-owned thing or the value thereof without the consent of the other co-owners, he shall acquire the right of ownership to the increased part thereof, provided it can be partitioned without causing damage to the entire thing. If the increased part of the thing or of the value thereof cannot be partitioned without causing damage to the entire thing, the shares of all the co-owners shall increase in proportion to their shares of the co-owned property.
Article 4.78. Right of a co-owner to transfer or encumber the right to his share of the thing held in partial co-ownership
Each co-owner shall have the right to lease or otherwise assign, pledge or encumber in some other way all or a part of his share held in partial co-ownership or transfer the possession thereof to another person, with the exception where this Code stipulates otherwise.
Article 4.79. Priority right to buy shares held in co-ownership
1. Co-owners shall enjoy the priority right to buy the share of the co-owned property on sale at a price at which it is sold and under any other conditions of the sale, with the exception of cases where the sale takes the form of a public auction.
2. The seller of a share held in co-ownership must inform the other co-owners in writing about the intention to sell his share to persons other than the co-owners, indicating the price and other conditions of the sale. When a share of an immovable co-owned thing is sold, such information shall be communicated through a notary. When the other co-owners renounce their priority right to buy the share of a co-owned thing or fail to exercise such right to immovable things within one month and to other things within ten days from the day of receipt of the notification of the sale thereof, provided the co-owners have not agreed otherwise, the seller shall have the right to sell his share to any person.
3. If the share is sold in violation of the priority right to buy it, the other co-owner shall have the right, within three months, to demand through court the transfer of buyer’s rights and obligations to him.
Article 4.80. Partitioning of property held in partial co-ownership
1. Each co-owner shall have the right to demand that his share be partitioned from the property held in partial co-ownership.
2. In the event where no agreement is reached regarding the mode of partitioning, the thing shall be partitioned in kind without, as far as possible, disproportionate damage to its intended purpose, based on an action brought by any of the co-owners; in other cases, one or several of the co-owners of the thing thus partitioned shall receive moneratary compensation.
3. A creditor of a co-owner shall have the right to demand partitioning of the debtor’s share in order to seek debt recovery against it.
Article 4.81. Order of use of houses, apartments and other immovable things subject to partial co-ownership
1. Co-owners of a house, an apartment or other immovable things shall have the right to establish, upon mutual agreement, the order for the use of specific isolated spaces of the house or the apartment or specific parts of other immovable things, with regard to their respective shares of the property held in partial co-ownership.
Article 4.82. Right of partial co-ownership to apartments and other premises
1. Owners of apartments and other premises shall enjoy the right of partial co-ownership to common-use premises of a house, carrying constructions of a house, mechanical, electrical, sanitary, technical and other equipment of common use.
2. The owner of a house, an apartment or other premises shall have no right to transfer his share of property held in partial co-ownership, provided for in paragraph 1 of this Article, or perform any other acts as a result of which that share would be transferred separately from the right of ownership to the apartment or other premises, with the exception of cases where the transfer concerns a part of the thing held in partial co-ownership which can be or, after restructuring, will be used as a separate thing, such use being no impediment to the intended use of the apartments or other premises.
3. Owners of apartments and other premises must, in proportion to their respective shares, cover the expenses pertaining to the maintenance and preservation of the house (construction works), as well as pay taxes, dues, and other fees in accordance with the procedure established by laws.
4. Owners of apartments and other premises must also accumulate, on a regular basis, funds for the renovation of the house (construction works) based on the obligatory requirements for the use and maintenance of construction works. The funds shall be partially co-owned property of the owners of apartments and other premises. The funds may not be subject to recovery under the obligations of an individual owner of an apartment or other premises. Upon transferring the apartment or other premises to a new owner, the rights and obligations related to the accumulation of funds shall be likewise transferred to the new owner. The procedure for accumulating funds, calculating the rate of contributions, and protecting the accumulated funds shall be established by the Government. Disputes concerning the accumulation of funds shall be settled by court.
5. The accumulation of funds for the renovation (modernisation) of buildings shall be regulated by laws.
6. The rules stipulated in Article 4.79 of this Code shall also apply in cases where owners of apartments and other premises of a house sell to other persons their entire share or a part of their proportionate share of the property held by them in partial co-ownership (attic, cellar, etc.). If the share on sale of the thing held in partial co-ownership is or can be used to meet the needs not of the entire building but of the owners of premised located in a part thereof (separate stairwell/entrance, etc.), without violating the rights of the owners of premises located in the building, notification regarding the sale of the part held in partial co-ownership must be given to the owners of premises located in that part of the building, and only the latter shall enjoy priority right to buy it.
Article 4.83. Rights and obligations of owners of apartments and other premises to use the property held in partial co-ownership
1. Owners/users of apartments and other premises shall have the right to use the common-use objects of a dwelling according to their function, without prejudice to the rights and legitimate interests of owners/users of other premises.
2. Owners/users of apartments and other premises shall also have the right:
1) to take necessary measures, without prior consent of the other owners/users, in order to prevent damage or eliminate threats to common-use objects, and demand from the other owners of apartments and other premises compensation for expenses, in proportion to the share of property held in partial co-ownership by these owners;
2) to demand from the other owners/users of apartments and other premises that the possession and use of common-use objects of a dwelling should be in correspondence with the general rights and legitimate interests of the other owners/users. The legitimate interests of owners/users of apartments and other premises shall include establishing of internal rules of a dwelling, due maintenance and care of common-use objects, preparation of a financial and economic plan for the maintenance of a dwelling, and accumulation of renovation funds for common-use objects.
3. Owners/users of apartments and other premises must possess, duly maintain, repair and otherwise tend to the common-use objects. For the possession of common-use objects of a multi-apartment dwelling, owners of apartments and other premises shall establish an association of owners of apartments and other premises or shall draw up a contract on joint activity, or shall, in accordance with the procedure laid down in Article 4.84 of this Code, choose an administrator of common-use objects. The standard form of the contract on joint activity shall be approved by the Government or an institution authorised by it. The supervision and control of the activities related to the exercise of the functions assigned, by laws and other legal acts, to the management bodies of the associations of owners of apartments and other premises, persons authorised by the contract on joint activity, and administrators of common-use objects, appointed in accordance with the procedure laid down in Article 4.84 of this Code, shall be carried out by municipalities.
4. Owners/users of apartments and other premises shall not be obliged to pay expenses where they are incurred without their consent and are not related to compulsory requirements for the use and maintenance of construction works established by laws and other legal acts, or where there is no decision by a meeting of owners of apartments and other premises as established in Articles 4.84 and 4.85 of this Code.
5. Owners/users of apartments and other premises must allow authorised persons to repair and otherwise tend to the mechanical, electric, technical and other equipment of common use that is located in their apartments or other premises.
Article 4.84. Administration of property held in partial co-ownership by owners of apartments and other premises where the owners thereof have not established an association or have not concluded a contract on joint activity
1. Where owners of apartments and other premises have not established an association of owners of apartments and other premises of a dwelling or have not concluded a contract on joint activity, as well as where the association has been liquidated or the contract on joint activity has been terminated, an administrator of common-use objects shall be appointed.
2. The decision on determining the administrator of common-use objects shall be taken by the owners of apartments and other premises, and the administrator of their choice shall be appointed by the executive institution of a municipality. If the owners of apartments and other premises fail to select an administrator, the decision on the appointment of the administrator shall be taken by the executive institution of a municipality. The procedure for selecting and appointing the administrator of common-use objects shall be established by the Government.
3. A written vote of owners of apartments and other premises shall be held or a meeting concerning the selection of the administrator of common-use objects shall be convened by the executive institution of a municipality in accordance with the procedure laid down in Article 4.85 of this Code.
4. The executive institution of a municipality shall appoint the administrator of common-use objects for a term of five years. Six months before the expiry of this time limit, the procedure provided for in paragraph 3 of this Article shall be initiated if at least 1/5 of the owners of apartments and other premises of a multi-apartment dwelling express their request in writing to address anew the issue of appointment of a new administrator of common-use objects or if the executive institution of a municipality receives justified complaints of residents of the multi-apartment dwelling regarding the activities of the administrator. In the absence of such a request and complaints, the appointment of the administrator of common-use objects for the given multi-apartment dwelling shall be extended for the next five-year period. In all cases, owners of apartments and other premises shall have the right to adopt, by a majority vote, a decision to change the administrator of common-use objects before the expiry of the five-year period.
5. The administrator of common-use objects shall administer the property on the grounds laid down in Article 4.240 of this Code. Administrators of common-use objects shall publish information on their activities in accordance with the procedure and to the extent prescribed by the Government or an institution authorised by it.
6. Civil liability of administrators of common-use objects for damage caused to natural and legal persons in the performance of administrative functions shall be covered by insurance against civil liability.
7. Suppliers of heat, electricity, gas and drinking water, persons providing waste transportation services and services of constant maintenance of lifts (with the exception of houses without lifts), where they are operating in the territory of the same municipality, as well as other persons directly or indirectly related to the listed persons within the meaning of the Law on Competition may not be administrators of common-use objects. This prohibition shall not apply to the administrator of common-use objects when administering the property located in a residential area which, based on the data of Statistics Lithuania, has less than 100 000 residents unless the municipal council decides otherwise.
8. The administrator of common-use objects shall administer the common-use objects in accordance with the regulations approved by the Government.
9. The procedure for calculating the maximum fee for the administration of common-use objects shall be established by the municipal council. The expenses of administration shall be covered by owners of apartments and other premises in proportion to their share of property held in partial co-ownership.
10. Administration shall be terminated on the grounds specified in Article 4.250 of this Code, as well as upon registration of the statutes of an association of owners of apartments and other premises of a dwelling, or upon conclusion of a contract on joint activity.
11. The rules stipulated in Chapter XIV of this Book shall apply mutatis mutandis to the activities of the administrator.
12. The provisions of paragraphs 5 and 6 of this Article shall also apply mutatis mutandis to administrators of common-use objects operating under agreements on the administration of common-use objects concluded with the association of owners of apartments and other premises of a multi-apartment dwelling or with parties to the contract on joint activity of owners of apartments and other premises.
Article 4.85. Exercise of the right of partial co-ownership of owners of apartments and other premises
1. Decisions on the possession and use of common-use objects, as well as on matters pertaining to the creation and disposal of new common-use objects, shall be taken by a majority vote of the owners of apartments and other premises unless the laws provide otherwise. Each owner of an apartment or other premises shall have one vote. If an apartment or other premises are owned by several owners, they shall be represented, by agreement between them, by one person, who shall have one vote.
2. If the meeting of owners of apartments and other premises, convened in accordance with the procedure laid down in this Article, fails to assemble the number of owners of apartments and other premises sufficient to take a decision, decisions shall be taken at a repeat meeting, convened on the same agenda not earlier than two weeks after the failed meeting, by a majority vote of the members present at the meeting, but not less than 1/4 of the votes of all the owners of apartments and other premises, with the exception of decisions on borrowing of funds, matters pertaining to the creation and disposal of new common-use objects, and other decisions stipulated by laws which require a majority of votes of the owners of apartments and other premises to be deemed adopted.
3. Decisions on the possession and use of individual common-use objects which, on the basis of the inventory of common-use objects drawn up by the association of owners of apartments and other premises, parties to the contract on joint activity or the administrator of common-use objects, are used to satisfy the needs of only the owners of apartments and other premises located in a separate part of a dwelling, without prejudice to the rights of all the owners of apartments and other premises of the dwelling and the decisions adopted by the meeting of owners of apartments and other premises or by written vote of owners of apartments and other premises, may be taken by a majority vote of the owners of apartments and other premises of that separate part of the dwelling, unless the laws provide otherwise, and shall be binding on the owners thereof. The meeting of the owners of apartments and other premises located in the separate part of the dwelling shall be convened in accordance with the procedure specified in paragraphs 4 and 5 of this Article.
4. Decisions of owners of apartments and other premises shall be taken at the meeting of owners of apartments and other premises. The convocation of the meeting and the agenda thereof shall be notified to the owners, in accordance with the procedure established by the Government or an institution authorised by it, two weeks before the meeting takes place.
5. Meetings of owners of apartments and other premises shall be convened by the board/chair of the association of owners of apartments and other premises of a dwelling or a person delegated by the parties to the contract on joint activity of owners of apartments and other premises, or by an administrator of property held in partial co-ownership by owners of apartments and other premises, or by the executive institution of a municipality. The convocation of a meeting may also be requested in writing by no less than 1/4 of the owners of apartments and other premises. If the entities referred to in this paragraph fail to convene a meeting within one month from the day of filing of the request, the meeting shall be convened by 1/4 of the owners of apartments and other premises.
6. Decisions by owners of apartments and other premises (or of a part thereof) shall be announced in accordance with the procedure established by the Government or an institution authorised by it and shall be binding on all owners of the apartments and other premises (or of the part thereof) as well as on the owners who have acquired ownership rights to the apartments and other premises after such decisions have been taken. Such decisions cannot limit the rights and legitimate interests of the owners of apartments and other premises and third persons, except in cases provided for in this Code and other laws.
7. Decisions of owners of apartments and other premises may be taken without a meeting being convened provided the owners have given written notice of their decision. The requirements for a quorum and the number of votes necessary for taking of a decision, as laid down in this Article, shall apply to voting in writing. The procedure for voting in writing shall be established by the Government or an institution authorised by it.
8. The manager of common-use objects of a dwelling (the association of owners of apartments and other premises, a person authorised by the contract on joint activity, or the administrator of common-use objects), representing the owners of apartments and other premises, shall implement the decisions and instructions related to co-owned property, adopted by the owners of apartments and other premises in accordance with the procedure established in this Article.
Article 4.86. Rights and obligations of co-owners in using and maintaining property held in joint co-ownership
1. Co-owners shall have equal rights to income obtained from a co-owned thing (property), shall be liable towards third persons in respect of the obligations pertaining to the co-owned thing (property), and must jointly pay the expenses arising from the maintenance and preservation of the thing, as well as taxes, dues and other fees unless they have agreed otherwise or the law provides otherwise.
Article 4.87. Change of rights of co-owners upon increasing jointly co-owned property
If a co-owner increases the co-owned thing or the value thereof in keeping with the rules established by law, all co-owners shall acquire equal rights of joint co-ownership to the increased thing or value thereof.
Article 4.88. Right of a co-owner to transfer or encumber the right to his share of the thing held in joint co-ownership
1. A thing (property) which is an object of the right of joint co-ownership shall be possessed, used and disposed of only with the consent of co-owners.
2. The consent of co-owners shall be required in cases where an immovable thing is transferred to the ownership of another person, where the thing is leased or transferred for use in some other way, where the thing is pledged or the rights thereto are otherwise encumbered. Where a co-owner is a minor, the consent may be given on his behalf by his parents, guardians or curators.
Article 4.89. Establishing of the share of the property held by a co-owner in joint co-ownership
1. The share of the property held by a co-owner in joint co-ownership shall be established upon request of the co-owner or upon expiration of legal relations arising from the joint co-ownership, or when the share of the co-owner is recovered in respect of his personal obligations if the rest of the property owned by such person, except for the things held in joint co-ownership, is not sufficient to satisfy the claims of the creditors.
Article 4.90. Partitioning of property held in joint co-ownership
1. Each co-owner shall have the right to request the partitioning of his share from the property held in joint co-ownership.
2. In the event of a dispute regarding the mode of partitioning, the thing shall be partitioned in kind, based on an action brought by an alienating co-owner. The partitioning shall be done without, as far as possible, disproportionate damage to the intended purpose of the thing; otherwise, the alienating co-owner shall receive monetary compensation.
Article 4.91. Recovery against the property held in joint co-ownership
1. Recovery proceedings against one of the co-owners, based on the transactions concluded by him, shall apply to the entire property held in joint co-ownership unless the circumstances indicate that the transactions were concluded in the personal interest of the co-owner entering into the transactions and unless the laws provide otherwise.
2. Damages incurred due to a crime committed by a co-owner may be recovered against the property held in joint co-ownership if the court rules that the thing constituting the object of the right of joint co-ownership has been acquired from the proceeds of crime or that the thing or the value thereof has increased due to such proceeds.
Article 4.92. Right of joint co-ownership to community property of spouses
1. The right of joint co-ownership to community property of spouses shall be established by the rules stipulated in Book Three of this Code.
Article 4.93. Protection of owner’s rights
2. No one shall have the right to:
3. Property may be taken from an owner against his will and without recompense only by a court judgment or verdict.
Article 4.94. Temporary use of a thing against the will of the owner
1. A thing may be used temporarily for public needs against the will of the owner in cases established by laws.
Article 4.95. Owner’s right to reclaim a thing from another’s illegal possession
The owner shall have the right to reclaim his thing from another’s illegal possession.
Article 4.96. Reclaiming of a thing from an acquirer in good faith
1. If a movable thing was acquired upon payment from a person who had no right to transfer its ownership, and the acquirer was not aware nor ought to have been aware of this (acquirer in good faith), the owner shall have the right to reclaim the thing from the acquirer only if the thing has been lost by or stolen from the owner or a person to whom the owner had given it in possession, or if it has otherwise ceased to be in their possession against their volition. The owner may bring these claims within three years from the moment of the loss of the thing.
2. An immovable thing may not be reclaimed from an acquirer in good faith, with the exception of cases where the owner had lost such thing due to a crime committed by other persons.
3. If a thing was acquired gratuitously from a person who had no right to transfer its ownership, the owner shall have the right to reclaim the thing in all cases. This rule shall apply to both movable and immovable things.
Article 4.97. Payments in returning a thing illegally possessed
1. In reclaiming a thing as stipulated in Article 4.95 of this Code, the owner shall have the right to demand restitution of or recompense for all income which the person who was aware or ought to have been aware that his possession was illegal (possessor in bad faith) received or had to receive during the entire period of possession, or demand restitution of or recompense for all income which an illegal possessor in good faith received or had to receive from the time he became aware or ought to have become aware that the possession was illegal or became aware of the initiation of a civil action regarding the restitution of the thing.
2. The illegal possessor in bad faith shall, in his turn, have the right to claim from the owner the necessary expenses incurred by him in relation to the thing from the moment the owner is entitled to receive income from such thing.
3. The illegal possessor in good faith shall have the right to claim from the owner recompense for all the necessary expenses incurred by him in relation to the thing that have not been covered by the income received from the thing.
4. The illegal possessor in good faith shall have the right to keep the parts that have been added to ameliorate the thing, provided the parts thereof can be partitioned without causing damage to the thing. If the parts added as amelioration cannot be partitioned or the thing was ameliorated in a different mode, the illegal possessor in good faith shall have the right to claim recompense for expenses arising from such amelioration, but not greater than the increase in the value of the thing.
Article 4.98. Defence of the right of ownership against violations unrelated to loss of possession
The owner may demand elimination of all violations of his right, even if unrelated to loss of possession.
Article 4.99. Defence of the rights of owners of land parcels against possible violations unrelated to loss of possession
The owner of a land parcel shall have the right to require that no new construction works be built or that the existing construction works be rebuilt, reconstructed or even maintained unchanged on neighbouring land parcels if a plausible assumption can be made that construction of such new construction works or change of the existing ones or even their existence and use without any changes made will make a negative impermissible impact on his land parcel or the buildings on his land parcel will lose stability.
Article 4.100. Expropriation of property for public needs
1. A thing or other property belonging to a person as private ownership may be expropriated for public needs only in exceptional cases and only in accordance with the procedure established by law.
2. In cases provided for in paragraph 1 of this Article, the owner of a thing (property) shall be compensated in money for the value of the thing (property) thereof at market prices, or, upon agreement between the parties, by transfer of another thing (property).
3. All matters pertaining to the legality of expropriation of property as well as disputes concerning its value and losses incurred due to such expropriation shall be decided by court in accordance with the procedure established by laws.
4. The right of ownership to a movable thing (property) claimed for public needs shall pass to the State as of the moment of payment for the thing (property) to the owner, except where the laws provide otherwise. The right of ownership to an immovable thing claimed for public needs shall pass to the State as of the moment of registering the immovable thing in a public register; however, such thing may be registered in the public register as state property only after the payment to the owner of such an immovable thing has been effectuated, except where the laws provide otherwise.
Article 4.101. Protection of the ownership rights of persons whose land parcels held in their ownership and carrying construction works thereon are claimed for public needs
1. If a land parcel claimed for public needs belongs to a person as property held in his ownership and has construction works on it, such person must be recompensed, in money at market prices, for the land parcel, the construction works which are being built or are already built thereon and belong to such person as his property, as well as for the plants thereon.
2. The value of a land parcel, the construction works and plants thereon, the terms and conditions of their expropriation, and the losses incurred by the owner due to the expropriation thereof shall be established by a contract between the future user of the land parcel and the owner of the land parcel and the construction works and plants thereon unless the laws provide otherwise.
Article 4.102. Protection of the ownership rights of persons who use land parcels for building purposes without owning them when such land parcels are claimed for public needs
1. If a land parcel that is used for building purposes without owning such land is claimed for public needs, such persons must be recompensed, in money at market prices, for the construction works being built or already built on the land parcel which are held in their ownership as well as for the plants thereon.
2. The new user of the land parcel must pay for all the losses the owner of the construction works and plants thereon incurs due to the expropriation of the land parcel, with the exception of the losses that arise due to illegal actions by the owner of the construction works and plants thereon.
3. The value of a land parcel, construction works and plants thereon, the terms and conditions of their expropriation, and the losses incurred due to the expropriation thereof shall be established by a contract between the new user of the land parcel and the owner of the construction works thereon.
Article 4.103. Civil legal consequences of illegal construction
1. If a construction works (a part thereof) has been built or is being built without authorisation or with authorisation but in violation of the solutions of the design documentation of the construction works or in violation of the requirements of legal acts, it shall be prohibited to use or dispose of (sell, donate, lease, etc.) such construction works (a part thereof). Laws shall define which construction works (a part thereof) has been built or is being built without authorisation.
2. Persons whose rights and interests are violated and other persons authorised by law shall have the right to apply to court regarding the violations referred to in paragraph 1 of this Article.
Article 4.104. Consequences of the loss of the right to use a land parcel
1. When a contract that gave a person the right to use, for an indefinite period, or lease a land parcel is declared null and void by a court decision due to intentional acts by the user or the lessee or is terminated due to intentional significant violations of the order of use of the land parcel, the person may relocate the construction works being built or already built on the land parcel and held as property in his ownership. If all or some of the construction works (parts thereof) cannot be relocated, such remaining objects shall be demolished or shall, by agreement between the owner of the land parcel and the owner of the construction works, be transferred to the ownership of the owner of the land parcel, or shall, upon the consent of the owner of the land parcel, be transferred to a third person.
Article 4.105. Consequences of the loss of the right to a land parcel
1. A person who has lost the right to a land parcel by a court judgment shall be recompensed for the value of the construction works built on the land parcel and held as property in his ownership, provided he is not granted the right to use such land parcel in any other lawful way (by establishing land servitude, etc.).
2. If the transaction on the basis of which the land parcel has been used is declared null and void by the court through no fault of the owner of the construction works, such owner shall be recompensed in accordance with the procedure and on the terms established in Article 4.102 of this Code from funds of the owner of the land parcel.
3. If the transaction on the basis of which the land parcel has been used is declared null and void by the court due to the fault of the owner of the construction works, without granting the owner of the construction works the right to use the land parcel in any other lawful way (by establishing land servitude, etc.), the owner of the construction works may relocate such construction works. When it is impossible to relocate all or some of the construction works (parts thereof), the items failing relocation may, upon the consent of the owner of the land parcel, be transferred to a third person or may, by agreement between the owner of the land parcel and the owner of the construction works, be transferred to the owner of the land parcel, or may be demolished.
4. In cases provided for in paragraph 3 of this Article, the construction works shall be relocated or demolished at the expense of their owner, the construction materials remaining after the demolition shall be property of the owner of the construction works, and all the losses incurred due to the illegal use and possession of the land parcel must be compensated for by the owner of the construction works.
Article 4.106. Definition and purpose of the right of trust of property
1. The right of trust of property shall be the right of the trustee to possess, use and dispose of property in accordance with the procedure and under the conditions defined by the trustor.
Article 4.107. Subjects of the right of trust of property
1. The subjects of the right of trust of property (trustees) in the Republic of Lithuania shall include state or municipal enterprises, agencies and organisations, as well as other legal and natural persons.
Article 4.108. Grounds for the emergence of the right of trust of property
The right of trust of property may originate from the law, administrative act, contract, will, or court judgment.
Article 4.109. Content of the right of trust of property
1. State or municipal enterprises, agencies and organisations shall possess and use the property entrusted to them respectively by the State or municipality and dispose of it in accordance with the procedure and upon the terms and conditions established in their statutes (regulations), as well as legal acts governing the activities of state or municipal enterprises, agencies and organisations, without violating the law and the rights and interests of other persons.
2. Other legal and natural persons shall possess and use the property entrusted to them by the trustor and dispose of it to the extent, in accordance with the procedure and upon the terms and conditions established in an agreement, will, court judgment or law outlining the transfer of property by the right of trust.
Article 4.110. Defence of the right of trust of property
In defending the property in possession, the subject of the right of trust of property shall enjoy the rights established in Articles 4.95 to 4.99 of this Code.
Article 4.111. Concept of a servitude
1. A servitude shall mean a right in respect of an immovable thing of another’s that is granted for the use of that thing (the servient thing) or a restriction of the right of the owner of that thing in order to ensure proper utilisation of the thing in favour of which the servitude is established (the dominant thing).
Article 4.112. Content of a servitude
1. A servitude shall grant the servitude holder definite rights of use of a definite thing of another’s or withdraw from the owner of the servient thing definite rights of use of the thing.
2. Where there are doubts regarding the content of a servitude and where possibilities to determine it precisely are lacking, it shall be presumed to be the least.
3. If, at the time of establishment of a servitude or subsequently, the content of the servitude was not definitely determined, it shall be conditioned by the needs of use of the dominant thing in accordance with its intended purpose.
4. The establishment of a servitude shall not deny the owner of the servient thing the rights of use of the thing constituting the content of the servitude, provided the exercise of the rights thereof does not interfere with the established servitude.
5. The owner of the servient or the dominant thing shall have the right to apply to court and request that the content of the servitude be modified or that the servitude be cancelled where the circumstances change substantially or unforeseen circumstances arise whereby it is impossible to exercise the rights granted by the servitude or the exercise becomes very complicated.
Article 4.113. Exercise of servitude rights
1. Rights granted by a servitude must be exercised in accordance with their intended purpose to minimise inconvenience to the owner of the servient thing.
2. While exercising the rights granted by a servitude, the servitude holder must not violate the rights of other owners.
Article 4.114. Obligation of the servitude holder to properly maintain the servient thing
1. If, in order to exercise in a normal way the rights granted by a servitude, it is necessary to repair or otherwise properly maintain the servient thing, the servitude holder must carry out all such tasks in a proper and timely manner unless the contract provides otherwise.
Article 4.115. Validity of the servitude when the servient thing is divided
Where the servient thing is divided, the previously established servitude shall remain due for all parts of the servient thing except when, at the time of division, the servitude was valid or was established exclusively in respect of a definite part of the servient thing.
Article 4.116. Validity of the servitude when the dominant thing is divided
1. Where the dominant thing is divided, the previously established servitude shall remain due for all parts of the dominant thing except when, at the time of division, the servitude was valid or was established exclusively in respect of a definite part of the dominant thing.
Article 4.117. Servitude of the right of way
By a servitude of the right of way, the right to use a footpath, a road for land vehicles, and a path to drive cattle may be established.
Article 4.118. Servitude of the right of way granting the right to use a footpath
1. When the right to use a footpath is granted by a servitude of the right of way without determining any additional possibility to use the footpath for any other purposes and without determining any restrictions on its use, it shall be deemed that such footpath may be used by pedestrians, bicycles without engines and cattle led on a leash.
2. If, in establishing a servitude of the right of way that grants the right to use a footpath, the width of the path is not defined and it is not possible to define the width based on the previous footpath, if such a footpath existed, it shall be considered that it is possible to use a one-meter footpath.
Article 4.119. Servitude of the right of way granting the right to use a road for driving vehicles
1. When the right to use a road for driving vehicles is granted by a servitude of the right of way without determining any additional possibility to use the road for any other purposes and without determining any restrictions on its use, it shall be considered that it is possible to use it for driving various vehicles and use it as a footpath.
2. If, when establishing a servitude of the right of way that grants the right to use a road for driving vehicles, the width of the road is not defined and it is not possible to define the width based on the previous road, if such a road existed, it shall be considered that it is possible to use a four-meter road. In cases where it is likely that such a road may be used for driving specialised vehicles of big dimensions, the owner of the land plot in respect of which the servitude of the right of way, granting the right to use the road for driving vehicles, was established shall have no right to plant bushes or trees within three meters of the sides of the road.
Article 4.120. Servitude of the right of way granting the right to use a road/path to drive cattle
1. When a servitude of the right of way grants the right to use a road/path to drive cattle without determining any additional possibility to use it for any other purposes and without determining any restrictions on its use, it shall be considered that such a road/path may only be used to drive cattle and the servitude holder may use it as a footpath.
2. The right to use a road/path to drive cattle granted by a servitude of the right of way shall not confer the right to graze cattle by the roadside or on the path and alongside it.
3. If, in establishing a servitude of the right of way that grants the right to use a road/path to drive cattle, the width of the road/path is not defined and it is not possible to define the width based on the previous road/path, if such a road/path existed, it shall be considered that it is possible to use a four-meter road/path.
Article 4.121. Determination of the location and direction of the road/path
When a servitude of the right of way grants the right to use a footpath, a road for land vehicles or a path to drive cattle without defining the location and direction of the road/path, it shall be considered that the right of use is granted in respect of the existing road/path or, where such a road does not exist, the previous road/path, or, if the latter did not exist or it is not possible to determine its location and direction, the owner of the thing shall have the right to choose the location and direction of the road/path by adhering, if possible, to the principle that the location to be chosen meets as far as possible the road/path requirements.
Article 4.122. Servitude of construction works
A servitude established in respect of construction works may grant the right to lean the dominant construction works against or attach it to the servient thing, to infix hooks or other fastenings into the wall (construction) of the servient construction works and use them, to construct and erect parts of construction works suspended over the servient plot of land or construction works, to forbid the owner of the servient plot of land to build construction works that obstruct the light or the existing view, as well as to perform other acts that are not prohibited by law or to require that the owner of the servient thing refrain from the execution of definite acts.
Article 4.123. Other servitudes
Servitudes granting the right to lay down underground or aboveground communications and maintain and use them, as well as other servitudes, may be established.
Article 4.124. Grounds and time for the establishment of a servitude
1. A servitude may be established by laws, transactions and by a court judgment. In cases stipulated by laws, a servitude may be established by an administrative act.
2. Rights and obligations arising from a servitude in respect of subjects shall become effective only after the registration of the servitude, except where the servitude is established by laws.
Article 4.125. Establishment of a servitude by transactions
Only the owner of the thing to become the servient thing shall have the right to establish servitudes by transactions.
Article 4.126. Establishment of a servitude by a court judgment
1. A servitude shall be established by a court judgment when owners fail to come to a mutual agreement, whereas without the establishment of a servitude it would be not possible to use the thing for its intended purpose at reasonable costs.
Article 4.127. Restrictions on the establishment of a servitude
1. It shall be allowed to establish a new servitude in respect of the servient thing provided that the previously established servitude is not violated thereby.
Article 4.128. Things in respect of which a servitude may be established
1. A servitude may be established in respect of an immovable thing which, by its permanent characteristics, may ensure proper usage of the dominant thing for an indefinite period.
2. Having established the servitude, things becoming servient and dominant need not necessarily have a common border. Above all, due to the established servitude the thing becoming servient should, by its permanent characteristics, provide the thing becoming dominant the permanent benefit sought by the establishment of the servitude.
3. If, at the time of the establishment of a servitude, a definite part of the thing in respect of which the servitude is established was not determined, it shall be considered that the servitude was established in respect of the entire thing. However, when in accordance with the rights of use granted by the servitude in respect of the servient thing it is possible to use equally well both the entire thing and a part thereof and whereby the proper usage of the dominant thing is ensured, the owner of the servient thing shall have the right to determine the part of the thing where the rights established by the servitude may be used.
Article 4.129. Compensation for damages incurred due to the establishment of a servitude
Damages incurred due to the establishment of a servitude shall be compensated in accordance with the procedure established by laws. The obligation of the owner of the dominant thing to pay a lump sum or instalments to the owner of the servient thing may be established by laws, contracts, a court judgment or an administrative act.
Article 4.130. Grounds and time for the extinction of a servitude
1. A servitude shall be extinguished:
3. The time of de-registration of the servitude shall be deemed to be the moment of extinction of the servitude, except for cases provided for in points 2 and 3 of paragraph 1 of this Article.
Article 4.131. Renunciation of a servitude
1. The owner of the dominant thing may only renounce the existing servitude for the benefit of the owner of the servient thing.
2. When a servitude grants several rights of use in respect of one and the same thing, it shall be possible to renounce only some of the rights.
3. When the dominant thing belongs to several owners, the renunciation of the servitude shall become effective only upon the joint consent of all persons.
5. The owner of the dominant thing must notify the owner of the servient thing about the renunciation of the servitude no later than six months in advance; the owner of the dominant thing must also compensate for the damage incurred due to the termination of the servitude to the owner of the servient thing.
Article 4.132. Extinction of a servitude by the union of the qualities of the owner of the servient and the dominant thing in one person
1. A servitude shall extinguish only when the same person becomes the owner of both the entire dominant and the entire servient thing.
2. If the same person becomes the owner of only a part of the dominant and the servient thing, the servitude shall remain in effect for the rest of the thing.
Article 4.133. Extinction of a servitude by destruction of the servient or the dominant thing
A servitude shall extinguish when the dominant or the servient thing is destroyed.
Article 4.134. Extinction of a servitude by deterioration of the condition of the servient thing
1. If the servient thing deteriorates to the extent that it can no longer perform the functions of a servient thing, the servitude shall also extinguish.
2. The servitude that extinguished due to deterioration of the servient thing shall be renewed if the thing regains properties whereby it may again perform the functions of a servient thing. In this case, it shall be irrelevant even if, within the period of time during which the deteriorated thing could not perform the functions of a servient thing, the servitude would have been extinguished by prescription.
Article 4.135. Extinction of a servitude by the end of necessity of the servitude
1. When circumstances change to such an extent that the dominant thing may be properly used without using the servient thing, the rights of the owner of the servient thing to use this thing shall not be restricted and the servitude shall extinguish by agreement between the owner of the servient thing and the owner of the dominant thing.
Article 4.136. Extinction of a servitude by prescription
1. A servitude shall extinguish by prescription if the person entitled thereto has not voluntarily, within a period of ten years, himself or through other persons used the rights granted by the servitude.
2. A time period during which the rights granted by a servitude have not been used, whether due to force majeure or to impediments created by the owner or the possessor of the servient thing, shall not be included into the prescriptive period.
3. If the servitude holder has exercised the rights granted by a servitude within a period of ten years only in respect of a part of the servient thing, the servitude in respect of the rest of the servient thing shall extinguish.
4. A servitude may not extinguish by prescription if at least a part of the rights granted by the servitude have been used.
5. When the time period of prescription elapses, the servitude of the right of way granting the right to use a road or a path leading to a cemetery may not extinguish.
Article 4.137. Extinction of a servitude of construction works by prescription
A servitude of construction works shall extinguish by prescription only when the owner of the dominant thing, either himself or through other persons, has failed to use the rights granted by the servitude within a time period of ten years and has done something to the servient thing that is incompatible with the use of the rights granted by the servitude.
Article 4.138. Right of the servitude holder to claim compensation for damages
If the owner or the possessor of the servient thing impedes the servitude holder’s exercise of rights granted by the servitude, the servitude holder shall have the right to claim compensation for damages arising from such an impediment.
Article 4.139. Defence of the rights of the owner of the servient thing
1. If the servitude holder fails to properly exercise the rights of use of the servient thing granted by the servitude and thereby violates the rights of the owner of the servient thing, the owner of the servient thing shall have the right to request the elimination of any violations, even those not related to the loss of possession.
2. In cases where the servitude restricts the right to a part of the thing, the owner of the servient thing shall have the right to request the substitution of the part of the thing in respect of which the right is restricted by the servitude by another part of the thing, provided such a substitution assists the owner of the servient thing in avoiding excessive losses arising from the servitude.
3. Following the extinction of the servitude, the servitude holder, provided the owner of the servient thing requests so, must restore the thing to its original state that existed before the establishment of the servitude. The servitude holder may not be requested to eliminate alterations of the thing that appeared irrespectively of the existence of the servitude unless the laws or the contract provide otherwise.
Article 4.140. Liability in respect of property obligations arising from a servitude
1. If the servient or the dominant thing belongs, by the right of ownership, to several owners, they shall be jointly and severally liable in respect of property obligations arising from the servitude.
Article 4.141. Concept of the usufruct
1. Usufruct shall mean the right (the right of the usufructuary) of use and enjoyment, granted for a period of a person’s life or for a certain period that may not be longer than a lifetime of a person, of a thing of another’s and of its fruits, products and revenue.
Article 4.142. Object of the usufruct
1. Each non-consumable thing, whether movable or immovable, that is the object of the right of ownership may be the object of the usufruct.
2. By acquiring the usufruct in respect of a principal thing, the usufructuary shall also acquire the usufruct in respect of secondary things unless the contract or laws provide otherwise.
Article 4.143. Content of the usufruct
1. The usufructuary shall have the right to use the thing as prescribed or, if not prescribed, in accordance with its intended purpose as though he were its diligent owner.
2. Fruits, products and revenue produced by the thing while exercising the usufruct shall belong to the usufructuary unless the contract or laws provide otherwise.
3. The content of the usufruct shall be established on a case-by-case basis at the establishment of the usufruct. The subject establishing the usufruct may establish only such rights granted by the usufruct that are in compliance with the usage of the thing in accordance with its intended purpose.
4. If the usufruct is established in respect of the thing that is the object of the right of co-ownership, the usufructuary shall enjoy the same rights of possession and use of the thing as though he were its co-owner.
5. The usufructuary shall have the right to request the performance of obligations arising from the object of the usufruct and to accept contributions.
6. The usufructuary shall have no right to transfer the usufruct to another person; however, he may transfer the right of use to another person. In that event, both subjects shall be jointly and severally liable in respect of their obligations. The period of time for which the right of use of the usufruct is transferred to another person may not be longer than the period of time for which the usufruct is established.
7. The usufructuary shall have no right to remake the object of the usufruct or change it in essence in some other way without the permission of the owner of the object of the usufruct or, in cases stipulated by laws, without a court judgment.
Article 4.144. Obligations of the usufructuary
1. The usufructuary must maintain and repair the object of the usufruct in so far as it is necessary to ensure its normal condition.
2. In proportion to the possessed rights of use of the object of the usufruct and the revenue produced by it, the usufructuary must pay taxes and other fees in respect of the object of the usufruct unless the contract or laws provide otherwise.
3. If the object of the usufruct is damaged or broken or it is necessary to perform non-routine improvement and repair works to protect it from unforeseen risks or when third persons assert their rights in respect of the object of the usufruct, the usufructuary must without delay notify the owner.
4. In cases specified in the contract, the will or the law, the usufructuary must insure the object of the usufruct. If the usufructuary fails to insure the object of the usufruct, the owner thereof may insure it at the expense of the usufructuary.
Article 4.145. Use of the usufruct in respect of land
1. The usufructuary shall have no right to fell trees on the land subject to the usufruct, except those which have fallen and died naturally. The usufructuary must replace the destroyed trees unless otherwise provided in the terms and conditions of use of the usufruct.
Article 4.146. Liability of the usufructuary
1. The usufructuary shall be liable for the deterioration of the condition of the object of the usufruct resulting from improper use of the usufruct.
Article 4.147. Grounds and time for the establishment of the usufruct
1. Usufruct may be established by laws, by court judgments in the cases prescribed by laws, and by transactions.
2. Rights arising from the usufruct in respect of the thing that must be legally registered and the obligations in respect of subjects shall arise only after the registration of the usufruct, with the exception of cases where the usufruct is established by law.
3. The usufruct in respect of a movable thing that is not subject to mandatory legal registration shall begin from the moment of transfer of the thing unless otherwise provided by law (when the usufruct is established by law), by a transaction (when the usufruct is established by a transaction), or by a court judgment (when the usufruct is established by a court judgment).
Article 4.148. Establishment of the usufruct by transactions
Only the owner of the thing himself shall have the right to establish the usufruct by transactions.
Article 4.149. Restrictions on the establishment of the usufruct
A new usufruct may be established in respect of the things that have already had the usufruct established in respect of them, provided the rights granted by the newly established usufruct do not coincide with the rights previously established by the usufruct and the exercise of the rights granted by the new usufruct will not infringe the rights of the existing usufructuary.
Article 4.150. Grounds and time for the extinction of the usufruct
1. Usufruct shall be extinguished:
2) by the death of the usufructuary, by the dissolution of the legal person that is the usufructuary or by the expiry of a term of 30 years from the establishment of the usufruct in respect of the legal person;
3) by the expiry of a time period or when a legal fact laid down in the resolutory condition becomes effective;
3. The time of extinction of the usufruct shall be deemed to be the moment of its de-registration, except for cases provided for in points 2, 3, 4 and 5 of paragraph 1 of this Article and cases where the usufruct need not be registered.
4. The usufruct established for the benefit of several persons shall extinguish by the extinction of the right of the last person unless provided otherwise.
Article 4.151. Renunciation of the usufruct
1. The usufructuary may renounce the existing usufruct only in favour of the owner of the object of the usufruct.
2. When the usufruct grants several rights of use in respect of the same thing, some of the rights may be renounced.
Article 4.152. Extinction of the usufruct by the death of the usufructuary, by the dissolution of the legal person or by the expiry of a term of 30 years from the establishment of the usufruct in respect of the legal person
1. When the usufructuary dies, the usufruct shall extinguish irrespective of whether it was established for a fixed period or a lifetime of a specific person. When the usufruct extinguishes by the death of the usufructuary, his assignees must return the thing to the owner.
Article 4.153. Extinction of the usufruct by the expiry of a time period or when a legal fact laid down in the resolutory condition becomes effective
1. If at the time of the establishment of the usufruct its extinction date was specified or the termination of the usufruct was linked to the resolutory condition, the usufruct shall extinguish upon the expiry of the fixed time period or when the legal fact laid down in the resolutory condition becomes effective.
2. If the usufruct was established for a period of time until a third person reaches a certain age, it shall continue until the date the person reaches that age or, in the event of his death, would have reached that age.
Article 4.154. Extinction of the usufruct when the usufructuary becomes the owner of the object of the usufruct
1. When the usufructuary becomes the owner of the entire object of the usufruct, the usufruct shall extinguish.
Article 4.155. Extinction of the usufruct by destruction of the object of the usufruct
When the object of the usufruct is destroyed, the usufruct shall extinguish.
Article 4.156. Extinction of the usufruct by deterioration of the condition of the object of the usufruct
1. When the condition of the object of the usufruct deteriorates to such an extent that it can no longer be used in accordance with its intended purpose, the usufruct shall extinguish.
2. The usufruct that extinguished due to the deteriorated condition of its object shall be renewed if the object of the usufruct regains the properties whereby it can again perform the functions of the object of the usufruct. In this case, it shall be irrelevant even if, within the period of time during which the deteriorated object of the usufruct could not be used in accordance with its intended purpose, the usufruct would have been extinguished by prescription.
Article 4.157. Extinction of the usufruct by prescription
1. The usufruct established in respect of an immovable thing shall extinguish by prescription if within a period of ten years the usufructuary, himself or through other persons, has not continuously and voluntarily used the rights granted by the usufruct.
2. The usufruct established in respect of a movable thing shall extinguish by prescription if within a period of three years the usufructuary, himself or through other persons, has not voluntarily used the rights granted by the usufruct.
3. A period of time during which the rights granted by the usufruct have not been used due to force majeure or the impediments created by the owner/possessor of the object of the usufruct shall not be included into the prescriptive period.
4. If the usufructuary has, for a period of fifteen years, exercised the rights granted by the usufruct only by using a part of an immovable thing, the usufruct shall extinguish for the rest of the thing.
Article 4.158. Return of the object of the usufruct upon the extinction of the usufruct
1. Upon the extinction of the usufruct, the usufructuary must return the object of the usufruct to its owner in the condition he received it, taking into account normal wear and tear, unless otherwise agreed at the time of the establishment of the usufruct.
2. The usufructuary shall have the right to keep the parts used for the improvement of the thing, provided they can be separated and the object of the usufruct is not damaged thereby. If the improved parts cannot be separated or the thing has been improved in any other way, the usufructuary shall have the right to claim reimbursement for the improvement costs, but no more than the increase in the value of the thing, only on condition that he has improved the thing with the consent of the owner of the thing.
Article 4.159. Defence of the rights of the owner of the object of the usufruct
If the usufructuary fails to properly exercise the rights granted by the usufruct and thereby violates the rights of the owner of the thing, the owner of the object of the usufruct shall have the right to request the elimination of any violations, even those not related to the loss of possession.
Article 4.160. Concept of the right of superficies
1. The right of superficies shall mean the right to use the land of another’s for building construction works or to acquire and possess the land by the right of ownership or by the right to use the subsoil.
2. The right of superficies may be granted regardless of other real rights of the future holder of the right of superficies or the granting of the right may depend on another real right or the lease of an immovable thing.
Article 4.161. Retribution
The act establishing the right of superficies may stipulate that the superficiary is to pay to the owner of the land a lump sum or to pay by instalments.
Article 4.162. Content of the right of superficies
1. The superficiary shall be entitled to acquire or to own construction works and perennial plants on the land held by another person by the right of ownership.
2. In establishing the right of superficies, the right of the superficiary to build, use or demolish construction works or to plant plants or destroy them may be limited.
Article 4.163. Establishment of the right of superficies
The right of superficies shall be established by agreement between the landowner and the person becoming the superficiary or by the will of the landowner.
Article 4.164. Extinction of the right of superficies
1. The right of superficies shall be extinguished:
3) by prescription if the superficiary fails to use the object of the right of superficies for ten years;
2. Upon the extinction of the right of superficies, the right of ownership to construction works or plants shall be transferred to the landowner. The landowner must reimburse the superficiary for their value provided this is specified in the act establishing the right of superficies.
3. The superficiary may remove the construction works or plants if he restores the land to its former condition and if the act establishing the right of superficies does not provide otherwise.
Article 4.165. Concept of emphyteusis
1. Emphyteusis shall mean a real right to use a plot of land or other immovable thing of another’s provided the emphyteutic lessee does not aggravate its quality and does not undertake to build construction works, plant perennial plants and perform other works thereon that durably increase the value of the land or any other immovable thing used, except upon the consent of the emphyteutic lessor.
2. Emphyteusis may be established for a fixed or an indefinite period. The term of emphyteusis may not be less than ten years.
Article 4.166. Emphyteutic canon
The act establishing emphyteusis may stipulate that the emphyteutic lessee is to pay to the lessor of an immovable thing a lump sum or to pay for it by instalments.
Article 4.167. Establishment of emphyteusis
Emphyteusis shall be established by agreement between the owner of the leased immovable thing and the emphyteutic lessee or by will.
Article 4.168. Content of emphyteusis
1. Unless the act establishing emphyteusis provides otherwise, the emphyteutic lessee shall use the leased immovable thing as its owner, only without increasing its value essentially and having no right to change its intended purpose without the consent of the owner. If emphyteusis is established in respect of a land plot, the act establishing emphyteusis may stipulate the right of the emphyteutic lessee to build construction works or plant plants thereon necessary for the use of the land in accordance with its intended purpose.
3. Unless provided otherwise, the emphyteutic lessee shall enjoy the fruits produced by the leased immovable thing.
4. The act establishing emphyteusis may stipulate that the emphyteutic lessee is not entitled to transfer his rights to another person or divide the right of emphyteusis without the consent of the lessor.
Article 4.169. Extinction of emphyteusis
1. Emphyteusis shall be extinguished:
4) by the union of the qualities of the emphyteutic lessor and the emphyteutic lessee in one person;
2. On the initiative of the emphyteutic lessor and the emphyteutic lessee, grounds for premature extinction of the emphyteusis may be stipulated in the act establishing emphyteusis.
3. Emphyteusis may be modified or cancelled by a court judgment at the request of either the emphyteutic lessor or the emphyteutic lessee after the lapse of 25 years from the date of establishment of emphyteusis, provided that unforeseen circumstances appear whereby it is impossible to use the thing in conformity with earlier conditions.
4. Upon the extinction of emphyteusis, the emphyteutic lessee must return to the emphyteutic lessor the object of emphyteusis. The emphyteutic lessee must be compensated for the value of the improvements to the object of the emphyteusis, provided that the improvements have been made upon the consent of the lessor. The emphyteutic lessee shall have the right to suspend the transfer of the object of emphyteusis to the emphyteutic lessor until the lessor pays the compensation. The emphyteutic lessor may retain the thing belonging to the emphyteutic lessee until the lessee settles accounts with him.
5. If the act establishing emphyteusis stipulated the right of the emphyteutic lessee to build construction works or plant plants necessary for the use of the land in accordance with its intended purpose, the emphyteutic lessee may, upon the extinction of the emphyteusis, remove the construction works or plants provided he restores the land to its former condition and the act establishing emphyteusis does not provide otherwise.
Article 4.170. Concept of the mortgage and its subjects
1. The mortgage shall mean the real right to another’s immovable thing whereby the performance of a present or future property obligation is secured without transferring the mortgaged property to the creditor.
2. The mortgagor may, under a mortgage transaction, be the owner of the immovable thing that is the object of the mortgage. A trustee managing the thing by the right of trust of property shall have the right to mortgage the thing only in the cases where the laws or the transaction, on the basis whereof the right of trust of property arises, provide for the right to mortgage the thing managed by the right of trust. Laws, court judgments or transactions may provide for the right of the administrator of property of another person to mortgage the immovable thing.
3. The mortgage shall entitle the owner of the real right hereof to satisfy the claim secured by the mortgage from the value of the object of the mortgage prior to other creditors of the debtor.
4. The mortgage and its validity shall depend on the validity of the principal obligation secured by the mortgage.
5. The mortgage shall not deprive the mortgagor of the right to possess, use and dispose of the mortgaged property with due consideration of the rights of the mortgagee unless the mortgage transaction provides otherwise. A subsequent mortgage of mortgaged property shall be permitted if the mortgage transaction does not provide otherwise.
Article 4.171. Object of the mortgage
1. Any immovable thing may be the object of the mortgage. Both movable property and property rights may be the object of the mortgage provided they are mortgaged together with immovable things under the mortgage transaction.
3. Unless the mortgage transaction establishes otherwise, the principal thing and all existing and future auxiliary things, except for the income obtained from the thing, shall be considered the object of the mortgage. Auxiliary things shall be considered mortgaged things even though they are not specified in the mortgage transaction.
4. Unless the mortgage transaction establishes otherwise, the mortgaged thing, with the exception of land, must be insured.
6. A thing owned by the right of co-ownership may be mortgaged only upon the consent of all co-owners. Where a part of the thing held in partial co-ownership is mortgaged, the consent of other co-owners shall not be necessary, however, the mortgaged part of the thing must be accurately defined in the contract providing for the order of use of the thing, concluded among the co-owners and attested by a notary.
7. The owner of the mortgaged thing shall have no right to destroy, damage or otherwise reduce the value of the thing.
8. The risks of accidental destruction, damage or other decrease in value, with the exception of normal wear and tear of the thing, shall be borne by the owner of the mortgaged thing. The mortgage transaction may establish other rules for the distribution of the risks or their consequences provided for in this paragraph.
9. A mortgaged thing which has ceased to be in possession of a mortgagee, a mortgagor or a third party who was in possession of it may be recovered by the mortgagee or the third party in accordance with Articles 4.95, 4.96 and 4.97 of this Code.
Article 4.172. Validity of the mortgage after the division of the mortgaged immovable thing
1. After the division of the mortgaged immovable thing, the claim secured by the mortgage shall not be divided and shall remain valid for all immovable things resulting from the division. An agreement on the division of the claim secured by the mortgage shall not be valid.
2. The order of priority in an auction sale of immovable things, belonging to different owners by the right of ownership, that resulted from the division of an immovable thing shall be established at the time of division by a written agreement of the owners of the thing. In the absence of a written agreement of the owners of the immovable thing, the order of priority in an auction sale of immovable things resulting from the division shall be established by a bailiff with due account taken of the proposals of the creditor and the interests of the debtors.
Article 4.173. Validity of the mortgage after the joining of mortgaged immovable things
1. Mortgaged immovable things may be joined only upon a written consent of the creditors whose order of priority in satisfying their claims will change after the joining of the things.
2. After joining together several mortgaged immovable things, the mortgage on each of them shall extend to the immovable thing resulting from the joining of the things. The order of priority in satisfying the claims of mortgagees shall be established in accordance with the time of registration of the mortgage in the public register.
Article 4.174. Claims secured by the mortgage
1. The mortgage shall secure the execution of the principal claim and the recovery of the interest arising from the claim.
2. The mortgage transaction may contain an agreement of the parties that the payment of the penalty and the mortgagee’s costs arising from the failure to execute the claim secured by the mortgage shall be secured by the maximum mortgage.
Article 4.175. Types of the mortgage
2. A contractual mortgage shall arise on the basis of a contract or a unilateral transaction (bearer instrument). A contractual mortgage arising on the basis of a unilateral transaction (bearer instrument) of the owner of the mortgaged thing shall be referred to as a bearer mortgage. The fulfilment of the obligation to the creditor by the owner of the thing subject to a bearer mortgage shall not be dependent on the principal claim the execution of which is secured by the established bearer mortgage.
3. Where, in cases specified by laws, a mortgage in respect of an immovable thing is established against the will of the owner of the thing thereof to secure the execution of property claims provided for by laws, the mortgage shall be referred to as a compulsory mortgage. A compulsory mortgage shall arise on the basis of laws, court judgments or decisions of an authorised institution/officer in the following cases:
1) where it is necessary to secure the execution of the claims of the State arising from the legal relations pertaining to taxes and the state social insurance;
2) where it is necessary to secure the execution of the property claims satisfied by a court judgment;
4. The procedure for the establishment of compulsory mortgages by the administrative bodies of the State Social Insurance Fund and tax administrators shall be laid down in the legal acts regulating the activities of these entities. The procedure for the establishment of a compulsory mortgage by a court judgment shall be regulated by the Code of Civil Procedure. Persons interested in the establishment of a compulsory mortgage arising on the basis of laws shall apply to the notary. A compulsory mortgage may be established in respect of an immovable thing that has already been mortgaged.
5. The following types of contractual mortgages shall be distinguished:
Article 4.176. Establishment of a compulsory mortgage to secure the execution of the claims of the State arising from the legal relations pertaining to taxes and the state social insurance
A mortgage to secure the execution of the claims of the State arising from the legal relations pertaining to taxes and the state social insurance shall be established by the decision of a tax administrator or an administrative body of the State Social Insurance Fund. The decision shall indicate the thing in respect of which the compulsory mortgage is established, the owner of the thing who is the debtor, the grounds for the establishment of the compulsory mortgage, the term of the compulsory mortgage, and the amount of the claim.
Article 4.177. Enterprise mortgage
1. Where an enterprise is mortgaged as immovable property, the mortgage shall be referred to as an enterprise mortgage. The mortgage transaction must indicate that it is an enterprise mortgage transaction.
2. A deed of inventory of the enterprise assets must be annexed to the enterprise mortgage transaction.
3. The parties must indicate the total value of the object subject to the mortgage in the enterprise mortgage transaction. Unless the enterprise mortgage transaction provides otherwise, the debtor (the mortgagor) undertakes that the value of the enterprise shall not fall below the value of the mortgaged object provided for in the mortgage transaction.
5. In carrying out normal commercial activities, the mortgagor shall have the right to dispose of the assets mortgaged under the rules of the enterprise mortgage. Upon transferring the right of ownership to the assets subject to an enterprise mortgage to a third party in good faith, the enterprise mortgage in respect of the transferred assets shall extinguish and the newly acquired assets shall become the object of the enterprise mortgage from the moment of the acquisition thereof into ownership. The enterprise mortgage transaction may stipulate that this rule shall not apply to specified assets that are the object of the enterprise mortgage.
Article 4.178. Establishment of a mortgage to secure the execution of the claims satisfied by a court judgment
In the cases specified by this Code and in accordance with the procedure established by the Code of Civil Procedure, a compulsory mortgage in respect of a debtor’s thing may be established at the request of a creditor upon the satisfaction of the claim on the recovery of money by a court judgment.
Article 4.179. Ordinary mortgage
Where one definite immovable thing possessed by a debtor by the right of ownership is mortgaged to secure the discharge of one definite obligation, the mortgage shall be referred to as an ordinary mortgage.
Article 4.180. Joint mortgage
Where several immovable things belonging by the right of ownership to one person are mortgaged under a single mortgage transaction to secure the discharge of one definite obligation, the mortgage shall be referred to as a joint mortgage.
Article 4.181. Mortgage of another’s thing
1. Where an immovable thing belonging by the right of ownership to a person other than the debtor is mortgaged, the mortgage shall be referred to as a mortgage of another’s thing.
Article 4.182. Maximum mortgage
1. Where an immovable thing is mortgaged with only the maximum amount of the claim specified in the mortgage transaction to ensure the discharge of the obligations secured by a mortgaged thing, the mortgage shall be referred to as a maximum mortgage. The mortgage transaction must indicate that it is a maximum mortgage transaction.
2. The date of fixing the amount of the maximum mortgage debt may be determined by agreement between the parties. This mortgage shall not secure any other subsequent debt obligations. A bailiff shall also fix the amount of the debt at the mortgagee’s request during the recovery procedure.
Article 4.183. Common mortgage
1. Where several immovable things owned by different owners are mortgaged to secure the discharge of one debt obligation, the mortgage shall be referred to as a common mortgage.
2. Where an owner of a thing subject to a common mortgage wishes to remortgage the thing, he must obtain a written consent of all the other owners of the things subject to the common mortgage.
Article 4.184. Conditional mortgage
1. Where a thing is mortgaged to secure the discharge of a debt obligation by agreeing that the mortgage becomes effective from the moment of fulfilment of a condition established in the contract or that the mortgage is valid only until the moment a condition established in the contract is fulfilled, the mortgage shall be referred to as a conditional mortgage. The condition may be imposed on both the creditor and the debtor.
2. An immovable thing which will be created in the future or the owner of which will become the mortgagor in the future may be subject to a conditional mortgage. This conditional mortgage shall come into effect from the moment of registration of the object of the mortgage as property of the mortgagor in the Real Property Register.
3. An immovable thing the acquisition whereof by the right of ownership is sought in accordance with the procedure laid down in Part VI of the Code of Civil Procedure may be subject to a conditional mortgage. This conditional mortgage shall come into effect from the moment when the person who has acquired the immovable thing in accordance with the procedure laid down in Part VI of the Code of Civil Procedure becomes the owner of the thing.
Article 4.185. Execution and registration of the mortgage
2. A mortgage transaction may be concluded as an individual transaction, or an agreement on the mortgage may be included into the contract from which the principal obligation arises.
3. The debtor, the creditor and the mortgagor shall be the parties to a mortgage transaction. Where the thing is mortgaged upon a unilateral declaration of its owner, only the owner of the mortgaged thing shall be the party to the mortgage transaction.
4. The notary who has certified the mortgage transaction shall submit to the public register, in accordance with the procedure laid down by the regulations of this register, the data for the registration of the mortgage.
5. A compulsory mortgage shall be established by a decision of a court, a notary, or an official or institution authorised by law. The court, the notary, the official or institution authorised by law or the creditor that has established the compulsory mortgage shall submit the data for the registration of the mortgage in accordance with the procedure laid down by the regulations of the public register.
6. Changes to the mortgage transaction must be drawn up in the same form as the mortgage transaction and their registration in the public register shall be subject to the same procedure as that of the mortgage. Changes to a compulsory mortgage shall be established in accordance with the same procedure as the compulsory mortgage.
7. The data on the mortgage in the public register shall be public and shall be regarded as accurate and comprehensive until contested in accordance with the procedure established by laws. Only third parties in good faith may assert their rights on the basis of the mortgage registered in the public register.
Article 4.186. Content of the mortgage transaction
1. The mortgage transaction must indicate the location, date and time of its conclusion, the debtor, the creditor and the mortgagor (where the debtor and the mortgagor is not the same person), their place of residence/registered office, the object of the mortgage, the obligation(s) secured by the mortgage, the definite or maximum amount of the claim(s), the time limit for the discharge of the obligation, the number of copies of the original mortgage transaction, and the entities whereto the copies of the original transaction are transferred at the moment of conclusion of the transaction. The type of the mortgage must be indicated in the transaction in the case of an enterprise mortgage, a conditional mortgage and a maximum mortgage. The conditional mortgage transaction shall specify the condition that gives validity to the mortgage.
2. Special requirements for the content of transactions shall not apply to mortgage transactions, with the exception of cases established by law.
3. A mortgage transaction may be established as a security upon agreement between the parties or a unilateral declaration of the owner of the mortgaged thing. In this case, the mortgage transaction shall be concluded as an individual transaction in a single copy that shall be transferred to the mortgagee.
4. Where several creditors are represented by one representative, the mortgage transaction may, by agreement between the creditors or by a unilateral declaration of the owner of the mortgaged thing, establish that only the representative of the creditors shall be indicated as the creditor in the public register. In this case, the grounds for representation must be indicated in the public register.
Article 4.187. Time of the mortgage becoming effective
1. A contractual mortgage shall become effective and binding on the parties from the moment of conclusion of the mortgage transaction unless the mortgage transaction provides otherwise.
2. A mortgage transaction may be used against third parties in good faith only where the mortgage is registered in the public register in accordance with the procedure laid down by the regulations of the register.
Article 4.188. Discrepancies between the mortgage transaction and the data of the public register
Where the text of the mortgage transaction does not correspond to the entry of the public register, the entry of the public register shall prevail.
Article 4.189. Transfer of the right of mortgage and the claim secured by the mortgage
1. The creditor may transfer the claim secured by the mortgage or a part thereof to another person unless the mortgage transaction or the laws provide otherwise. When transferring the claim secured by the mortgage, the right of mortgage shall also be transferred. The claim secured by the mortgage shall be transferred in accordance with the provisions of Book Six of this Code regulating the assignment of the right of claim.
2. Where a mortgage transaction is, by agreement between the parties, a security, the creditor may transfer the right of mortgage separately from the claim secured by the mortgage. In such a case, the claim secured by the mortgage shall be considered as the right of claim held by the new mortgagee against the debtor where the amount of the claim may not exceed the amount of the principal obligation specified in the mortgage transaction.
3. Where the mortgage transaction is a security, the claim secured by the mortgage shall be assigned by transferring the mortgage transaction by endorsement (the entry of the mortgagee whereby the mortgage transaction is transferred to another person). The endorsement must be entered in the mortgage transaction by indicating the person to whom the claim secured by the mortgage is transferred, and must be signed by the endorser (the mortgagee) and registered in the public register.
4. The transfer of the claim secured by the mortgage or a part thereof, the assignment of the right of mortgage, and the endorsement of the mortgage transaction may, upon their registration in the public register in accordance with the procedure laid down by the regulations of the register, be used against third parties in good faith.
Article 4.190. Right of the mortgagee to transfer his priority of satisfying his claim from the value of the mortgaged thing to another mortgagee
Where a thing is subject to several mortgages, any mortgagee may transfer his priority of satisfying his claim from the value of the mortgaged thing to another mortgagee. In this case, changes shall be made to both mortgage transactions. Where the amount of the claim of the mortgagee who transfers his priority is smaller than the amount of the claim of the transferee, a notarised consent of the creditors succeeding the transferor and preceding the transferee shall be necessary.
Article 4.191. Pledge of the claim secured by the mortgage
Unless the mortgage transaction provides otherwise, the mortgagee may pledge his mortgage claim in accordance with the provisions of this Code regulating the right of pledge.
Article 4.192. Right of the mortgagee to apply for debt recovery and the registration of the writ of execution
1. If, within the time period specified in the mortgage transaction, the debtor fails to discharge his obligations or other grounds set out in the mortgage transaction have arisen, the mortgagee may apply to the notary for the registration of a notarial writ of execution. The procedure for the registration of notarial writs of execution and the form for registering a writ of execution shall be laid down by the Minister of Justice.
2. A creditor who has the right of claim secured by a compulsory mortgage may apply to the notary for the registration of a writ of execution in compliance with the time limits set by a court judgment or the notary. Debt recovery from the property subject to a compulsory mortgage on the basis of a decision of an authorised institution/official shall be carried out in accordance with the procedure laid down by laws.
3. In the application for the registration of a writ of execution, the mortgagee shall indicate the code assigned to the mortgage in the public register, the amount of the outstanding debt, the debtor, the mortgagor and their addresses (registered offices). The mortgagee shall be held liable for the accuracy of the data indicated in the application.
4. Having verified that the particulars specified in the mortgagee’s application agree with those entered in the public register, the notary, prior to registering the writ of execution, shall send to the debtor a notice of enforcement indicating the data provided by the mortgagee and the proposal to either pay off the debt to the creditor no later than within 20 days from the date of issue of the notice of enforcement and inform the notary in writing about the fulfilment of the obligation or provide the notary with the data on the invalidity of the mortgagee’s claim. Having considered the data provided by the mortgagee and the debtor, the notary shall either register the writ of execution or shall refuse, on a reasoned basis, to do so. By registering the writ of execution, a notary shall propose recovering from the debtor the amount of the debt obligation secured by the mortgage that was not paid within the time limit established in the mortgage transaction or the amount of the outstanding debt with the interest due as specified by the mortgagee. The notary shall immediately notify the public register of the fact of the registration of the writ of execution and shall send a copy of the writ of execution to the debtor and the mortgagor. From the day of registration of the writ of execution in the public register, the debtor shall have no right to dispose of the mortgaged property without the consent of the creditor.
5. The notarial writ of execution shall be an enforceable and enforcement document submitted to the bailiff for enforcement in accordance with the procedure laid down by the Code of Civil Procedure.
6. Where, prior to the submission of the writ of execution to the bailiff for enforcement, the debtor discharges the obligation by paying the money into the deposit account of the notary, the notary shall, at the request of the debtor or the creditor, cancel the writ of execution and notify thereof the creditor and the public register.
7. When the bailiff initiates the forced recovery procedure, the mortgaged thing may, at the choice of the mortgagee, be sold at a public auction or transferred to the mortgagee for administration, except in the case of an enterprise mortgage and a mortgage of another’s thing. Where the mortgaged thing has been transferred to the mortgagee for administration and, in the course of administration, it becomes apparent that it is not possible to satisfy the claim secured by the mortgage, the mortgagee may apply to the bailiff for the sale of the mortgaged thing at a public auction.
8. Prior to the start of the public auction, the object of the mortgage may, by agreement between the debtor (the mortgagor) and the mortgagee, be transferred to the ownership of the mortgagee or to a third party on the basis of a transaction concluded in a notarial form between the mortgagee and the debtor (the mortgagor) in accordance with the procedure laid down in Article 704 of the Code of Civil Procedure. A thing subject to several mortgages may be realised in the manner specified in the transaction concluded between the mortgagee and the mortgagor only upon consent of all creditors.
9. Where the recovery procedure takes place when enforcing a maximum mortgage, the notary shall register the writ of execution, irrespective of whether the amount of the debt is specified. If the amount of the debt under a maximum mortgage is not specified, the notary shall note this in the writ of execution.
Article 4.1921. Specific features of the recovery of debt from the property subject to an enterprise mortgage
1. Where the recovery procedure takes place when enforcing an enterprise mortgage transaction, the enterprise may be subject to the administration of assets. The administration of assets shall be established by a bailiff in accordance with the procedure laid down in the Code of Civil Procedure. The mortgagee or other person shall, upon the consent of the mortgagee, be appointed as the administrator of assets.
2. From the day of registration of the writ of execution in the public register, the management bodies of the mortgaged enterprise shall have no right to dispose of the assets that are the object of the enterprise mortgage without the prior written consent of the mortgagee (until the appointment of the administrator of assets) or the administrator of assets.
3. The administrator of assets shall not take over the functions of the management body of the enterprise, but the instructions of the administrator of assets regarding the use, management and disposal of the assets of the enterprise which are the object of the enterprise mortgage shall be binding on the members of the management body of the enterprise.
4. The administrator of assets may exercise the rights granted to him by laws only to the extent necessary to settle the claims secured by the enterprise mortgage.
5. Where it transpires that the claim secured by the mortgage cannot be satisfied from the income received from the mortgaged assets of an enterprise subject to administration, the administrator of assets/creditor may apply to the bailiff for the sale of the entire enterprise in accordance with the procedure laid down in Articles 6.402 to 6.410 of this Code. In this case, the administrator of assets shall act as the seller. Where it transpires that the sale of the entire enterprise is impossible or economically unviable, the administrator of assets/creditor may apply to the bailiff for the sale of the assets of the enterprise in instalments.
Article 4.193. Right of the mortgagee to satisfy the claim from the mortgaged thing
1. If the proceeds from having realised the mortgaged thing are lower than the amount due to the mortgagee, the mortgagee shall have the right to claim recovery from the other property of the debtor in accordance with the general procedure established by laws.
2. Where a thing is subject to several mortgages, the claims of the mortgagees shall be satisfied in the order of registration of the mortgages in the public register.
3. Where a thing is subject to several mortgages, any of the mortgagees shall have the right to apply to the notary for the registration of the writ of execution and submit the writ of execution for enforcement to the bailiff. The bailiff that is presented with the writ of execution shall, in accordance with the procedure laid down in the Code of Civil Procedure, notify the other mortgagees of the submission of the writ of execution for enforcement.
4. Where a thing is subject to several mortgages, the forced recovery may not be initiated without the written consent of the mortgagees of preceding priority.
5. Where several writs of execution have been issued and submitted for enforcement to different bailiffs, the recovery from the property secured by the mortgage shall be carried out by the bailiff who was presented with the writ of execution the earliest.
6. If the mortgagee of preceding priority does not give his consent to initiate the recovery procedure without a valid reason and as a result the mortgagee of successive priority suffers losses, the mortgagee of preceding priority must compensate for the losses suffered by the mortgagee of successive priority.
7. Where the mortgaged thing is expropriated or confiscated, the claim of the mortgagee shall be satisfied respectively by the new possessor of the thing or by the State, but not in the excess of the value of the mortgaged thing.
8. Where the mortgaged thing passes into the ownership of the State or a municipality by the right of inheritance or the mortgaged ownerless thing is transferred by a court judgment to the ownership of the State or a municipality, the claim of the mortgagee shall be satisfied by the State or the municipality, but not in excess of the value of the mortgaged thing.
Article 4.194. Debt recovery through the auction sale of the thing subject to a joint mortgage
1. The order of priority in the sale of the things subject to a joint mortgage shall be set by the owner of the things.
Article 4.1941. Guarantees of the debtor’s (mortgagor’s) interests
1. The debtor (mortgagor) shall have the right to close the mortgage at any time from the expiry of the time limit for the discharge of the obligation until the moment of realisation of the object of the mortgage by properly discharging the obligation secured by the mortgage.
2. Where the obligation secured by the mortgage may be discharged in parts, the debtor (mortgagor) shall have the right to request suspension of the recovery from the object of the mortgage by discharging the part of the obligation in respect of which the deadline has been missed.
3. The debtor (mortgagor) shall have the right to claim from the creditor compensation for the losses incurred as a result of the recovery procedure illegally enforced by the creditor, as well as for the losses resulting from an illegal administration or a forced sale of the object of the mortgage. The creditor shall not be held liable for the actions of the bailiff.
4. The creditor must enforce the recovery procedure in the most economical manner possible and may not unreasonably enrich himself at the debtor’s (mortgagor’s) expense.
5. From the date of entry of the particulars of the writ of execution in the public register, the debtor (mortgagor) shall have the right to transfer the object of the mortgage only upon the consent of the creditor. Having ascertained the solvency of the buyer suggested by the debtor, the creditor must give his consent to entering into a transfer transaction where the selling price of the mortgaged thing corresponds to the amount of the principal claim secured by the mortgage and the interest arising therefrom. The proceeds from the sale of the mortgaged thing, required to satisfy the mortgagee’s claim, must be transferred into the deposit account of the notary attesting the transfer transaction.
6. Where the creditor has initiated unreasonable recovery without due grounds or has filed an unreasonable claim, the debtor (mortgagor) shall have the right to dispute the lawfulness of the creditor’s actions in contentious proceedings. Filing of an action shall not suspend the recovery procedure. The recovery procedure may be suspended only upon application of interim protection measures by court in the cases specified by law.
Article 4.195. Debt recovery from the thing subject to a mortgage of another’s thing
1. The owner of the mortgaged thing shall be liable for the discharge of the debtor’s obligation by his mortgaged thing only. The mortgagor shall be held subsidiarily liable with the debtor from the date of non-performance of the obligation secured by the mortgage.
2. Administration of property may not be established in respect of the property subject to a mortgage of another’s property.
3. Where the creditor’s claims are secured by both a mortgage of the thing owned by the debtor and a mortgage of another’s thing, the creditor shall have the right to recover from the object of the mortgage of another’s thing only to the extent necessary to satisfy his claim where the recovery from the mortgaged thing owned by the debtor cannot fully settle the claim.
4. When the owner of the mortgaged thing discharges the debtor’s obligation or his thing is sold at a public auction, the owner of the mortgaged thing shall acquire the right of recourse against the debtor in respect of the amount paid or of a compensation for damages arising from the loss of the thing.
Article 4.196. Right to demand satisfaction of the claim secured by the mortgage prior to the expiry of the time limit
1. The mortgagee shall have the right to demand satisfaction of the claim secured by the mortgage prior to the expiry of the time limit and apply to a notary for the registration of the writ of execution in the same manner as at maturity provided:
3) bankruptcy proceedings against the debtor or the owner of the mortgaged thing have been initiated or a decision on his liquidation has been adopted;
4) the value of the object of the mortgage has decreased by more than 30 per cent, while the debtor has failed to discharge a part of the obligation equal to the decreased value of the mortgaged thing and this part of the obligation has not been covered by the insurance amount received;
5) the contract of insurance of the mortgaged thing has been terminated before its expiration or, after the termination of the insurance contract, the thing is not insured;
2. If the value of the mortgaged thing has decreased while the debtor has failed to discharge a part of his obligation equal to the decreased value of the mortgaged thing, or the thing has perished, creditors shall be entitled to the insurance amount of the thing not in excess of the amount of their claims, to be paid in the same order of priority as that in which the creditors’ claims should have been satisfied. Upon the receipt of a written consent of all creditors, the insurance amount may be paid to the owner of the mortgaged thing.
Article 4.197. Grounds for the extinction of the mortgage
1. The forced realisation of the mortgaged thing on the request of the mortgagee shall disencumber it from all effective mortgages.
2. A mortgage shall extinguish when:
1) the debt obligation has been properly discharged or the obligation secured by the mortgage extinguishes on other grounds specified in the mortgage transaction or laws;
3) the mortgagee or his whereabouts have been unknown for ten years from the expiry of the time limit for the payment of the debt;
4) the object of the mortgage has perished, disappeared or has been cancelled in accordance with the procedure established by legal acts;
3. A mortgage may resume in the cases specified by this Code. A resumed mortgage shall be executed by a notary upon the request of the mortgagee.
4. If at the maturity the mortgagee refuses to accept the subject matter of the obligation secured by the mortgage, the debtor may pay a respective amount into the deposit account of the credit institution or a notary. The mortgage shall extinguish when the full amount of the debt is paid into the deposit account.
6. The entitlement of a mortgagee in good faith shall remain valid even if the mortgage transaction is declared null and void on the grounds for which the mortgagee is not liable. Where the mortgage transaction has been declared null and void in accordance with the procedure laid down by laws and there is no need to protect the mortgagee in good faith, the mortgage registered in the public register shall extinguish and shall be removed from the public register upon the submission of a final court judgment declaring the nullity of the mortgage transaction.
7. An extinguished mortgage shall be removed from the public register. An application of the mortgagee, the debtor or the mortgagor for deregistration of the extinguished mortgage shall be filed with a notary who shall forward the data on the extinction of the mortgage to the public register. A mortgage which has extinguished on the grounds specified in point 1 of paragraph 2 of this Article may also be deregistered on the application of the mortgagee, the debtor or the mortgagor, submitted by means of information technology to the public register in accordance with the procedure laid down in the regulations of this register (where an application for deregistration of the extinguished mortgage is filed by the debtor or the mortgagor, the mortgagee must provide a confirmation of the extinction of the mortgage by means of information technology). A conditional mortgage concluded with the aim of acquiring by the right of ownership an immovable thing in accordance with the procedure laid down in Part VI of the Code of Civil Procedure shall be removed from the public register in line with the bailiff’s notice that the person who concluded the conditional mortgage has not become the owner of the property.
Article 4.198. Concept of the pledge
1. Pledge shall mean the real right to another’s movable property and property rights ensuring the performance of a current or future property obligation.
2. The object of the pledge may be transferred to the creditor, a third party or left under the management of the pledgor. The transfer of the object of the pledge shall also include the transfer of a mercantile or equity security to the creditor and any other right to manage the object of the pledge, including the making of entries in bank accounts or securities.
3. The right of pledge and its validity shall depend on the validity of the principal obligation secured by the pledge.
4. Where the debtor fails to perform the obligation secured by the pledge, the creditor (pledgee) shall have the right to satisfy his claim from the value of the collateral prior to other creditors.
Article 4.199. Grounds for the pledge
2. A contractual pledge shall arise on the basis of a contract or unilateral transaction (declaration). A contractual pledge arising on the basis of a unilateral transaction (declaration) of the pledgor shall be referred to as a bearer pledge.
3. The provisions of this Book regulating judicial mortgage shall apply mutatis mutandis to a compulsory mortgage arising on the basis of laws, a judicial decision or a decision of an authorised institution/officer.
Article 4.200. Claims secured by the pledge
2. The pledge shall secure the performance of the principal claim and the recovery of the interest arising from this claim. The parties to the pledge transaction may agree in the pledge transaction that penalties and losses incurred by the creditor due to the delay of the performance of the obligation secured by the pledge shall be secured by a maximum pledge.
Article 4.201. Object of the pledge
2. Things against which, under the existing laws, execution may not be levied as well as movable things that have been pledged together with an immovable thing in accordance with the procedure established in Article 4.171(1) of this Code may not be the object of the pledge.
3. Unless the laws or the pledge transaction provide otherwise, a pledge of the thing shall cover accessories of the thing and non-separated fruits.
4. The risk of accidental perishment or damage of the collateral shall be borne by the pledgor unless laws or the pledge transaction provide otherwise.
Article 4.202. Pledge of property complexes
1. A pledge transaction may take the form of the pledge of property complexes made up of movable property, the composition and form of which is constantly changing, including supplies of goods, equipment, rights of claim, etc. In this case, the object of the pledge shall be described by indicating the category of pledged property, whereas separate objects constituting the property complex shall not be categorised.
2. In carrying out usual commercial activities, the pledgor shall have the right to dispose of the objects constituting the pledged property complex only if the total value of the pledged property is not reduced. Where the pledgor lawfully disposes of the collateral, the pledge of the transferred objects shall be extinguished, and the property newly acquired by the pledgor shall become the object of the pledge from the moment of acquisition of the property into ownership.
Article 4.203. Substitution of the collateral
1. Upon the consent of the pledgee(s), the pledgor may substitute the thing defined by individual characteristics, that is the object of the pledge, by another thing that has not been previously pledged.
Article 4.204. Real rights as the object of the pledge
1. Rights to the land, forest, other things, i.e. the right of use, the right of lease and other property rights, except for rights inseparably connected to the person of the owner of the thing pledged as well as rights that are not transferable by law or by the contract, may be the object of the pledge.
Article 4.205. Insurance of the object of the pledge
1. The law or the contract may stipulate the duty to insure the thing that has been pledged/the thing to be pledged.
2. A contract may also provide for the duty of the pledgor (a legal person) to insure the object of the pledge in the event of liquidation or insolvency.
Article 4.206. Pledgor
2. The pledgor must be the owner of the object of the pledge or a person having the property right that is the object of the pledge, except when the pledge transaction stipulates that the object of the pledge will be acquired by the pledgor in the future. A trustee managing the property by the right of property trust shall have the right to pledge this property only in the cases where the laws or the transaction on the basis whereof the right of property trust arises provide for the right to pledge the property managed by the right of trust. Laws, judicial decisions or transactions may establish the right of the administrator of property of another person to pledge the property.
3. A property right that belongs to several persons may be pledged only with the consent of all of them. In this case, the pledge transaction shall be signed by all of these persons.
Article 4.207. Remaining of the right to pledge when the right of ownership of the collateral has been transferred to another person
1. When the right of ownership of the collateral has been transferred from the pledgor to another person, the pledge shall remain valid when the object of the pledge has been transferred to the pledgee or when the pledge transaction has been registered in the public register unless the laws or pledge transactions provide otherwise. This rule shall also apply when property rights constitute the object of the pledge.
Article 4.208. Right to inspect the subject of the pledge
1. A creditor shall have the right to inspect the number, condition, storage conditions, etc. of pledged things managed by the pledgor unless otherwise provided in the contract.
Article 4.209. Form of pledge transactions
1. Where the object of the pledge is transferred to the creditor, a written pledge transaction shall be concluded. A pledge arising on the basis of this transaction may be registered in the public register. The pledge transaction referred to in this paragraph may be concluded by means of information technology by registering the pledge in the public register in accordance with the procedure laid down in the regulations of this register. Failure to comply with the written form requirement shall render the transaction null and void.
2. Where the object of the pledge is transferred to a third party or remains with the pledgor, a pledge transaction and a unilateral declaration of the owner of the object of the pledge to pledge things or property rights shall be approved by a notary, with the exception of the case specified in paragraph 3 of this Article, and registered in the public register.
3. Where the object of the pledge is transferred to a third party or remains with the pledgor, while the creditor, the debtor and the pledgor (where the debtor and the pledgor are not the same person) are legal persons, a pledge transaction and a unilateral declaration of the owner of the object of the pledge to pledge things or property rights may also be concluded by means of information technology by registering the pledge in the public register in accordance with the procedure laid down in the regulations of this register.
4. A pledge transaction may be concluded as an individual transaction or an agreement on the pledge may be included into the transaction from which the principal obligation arises.
Article 4.210. Content of a pledge transaction
1. A pledge transaction must include the following: the place and date of the conclusion of the transaction, the pledgor, the debtor, the creditor and the person to whom the object of the pledge has been transferred, their place of residence/registered office, the description of the object of the pledge, an obligation(s) secured by the pledge, a specific or maximum amount of the obligation(s), and the time limit for discharge. The type of the pledge must be indicated in the transactions of the conditional and maximum pledge. The conditional transaction shall specify the condition that gives validity to the pledge. Where the object of the pledge is pledged repeatedly, the debtor must indicate this in the pledge transaction.
2. Special requirements for the content of transactions shall not apply to pledge transactions, except for the cases specified by law.
3. Where several creditors are represented by one representative, by agreement between the creditors or by a unilateral declaration of the owner of the collateral, the pledge transaction may provide that only the representative of the creditors is to be indicated as the creditor in the public register. In this case, the grounds for representation must be indicated in the public register.
Article 4.211. Subsequent pledges
1. Unless the thing has been transferred to the pledgee by a previous pledge transaction and unless the pledge transaction provides otherwise, a subsequent pledge shall be permitted. In these cases, the prior pledge remains valid.
Article 4.212. Pledge priority
1. Where several pledge transactions have been concluded in respect of the same object of the pledge, the claim secured by the earlier pledge transaction shall have priority.
Article 4.213. Entry into force of the pledge
1. The pledge between the parties shall enter into force from the moment of conclusion of the pledge transaction unless otherwise provided for in the pledge transaction.
2. Where the object of the pledge is transferred to a third party or remains with the pledgor, the pledge may be used against third parties in good faith only where the right of pledge has been registered in the public register in accordance with the procedure laid down in the regulations of this register.
Article 4.214. Duties of the person to whom the collateral is transferred
The person to whom the collateral has been transferred must take proper care of it. He shall be liable for the preservation thereof unless he proves that the thing has been lost or damaged through no fault of his. This person shall have no right to use the collateral unless otherwise provided for by law or the pledge transaction.
Article 4.215. Vindication of the collateral
Where the collateral has ceased to be in the possession of a pledgee, a pledgor or a third person, the pledgee or the third person may vindicate the thing in accordance with Articles 4.95 to 4.97 of this Code.
Article 4.216. Emergence of the right of enforcement against the object of the pledge
1. A pledgee shall acquire the right of enforcement against the object of the pledge upon failure to perform the obligation at the expiry of the time limit for performing that obligation or upon the occurrence of other grounds specified in the pledge transaction.
2. The provisions of this Code regulating the mortgagee’s right to demand satisfaction of the claim secured by the mortgage prior to the expiry of the time limit shall mutatis mutandis apply to the emergence of the right of the creditor (pledgee) to demand satisfaction of the claim secured by the pledge prior to the expiry of the time limit.
Article 4.217. Enforcement against the object of the pledge that consists of two or more things/property rights
When the object of the pledge consists of two or more things/property rights, the enforcement may be directed towards all those things/property rights or towards each of them individually. The right of choice shall belong to the pledgee until the full satisfaction of the claim.
Article 4.218. Consequences arising when the claims of the pledgee are satisfied by a third party
When the claim of a pledgee is fully satisfied by a third party, the right of pledge shall pass to him together with the right of claim.
Article 4.219. Enforcement procedure of collaterals
1. Where a debtor fails to perform the obligation secured by the pledge, the creditor’s claim shall be satisfied from the value of the collateral unless laws or the transaction provide otherwise.
2. Where the object of the pledge is transferred to a third party or remains with the pledgor or where the pledge is compulsory, the provisions of this Code regulating the procedure of enforcement against the property secured by the mortgage shall apply mutatis mutandis to enforcement against the property secured by the pledge.
3. Where the object of the pledge is transferred to the creditor, imposed enforcement against the property secured by the pledge shall be carried out in accordance with the procedure laid down in the pledge transaction.
4. A creditor, a debtor and a pledgor (where a pledgor is not a debtor) shall have the right to agree, either in a pledge transaction or in the course of enforcement, that the object of the pledge is to be transferred into the creditor’s ownership or realised in any other way agreed by the parties. The agreement to transfer the object of the pledge into the creditor’s ownership shall be presumed when the object of the pledge is transferred to the creditor at the time of pledging.
5. Where the proceeds from the sale of the collateral are not sufficient to satisfy the claim of the pledgee in full, the pledgee shall have the right to recover the remaining amount from the debtor’s other property unless otherwise provided by law or the pledge transaction. In this case, the pledgee shall have no priority over other creditors.
Article 4.220. Realisation of property rights subject to the pledge
1. Where the object of the pledge is property rights, the object of the pledge shall be realised by transferring to the creditor the pledgor’s claims arising from the pledged property right or a part of the claims corresponding to the amount of the debt obligation or by transferring to the creditor the right to administer property rights and satisfy his claim from the received funds.
Article 4.221. Procedure for the satisfaction of the creditor’s claim secured by the funds in the bank account of the pledgor
1. Where funds in the bank account of the pledgor have been pledged to secure the discharge of the obligation, the creditor shall acquire the right to operate the bank account of the pledgor from the moment of emergence of the right of enforcement against the object of the pledge.
2. Having satisfied the claim from the existing and incoming funds in the pledgor’s bank account, the right of the creditor to operate the account of the pledgor terminates and the creditor must return to the pledgor the pledge transaction with an inscription therein about the satisfaction of the claim.
Article 4.222. Settlements after the realisation of the collateral
1. Where, after the realisation of the collateral, the proceeds are in excess of the creditor’s claim, the difference in the amount must be paid to the pledgor.
Article 4.223. Assignment of the claim secured by the pledge or the right arising from the pledge
1. The contract on the assignment of the claim secured by the pledge or part of it must be concluded following the rules established in Book Six of this Code specifying requirements for the assignment of a claim. A debtor must be notified about the assignment of a claim and, where the pledgor is a third party, the latter must also be notified.
2. Where the object of the pledge is transferred to a third party or remains with the pledgor, the assignment of the right arising from the pledge may be used against third parties from the moment of registering the assignment of this right in the public register. Where the object of the pledge is transferred to the creditor, the assignment of the right arising from the pledge may be used against third parties from the time of transferring the possession of the object of the pledge to a new creditor.
Article 4.224. Extinction of the right to pledge
1. The right to pledge shall be extinguished:
3) when the pledgee acquires the ownership right to the collateral or when the pledged rights are assigned to the pledgee;
5) when the creditor cannot satisfy his claim from the subject of the pledge due to the delay of the limitation of actions;
2. Where the pledged property is forcibly sold upon the demand of the creditor to whom the property has been pledged, all property pledges shall be revoked.
3. An extinguished pledge shall be removed from the public register. A creditor, a debtor or a pledgor shall file an application for deregistration of the extinguished pledge by means of information technology to the public register in accordance with the procedure laid down in the regulations of this register (where an application for deregistration of the extinguished pledge is filed by the debtor or the pledgor, the creditor must provide a confirmation of the extinction of the pledge by means of information technology). An application of the creditor, the debtor or the pledgor for deregistration of the extinguished pledge may also be filed with a notary who shall forward the data on the extinction of the pledge to the public register.
Article 4.225. Guarantees of the pledgor’s interests
1. The pledgor shall have the right at any time from the date of maturity of the obligation until the moment of realisation of the subject of the pledge to revoke the pledge by properly discharging the obligation secured by the pledge.
2. Where the obligation secured by the pledge may be discharged in parts, the pledgor shall have the right to suspend the enforcement against the subject of the pledge by discharging the part of the obligation in respect of which the deadline has been missed.
3. The pledgor shall have the right to claim from the creditor compensation for losses incurred during the enforcement proceedings, also losses resulting from the improper custody of the subject of the pledge or forced sale of it.
4. The creditor must enforce the recovery in the most economical manner possible and may not unreasonably enrich himself at the debtor’s (pledgor’s) expense.
5. From the day of registration of the writ of execution in the public register, the debtor (pledgor) shall have the right to transfer the pledged property with the consent of the creditor. Having ascertained the solvency of the buyer suggested by the debtor (pledgor), the creditor must give his consent to enter into a transfer transaction where the selling price of the collateral corresponds to the amount of the principal claim secured by the pledge and the interest arising therefrom.
6. Where the creditor has initiated unreasonable recovery without due grounds or has filed an unreasonable claim, the debtor (pledgor) shall have the right to dispute the lawfulness of the creditor’s actions in contentious proceedings. Filing of an action shall not suspend the recovery procedure. The recovery procedure may be suspended only upon application of interim protection measures by court in the cases specified by law.
7. Where the property is pledged by the pledge of another’s property, the pledgor shall be held subsidiarily liable with the debtor from the date of non-performance of the obligation secured by the pledge. Administration of the property may not be established in respect of the property pledged by the pledge of another’s property.
Article 4.226. Extinction of the pledge by depositing money
Where the pledgee refuses to accept the subject of the monetary obligation secured by the pledge, the pledgor may pay a respective amount into the deposit account of a bank or any other credit institution of a notary (where a pledge transaction has been certified by a notary). Once the full amount of the debt has been deposited, the pledge shall expire.
Article 4.227. Concept of the pledge at a pawnshop
1. Articles of personal use may be pledged at pawnshops in order to secure the repayment of short-term credits that are granted to natural persons by pawnshops.
Article 4.228. Rights, duties and responsibilities of a pawnshop
1. A pawnshop shall have no right to use or dispose of pledged things, except in the case specified in paragraph 3 of this Article.
2. A pawnshop shall be liable for the loss/destruction and damage of pledged things unless it proves that the things have been lost/destroyed or damaged due to force majeure.
3. Where the amount of credit secured by the pledge of the thing is not repaid to a pawnshop within a specified period, the pawnshop shall have the right, upon the expiration of one month, to sell the pledged thing in accordance with the procedure established in paragraphs 2 and 5 of Article 4.219, Articles 4.222 and 4.225 of this Code.
Article 4.229. Content of the right of retention
1. A lawful possessor who has the right of claim in respect of the owner of the thing belonging to another shall be entitled to retain the thing until his claim is satisfied.
2. The right of retention may not be exercised before the expiry of the time limit for performance of the obligation.
Article 4.230. Indivisibility of the right of retention
The right of retention shall be indivisible, therefore the possessor may retain the entire thing until his claim is fully satisfied.
Article 4.231. Right in respect of fruits of the retained thing
1. A person who enjoys the right of retention may keep the fruits of the retained thing and thus satisfy his claims prior to other creditors.
Article 4.232. Custody conditions of the retained thing
1. A person who has the right of retention must keep and preserve the thing in such a way that its safety is ensured.
2. A person who has the right of retention may not lease, pledge or otherwise encumber the thing or use it in accordance with its intended purpose, except for the use that is necessary to preserve the thing unless the law provides otherwise or the person who retained the thing and the owner of the thing have agreed otherwise.
Article 4.233. Reimbursement of expenses related to the retention of the thing
1. Where the person who has the right of retention has incurred expenses related to the retained thing, he may demand from the owner of the thing to cover the expenses thereof, except when the owner proves that such expenses were not necessary.
Article 4.234. Limitation of actions in cases of retention
The exercise of the right of retention shall not affect the limitation of actions that has been established for the claim in respect of which the possessor of the thing has the right thereof.
Article 4.235. Extinction of the right of retention
1. The debtor, having submitted the adequate proof that he has performed his obligation, shall be entitled to demand the transfer of the thing to him.
Article 4.236. Scope of application of property administration provisions
1. Provisions of this Chapter shall regulate the activities of each person who administers the property belonging by the ownership right to another, except where this Code or other laws provide for another form of property administration.
2. Administration shall be established by a court order, by law or by transaction. In cases provided for under this Code, the administration may be established by an administrative act.
3. In the course of enforcement proceedings, the administration of the debtor’s property shall be established by a bailiff in accordance with the procedure laid down by the Code of Civil Procedure. In this case, the authorisations provided for in Articles 4.240(4) and 4.243(4) of this Code shall be issued by a bailiff who has established the administration of the debtor’s property.
Article 4.237. Property administrator
1. Any natural or legal person who is permitted by legal acts to provide administrative services may be a property administrator.
Article 4.238. Right of the property administrator to remuneration
1. The property administrator shall be entitled to the remuneration fixed in the act establishing administration, except where the administration is gratuitous under the law. Where the remuneration is not fixed in the act establishing administration, it shall be established by the court according to the market value of the services rendered by the administrator.
2. Where the administrator is not paid on time, he shall be entitled to keep the appropriate amount as remuneration for the administrative services rendered from the sum to be paid to the beneficiary, or to retain the property until the time he is paid.
3. Where there are several beneficiaries, they shall be jointly and severally liable for the payment of remuneration to the administrator.
Article 4.239. Kinds of property administration
1. A simple property administration shall be established when the administrator performs all the acts necessary to preserve the property or to ensure that it is used for its intended purpose; a full property administration shall be established when the administrator is not only to preserve the property but also to increase it, to manage it in such a way that it generates income, and to use it for the purpose that is in the best interests of the beneficiary.
Article 4.240. Content of simple property administration
1. In the case of simple property administration, the administrator must collect the fruits and revenues of the property, register debts and give valid acquittance for them from the property under his administration, and exercise other rights pertaining to the management and use of the property. The administrator shall be entitled to safely invest the proceeds in accordance with the provisions of this Chapter.
2. Where securities are administered, the administrator shall be entitled to vote and exercise other rights and obligations pertaining to securities.
3. The administrator shall not be entitled to change the intended purpose of the property unless he is authorised to make such a change by the court.
4. With the authorisation of the court, the administrator may transfer the property to other persons for payment or to pledge it where it is necessary for the payment of the debts or the maintenance of the value of the property. The administrator may realise perishable property without an authorisation of the court.
Article 4.241. Content of full administration of property
In the case of full property administration, the administrator, in addition to the rights stipulated in Article 4.240 of this Code, may also transfer the property, invest, pledge, charge it with a real right or change its intended purpose.
Article 4.242. Obligations of the property administrator towards the beneficiary
1. In carrying out his obligations, the administrator must comply with laws and rules of the act establishing administration. The administrator shall not be liable for the normal wear and tear of the property and for the decrease in the value of the property or the destruction of the property due to force majeure.
2. The administrator must discharge his obligations with prudence, honesty and solely in the best interests of the beneficiary. The administrator may not exercise his powers in his own interest or that of a third person.
3. Where the administrator himself is a beneficiary, he must carry out his duties in the common interests of all beneficiaries, acting impartially and with equal respect for and protection of the rights of all beneficiaries.
4. The administrator shall have the right to make claims related to the administration of property as well as to join the case initiated by other persons in relation to the property under administration.
Article 4.243. Prohibitions in respect of the property administrator
1. The administrator shall be prohibited from carrying out his functions in his own personal interest. The administrator must notify the beneficiary without delay about each conflict of interests.
2. The administrator shall have no right to merge or mingle the property under administration with his own property, to use the property under administration or information related to administration of the property in his interests, except where permitted by the beneficiary or the act establishing administration.
3. The administrator shall have no right to transfer the property under administration to other persons gratuitously, he may not renounce any rights belonging to the beneficiary in respect of the property under administration.
Article 4.244. Obligations of the property administrator or the beneficiary towards third persons
1. The administrator shall not be personally liable towards third persons in respect of obligations arising from property administration, except if he acts on his own behalf.
2. The administrator shall be personally liable towards third persons when he exceeds his powers unless the transaction was subsequently ratified by the beneficiary or a third person was aware of the fact that the administrator acted in excess of his powers.
3. The beneficiary shall be liable towards third persons for the damage caused by the fault of the administrator in carrying out his functions only to the extent of the amount which he has derived from the administrator.
Article 4.245. Making an inventory of the property under administration and its insurance
1. The administrator shall be bound to make an inventory of the property, to insure the property against theft, fire and other natural disasters, to insure his own civil liability or to otherwise ensure the fulfilment of his obligations only where this is stipulated by law, the act establishing administration or a court judgment. Both the property and the civil liability of the administrator shall be insured at the expense of the beneficiary unless provided otherwise.
2. Where the administrator is bound to make an inventory of the property, such an inventory must contain the following:
3. The property described in the inventory shall be presumed to be in appropriate condition on the date of the preparation of the inventory unless it is proved otherwise.
4. The administrator shall furnish the inventory to the person or the institution that entrusted him with the administration, while copies of the inventory shall be sent to the beneficiary and other interested persons known to the administrator in relation to the property under administration. Any interested person shall have the right to contest the inventory and demand that a new inventory be prepared.
Article 4.246. Joint administration of the property
1. Where several administrators are charged with administration of the property, all decisions pertaining to property administration shall be taken by a majority of them unless the law or the act establishing administration requires all of them to act jointly.
2. If several administrators avoid taking a decision, the others may apply to the court for the authorisation to act individually or to modify the decision-taking procedure.
3. An administrator shall be presumed to have approved any decision made in his absence unless he makes his dissent known to the beneficiary and other administrators within a reasonable time after becoming aware of the decision.
Article 4.247. Liability of administrators in joint administration of property
1. All administrators shall be jointly and severally liable for joint administration unless their duties have been allocated by law, a court judgment or an act establishing administration. In that event, each administrator shall be liable for his own administration only.
2. An administrator shall be relieved of liability for the decision taken if he immediately indicates his dissent to his co-administrators and notifies it to the beneficiary. The administrator may be relieved of liability if he proves that, having indicated to co-administrators his dissent, he was unable for serious reasons to make his dissent known to the beneficiary.
Article 4.248. Investment of property under administration
1. Investments of property under administration shall be made in the name of the beneficiary unless otherwise provided by the law or an act establishing administration.
2. Investments shall be presumed sound if the property:
Article 4.249. Use and accounting of revenues generated by the property under administration
1. From the revenues generated by the property under administration, the administrator shall be entitled:
2. The administrator must keep accounts of the revenue and expenditure. At the end of a calendar year, the administrator must render a detailed account of his administration. Where there are several property administrators, they must render a joint account unless their duties have been divided.
Article 4.250. Extinction of property administration
Administration shall be extinguished:
2) by expiry of the term of administration or fulfilment of the condition stipulated in the act establishing administration;
3) by disappearance of the cause that gave rise to the establishment of administration or by achievement of the purpose of the establishment of administration.
Article 4.251. Extinction of powers of a property administrator
1. The powers of a property administrator shall extinguish:
1) upon his death, upon liquidation of the administrator as a legal person or upon the initiation of bankruptcy proceedings against him;
3) upon declaring the administrator to be legally incapable in this area or of limited legal capacity in this area;
2. The administrator may renounce his powers. He must notify thereof, one month ahead, a person or institution that appointed him, the beneficiary and other administrators if there are several of them.
3. The administrator who has failed to give notice of his resignation in time must cover losses due to his resignation unless he was unable to give notice for serious reasons.
4. The beneficiary or any other person concerned may apply for the replacement of an administrator if the administrator fails to fulfil his functions properly.
Article 4.252. Consequences of the termination of property administration
1. Upon the termination of administration, the administrator must render a report to the person/institution that appointed him, the beneficiary, as well as to the other administrators, deliver over the property at its location and repay everything that he has received in the performance of his duties, apart from the remuneration for administration.
2. If the administrator concludes a transaction after the termination of administration being unaware of it and when he could not have been aware that the administration had terminated, such a transaction shall be valid and binding on the beneficiary. The same rule shall apply to transactions which were necessary to preserve the property under administration. The beneficiary shall also be bound by transactions contracted with the administrator by third persons who were unaware or could not have been aware that the administration had terminated.
Article 4.253. Objects of registration
1. Registered things shall be immovable things and movable things by nature which are formed in accordance with the procedure established by law and the principles of registration of their acquisition and transfer are specified by legal acts.
Article 4.254. Registered juridical facts
The following juridical facts pertaining to things, encumbrances and real rights must be registered in the public register:
1) transactions and decisions by which the legal status of the registered thing is changed or the possibilities for its possession, use and disposal are substantially modified;
5) changes of the registered thing (its size, purpose, etc.) and changes of surnames and names of persons and the name of the legal person who has real rights towards it;
7) final judgments that have an impact on the legal status of the registered thing and respective court orders;
Article 4.255. Legal principles for the registration of juridical facts in the public register
Documents certifying that juridical facts took place, based on which such juridical facts are registered in the public register, shall be the following:
4) a marriage or divorce certificate, certificate on the change of the name or surname, or a death certificate of the property owner;
6) a notification of the court about the initiation of a civil action on the legal status of the registered thing;
Article 4.256. Applications to register things, encumbrances, real rights or juridical facts
1. A person wishing to register the thing, encumbrances, real rights or juridical facts shall submit an application in the prescribed form to the data processor of the public register.
2. An application to register the thing and rights of ownership to the thing shall be submitted by the person who has acquired the thing; upon the registration of real rights to the thing of another’s as well as encumbrances, an application shall be submitted by the holder of such rights, a person interested in the registration thereof, or a notary. The application to register juridical facts shall be submitted by an authorised institution or by a person interested in their registration. A person shall submit the application in person or through his representative who has the authorisation issued in accordance with the procedure established by laws.
3. Documents certifying the acquisition of the thing into ownership, encumbrances, the existence of real rights or the occurrence of juridical facts must accompany the application for registration.
Article 4.257. Examination of the application to register things, encumbrances, real rights or juridical facts and the adoption of the decision
1. The data processor of the public register shall examine and adopt decisions pertaining to the application to register things, encumbrances, real rights or juridical facts. When the application has been examined, the following decisions may be taken: to satisfy the application, that is, to register things, encumbrances, real rights or juridical facts; or to reject the application, that is, to refuse to register things, encumbrances, real rights or juridical facts. In the cases prescribed by the law, the data processor of the public register may postpone the adoption of the decision, indicating the circumstances that hinder registration and setting a time limit for the elimination of those circumstances.
2. After the adoption of the decision to register things, encumbrances, real rights or juridical facts, documents certifying their registration in the public register shall be issued.
Article 4.258. Appeal against the registration and the refusal to register things, encumbrances, real rights or juridical facts
In accordance with the procedure established by laws, the persons concerned may appeal against the registration or the refusal to register things, encumbrances, real rights or juridical facts.
Article 4.259. Time of the registration of things, encumbrances, real rights or juridical facts
Things, encumbrances, real rights or juridical facts shall be deemed registered when the respective data are entered into the public register in accordance with the procedure established by laws.
Article 4.260. Compensation for damage through the fault of the data processor of the public register
1. The damage caused through the fault of the data processor of the public register shall be compensated in accordance with the procedure prescribed by laws. A person must apply to the data processor of the public register for compensation for damage no later than within one month from the date of becoming aware of the damage.
2. The data processor of the public register shall not be held liable for the damage sustained by persons on the grounds of common principles for the exemption from civil liability as well as in cases when persons who have incurred damage:
Article 4.261. Right to use the data of the public register
Each natural or legal person shall have the right to use the data of the public register, except for restrictions prescribed by laws. The procedure for and amount of remuneration for the use of public register data shall be determined by the Government.
Article 4.262. Legal status of the register data
The data entered into the public register shall be deemed accurate and comprehensive until contested in the manner prescribed by laws.
Article 5.1. Concept of succession
1. Succession shall mean the devolution of property rights, duties and some other personal non-property rights of a deceased natural person to his heirs by operation of law (intestate) or/and to successors by the will (testate).
2. The following shall be subject to succession: material objects (movable and immovable things) and non-material objects (securities, patents, trade marks, etc.); the bequeather’s rights to property claims and his property obligations; intellectual property (authors’ property rights to works of literature, science and art, neighbouring property rights and rights to industrial property) in cases provided for by laws; and other property rights and duties stipulated by law.
3. The following shall not be subject to succession: personal non-property and property rights inseparable from the person of the bequeather (right to honour and dignity, authorship, right to the author’s name, inviolability of creative work, to the name of the performer and inviolability of performance), right to alimony and benefit paid for the maintenance of the bequeather, right to pension, except in cases provided for by laws.
Article 5.2. Grounds for succession
2. Succession shall arise by operation of law unless the testator has changed and to the extent he has changed the grounds for succession by his testamentary disposition.
Article 5.3. Opening of succession
1. The time of the opening of succession shall be considered the moment of death of the bequeather, or, where he is declared deceased, the day when the judgment of the court on the declaring of the bequeather to be deceased becomes final, or the day of death indicated in the court judgment.
Article 5.4. Place of the opening of succession
1. The place of the opening of succession shall be considered the last place of domicile of the bequeather (Article 2.12 of this Code).
2. Where the bequeather had no permanent place of residence, the place of the opening of succession shall be considered to be:
2) if the bequeather resided in several places, the place of the opening of succession shall be considered the place of prevailing economic or personal interests of the bequeather (place of location of property or its principal part, when the property is situated in several places; the place of residence of the spouse with whom the bequeather maintained matrimonial relationship during the last six months before his death, or the place of residence of the child who was residing together with the bequeather).
3. Where the place of residence of the bequeather is impossible to determine on the basis of the circumstances indicated in paragraphs 1 and 2 of this Article, the place of the opening of succession may be determined on the basis of the citizenship of the bequeather, his registration, the place of registration of the vehicles belonging to him, and other circumstances.
Article 5.5. Persons who have the capacity to inherit
1. The following persons shall have the capacity to inherit:
1) in succession by operation of law: natural persons who survived the bequeather at the moment of his death, children of the bequeather who were born after his death, as well as the State of Lithuania;
2) in succession pursuant to a will: natural persons who survived the testator at the moment of his death, as well as those who were conceived while the testator was still alive and were born after his death; persons upon their birth where named in the will before their conception;
Article 5.6. Persons unworthy of inheriting
1. Those persons shall be unworthy of inheriting, either by operation of law or by a will, who by unlawful intentional actions against the bequeather, or against any of his successors, or against the execution of the true intent of the testator expressed in his will, created a legal situation to become successors if it was established within judicial procedure that they:
1) deprived, by malicious intent, the bequeather or his successor of their life, or made an attempt on the life of those persons;
2) intentionally created circumstances which hindered the testator until his death in writing, amendment or revocation of the will;
3) made, by means of deceit, intimidation or coercion, the testator write up, amend or revoke the will made, or forced a successor to renounce succession;
2. A successor shall not be unworthy of inheriting in accordance with points 3 and 4 of paragraph 1 of this Article if, before the opening of succession, the will or relevant parts thereof ceased to be valid despite the actions of the successor.
Article 5.7. Forfeiture of the right of succession by a spouse
1. The surviving spouse shall forfeit his/her right of succession by operation of law if before the opening of succession:
1) the bequeather had applied to the court for the dissolution of marriage because of the fault of the surviving spouse, and the court had established a ground for the dissolution of marriage;
Article 5.8. Challenging of the right of succession
A person claiming inheritance may challenge the lawfulness of the acceptance of succession as well as the issued certificate of the right of succession by bringing an action against the person who has accepted succession within a period of one year from the day of the opening of succession, or from the day when he became aware or ought to have become aware that the succession was accepted by another person.
Article 5.9. Effects of the challenging of the right of succession
1. When the court judgment by which the person claiming inheritance is not acknowledged an heir with the right of succession becomes final, this person shall be considered as not having accepted succession.
2. Where the action has been brought by an heir with the right of succession, he shall be considered as having accepted the succession, except in cases where this action is brought in the interests of other heirs.
3. Other heirs who ought to acquire the right of succession upon the court judgment, indicated in paragraph 1 of this Article, becoming final shall have the right to accept succession within three months from the day when the court judgment becomes final.
Article 5.10. Persons not entitled to testamentary reservation
In the event where the beneficiary of testamentary reservation has performed actions indicated in paragraph 1 of Article 5.6 of this Code, he shall forfeit his right to the testamentary reservation.
Article 5.11. Order of intestate succession
1. In intestate succession, the following persons shall be heirs to inheritance in equal shares:
1) first degree descendants: bequeather’s children (including adopted children) and bequeather’s children born after his death;
3) third degree descendants: bequeather’s grandparents both on the father’s and mother’s side, bequeather’s great grandchildren;
4) fourth degree descendants: bequeather’s brothers and sisters, great grandparents both on the father’s and mother’s side;
5) fifth degree descendants: children of the bequeather’s brothers and sisters (nephews and nieces), as well as brothers and sisters of the bequeather’s parents (uncles and aunts);
2. Second degree heirs shall inherit by operation of law only in the absence of the first degree heirs, or in the event of the latter’s non-acceptance or renunciation of succession, as well as in cases where the first degree heirs are deprived of the right to inherit. The third, fourth, fifth and sixth degree heirs shall inherit in the absence of heirs of superior degree or in the event of the latter’s renunciation of succession or deprivation of the right to succession.
3. Adopted children and their descendants worthy to inherit after the death of their adoptive parent or his relatives shall be equalled to the children of the adoptive parent and their descendants. They shall not inherit by operation of law after the death of their parents and other blood relatives of a higher degree in the line of descent, as well as after the death of their blood brothers and sisters.
4. Adoptive parents and their relatives worthy to inherit after the death of their adoptive child or his descendants shall be equalled to the parents and other blood relatives. Parents of the adopted child and other blood relatives of a superior degree in the line of descent shall not inherit by operation of law after the death of the adopted child or his descendants.
Article 5.12. Succession by the right of representation
The bequeather’s grandchildren and great-grandchildren shall inherit by operation of law alongside with correspondingly the first and second degree heirs entitled to inherit in the event of the predecease, at the time of the opening of succession, of any of their parents who would have been a heir. They shall be entitled to equal shares of that part of estate which would have been inherited by their deceased father or mother pursuant to intestate succession.
Article 5.13. Spouses’ right of inheritance
The surviving spouse of the bequeather shall be entitled to inherit pursuant to intestate succession or alongside with the heirs, if any, of either the first or second degree of descent. Together with the first degree heirs, he shall inherit one fourth of the inheritance in the event of existence of not more than three heirs apart from the spouse. In the event where there are more than three heirs, the spouse shall inherit in equal shares with the other heirs. If the spouse inherits with the second degree heirs, he/she shall be entitled to a half of the inheritance. In the event of absence of the first and second degree heirs, the spouse shall inherit the whole inheritable estate.
Article 5.14. Inheritance of house furnishing and household equipment
Ordinary house furnishing and household equipment shall be devolved to the intestate heirs irrespective of their degree of descent and the share of inheritance if they resided together with the bequeather for a period of at least one year before his death.
Article 5.15. Testamentary capacity
Article 5.16. Nullity of a will or its parts
1. A will shall be null and void if:
3. A perished will shall have no effect. The content of such a will may not be established by judicial procedure.
Article 5.17. Contesting of a will
1. An action for declaring a will or separate parts thereof null and void may be brought only by other intestate or testate successors who would be entitled to inherit if the will or separate parts thereof were declared null and void.
2. On declaring a later made will null and void, the previous will shall not become effective, except in cases where a later will was declared null and void because it had been made under coercion or real threat, likewise, where it had been made by a person declared by the court to be legally incapable in this area or of limited legal capacity in this area.
Article 5.18. Conditions for making a will
1. A testator shall make a will freely, without coercion or error. Ordinary persuasion or request of interested heirs for a will to be made in their favour shall not be considered coercion and shall not affect the validity of the will.
Article 5.19. Right of a testator to bequeath his estate at his discretion
1. Any natural person may bequeath all his property or a part thereof (including ordinary house furnishing and household equipment) to one or several persons irrespective of whether they are his heirs by operation of law, as well as to the State, municipalities or legal persons.
2. A testator may bequeath all his property or a part thereof to legal persons which will have to be established in executing the will, as well as to natural persons not yet conceived and born.
4. In the event where the testator failed to indicate what share of his estate he bequeathed to each of his successors by the will, the estate shall be divided in equal shares to all of them.
5. In the event where the inheritable estate is distributed in the will in such a way that all the shares in their totality exceed the amount of the whole estate, the share of each successor shall be correspondingly reduced.
6. In the event where the totality of all the shares is smaller than the amount of the whole estate, taking into account the content of the will, the shares of the estate devolved upon each of the successors shall be proportionally increased or the remaining property shall be devolved by the operation of law.
Article 5.20. Right to the mandatory share of the inheritance
1. The testator’s children/adoptees, spouse, parents/adoptive parents who were in need of maintenance at the time of the testator’s death shall inherit, irrespective of the content of the will, a half of the share that each of them would have been entitled to by operation of law (mandatory share) unless more is bequeathed by the will.
Article 5.21. Appointment of another successor
A testator shall have the right by his will to designate another successor in case the successor appointed by the will died before the opening of succession or renounced the succession. The testator may likewise appoint another successor to the secondary successor in case the secondary successor died before the opening of succession or renounced the succession. The number of the appointments of other successors shall not be limited.
Article 5.22. Inheritance of the part of estate not bequeathed by a will
1. The part of the testator’s estate which remained not included into a will shall be divided in equal shares between the intestate heirs who inherit in accordance with the rules provided for in Articles 5.11 to 5.14 of this Code.
Article 5.23. Testamentary reservation
1. The testator shall have the right to obligate a testate successor to fulfil a certain obligation (testamentary reservation) for the benefit of one or several persons, while these persons shall acquire the right to demand fulfilment of this obligation. Beneficiaries of the testamentary reservation may be intestate heirs as well as any other persons.
2. The successor authorised by the testator must fulfil the testamentary reservation without exceeding the value of the property inheritable by him after the claims of the testator’s creditors have been satisfied.
3. If the testate successor, authorised to fulfil the testamentary reservation, is entitled to the mandatory share of the inheritance, he shall fulfil the testamentary reservation without exceeding the value of the property inheritable by him which is bigger than his mandatory share.
4. In the event where the successor authorised to fulfil testamentary reservation dies before the opening of succession or renounces the succession, the obligation to fulfil the testamentary reservation shall be alienated to the other successors who have received the share of that successor.
5. In the event where the executor of the testamentary reservation is not specified in the will, the testamentary reservation shall be excluded from the inheritable estate until the shares of the property inheritable by the successors have been determined.
Article 5.24. Acceptance of the testamentary reservation
1. The beneficiary of the testamentary reservation shall have the right to accept the testamentary reservation within the period of three months from the day when he became aware or ought to have become aware of his entitlement to the testamentary reservation.
2. The beneficiary of the testamentary reservation shall inform about his acceptance thereof the executor of the will/administrator of inheritance, the successor who has accepted succession and is authorised to fulfil the testamentary reservation, or the notary of the place of the opening of succession. In the event where the testamentary reservation is related to the right to immovable property, the application shall in all cases be filed with the notary. The notary shall issue a certificate of the right to inheritance and the testamentary reservation shall be registered in the public register.
Article 5.25. Types of testamentary reservation
1. In the event where the subject matter of the testamentary reservation is a thing defined by its individual features, the beneficiary of the testamentary reservation, having accepted thereof, shall acquire the right of ownership to this thing from the moment of the acceptance of succession. From that moment, the thing shall be transferred to the beneficiary of the testamentary reservation together with all the rights and duties relating to this thing which belonged to the testator. The accessories of the principal thing shall also belong to the beneficiary of the testamentary reservation.
2. In the even where the subject matter of the testamentary reservation is composed of claims resulting from obligations, all the supplementary claims which had to be fulfilled before the death of the testator shall also belong to the beneficiary of the testamentary reservation.
3. In the event where the subject matter of the testamentary reservation is movable things defined as to specific features, such testamentary reservation must be fulfilled irrespective of the existence of such things in the inheritance. If there are several things of this kind, the right of choice shall belong to the beneficiary of the testamentary reservation unless otherwise provided for by the will.
4. The testator shall have the right to obligate a successor, to whom an immovable thing (land, house, apartment, etc.) or a private (personal) enterprise is devolved, to allow another person, for a certain period or for life, to use the immovable thing or its part, or to transfer the revenue, or a part thereof, derived from that property.
5. In the event where the testator by his testamentary reservation established maintenance for somebody without specifying its content, such person shall be entitled to board, accommodation, clothing and medical care, and those who study shall be entitled to have their study expenses paid for the whole duration of their study, but not longer than until they reach the age of 24.
Article 5.26. Bequeathing of property to society for useful and charitable purposes
1. A testator may bequeath his whole estate, its part, or an individual thing to society for useful and charitable purposes. A legal person to be established in executing the wish of the testator may be appointed as successor to such property. The testator may obligate his successor or the executor of the will to establish such a legal person.
2. In the event where the successor or the executor of the will fails to take any action for the establishment of the legal person, the interested persons may apply to the court with a request to appoint an administrator and obligate the latter to establish the legal person stipulated in the will.
3. Where the social need for which the estate was intended disappears or the property cannot be used for the purpose indicated in the will, and in absence of any related instructions from the testator, the question of further use of such property shall be decided by the court of the place of the opening of succession. Such property must be used for the purposes similar to those indicated by the testator.
Article 5.28. Official wills
1. Official wills are such wills which are made in writing in two copies and attested by the notary or an official of a consulate of the Republic of Lithuania in the relevant state.
2. Public wills of persons with hearing and speech impairment shall be made with the participation of a person who understands sign language and is trusted by the testator, except in cases where the person with hearing and speech impairment is literate and can read the written up will and confirm in writing of his awareness of the content of the will.
3. The place and time when the will was made shall be indicated therein. The written up will shall be read to the testator alone or with the participation of witnesses. The will shall be signed by the testator himself. The will shall be attested and registered in the Notarial Register in his presence. One copy of the will shall be handed in to the testator, the other shall remain with the institution which has attested it. The information about the making of the will and its content shall be confidential.
4. If the will possessed by the testator or any other person fails to conform to the will deposited with the notary, in case of dispute preference shall be given to the will deposited with the notary, providing that it does not contain any corrections, deletions or erasures that were not agreed upon in accordance with the established procedure.
6. The following shall be equalled to official wills:
1) wills of persons undergoing treatment in hospitals or any other institutions of medical care and disease prevention or in sanatoriums, as well as wills of persons living in the social care homes for the elderly or disabled people, attested by the chief doctors, their deputies for medical matters or doctors on duty of these hospitals, institutions of medical care or sanatoriums, as well as by the directors or chief doctors of social care homes for the elderly or disabled people;
2) wills of persons sailing in seagoing vessels or ships of internal waters flying the flag of the Republic of Lithuania, attested by the masters of those ships;
3) wills of persons participating in surveyor, research, sport or any other expeditions, attested by the heads of those expeditions;
4) wills of soldiers, attested by the commanders of their units, formations or institutions and military schools;
Article 5.29. Signing of wills by another person
In the event where the testator due to his physical disabilities, illness or any other reasons is unable to sign the will himself, it may be signed, upon the testator’s request and in the presence of the notary or any other official authorised to attest the will and at least two witnesses, by another legally capable natural person who is not a testate successor, by concurrently indicating the reason for which the testator is not able to sign the will himself. Witnesses must also put their signatures in the will.
Article 5.30. Private will
1. A private will shall be a will written up in hand by the testator, indicating the first name and surname of the testator, the date (year, month, day) and place where the will was made, expressing the true intent of the testator and signed by him. A private will may be written up in any language. Failure to indicate the date and place of the making of the will shall render it invalid only in those cases where it is impossible to determine the date and place of the making of the will by any other way, or they are not possible to infer from other circumstances.
2. Corrections introduced by the hand of the testator and the deletions explained by him shall not render the will invalid. Such conditions shall be valid which were mistakenly deleted by the hand of the testator who later made an inscription by his hand testifying that those conditions were deleted by mistake. The will shall be valid if there is some word omitted by mistake, or a word contains a spelling mistake; the relevant conditions shall also be valid, providing that their meaning is not obscure.
Article 5.31. Depositing of a private will
1. A testator may deposit his will with the notary or a consular officer of the Republic of Lithuania in a foreign state. In accepting a will for deposit, the identity of the testator must be established.
2. A deposited will shall be equalled to an official will if the deposit was performed pursuant to the following requirements:
1) the will was deposited by the testator himself who declared that the will expressed his final true intent;
2) the will was deposited in a sealed envelope, the measures for the protection of the envelope against damage were enforced, and both the testator and the person accepting the will put their signatures on the envelope;
3) an act on the acceptance of the will for deposit has been written up, indicating that the requirements specified in point 1 and 2 of paragraph 2 of this Article have not been violated, as well as providing a description of the envelope, measures for the protection of the envelope against damage, an indication of the testator’s name, surname, personal number, and his place of residence, the place and date of the making of the will and its kind, and the official position, name and surname of the person who accepted the will for deposit. The act shall be signed by the testator and the official accepting the will for deposit. The testator shall be issued with a copy of the act.
3. The accepted will shall be kept in the safe of the institution of deposit. The testator may take the will back at any time. The will may also be handed in to an agent of the testator under a special authorisation of the testator.
Article 5.32. Register of wills
1. The data controller of the Register of wills made in the territory of the Republic of Lithuania shall be the Ministry of Justice, and the data processor of this Register shall be designated by the Government.
2. Notaries and consular officers must notify the data processor of the Register of wills within three working days about the wills that have been attested, accepted for deposit or revoked. The notification shall include the testator’s name, surname, personal number, and his place of residence, the place and date of the making of the will, its kind, and the place of deposit. The content of the will shall not be divulged.
Article 5.33. Announcement of the will
1. As soon as the notary of the place of the opening of succession becomes aware of the death of the testator, he shall establish a date for the announcement of the will and notify about it the known successors and other interested persons. Where the envelope containing the will has been secured by protective measures against damage, a record must be drawn up specifying therein whether the envelope and the protective measures against damage are intact. Where there are several wills, all of them shall be announced.
Article 5.34. Time limit for keeping the will in deposit
Where a will is kept in deposit for a period of over 30 years, the depository institution must verify, by the means available, whether the testator is still alive. If it becomes clear that the testator is dead, the envelope with the will shall be opened and the will announced.
Article 5.35. Revocation, supplementation and alteration of a will
1. The testator shall have the right at any time to alter, supplement or revoke a will made by him by drawing up a new will, or not to make a will.
2. A will made at a later time shall annul the whole previous will or a certain part thereof which contradicts the later will. This provision shall not apply in respect of a joint will of spouses.
Article 5.36. Conditions of a will
1. The testator may appoint a successor or a beneficiary of the testamentary reservation by specifying one or several conditions to be fulfilled by them in order to inherit.
Article 5.37. Execution of a will
1. A will shall be executed by the executor of the will or a successor appointed by the testator, or by an administrator of inheritance appointed by the court.
2. No one may be appointed executor of a will against his wish, however, the person who has assumed the duties of the executor of the will may not relinquish those duties without important reasons.
3. The testator may appoint one or several executors of the will. The testator may likewise appoint a secondary executor of the will in case the primary executor is not able to fulfil his duties. In this event, the consent of the secondary executor shall be required, either inscribed in the will itself or expressed in a statement appended to the will.
5. In the event where the testator failed to appoint an executor, or the appointed executor or a successor are not able to fulfil their duties, the district court of the place of the opening of succession shall appoint an administrator of inheritance to perform all the actions necessary for the execution of the will.
Article 5.38. Rights and duties of the executor of the will appointed by the testator
1. The executor of the will shall perform all the actions necessary for the execution of the will. Pending the appointment of the administrator of inheritance or the establishment of the successors, the executor of the will shall perform the functions of a successor, i.e. possess the inheritance, compile the inventory of the inheritance, pay the debts of the inheritance, recover the debts from the testator’s debtors, provide maintenance for the successors who are entitled to it, perform the search of successors, establish whether the successors accept the inheritance, etc. In his activity, the executor shall be guided by the will. In executing the will, the executor shall consult with the successors. Any dispute concerning the execution of the will shall be decided by the district court of the place of the opening of succession.
2. In performing his duties, the executor of the will must act with the same diligence as in taking care of his private interests. Where the executor of the will receives payment for his work, he shall be liable to the successors and other interested persons for any loss caused by his negligent actions.
3. Where the testator has appointed several executors of the will without clearly defining their corresponding rights and duties, they shall act jointly. Any disagreement between them over the execution of the will shall be decided in judicial proceedings. The executors shall be jointly liable for the actions performed upon their mutual consent.
4. Where one of the executors has been given a specific assignment by the testator, or authorised with execution of a certain part of the will, such executor shall be liable solely for his own actions.
Article 5.39. Inventory of inheritance
1. Having assumed the management of the inheritance, the executor of the will or the administrator of the inheritance must immediately compile an inventory of the inheritance, listing the whole inheritable estate, as well as all the amounts due to and owed by the testator. A successor, who expresses such a wish, may participate in the compilation of the inventory of the property.
2. The executor of the will or the administrator of the inheritance shall have the right upon his discretion, or the obligation upon the demand of a successor, to apply to the bailiff with a request to compile the inventory. The executor of the will or the administrator of the inheritance shall apply to the bailiff upon the issuing by the notary of an executory assignment concerning the compilation of the inventory.
Article 5.40. Possession of inheritance and its duration
The testator may authorise the executor of the will to possess the inheritance, accepted pursuant to the established procedure, without casting any further obligations on him, or authorise the possession of inheritance after other assignments of the testator have been fulfilled. The duration of such possession may be specified in the will by indicating a definite time limit or a certain event (attainment of a certain age by the successor, death of a successor, marriage, etc.). Such time limit may not exceed the period of 20 years from day of the opening of succession.
Article 5.41. Report of the executor of the will
Having fulfilled the execution of the will, the executor of the will or the administrator of the inheritance must, upon the request of the successors, provide them with the report. Where the will is being executed for a period exceeding one year, and the possession of the inheritance is performed by the executor of the will or the administrator (Article 5.40 of this Code), such reports must be submitted every year.
Article 5.42. Removal of the executor of the will or the administrator of the inheritance
Where the executor of the will or the administrator of the inheritance improperly fulfils his duty, violates the interests of the successors, beneficiaries of the testamentary reservation, of the testator’s creditors and those of other interested persons, the court of the place of the opening of succession shall have the right, upon the demand of the latter persons, to remove the executor of the will and appoint an administrator of the inheritance, to replace the administrator appointed by the court.
Article 5.43. Concept of a joint will of spouses
By their joint will, the spouses appoint each other as the successor and, after the death of one of the spouses, the whole property of the deceased (including the part of the common property of the spouses therefrom) shall be inherited by the surviving spouse, except the mandatory share of succession (Article 5.20 of this Code).
Article 5.44. Making a joint will of spouses
1. A joint will of spouses may be made exclusively by spouses. Such will shall be signed by both spouses in the presence of a notary or any other person attesting the will.
Article 5.45. Content of a joint will of spouses
1. By testamentary disposition, each of the spouses shall provide for the devolution of his/her whole property to the other spouse.
2. A successor may be appointed by the will to inherit the property after the death of the surviving spouse.
3. A will may provide for a testamentary reservation awarded from the property of one of the spouses after his/her death, or from the common property of the spouses after the death of the surviving spouse.
4. The spouses may bequeath their whole property or a part thereof to society for worthy causes or to charity. Such a direction of the will may be effectuated from the property of one of the spouses after his/her death or from the common property of the spouses after the death of the surviving spouse.
Article 5.46. Revocation and invalidity of a joint will of spouses
1. Each of the spouses shall be entitled to revoke the expression of his/her intention before the opening of the succession within the same procedure as the drawing up of the will. In this event, the expression of the intention of the other spouse shall lose its legal effect as well.
2. The wills drawn up by the spouse without previous revocation of the joint will of spouses shall be null and void.
Article 5.47. Obtaining the deposited will
The institution which has attested the will or deposited it for safekeeping may issue the will only upon the request of both spouses.
Article 5.48. Announcement of a joint will of spouses
Upon the death of one of the spouses, only the intent of that spouse shall be revealed to the interested successors in accordance with the procedure established in Article 5.33 of this Code; the intent of the other spouse shall not be revealed.
Article 5.49. Renunciation of inheritance under a joint will of spouses
1. Upon the death of one of the spouses, the other spouse shall have no right to modify a joint will. He shall have the right to renounce the acceptance of succession. In this event, the estate of the deceased spouse shall be devolved upon his/her heirs by operation of law, and the surviving spouse shall acquire the right to make a new will upon his/her discretion.
2. Such refusal on the part of the surviving spouse to accept succession shall have no effect upon the right of the beneficiary of the testamentary reservation from the estate of the deceased spouse to a testamentary reservation which is issued by intestate heirs.
Article 5.50. Acceptance of succession
1. In order to acquire succession, a successor must accept it. Acceptance may not be in part, or subject to conditions or exceptions.
2. A successor shall be deemed to have accepted succession when he actually starts possessing the estate or when he files an application on the acceptance of succession with the notary of the place of the opening of succession.
3. Actions indicated in this Article must be performed within three months from the day of the opening of succession; however, the legal consequences specified in paragraph 2 of this Article shall arise only in the absence of the actions of the heir(s) of superior degree by operation of law or of the heir(s) of superior degree by operation of a will hereunder the succession has been accepted.
5. Inheritance devolved to the successors born after the opening of succession shall be accepted within three months from the day of their birth.
Article 5.51. Acceptance of succession after the actual start of possession of the property
1. A successor shall be deemed to have accepted the inheritance if he has started to possess the estate, treating it like his own property (possesses, uses and disposes of it, takes care of it, pays taxes, has applied to the court expressing his intention to accept the inheritance and appoint the administrator of inheritance, etc.). A successor, who has started to possess any part of the inheritance, shall be deemed to have accepted the whole inheritance.
2. A successor, who has started to possess the estate, shall have the right, within the period established for the acceptance of succession, to renounce succession by filing an application with the notary of the place of the opening of succession. In this case, the successor shall be deemed to have possessed the inheritance in the interests of other successors.
Article 5.52. Liability for the debts of the bequeather by the successor who has accepted inheritance by starting to possess the estate or by filing an application with the notary
1. The successor who has accepted succession by taking over the possession of the estate or by filing an application with the notary shall be liable for the debts of the bequeather with his whole property, except in cases provided for in this Code. Where the estate was accepted by several successors in the manner indicated in this paragraph, they shall all be jointly liable with their whole property for the debts of the bequeather.
2. Where the successor indicates in the application for the acceptance of inheritance, filed with the notary, that he wishes to accept succession in accordance with the inventory, the inventory shall be compiled and the liability of the successor for the debts of the bequeather shall be defined in accordance with the procedure laid down in Articles 5.53 and 5.54 of this Code.
Article 5.53. Acceptance of succession in accordance with a property inventory
1. A successor who has accepted inheritance in accordance with the property inventory compiled by the bailiff shall be liable for the debts of the bequeather only with the inherited property. In the event where at least one of the successors has accepted the inheritance in accordance with the property inventory, all the other successors shall be deemed to have accepted the inheritance in accordance with the inventory.
2. For the acceptance of inheritance in accordance with the property inventory, the successor shall apply with an application to the notary of the place of the opening of succession. Upon the receipt of the said application, the notary shall henceforth issue to the successor an executory assignment regarding the compilation of the property inventory. Such assignment shall be executed in accordance with the procedure laid down by the Code of Civil Procedure of the Republic of Lithuania. The successor shall, not later than within two weeks, submit the executory assignment issued by the notary regarding the compilation of the property inventory to any bailiff acting in the territory of operation of the district court of the place of opening of succession. The executory assignment regarding the compilation of the property inventory not submitted to the bailiff within two weeks from the issuing thereof shall become invalid and any successor shall be entitled to apply to the notary for the issuing of a new executory assignment.
3. The bailiff shall compile the property inventory not later than within one month from the receipt of the documents referred to in paragraph 2 of this Article. In cases where the inherited estate is located in several places or there is a considerable number of creditors of the bequeather, the bailiff must compile the property inventory not later than within three months.
4. A successor must furnish all the data necessary for the compilation of the property inventory of the bequeather’s estate.
5. The property inventory must contain:
1) a list of all the things comprising inheritance, indicating their value and the circumstance necessary for the determination of their value;
6. The property inventory shall be signed by the bailiff and the successor who participated during the compilation of the inventory. At the end of the inventory, there must be an inscription signed by the successor, equivalent to an oath, to testify that the inventory includes the whole estate of the bequeather known to the successor as well as all of the bequeather’s obligatory claims and duties.
7. Upon becoming aware, after the compilation of the property inventory, about property or obligatory claims and duties not included into the property inventory, the successor must immediately apply to the notary for the issuing of an executory assignment regarding the supplementing of the property inventory. The successor shall, not later than within three working days, submit the executory assignment issued by the notary regarding the supplementing of the property inventory to any bailiff acting in the territory of operation of the district court of the place of opening of succession. On the basis of the data submitted by the successor, the bailiff must supplement the property inventory not later than within three weeks.
8. The compilation of the property inventory may also be requested by the creditors of the bequeather. The creditors of the bequeather shall have the right to participate during the compilation of the property inventory themselves or to authorise any other person to participate during the compilation of the property inventory.
Article 5.54. Incorrect inventory
Where during the compilation of the inventory the successor due to his fault failed to indicate the whole estate comprising inheritance, concealed debtors of the bequeather, on his initiative a non-existing debt was included into the inventory, the inventory was not supplemented in accordance with the procedure laid down in paragraph 7 of Article 5.53 of this Code, or the successor failed to fulfil the duty set out in paragraph 4 of Article 5.53 of this Code, the successor concerned shall be liable for the debts of the bequeather with his whole property.
Article 5.55. Applying to the court for the administration of the property of the succession
1. Where the inherited estate is a private (personal) enterprise, a farmstead, or the bequeather’s debts might exceed the value of the inheritance, the successor, having accepted succession, may apply to the court of the place of the opening of succession with a request to appoint an administrator for the property of the succession, or request to appoint an administrator for the property of the succession and decide on the issue of auction or initiation of bankruptcy proceedings. In this event, the debts of the bequeather shall be paid only from the inheritance.
2. Administration of the property of the succession shall be established by a ruling of the district court located in the place of the opening of succession. By this ruling, the court shall appoint an administrator of the property of the succession and determine his remuneration.
3. No administration of the property of the succession shall be established where the inheritance is not significant, and the costs of administration would exceed the value of the inheritance, or where the major part of the inheritance would have to be used for the payment of administration costs. Administration of the property of the succession shall be abolished where it becomes clear that the costs of administration would exceed the value of the inheritance.
4. The administrator of the property of the succession shall have the same rights and duties as the executor of the will (Article 5.38 of this Code); the provisions of Chapter XIV of Book Four of this Code shall also apply mutatis mutandis in this respect.
5. Where there are several successors, they shall file a joint application for the appointment of an administrator for the property of the succession. No administrator of the property of the succession shall be determined where the successors have taken over the possession of the inheritable estate.
6. Where in the events indicated in this Article no administration of the property is established, or it is abolished, an estate inventory shall be compiled and the debts of the bequeather shall be paid only from the property of the succession.
Article 5.56. Implementation of the right to succession of persons legally incapable in this area or persons with limited legal capacity in this area
Succession on behalf of persons legally incapable in this area shall be accepted by their parents or guardians. Persons with limited legal capacity in this area shall accept succession exclusively upon the consent of their parents or curators. Where a curator does not give his/her consent, the consent to accept succession may be granted by the court at the request of a person with limited legal capacity in this area.
Article 5.57. Renewal of the time limit for the acceptance of succession
1. The time limit established in Article 5.50 of this Code for the acceptance of succession may be renewed by the court where it is determined that the time limit has been missed due to important reasons. Succession may be accepted after the expiry of the time limit likewise without the application to the court where all the other successors who have accepted the succession give their assent.
2. In the instances provided for in paragraph 1 of this Article, the successor who has missed the time limit for the acceptance of succession shall be entitled only to that part of the estate belonging to him and accepted by other successors or devolved to the State which remained in kind, as well as the proceeds from the realisation of the other part of the estate belonging to him.
Article 5.58. Transference of the right to accept succession
1. Where a successor entitled to inherit by operation of law or by a will dies after the opening of succession without having been able to accept thereof within the established time limit (Article 5.50 of this Code), the right to accept succession shall be transferred to his heirs.
Article 5.59. Rights of a successor who has started possessing the inheritable estate before the appearance of other successors
1. A successor who has started to possess the inheritable estate in the event where there are other successors shall have no right to dispose of (to sell, pledge, etc.) the inheritable property before the expiry of three months from the day of the opening of succession, or until he receives the certificate of the right to inheritance.
2. Before the expiry of the indicated time limit, or until he gets the certificate of the right to inheritance, the successor shall only be entitled to:
1) pay the expenses for the medical treatment and care of the bequeather, as well as his funeral costs and the expenses for taking care of the grave;
Article 5.60. Renunciation of inheritance
1. An heir by operation of law or successor by a will shall have the right to renounce inheritance within three months from the day of the opening of succession. Renunciation may not be in part or subject to conditions or exceptions.
3. A successor shall renounce inheritance by filing an application with the notary of the place of the opening of succession.
Article 5.61. Increase of the shares of succession
1. Where an heir by operation of law or a successor by a will has not accepted succession, or the testator has deprived his heir of the right of inheritance, the share of succession belonging to that successor shall devolve to the intestate heirs and shall be divided among them in equal shares.
2. Where the testator bequeathed his whole estate to the successors by his will, the share of succession which belonged to the successor who renounced or did not accept thereof shall devolve to the other testate successors and shall be divided among them in equal shares.
Article 5.62. Devolution of succession to the State
1. The inherited estate shall devolve to the State under the right of succession if:
2. Where there are no intestate heirs, while only a part of the estate of a testator has been bequeathed by a will, the remaining part shall devolve to the State.
Article 5.63. Procedure for making and satisfying creditors’ claims
1. The creditors of a bequeather shall have the right, within three months from the day of the opening of succession, to make claims against the successors who accepted the succession, the executor of the will or the administrator of the inheritance, or to bring an action in respect of the inheritable property.
2. Claims shall be made without taking regard of the expiry of the time limits for their satisfaction.
3. The procedure for making creditors’ claims established in paragraphs 1 and 2 of this Article shall not apply in respect of claims based on mortgage and pledge, as well as claims related to the economic activity of the inheritable private (personal) enterprise or that of a farmer. Claims related to the activity of an inheritable enterprise or farm shall pass to the successors and be realised in accordance with the transactions entered into by the bequeather, except in those cases where the inherited estate is an enterprise against which bankruptcy proceedings have been initiated, or a farm is insolvent.
Article 5.64. Securing of inheritance
1. Upon having received information about the opening of succession, the court of the place of the opening of succession shall take the necessary measures to secure the inheritance if:
4) at least one successor is legally incapable in this area or with limited legal capacity in this area;
Article 5.65. Appointment of an administrator for the inheritable estate
Where the inheritance includes property subject to management (private (personal) enterprise, a farmstead, securities, etc.) and it cannot be performed by the executor of the will or the successor, likewise where the creditors of the bequeather bring an action before the successors accept the inheritance, the district court shall appoint an administrator of the inheritable property vested with the rights established in Article 5.38 of this Code. Provisions of Chapter XIV of Book Four of this Code shall apply mutantis mutandis in respect of the administrator of inheritance.
Article 5.66. Application for the issuance of the certificate of the right to inheritance
1. The successors who inherit by operation of law or by a will may file an application with the notary of the place of the opening of succession for the issuance of the certificate of the right to inheritance.
Article 5.67. Time limit for the issuance of the certificate of the right to inheritance
1. The successors shall be issued with the certificate of the right to inheritance upon the lapse of three months from the day of the opening of succession.
2. In the event of succession both by operation of law and by a will, natural persons may also be issued with the certificate of the right to inheritance before the lapse of three months from the day of the opening of succession if the notary possesses information that there are no successors apart from the persons who have applied for the issuance of the certificate of the right to inheritance.
Article 5.68. Legal status of the inheritable estate
Where there are several heirs, the estate inherited by them shall comprise their partial co-ownership unless it is otherwise provided for by the will.
Article 5.69. Division of the inheritance
1. No one may be forced to renounce his right to the share he is entitled to from the inheritable estate. Inheritance shall be divided by mutual agreement between the heirs.
2. Inheritance may not be divided:
2) if the testator has established by his will a time limit during which the successors jointly possess the inherited estate. This time limit may not exceed the period of five years from the day of the opening of succession, except in cases when there are minors among the successors. In this event, the testator may prohibit division of the estate until the successor concerned reaches the age of eighteen.
Article 5.70. Methods of property division
1. Successors may divide the inherited estate upon their mutual agreement before the rights of successors to the things are registered in the public register. The division of immovable things shall be formalised by a notarial deed which must be registered in the public register. In the event of disagreement between the successors concerning the division of property, the estate shall be divided by the court upon the action brought by each of them.
2. Divisible things shall be divided in kind; indivisible things shall be devolved on one of the successors by taking into account the character of the thing and the needs of the successor, while the other successors shall be compensated for the value of the thing with other things or in money.
3. The whole inheritance or separate things thereof may be, upon the mutual agreement of the successors, sold in an auction and the amount received divided, or an auction may be held among the successors concerning separate things where the thing shall be devolved to that successor who offers the highest bid.
Article 5.71. Inheritance of a farmstead
Where a division of a farmstead may destroy the farm, the priority right to get the farm and the inventory thereof shall be granted to the successor who has worked most in the inheritable farm and is inclined and prepared to engage into farming himself. In the event of a dispute, the court may schedule the compensation to other successors for the shares of the property belonging to them to be paid within the period of ten years by deciding to establish a compulsory mortgage for all the immovable things of such successor.
Article 5.72. Priority right of a successor to an enterprise
The priority right to receive in kind a private (personal) enterprise inherited by several successors shall be awarded to that successor who is willing and able to manage the inherited enterprise himself. In this event, regard shall also be taken of the possibility of the person receiving the enterprise in kind to settle with the other successors.
Article 5.73. Priority right of other successors to purchase an inherited farmstead
Where a successor, who has inherited a farmstead pursuant to Article 5.71 of this Code, sells the farmstead before the expiry of a ten-year period from the day of inheritance, priority right to purchase the farmstead shall be awarded to the other successors if the compensation provided for in Article 5.71 has not been paid to them in full. Upon the sale of the farmstead, the other successors shall acquire the right to demand immediate payment of the remaining part of the compensation.
Article 5.74. Documents
1. Unless the successors have agreed otherwise, the documents of the family and the inheritable estate shall not be divided and shall be transferred by mutual agreement to the custody of one of the successors, or to the successor who has received the largest share of the inheritance, or, if all the shares are equal, to the eldest successor. The successor into whose custody the documents are transferred must allow the other successors to have access to them and to make copies or extracts thereof.
2. The documents pertaining to an immovable thing shall be located with that successor to whom the immovable thing is devolved. Where an immovable thing is inherited by several successors, the documents shall be kept by mutual agreement in the custody of one of them.
Article 5.75. Inheritance of land
Where land is inherited by an heir who may not have the right of ownership of land pursuant to laws of the Republic of Lithuania, he shall be entitled only to a sum of money received from the sale of the inherited land. The land shall, on the basis of the certificate of the right to inheritance submitted by the heir, be sold in accordance with the procedure established by the Government to the purchaser indicated by the heir or in an auction. The amount received shall be paid to the heir after deducting the costs of sale or of the organisation of auction.
Article 5.76. Inheritance of industrial property
1. The right of the bequeather to a patent of invention or to a certificate of industrial design shall devolve to his successors. The rights provided by the documents of industrial property protection shall also be subject to inheritance.
2. Alongside with the enterprise, the successors shall also inherit the right to the name of the legal person and trade marks.
3. The rights and duties pursuant to licence contracts entered into by the bequeather shall devolve to the successors; they shall also acquire the right to industrial and commercial secrets (know-how) and the rights and duties pursuant to contracts on the transference of industrial and commercial secrets provided that these secrets are not of the character indivisible from the personality of the bequeather.
Article 6.1. Concept of an obligation
An obligation shall mean a legal relationship in which one party (debtor) must perform a determined action for the benefit of another party (creditor) or refrain therefrom, and the creditor has the right to demand from the debtor the performance of his duty.
Article 6.2. Grounds for arising of obligations
Obligations shall arise from transactions or from any other legal facts which produce obligatory relationships under the effective laws.
Article 6.3. Subject matter of an obligation
1. The subject matter of an obligation may be any actions (acts or omissions) that are neither forbidden by law nor contrary to public order or good morals.
2. The subject matter of an obligation may also relate to any property, even future property, provided that the property is determinate as to the kind or quantity or can be determined according to other criteria.
3. The subject matter of an obligation may have a monetary or non-monetary expression; it must nevertheless meet the requirements set for the subject matter of an obligation.
Article 6.4. Duties of parties to an obligation
The creditor and the debtor must conduct themselves in good faith, reasonably and justifiably both at the time of the creation and existence of the obligation and at the time of its performance or extinguishment.
Article 6.5. Plurality of debtors
Where an obligation is solidary between two or more persons on the side of the debtor (co-debtors), each of them must perform the obligation in equal shares (partial obligation), except in cases provided for by law or an agreement between the parties.
Article 6.6. Solidary duty of debtors
1. A solidary obligation of debtors shall not be presumed, except in the cases established by laws. It shall arise only where it is expressly imposed by the law or stipulated by agreement between the parties, also in the cases when the subject matter of the obligation is indivisible.
2. An obligation may be solidary even though the obligation of one of the debtors according to the conditions of its performance differs from the obligation of the others, for example, where one debtor is allowed a time limit and the other debtor is not granted such a time limit, or where the obligation of one debtor is not conditional while the other debtor is bound conditionally, etc.
3. Solidarity between debtors shall be presumed where an obligation is connected with providing of services, effectuating joint activity, or with the compensation for damage caused to another through the joint actions of several persons.
4. If the debtors are solidarily liable, the creditor shall have the right to demand performance both from all the debtors jointly or from several of them, or from a single debtor personally, either for the whole or a part of the debt.
5. A creditor to whom a solidary obligation has not been performed in full by one of the co-debtors shall have the right to demand performance of the remaining part of the obligation by any one of the debtors, or by all of them jointly.
7. Full performance of a solidary obligation by one of the debtors shall relieve the others towards the creditor.
Article 6.7. Defences of co-debtors against claims of a creditor
In the event of a solidary duty, any of the co-debtors may use against the creditor’s claim both the defences common to all debtors and personal defences. However, the debtor shall have no right to set up defences against the creditor’s claim based on such legal relationships between other co-debtors which do not involve the debtor concerned, nor shall the debtor be entitled to set up defences which can be used only personally by one or several other co-debtors.
Article 6.8. Other rights and duties of co-debtors
1. Each of the debtors of a solidary obligation shall have the right to accept renunciation of the right to claim granted by the creditor to him and other debtors where such renunciation applies to all the co-debtors.
2. Adjournment of performance of an obligation granted by the creditor to one of the co-debtors shall respectively apply to all other co-debtors to the extent that this corresponds to the intentions of the creditor.
3. Where a creditor renounces solidarity in favour of one of the co-debtors, he shall retain his solidary remedy against the other co-debtors for the whole debt.
Article 6.9. Recourse between co-debtors
1. A co-debtor who has performed the solidary obligation shall have the right to recover within the procedure of recourse from his co-debtors their respective shares that correspond to the equal portions from the performed obligation, with his participatory share deducted unless otherwise provided for by law or an agreement. Any loss, expressed in anything unpaid to the debtor who has performed the solidary obligation, arising from the insolvency of one of co-debtors shall fall in equal participatory shares on the remaining co-debtors, except in the cases when their shares in the obligation are not equal.
2. Where a solidary obligation is of non-monetary nature, in the case of recourse, the other co-debtors shall pay monetary compensation to the debtor who has performed the whole solidary obligation.
3. The rules provided for in paragraphs 1 and 2 of this Article shall also apply to the apportionment between the co-debtors of the expenses of performance of a solidary obligation.
4. A co-debtor against whom a claim was brought may invoke the same defences that might have been set up against the creditor at the time of arising of the claim, as well as other defences, except those which are based on exceptionally personal relationships between the co-debtor and the other co-debtor who has not filed a counter claim.
5. Where the obligation was contracted exclusively in the interest of one of the co-debtors, or where it is not performed due to the fault of one of the debtors alone, the debtor concerned shall be liable for the whole debt to the other co-debtors, who shall then be considered in his regard as his sureties.
Article 6.10. Divisibility of a solidary duty and a solidary claim between the heirs of the parties to an obligation
1. Unless otherwise provided for by law or contract, the solidary obligation of a debtor shall be divided after his death between his heirs in accordance with the rules established in Book Five of this Code, except in the instances where the obligation is indivisible.
Article 6.11. Influence of a novation upon a solidary duty
A novation between the creditor and one of the co-debtors shall discharge the other co-debtors towards the creditor from the performance of a solidary duty, except in cases established by law or contract. Where a novation is clearly related only with the share of one of the co-debtors, the other co-debtors shall be released from the performance of the duty only in respect of the share of that co-debtor.
Article 6.12. Acknowledgement of a solidary debt and the right of a solidary claim
1. Where a debt is acknowledged by one of the co-debtors, this acknowledgement shall also apply to all other co-debtors.
Article 6.13. Merger of a debtor and a creditor
1. Where an obligation is solidary and the qualities of a co-debtor and a creditor are combined in the same person, the obligation of the other solidary debtors shall be extinguished in respect to the share of that co-debtor.
Article 6.14. Power of a court judgment in the case of a solidary duty
1. A court judgment rendered in the case of dispute between the creditor and one of the solidary debtors shall also have effect against the other co-debtors.
2. The other co-debtors may invoke the judgment referred to in paragraph 1 of this Article as a defence against the claim of the creditor unless such judgment is based on exclusively personal relationships between that debtor alone and the creditor.
Article 6.15. Non-performance of an obligation in the case of a solidary duty through the fault of one of the co-debtors
1. Where the performance of an obligation has become impossible through the fault of one of the solidary debtors, the other co-debtors shall not be released from liability for non-performance of the solidary obligation.
2. Where the performance of an obligation in kind has become impossible, or the time limit of its performance is forfeited through the fault of one or more of the solidary debtors, the other co-debtors shall not be released from their duty to compensate for damages to the creditor, though they shall not be liable for any additional damages which may be incurred by him. The creditor may claim additional damages only from those co-debtors through whose fault the obligation became impossible to be performed, or through whose fault the forfeiture of performance occurred.
Article 6.16. Prescription of a solidary obligation
1. Actions by which prescription is interrupted with regard to the relationships between the creditor and one of the solidary debtors shall be equally effective in regard to the relationships between the creditor and other co-debtors. The same rule shall apply in the event of the right of a solidary claim between creditors.
2. Suspension of prescription with regard to one of the solidary debtors shall have no effect on the other co-debtors. The same rule shall apply in the case of a right of solidary claim between creditors. However, the debtor who has been required to perform the obligation shall have the right of recourse against the co-debtors who were discharged by prescription.
3. A refusal to demand the application of prescription made by one of the solidary debtors shall have no effect with regard to the other co-debtors. Where such refusal is made only in favour of one of the solidary creditors, it shall also benefit the other co-creditors. A solidary debtor who has refused to demand the application of prescription shall have no right of recourse against the other co-debtors discharged by the extinct prescription.
Article 6.17. Solidarity among creditors
Where an obligation is solidary between two or more persons on the side of the creditor, each creditor shall be entitled to demand the performance of an equal share, except in the cases provided for by law or an agreement between the parties.
Article 6.18. Solidary claim of creditors
1. Solidarity between creditors may be established by law or an agreement between the parties, i.e. it shall entitle each of the creditors to claim from the debtor for the whole performance of the obligation or a part thereof. The claim shall also be deemed to be solidary where the subject matter of the obligation is indivisible.
2. The debtor shall have no right to set up defences against the claim of one of the co-creditors that are based on such personal legal relationships of the debtor in which the creditor concerned does not participate.
3. Performance of the whole duty in favour of one of the solidary creditors shall release the debtor from the performance towards the other creditors.
Article 6.19. Possibility of choice of creditor for performance
A debtor shall have the option of performing the obligation in favour of any of the solidary creditors, provided that he has not been sued by any of them.
Article 6.20. Influence of novation on a solidary claim
The novation of one of the solidary creditors and a debtor shall apply only to that creditor’s share and may not be used with respect to the other solidary debtors.
Article 6.21. Renunciation of the right to a solidary claim
1. If the remission from the right to claim is made by one of solidary creditors, it shall release the debtor from performance of a solidary obligation only in respect of the share the performance of which could have been claimed by the remitting creditor.
Article 6.22. Power of a court judgment in the case of a solidary claim
1. A judgment rendered in the dispute between one of the solidary creditors and the debtor shall have effect against the other solidary creditors.
Article 6.23. Renunciation of a claim
1. A creditor who renounces a claim in favour of one of the co-debtors shall retain his right of solidary claim against the other co-debtors.
2. The solidary claim of the creditor in respect of one of the co-debtors shall terminate if the creditor:
3. Where a creditor has renounced a solidary claim in respect of one of the co-debtors, and one of the other co-debtors has become insolvent, the share of such insolvent co-debtor shall be divided between all the solidary debtors, except for the share of the co-debtor in whose favour the renunciation of a solidary claim has been made.
Article 6.24. Divisible obligations
1. An obligation shall be divisible unless it is expressly stipulated by law that it is indivisible, or unless the subject matter of the obligation, owing to its nature, is not susceptible to division either materially or abstractly.
2. Where an obligation is divisible, and where there is more than one debtor or more than one creditor though the obligation is not solidary, each of the creditors may claim the performance only of his share of the debt, while each debtor shall be bound to perform only his share of the debt.
3. The heir of the debtor who has been charged with rendering the performance, or who is in possession of the property as a subject matter of the obligation, shall have no right to claim for division of performance of the obligation.
Article 6.25. Indivisible obligations
1. An obligation shall be indivisible if the subject matter of the obligation, owing to its nature, is not susceptible to division, or if the parties have agreed on such mode of performance which renders the obligation impossible to be performed in shares.
2. Indivisibility of an obligation shall imply that it is not susceptible to division either between the creditors, or the debtors, or between their heirs.
3. A stipulation on solidarity of an obligation made by the parties thereof shall not render it indivisible.
4. Each of the debtors of an indivisible obligation or his heir may separately be obligated to perform the whole obligation, and each of the creditors of an indivisible obligation or his heir may claim the performance of the whole obligation even though the obligation is not solidary.
Article 6.26. Concept of an alternative obligation
1. An obligation shall be alternative where the debtor is charged with performance of one of two or more different actions (principal prestations) at his own choice or chosen by the creditor or a third person. The performance of either of the chosen prestations shall fully discharge the debtor.
2. The debtor may not demand the creditor to accept a part of the performance in one prestation and the other part in another.
3. An obligation shall not be considered alternative where at the time of its arising one of the two possible prestations could not have been the subject matter of that obligation.
Article 6.27. Right of choice
1. In an alternative obligation, the choice of the prestation shall belong to the debtor unless it has been granted to the creditor or a third person by law, a contract or a court judgment.
2. A choice shall become irrevocable from the moment of performance of one chosen prestation, or when the choice is communicated to the other party, or to both parties in the event where the choice belongs to a third person.
3. Where the right of choice belongs to one of the parties to the obligation and this party fails to exercise it within the prescribed time limit, the right of choice shall pass to the other party to the obligation. The right of choice may not pass to the creditor until he acquires the right to claim for performance, and to the debtor until his duty to perform the obligation arises. Where the choice of a concrete prestation is referred to a third person and he fails to exercise it, it shall be determined by the court.
4. The time limit for exercising the right of choice may be established by agreement between the parties. Where such time limit is not established, it may be fixed by the party who is not granted the right of choice. Such time limit must be reasonable.
5. Where the right to claim has been pledged and the impossibility of performing an obligation is caused by the failure to choose a concrete action of performance, the pledgee may establish a time limit for both parties to the obligation within which the choice of a concrete prestation must be made. Where the choice of a concrete prestation is not made within the established time limit, the right of choice shall pass to the pledgee.
Article 6.28. Impossibility of performance of an alternative obligation
1. In the event of one of the several prestations being impossible to perform from the very arising of the obligation, or it becoming such after the arising of the obligation, the obligation shall be performed by the acceptance of the remaining prestation.
2. The rule established in paragraph 1 of this Article shall not apply if one of the prestations becomes impossible to perform due to the circumstances for which the responsibility is borne by the party without the right of choice of performance. In this event, the debtor shall be liable for the non-performance of the obligation.
3. Where the debtor had the right of choice and one of the several prestations became impossible to perform not through his fault, the debtor must perform the obligation in the remaining prestation.
4. Where the debtor had the right of choice and all of the prestations become impossible to perform due to his own fault, the debtor shall be liable to the creditor to the extent of the last prestation remaining.
5. Where all the prestations become impossible to perform through no fault of the debtor, the obligation shall be deemed to be extinguished.
6. Where the creditor is granted the right of choice, and if one of the prestations becomes impossible to perform, the creditor must accept performance in other prestations. Where one of the prestations becomes impossible to perform due to the fault of the debtor, the creditor may claim performance in kind by choosing other prestations, or claim compensation for damage resulting from the non-performance of the obligation by the prestation that has become impossible to perform. Where the obligation is impossible to perform in any of the several prestations due to the fault of the debtor, the creditor shall have the right at his choice to claim compensation for the damages resulting from the impossibility of performance of one or another of the prestations.
Article 6.29. Facultative obligation
1. A facultative obligation shall be an obligation which has only one principal subject matter (prestation), though in the event of the obligation being impossible to perform in the principal prestation, it may be performed in another prestation that does not contradict the principal one.
Article 6.30. Concept of a conditional obligation
1. An obligation shall be conditional where its arising, modification or extinction is made dependent on whether or not a certain circumstance occurs in the future.
2. The conditional nature of an obligation shall not prevent the rights that arise from it being alienable and inheritable.
3. Conditional obligations may be with a suspensive term or a resolutory term. In such case, Article 1.66 of this Code shall apply.
4. An obligation shall not be deemed to be conditional if its extinction depends on an event that, unknown to the parties, had already occurred at the time when the debtor accepted the conditional obligation.
5. The obligation whose arising depends upon a condition that is at the absolute discretion of the debtor shall be null and void. However, if the condition consists of exercising or not exercising appropriate actions, the obligation shall be valid even where the exercising or not exercising the action is at the sole discretion of the debtor.
Article 6.31. Requirements for a condition
Article 6.32. Time limits for fulfilment or non-fulfilment of a condition
1. In the event where no time limit has been established for the fulfilment of a condition, the condition may be fulfilled at any time. Where it becomes certain that the condition may not be fulfilled at all, it shall be deemed to be not fulfilled.
2. Where the arising, modification or extinction of an obligation is dependent upon a condition that certain circumstances will not occur within a given time, the condition shall be considered having occurred once the determined time has elapsed without the certain circumstance having occurred, also when, before the elapse of the time, it becomes certain that the circumstance will not occur altogether.
Article 6.33. Types of obligations with a term
2. An obligation with a suspensive term shall be an existing obligation that is not performed until the expiry of a certain time limit, or until the occurrence of a certain circumstance. In this event, its performance may not be demanded before the expiry of the term; however, anything performed freely and without error before the expiry of the term may not be recovered.
Article 6.34. Fulfilment of obligations with a term
1. In the event of non-occurrence of a circumstance in the case of an obligation with a suspensive term, the obligation shall become exigible from the day on which that circumstance should normally have occurred.
Article 6.35. Determination of a term
2. Where the parties have agreed to postpone the determination of the term, or to delegate it to be determined by one of the parties, but no term has been determined, the term shall be determined by the court upon the application of one of the parties, taking into account the nature of the obligation and the circumstances of the case. In urgent cases, the term may be determined by one of the parties. In any event, the term must be reasonable.
3. Where a fixed term is required by the nature of the obligation, and it has not been determined by the parties, the term may be fixed by the court.
4. It shall be presumed that a term is determined for the benefit of the debtor unless otherwise established by laws or the contract, also where, taking into consideration the essence and nature of the obligation, it becomes clear that the term has been determined for the benefit of the creditor, or both parties to the obligation. The debtor shall lose his privileges in respect of the term if he becomes insolvent, is declared bankrupt or without the consent of the creditor reduces or destroys the security of performance of the obligation submitted, also if the debtor fails to meet the conditions in consideration of which the privileges were granted to him.
5. The party for whose benefit the term has been determined shall have the right to renounce it without the consent of the other party. Renunciation of the benefit of the term shall render the obligation exigible immediately.
Article 6.36. Currency of monetary obligations
1. Monetary obligations (debts) must be expressed and paid in the currency which in accordance with the valid laws is legal tender in the Republic of Lithuania.
2. Monetary obligations may be paid in accordance with the procedure established by law by means of banknotes/coins, cheques, bills of exchange, transfer of funds, credit cards or by any other legal tender.
3. Where an action is brought in the Republic of Lithuania for the recovery of a sum of money expressed in a foreign currency, the creditor may at his choice demand payment in the foreign currency, or the equivalent in the national currency of the Republic of Lithuania at the rate of exchange on the day of the actual payment.
4. Where the monetary obligation is expressed in a currency which is not legal tender, the money paid by the debtor to perform the obligation must be legal tender and correspond to the rate of exchange of the currency valid at the time and in the place of actual payment.
5. Where the debtor exceeds the time limit fixed for the fulfilment of the obligation and fails to pay on the day of maturity, and where after the day concerned the currency in which the sum of money is due depreciates because of the change in exchange rates, the debtor must pay an additional amount equivalent to the difference between the rate of exchange at the date of maturity and the date of actual payment. This rule shall not apply where the failure of the debtor to perform the obligation is conditioned by the fault of the creditor. The debtor shall bear the burden of proof of the circumstance indicated above.
Article 6.37. Interest on monetary obligations
2. The debtor must also pay a certain interest established by law on the sum adjudged to the creditor for the period from the moment of the commencement of the case in the court until the final execution of the judgment.
3. Where the interest is established by law, the parties may agree in writing upon a higher interest providing that such agreement is not contrary to law or the principles of good faith and reasonableness. Non-observance of the written form shall be the grounds for the application of the interest established by law.
Article 6.38. Principles of performance of obligations
1. Obligations must be performed in good faith, properly and within the set time limits, pursuant to the requirements indicated in laws or the contract, and in the absence of such requirements, obligations must be performed in accordance with the criteria of reasonableness.
2. In the event where the performance of an obligation is inherent in the exercise of professional activity of one of the parties, the requirements with respect to the nature of that professional activity must also be observed by the party concerned.
3. Each of the parties must perform its obligations in the most cost-effective manner possible and render every kind of assistance to the other party in performing its obligations (duty of the parties to cooperate).
Article 6.39. Manner of performance of an obligation
1. The debtor shall have no right, without the consent of the creditor, to perform the obligation in a manner other than that provided for in the contract or laws, irrespective of the value of the manner of performance.
2. Where the creditor has consented to accept performance of the obligation in another manner, the obligation shall be deemed to have been fulfilled.
Article 6.40. Partial performance of an obligation
1. The creditor shall have the right to refuse accepting partial performance of an obligation unless otherwise provided for by laws or the contract.
Article 6.41. Quality of performance of an obligation
1. When the subject matter of an obligation is a thing specified only as to the kind, the debtor must deliver a thing of the same kind, but not below the average in quality required for the kind concerned, unless otherwise provided for by laws or a contract.
Article 6.42. Provision of security for performance of an obligation
Any person bound to provide security for performance of an obligation, which is not specified by the contract as to the manner or form, shall have the right at his own discretion to choose concrete means of security adequate to the essence of the obligation or a form of security established by laws.
Article 6.43. Duty to safeguard
An obligation to deliver an individually specified thing shall include the duty to safeguard it until delivery unless otherwise provided for in the contract.
Article 6.44. Person to whom the performance must be made
1. The obligation must be performed to the creditor or to his representative, or to the person designated by the creditor, or to the person obliged by laws or the court to accept such performance.
2. Performance of an obligation made to a person not entitled to accept it shall be deemed to be a proper performance if the creditor ratifies it or actually obtains the full performance from the person concerned.
Article 6.45. Performance of an obligation to an erroneous creditor
1. The debtor who performs an obligation to a person who, through the fault of the creditor, is reasonably and in good faith deemed to be entitled to receive the performance shall be discharged from the performance of the obligation to the creditor if he proves to have erred in good faith.
Article 6.46. Suspension of performance of an obligation
1. The debtor shall have the right to suspend performance of an obligation upon substantial and reasonable grounds for doubt whether the person to whom the obligation is to be performed has the right to accept this performance, and if the latter, upon the demand of the debtor, fails to present the necessary proof of his right to claim.
2. The debtor shall also have the right to suspend performance of an obligation if the creditor fails to perform his counter-obligation and where the counter-obligations of the debtor and the creditor are connected in such a way as to justify the suspension of the performance of the obligation.
Article 6.47. Performance of an obligation to a legally incapable creditor or to a creditor who had no right to accept the performance personally
1. The performance of an obligation to a creditor who is legally incapable in that area shall be deemed to be a proper performance only to the extent that the debtor proves that such performance was in fact in the interests of the creditor who was legally incapable in that area and was carried out for his benefit.
2. Where the obligation is performed without considering that the creditor due to certain reasons (arrest, etc.) was unable to accept the performance personally, the debtor must perform such obligation anew and shall have the right of recourse against the creditor to demand the return of what has already been transferred.
Article 6.48. Limitation of the debtor’s legal capacity
If the obligation has been fulfilled by the debtor who is legally incapable in that area or has limited legal capacity in that area, this may not be challenged on the basis of the incapacity of the debtor in that area or his limited legal capacity in that area.
Article 6.49. Performance made with the property of another’s
1. The debtor may not dispute performance of an obligation made by the transfer of property he had no right to dispose of, except in the cases when he himself offers to make performance by a transfer of property he has the right to dispose of, and if such change of prestation does not violate the interests of the creditor.
Article 6.50. Right of a third person to perform an obligation
1. An obligation may be performed in part or in full by a third person, except in the cases when pursuant to the agreement of the parties, or the essence of the obligation, it must be performed by the debtor personally.
2. The creditor may refuse acceptance of the performance offered by a third person if the debtor has notified him of his objection to such performance, except in the case established in paragraph 1 of Article 6.51 of this Code.
Article 6.51. Right of a third person to perform an obligation for the debtor
1. Where the execution against the property of the debtor has been levied by the creditor, the claim of the creditor may be satisfied by third persons who by the reason of such execution may be deprived of certain rights to that property. The same right shall belong to the person who possesses the property if by the reason of execution the right of possession may be lost by him. The third person who has performed the obligation for the debtor shall acquire the right of recourse to claim from the debtor.
Article 6.52. Place of performance of an obligation
1. An obligation must be performed at the place expressly indicated in the contract or laws, or inferred from the essence of the obligation.
2. In the event where no place of performance is indicated, the following rules shall apply:
1) the obligation to deliver an individually specified thing must be performed at the place where the thing was located when the obligation arose;
2) the obligation to deliver an immovable thing must be performed at the place where the thing is located;
3) the obligation to deliver a thing specified as to the kind must be performed at the place of residence or business of the debtor;
4) a monetary obligation must be performed at the place of residence or business of the creditor at the time of maturity of the obligation. In the event of change of the creditor’s place of residence or business from the time of arising of the obligation, which has caused additional expenses of performance to the debtor, the creditor must compensate the debtor for such additional expenses. Upon the request of the creditor, a monetary obligation may also be performed in the territory of another state where the place of residence or business of the creditor is located at the time of payment, or the state where the creditor’s place of residence was at the time when the obligation arose. However, where the required performance would be rendered substantially more onerous in the consequence, the debtor may refuse to satisfy such requirement of the creditor and execute performance in the place of the creditor’s residence or business at the time when the obligation arose;
Article 6.53. Time limit for performance of an obligation
1. If the time limit for the performance of an obligation is not established, or it is determined by the moment of demand to perform the obligation, the creditor shall have the right to demand it at any time, and the debtor shall have the right to perform the obligation at any time. However, where a certain time limit is necessitated by the nature of the obligation, or the manner or place of its performance, it may be fixed by the court upon the demand of one of the parties.
2. The obligation whose time limit for performance is not determined must be performed by the debtor within seven days from the day on which the creditor requested performance unless a different time limit for performance results from laws or the essence of the contract. In such cases, the time limit for performance must be reasonable and enable the debtor to perform the obligation properly.
Article 6.54. Imputation of payments
1. Unless otherwise agreed by the parties, payments received by the creditor in result of performance of an obligation shall be imputed first to the creditor’s expenses related to the filing of a claim to perform the obligation.
2. Second in line payments shall be imputed to interests in accordance with the sequence of their maturity.
5. The creditor shall have the right to reject an offer to pay if the debtor indicates a different order of imputation than established in paragraphs 1, 2, 3 and 4 of this Article.
Article 6.55. Imputation of payments in the event of several debts
1. A debtor who owes several debts of the same kind to the same creditor may declare at the time of payment which debt he is repaying. However, the debtor shall have no right without the consent of the creditor to impute a payment to an obligation not yet due in preference to a debt at maturity.
2. In the absence of such declaration of the debtor, or a different agreement between the parties, it shall be considered that the payment is imputed first to the debt at maturity. In the event of several debts at maturity, where none of them is secured, it shall be considered that the payment is imputed to the debt that was the first to reach maturity. Where several debts are due, it shall be considered that the payment is imputed to the one having the security. Among several secured debts, it shall be considered that the payment is imputed first to the debt which is most burdensome to the debtor, and in the event of all the debts being equally burdensome, to the one that was the first to reach maturity. In the instances where none of these criteria may be applied, imputation shall be made in proportion to all the debts.
Article 6.56. Performance of an obligation by payment to a deposit account
1. The debtor shall have the right to perform a monetary obligation by depositing the debt into the deposit account of a notary, a bank or any other credit institution if:
1) the creditor or any other person authorised to accept the performance cannot be found at the place where the obligation is to be performed;
4) the creditor is not clear, as the right to accept the performance is being disputed by several persons;
2. A deposit of the sum necessary for the performance of an obligation into a deposit account indicated in paragraph 1 of this Article shall be considered a proper performance of the obligation.
3. A notary, a bank or any other credit institution, into whose account the money has been deposited, must within a reasonable time inform the creditor accordingly.
4. Where the subject matter of an obligation is a thing, and the creditor refuses to accept performance, the debtor must make a tender and determine the time limit for the acceptance of performance. In the case of the creditor’s failure to accept performance of the obligation within the established time limit, he shall be considered to be in breach of the obligation. In this event, the creditor shall bear the costs of the preservation of the thing. The creditor shall also bear the risk of accidental loss or deterioration of a thing. If a thing is perishable, the debtor may realise it and deposit the proceeds. These rules shall also apply within the conditions specified in paragraph 1 of this Article, with the exception of a tender.
5. Performance of an obligation in accordance with the rules provided for in this Article shall release the debtor from the payment of interest or any other dues in the future.
6. Interest or any other sums calculated from the day of deposit shall be due to the creditor. However, if the deposit is made to obtain performance of the obligation of the creditor that is correlative to the obligation the debtor intends to perform by the deposit, the interest and other sums received shall belong to the debtor until the deposit is accepted by the creditor.
7. The deposited sums of money may be withdrawn by the debtor as long as the performance has not been accepted by the creditor. If the debtor withdraws the deposited sums from the deposit account, he shall not be considered to have performed the obligation. Where the deposit of a sum of money is made during judicial proceedings, the debtor may withdraw such deposited sum only upon the authorisation of the court. In addition, the withdrawal may not be effectuated by the debtor if this would impair the rights of third persons, or the interests of solidary debtors or sureties.
Article 6.57. Expenses of performance of an obligation
The expenses related with the performance of an obligation shall be charged to the debtor unless otherwise provided for by laws or a contract.
Article 6.58. Right to suspend performance of an obligation
1. Where the contractual obligation is counter-performed, and the party who is the first to make actions of performance fails to perform its obligation, or where it is evident that the party will delay the performance of the obligation, the other party shall have the right to suspend the performance of its counter-obligation, or refuse to perform it altogether, inform of this the other party, and claim damages.
2. The party to the obligation shall have no right to suspend performance where:
1) the other party produces adequate security of performance of its obligation and this will not unduly delay performance of the obligation;
2) performance of the obligation of the other party is impossible for the reasons beyond the control thereof;
3. In the event of a contractual obligation being not performed in full by one of its parties, the other party shall have the right to suspend the counter-performance of its obligation, or to refuse performance to the degree correspondent to that non-performed by the party obliged to perform it first.
4. Where a party performs its counter-obligation before the party who is to perform first, the latter shall be bound to perform its obligation.
5. The right to suspend performance of a bilateral obligation shall be extinguished when the other party to the obligation presents adequate security for the performance of its obligation.
6. The right to suspend performance of an obligation may also be invoked against the creditors of the other party to the obligation.
Article 6.59. Prohibition of unilateral refusal to perform an obligation
Unilateral refusal to perform an obligation or unilateral modification of the conditions of performance of an obligation shall be prohibited, except in the cases provided for by law or a contract.
Article 6.60. Consequences of non-performance of an obligation to deliver an individually determined thing
1. Where a debtor fails to perform the obligation to deliver an individually determined thing to the creditor’s ownership or possession thereof by the right of trust or use, the creditor shall have the right to demand that thing to be delivered. This right shall be extinguished upon the thing concerned being delivered to another creditor with the same kind of right. Where the thing has not yet been delivered, the priority to receive it shall belong to the creditor in whose favour the obligation first arose, and in the event where it is impossible to be ascertained, to the creditor who was the first to bring the action. The creditor who is unable to exercise his right to claim performance in kind shall be entitled to claim compensation of damages only.
Article 6.61. Effects of non-performance of an obligation to do certain work
1. In the event where a debtor fails to perform an obligation that entails doing certain work, the creditor shall have the right to perform that work himself at the debtor’s expense within a reasonable time and for a reasonable price unless otherwise established by laws or a contract, or he may claim damages. In these instances, the creditor shall have the right to file a suit and demand the debtor to pay in advance the amount necessary for performing the work.
2. In the event where a debtor fails to perform an obligation that entails performing certain work or actions which can be performed exclusively by the debtor personally, the court shall, upon the demand of the creditor, exact a fine from the debtor in favour of the creditor. The amount of the fine shall be determined by the court. The fine may be exacted in a lump sum, or payable for every delayed day until the full performance of the obligation by the debtor.
Article 6.62. Liability for non-performance of an obligation arising from a bilateral contract
1. Where the performance of an obligation that arises from a bilateral contract has become impossible due to a circumstance not imputable to any of the parties, while neither laws nor a contract provides otherwise, none of the parties shall be entitled to require the other party to perform the contract. In such case, each party shall have the right to claim restitution in kind without the corresponding counter-performance.
2. Where the performance of an obligation that arises from a bilateral contract has become impossible due to a circumstance imputable to one party, while neither laws nor a contract provides otherwise, the other party shall be entitled to revoke the contract and claim restitution in kind (to return everything that was performed), likewise compensation of damages incurred as a result of non-performance.
3. Where the performance of an obligation that arises from a bilateral contract has become impossible due to a circumstance imputable to the other party, the first party shall be entitled to demand from the other party performance of the obligation and compensation of damages, including what has been accumulated due to the impossibility to perform the obligation.
Article 6.63. Cases in which the debtor is considered to be in breach of an obligation
1. The debtor shall be considered to be in breach of an obligation where:
3) the creditor, whether judicially or extra-judicially, reasonably demands the debtor to perform his obligation;
4) the creditor demands performance of the obligation within a reasonable time established by him, but the debtor has failed to perform the obligation within this time limit;
5) the debtor informs the creditor before the expiry of the time limit of his intention not to perform the obligation;
2. From the moment the debtor is considered to be in breach of an obligation, he shall be liable for any damages suffered by the creditor, except in the cases where the debtor is released from the performance of the obligation.
3. In the event where the time limit for the performance of an obligation has not been fixed, the debtor shall be considered to be in breach of an obligation from the moment when the creditor made a demand in writing to perform the obligation and fixed the time limit for performance, but the debtor has failed to perform the obligation within that time limit.
4. The debtor shall be liable for all the consequences of the impossibility to perform the obligation after it was breached by the debtor, except in cases where the performance of the obligation has been rendered impossible through the fault of the creditor.
Article 6.64. Cases in which the creditor is considered to be in breach of an obligation
1. The creditor shall be considered to be in breach of an obligation where:
1) the debtor cannot perform the obligation due to insufficient cooperation between the creditor and the debtor, or through any other fault of the creditor;
2. When the creditor is in breach of an obligation, the debtor may file a suit and demand to be released from the performance of the obligation in whole or in part, conditionally or unconditionally.
3. If the creditor breaches the obligation, the debtor shall be considered not to have breached it. The debtor may not be considered to be in breach of the obligation as long as the creditor is considered to have breached it.
Article 6.65. Confirmation of performance of an obligation
1. Unless otherwise stipulated by the contract, the creditor, upon accepting the performance of an obligation, must issue to the debtor a quittance indicating to what extent, in part or in full, the performance has been made.
2. In the event where the creditor has documentary evidence of the debt issued by the debtor, he must, upon accepting the full performance of the obligation, remit this documentary evidence to the debtor or, failing that, inscribe the relevant annotation in the quittance. An inscription in the documentary evidence of the debt about the performance of the obligation shall be equalled to a quittance. If the performance does not cover the entire debt, or the creditor still needs this document for the exercise of his other rights, he shall have the right to retain it, though he must issue a quittance to the debtor.
3. If the creditor refuses to issue a quittance, to remit the documentary evidence of the debt, or to inscribe in the quittance annotation about the impossibility to remit that document, the debtor shall have the right to suspend the performance of his obligation until the document confirming the performance of the obligation is issued to him.
4. Where several actions must be performed by the debtor successively, a quittance for the two last actions shall create the presumption that the previous actions have also been performed, except in the cases where a contract or a quittance provides for otherwise.
Article 6.66. Right of the creditor to dispute transactions made by the debtor (actio Pauliana)
1. The creditor shall have the right to challenge transactions made by the debtor, where the debtor was not bound to make them and where they violate the rights of the creditor, while the debtor knew or ought to have known that prejudice to the creditor would result from that transaction (Paulian action). The creditor’s rights shall be considered violated if by such transaction the debtor renders himself insolvent or by which, being insolvent, he grants preference to another creditor, or the rights of the creditor are infringed in any other way.
2. A bilateral transaction may be annulled on the ground established in paragraph 1 of this Article only in the case when the third person concluding the transaction with the debtor concerned was in bad faith, i.e. he knew or ought to have known that the transaction violated the rights of the debtor’s creditor. A gratuitous transaction may be annulled irrespectively of whether the third person is in good or bad faith.
3. The creditor shall have the right to bring an action upon the annulment of the transaction on the grounds provided in paragraph 1 of this Article within the limitation period of one year. This time limit shall be calculated from the day on which the creditor became aware or ought to have become aware of the transaction which violated his rights.
4. The annulment of the transaction shall have legal effects only in respect of the creditor who brought the action upon the annulment of the transaction and only to the extent that is necessary to remove the prejudice experienced by the creditor.
Article 6.67. Presumption of bad faith
It shall be presumed that the parties to a transaction by whom interests of the creditor are violated were in bad faith if:
1) the debtor has concluded a transaction with his spouse, children, parents or other close relatives;
2) the debtor has concluded a transaction with a legal person of which the debtor’s spouse, child, mother/father or any other close relative is the head or a member or participant of the management body who holds, directly or indirectly, by the right of ownership at least 50 per cent of the shares (member shares, contributions, etc.) in the legal person, or all of whom together hold at least 50 per cent of the shares (member shares, contributions, etc.) in that legal person;
3) the debtor, who is a legal person, has concluded a transaction with a natural person who is the head or a member of the management body of that legal person, or the spouse, child, mother/father or any other close relative of that person;
4) the value of the prestation which had to be performed by the debtor considerably exceeds the prestation presented by the other party to the transaction (disproportion of counter-obligations);
6) the debtor, who is a legal person, has concluded a transaction with a natural person who, either himself or his spouse, children, parents, or any other close relatives, or jointly with them, is the participant of that legal person and holds, directly or indirectly, by the right of ownership at least 50 per cent of the shares (member shares, contributions, etc.) in that legal person;
7) the debtor, who is a legal person, has concluded a transaction with another legal person which is controlled by the debtor, or if the head or a member of the management body of one of the parties to the transaction is a person who, directly or indirectly, separately or jointly with his spouse, children, parents or close relatives, holds by the right of ownership at least 50 per cent of the shares (member shares, contributions, etc.) in the other legal person or of the shares (member shares, contributions, etc.) in both legal persons;
Article 6.68. Oblique action
1. A creditor whose right to claim against the debtor is certain and exigible shall be entitled to exercise the rights of the debtor by bringing an action in the debtor’s name in the event where the debtor fails to exercise these rights himself, or refuses to exercise them to the prejudice of the creditor’s interests (an oblique action).
2. An oblique action may be brought only in the instances when the creditor is necessitated to protect his rights (in the event of the debtor’s insolvency, bankruptcy proceedings instituted against him, or in any other special events) and under the condition that the time limit for the performance of obligations has matured prior to bringing the action.
3. The creditor shall have no right to demand exercising of such debtor’s rights which are related exceptionally with the person of the debtor.
4. A person against whom an oblique action of the creditor is brought may set up against the creditor all the objections and defences he could have set up against the debtor.
Article 6.69. Right of retention
1. The creditor shall be entitled to avail himself of the right of retention of a thing until the obligation is performed by the debtor.
Article 6.70. Ways of securing the performance of obligations
1. The performance of obligations may be secured under the contract or laws by penalty, pledge (hypothec), suretyship, guarantee, earnest money or in any other way provided for in the contract. Relationships related to pledge (hypothec) shall be regulated by the provisions of Book Four of this Code.
Article 6.71. Concept of penalty
1. A penalty shall mean a sum of money determined by the law, contract or court which the debtor must pay to the creditor in the case of failure to perform an obligation, or defective performance thereof (fine, late payment interest).
2. The penalty may be expressed as a concrete sum of money or as a percentage of the amount of the secured obligation.
Article 6.72. Form of agreement upon penalty
The clause by which it is agreed upon a penalty must be made in writing.
Article 6.73. Penalty and actual performance of an obligation
1. Where an obligation with a penal clause is established, the creditor may not demand from the debtor both the actual performance of the obligation and the penalty, except in cases where the debtor misses the time limit for performance of the obligation. An agreement between the parties providing for any other stipulation shall be null and void. The sum stipulated in the penal clause shall be set off against damages in the case where compensation of damages is claimed.
2. The amount of penalty stipulated may be reduced by the court when it is manifestly excessive, or if the creditor has already benefited from partial performance of the obligation, although the sum may not be reduced below the damages payable for the failure to perform the obligation or for defective performance thereof. No reduction of the penalty paid shall be allowed.
Article 6.74. Voidability of agreement upon penalty
Where the transaction from which the obligation has arisen is declared void in accordance with the procedure established by laws, any agreement upon securing the performance of such an obligation by way of penalty shall also be void.
Article 6.75. Burden of proof
The burden to prove the fact of the proper performance of the obligation shall be placed on the debtor by whom the obligation to pay the penalty is disputed on the basis of assertion that the obligation has already been performed by him.
Article 6.76. Concept of a contract of suretyship
1. Suretyship shall mean a contract by which the surety binds himself to be liable towards the creditor of another person gratuitously or for a remuneration in the event where the person in whose favour suretyship is granted fails to perform the obligation in whole or in part.
Article 6.77. Grounds for suretyship
1. Suretyship shall result from a contract of suretyship or shall be imposed on the basis of laws, or a court judgment.
2. Suretyship may be granted for an obligation irrespective of the request of the person for whose obligation it is being granted, also irrespective of the identity of the person who binds himself.
4. The creditor shall have the right to require a surety to be a concrete person named by the creditor. In the case where the creditor does not express such a requirement, the debtor must propose as surety a person with sufficient property to perform the obligation.
5. Where a debtor is bound to furnish suretyship on the grounds of laws (legal surety) or a court judgment (judicial surety), he shall have the right to present other adequate security for performance of the obligation instead of suretyship.
Article 6.78. Obligations secured by suretyship
1. Suretyship may be contracted for both already existing obligation and those which will arise in future, but in any event, suretyship may be applied only for the performance of a sufficiently specified obligation.
2. Suretyship may also be contracted for a part of the principal obligation. Suretyship may not be contracted for an amount in excess of that owed by the debtor. Suretyship may not be contracted under any other onerous conditions. Where the sum secured by suretyship extends beyond the limits of the debt for which it was contracted, it must be reduced to the amount of the debt.
Article 6.79. Form of a contract of suretyship
Suretyship must be contracted in written form. Non-observance of this requirement shall result in the voidability of the contract.
Article 6.80. Relationship between the surety and the creditor
1. At the request of the surety, the creditor must provide him with information about the content and conditions of the principal obligation, as well as about its performance.
2. The surety shall have the right to require from the creditor exaction to be levied first on concrete property of the principle debtor, except in the cases where the surety has expressly renounced this right. Where the creditor failed to comply with the instruction of the surety, and did not levy the exaction first on the indicated concrete property of the principle debtor, the creditor shall be liable for any subsequent insolvency of the principle debtor up to the value of the property indicated. These rules shall not apply in the instances of solidary liability of the principal debtor and the surety towards the creditor (paragraph 1 of Article 6.81 of this Code).
Article 6.81. Liability of the surety
1. If the debtor fails to perform the obligation, both the debtor and the surety shall be liable as solidary debtors towards the creditor for the performance of this obligation unless otherwise provided for by the contract of suretyship.
2. The surety shall be liable to the same extent as the debtor (for the payment of interest and penalty, compensation for damages) unless otherwise established by the contract of suretyship.
Article 6.82. Rights and duties of the surety arising as a result of an action brought against him
1. In the event where the creditor brings an action against the surety, the latter must implead the debtor. Otherwise, the debtor shall have the right, in the case of a counter-claim brought by the surety, to set up against the creditor all the defences he is entitled to.
2. The surety shall have the right to set up against the creditor all the defences which could be set up by the debtor. The surety shall not lose his right to set up such defences even when the debtor refuses his defences or admits his obligation.
3. The surety shall be entitled to avail himself of all other rights which may be exercised by the debtor (dispute a debt, apply a set-off, suspend performance of the obligation, etc.), with the exception of those which are exceptionally related to the person of the debtor.
Article 6.83. Rights of the surety after the obligation is performed
1. All the rights of the creditor arising from a certain obligation shall pass to the surety by whom that obligation has been performed.
2. The surety who has bound himself at the request of the debtor or with his consent, and who has performed the obligation shall have additional right to claim from the principal debtor compensation for all the damages incurred in relation with the suretyship; he shall also have the right to charge interest on the sum paid to the creditor even if the principal debt is not producing interest. The surety who has bound himself without the knowledge of the debtor may only claim from him what the debtor would have been bound to pay, including damages, if there had been no suretyship.
3. Each of several co-sureties shall have the right by way of recourse to claim from the debtor what he has paid.
4. After the surety has performed the obligation, the creditor must deliver to him the documents confirming the right of claim against the debtor, as well as the rights by which such claim is secured.
5. In the event where the surety fails to inform the principal debtor that he has performed the obligation, he shall have no right of recourse against the principal debtor who, being unaware of this performance, effectuates it repeatedly. The same effect shall be produced in the case where the surety performs the obligation without informing the principal debtor at the time when the principal debtor has already acquired the right to set up against the claim of the creditor defences that could have enabled him to have the debt declared extinguished. Nevertheless, in both of these cases the surety shall retain his right of claim for recovery of the sums that were not due to the creditor.
Article 6.84. Right of recourse of the surety performing a solidary obligation
If several persons acted as sureties for the same obligation, and the obligation was performed by one of the co-sureties, the co-surety who has performed the obligation shall have the right of recourse against the other co-sureties for their respective shares in the event where those sums cannot be recovered from the debtor.
Article 6.85. Duty of the debtor to inform the surety about the performance of the obligation
The debtor who has performed the obligation secured by suretyship must immediately inform the surety about the performance. Otherwise, the surety, who in his turn has performed the obligation, shall retain the right of recourse against the debtor. In this case, the debtor shall be entitled to recover from the creditor only what has been received by him not due.
Article 6.86. Relief of the surety from liability
Where the creditor refuses his priority right in the satisfaction of his claim, or declines any other security of the obligation established in his favour, the surety shall be released from liability if the creditor would have been able to satisfy his claim by exercising the rights which he has refused.
Article 6.87. Termination of suretyship
1. Suretyship shall be terminated at the time of extinguishment of the obligation which was secured by it.
3. If the qualities of a surety and debtor are united in the same person, suretyship shall remain in force if the creditor has an interest in its continuation.
4. Unless the contract of suretyship provides for otherwise, suretyship shall be terminated if the obligation is changed in essence, and such change without the consent of the surety results in the increase of his liability, or in any other consequences unfavourable thereto.
5. Suretyship shall be terminated if the debt according to the secured obligation is assumed by another person and the surety does not give his consent to the creditor to extend suretyship over in respect of the new debtor.
Article 6.88. Termination of suretyship contracted for a determinate period
1. Suretyship contracted for a determinate period or with a view of performing an obligation with a fixed term shall be terminated if the creditor does not bring an action against the surety within three months from the day on which the contract of suretyship or the time limit for performance of the obligation expires.
Article 6.89. Termination of suretyship contracted for an indeterminate period
1. In absence of any agreement to the contrary, where suretyship is contracted for an indeterminate period, or where the time limit for performance of an obligation is not indicated or determined by the moment of demand for performance, suretyship shall be terminated upon the expiry of two years from the day on which the contract of suretyship was concluded if the creditor does not bring an action against the surety within this time limit.
2. Where a future obligation is secured by suretyship contracted for an indeterminate period, the surety may, by his unilateral notice, dissolve it upon expiry of three years from its contraction if during the three years the obligation has not become exigible. The surety must immediately inform in writing the debtor and the creditor of the dissolution of suretyship.
Article 6.90. Concept of a guarantee
1. A guarantee shall mean a unilateral obligation of a guarantor by which he binds himself within the sum indicated in the guarantee to be liable fully or in part towards another person (creditor) if a person (debtor) fails to perform an obligation, or performs it improperly; the guarantor also binds himself to compensate the creditor for damages under certain conditions (when the debtor becomes insolvent, and in other cases). The guarantor shall be subsidiarily liable.
2. The obligation of the guarantor towards the creditor shall not depend on the principal obligation the performance of which is secured by it; a guarantee shall be an independent obligation even in the cases when the principal obligation is indicated in the guarantee.
Article 6.91. Form of a guarantee
A guarantee must be drawn up in writing. Failure to meet this requirement shall render the guarantee null and void.
Article 6.92. Limits of the obligation of a guarantor
1. The obligation of a guarantor shall be subsidiary and limited to the amount for which the guarantee was issued.
2. In the event where the guarantor fails to perform his obligation under the contract of guarantee, or performs it improperly, his liability towards the creditor for damages suffered as a consequence of violation of the guarantee shall not be limited to the amount for which the guarantee was issued.
3. Upon receiving the demand of the creditor to perform the obligation, the guarantor must immediately inform the debtor and submit to him copies of the creditor’s demand with the documents appended.
4. The guarantor shall have the right to refuse satisfaction of the creditor’s demand if this demand or the documents appended thereto do not correspond to the conditions of the guarantee, or they were submitted after the expiry of the time limit established for the guarantee. The guarantor must immediately notify the creditor about the refusal to satisfy his demand.
5. Where the guarantor becomes aware that the principal obligation secured by the guarantee has been performed in full, or has been terminated on other grounds, or has been declared null and void, he must immediately notify of this the creditor and the debtor. In the event where after such notification the guarantor receives a repeated demand of the creditor to perform the obligation, he must satisfy it only upon the presentation by the creditor of proof that the obligation has not been terminated and continues to be valid.
Article 6.93. Bank guarantee
1. Under a contract of a bank guarantee, the bank or any other credit institution (guarantor) shall bind itself in writing to pay to the debtor’s creditor upon his demand a sum of money fixed in the guarantee.
2. The debtor shall pay the guarantor the remuneration stipulated in the contract concluded between the debtor and the bank for the granting of a bank guarantee,
3. The bank guarantee shall enter into force from the moment of its granting unless otherwise provided for in the guarantee.
Article 6.94. Irrevocability of a bank guarantee
The bank may not revoke any guarantee it has granted unless otherwise provided for by the contract of a guarantee.
Article 6.95. Prohibition to assign the right of claim
The creditor shall not be entitled to assign to another person the right of claim secured by the bank guarantee unless otherwise provided for in this guarantee.
Article 6.96. Termination of a bank guarantee
1. A bank guarantee shall be terminated:
Article 6.97. Right of recourse of the bank
1. The bank and the debtor may establish by a contract the right of recourse of the bank against the debtor after the bank effectuates to the creditor the payment of the sum of money stipulated in the guarantee.
Article 6.98. Concept of the earnest money
1. Earnest money shall be deemed to be a monetary amount issued by one contracting party from the payments due to be paid by it under a contract to the other party to prove the conclusion of the contract and secure its performance.
Article 6.99. Form of an earnest money agreement
1. An earnest money agreement must be concluded in the written form irrespective of the amount of the earnest money.
Article 6.100. Consequences of non-performance of an obligation secured by the earnest money
1. If the party which issues the earnest money is liable for non-performance of the contract, the earnest money shall remain with the other party. In the event where the party to whom the earnest money was handed over is liable for non-performance of the contract, it must pay to the other party double the amount of the earnest money.
Article 6.101. Right of the creditor to assign a claim
1. The creditor shall have the right, without the consent of the debtor, to assign to another person all or a part of the claim provided that the assignment does not contradict the laws or the contract, or the claim is not related with the person of the creditor. The assignment of the claim must not prejudice the rights of the debtor and must not render his obligation more onerous.
2. By effect of the assignment, the claim shall be transferred to the assignee with the privileges established for the security of performance of the obligation and other accessory rights.
4. The right of claim shall be transferred to another person by operation of law in the following cases:
2) where the rights of the creditor under a court judgment are delegated to another person if such possibility is provided for by laws;
3) where the surety or the pledgor of the debtor, who are not parties to the secured obligation, perform the obligation for the debtor;
4) where within the procedure of recourse the rights of the creditor connected with the debtor responsible for the insurance event are transferred to an insurance company;
Article 6.102. Cases in which the assignment of a claim is prohibited
2. Judges, public prosecutors and advocates cannot become assignees of claims in respect of which litigation has arisen in the court within whose jurisdiction they exercise their functions.
Article 6.103. Form of the contract
The form of a contract upon assignment of a claim shall be subject to the same requirements as prescribed for the principal obligation.
Article 6.104. Delivering of documents
1. The creditor who has assigned his claim to another person must hand over to the new creditor the documentary evidence pertaining to the claim and the accessory rights, including the right to receive interest. If such documents remain of importance to the previous creditor, he must hand over to the new creditor copies of the documents certified in accordance with the established procedure.
2. The assignment of a claim the performance of which is secured by a pledge (hypothec) must be inscribed in the public register. In this case, the previous creditor and the new creditor must take measures in order to ensure that relevant inscriptions are made in the public register.
3. In the event of assignment of the universality of claims, the previous creditor must deliver to the new creditor any pledged property which is under his control.
4. All expenses relating to the execution and delivering of the documents stipulated in paragraphs 1 and 2 of this Article shall be covered by the new creditor unless otherwise provided for by the contract.
5. The claim confirmed by a bearer security issued by the debtor shall be assigned by handing over the bearer security to the new creditor. In this case, the debtor must perform the obligation to any person who hands over the security to him. In this event, the debtor shall neither be entitled to setting up any objections or defences other than a claim for acknowledging the nullity of the bearer security.
Article 6.105. Liability of an assignor (previous creditor)
1. The assignor (previous creditor) shall be liable towards the assignee (new creditor) for the invalidity of the assigned claim, though he shall not be liable for the debtor’s non-performance of the obligation arising from this claim, except in the cases when the assignor gives a surety to the assignee for the debtor.
2. Where the right of claim is assigned gratuitously, it shall be deemed that the assignor affirms that the right of claim exists, and is owned by him even if such affirmation is not provided for by the contract (statutory guarantee), with the exception of cases where the assignee acquires the right of claim at his own risk, or at the time of the assignment, he was aware or ought to have been aware of the uncertain nature of the right of claim.
Article 6.106. Performance of an obligation in favour of the assignor by the debtor uninformed about the assignment of the claim
1. In the event of failure to inform the debtor that the claim has been assigned, the performance of the obligation in favour of the assignor shall be deemed to be proper. If the claim has been assigned several times, the performance of the obligation in favour of any subsequent creditor shall be deemed to be proper.
2. In the case of a dispute over the pretension to the claim, the debtor shall have the right to refuse payment to any concrete creditor and perform the obligation by depositing a sum into the depository account of a notary office, bank or any other credit institution.
Article 6.107. Defences of the debtor against the claims of the assignee (new creditor)
1. The debtor shall have the right to set up against the assignee all the defences which he was entitled to set up against the assignor at the time of receiving the notice about the assignment of the claim.
2. After the assignment of the claim and handing over of a bearer instrument, the debtor who has issued the bearer instrument shall have no right to set up defences against the assignee based upon the assertion that the obligation is simulated or false, or the assignment is prohibited if at the time of the assignment of the claim the assignee did not know and could not have known of these circumstances.
3. In the event where, after the assignment of the claim, the debtor brings an action against the assignor for the annulment of the legal fact from which the obligation arises, the debtor must notify the assignee of this fact, except in the cases when the annulment of that legal fact cannot be invoked against the assignee.
Article 6.108. Set-off against the assignee
A debtor who has a counter-claim against the assignor shall be entitled to a set-off against the assignee, except in the cases where at the time of acquisition of the counter-claim the debtor was aware of the assignment of the claim, or the time limit for the recovery of the assigned claim expired after he became aware of its assignment, or after the expiration of the time limit allotted for the recovery of the assigned claim.
Article 6.109. Notice of the assignment of a claim
1. The fact of the assignment of the claim may be invoked against third persons and the debtor only from the moment when the debtor acquiesced in it, or received a copy of the document confirming the fact of the assignment of the claim, or any other evidence of the fact of the assignment of the claim.
2. Where the debtor’s whereabouts are unknown, the assignment of the claim may be announced by public notice (Article 1.65 of this Code).
3. The assignment of the right of claim, which is registered in the public register in accordance with the procedure established by laws, shall be announced in accordance with the procedure laid down by laws and the fact of the assignment shall be inscribed in the public register.
4. The assignment of a claim may not be set up by the creditor against the debtor if the creditor has given notice of this assignment to the debtor, even if the assignment would have not occurred or would have been declared void.
5. The handing over of the contract on the assignment of the claim to the assignee and presentation of that contract to the debtor shall also be deemed to constitute a notice.
7. The debtor must perform the obligation to the assignee only if the latter together with the expression of his demand presents the contract on the assignment of the claim. Waiver of the obligation or a demand for the performance thereof by the assignee shall have no effect without presentation of a contract on the assignment. This rule shall not apply if the assignee has notified the debtor of the assignment of the claim in writing.
Article 6.110. Assignment of other rights
The rules establishing the procedure for the assignment of a claim shall also apply to the assignment of other rights unless otherwise provided for by laws.
Article 6.111. Grounds for subrogation
Subrogation may be effectuated on the basis of a written contract or laws.
Article 6.112. Cases of subrogation
A claim shall be transferred to a third person by way of subrogation when:
2) the obligation is performed for the debtor by the third person whose property was pledged in securing the performance of obligation;
3) the third person performs the obligation for the debtor in order to prevent seizure of property, even though the property does not belong to him, where the seizure would make him lose whatever rights he has in that property;
Article 6.113. Rights acquired as a result of subrogation
A third person who is subrogated to the rights of the creditor may not acquire more rights than the subrogating creditor.
Article 6.114. Subrogation by operation of law
A claim shall be transferred to a third person according to subrogation by operation of law in the following cases:
1) in favour of the creditor who pays the debt to another creditor whose claim has preference to his by virtue of its securement in the form of a pledge (hypothec) or by the priority of claim;
2) in favour of the acquirer of the property when he performs an obligation towards the creditor whose claim is secured by a pledge (hypothec) on that property;
3) in favour of a person who performs the obligation to which he is bound with other debtors, or has reasonable interest in the performance thereof;
4) in favour of a heir who at his expense performs the obligation of succession for which he was not bound;
Article 6.115. Delegation of debt by a contract between the creditor and the new debtor (delegee)
A third person may by the effect of a contract with the creditor accept the rights and duties of the debtor.
Article 6.116. Delegation and assumption of debt by the effect of a contract between the debtor and the person who assumes the debt (delegee)
1. Delegation of debt may be effectuated by the debtor exclusively with the consent of the creditor unless otherwise provided for in other laws governing the stability and soundness of financial institutions and the system of financial institutions. The consent shall be given only after the creditor is notified of the intended delegation by the debtor and the person who assumes the debt (delegee). Until the creditor has consented, the contract may be modified or terminated by the parties. After the consent of the creditor is received, the contract between the initial and the new (delegee) debtor may not be modified.
2. The creditor’s consent for delegation of the debt may be given in advance. The creditor shall have no right to revoke his consent given in advance unless he has reserved this right in the said consent.
3. If the creditor has not given his consent, delegation of the debt shall be deemed not to have been effectuated. In the event where the debtor and the person who assumes the debt (delegee) establish a time limit during which the consent of the creditor must be given, the consent may be given within the period provided. If no consent of the creditor is given within the established time limit, it shall be deemed that the creditor has not consented to the delegation of the debt.
Article 6.117. Delegation of a debt secured by pledge (hypothecated debt)
Upon effectuation by the debtor delegation of a debt secured by pledge (hypothecated debt), the right of pledge to the property of the debtor shall remain valid.
Article 6.118. Form of the contractual delegation and assumption of debt
The contractual delegation and assumption of debt must be made in writing.
Article 6.119. Defences available to the person who assumes a debt (delegee)
1. The new debtor (delegee) shall have the right to invoke against the creditor all the defences based upon the obligatory relationship between the creditor and the initial debtor. Nevertheless, the claim of the initial debtor cannot be claimed by the new debtor (delegee) for a set-off.
Article 6.120. Accessory rights
1. Upon the change of the debtor in the effect of the assumption of a debt, all accessory rights of the creditor shall remain unchanged provided that they are not purely personal in respect of the initial debtor.
Article 6.121. Effects of invalidity of a contract of delegation of debt
1. If a contract of delegation of debt is declared null and void, the obligations of the initial creditor, likewise all his accessory rights and responsibilities arising therefrom shall be restored; although the rights of third persons in good faith shall be retained.
2. The creditor shall have the right to claim against the person who has assumed the debt (delegee) compensation of damages resulting from the invalidity of contract of delegation of debt, except in the instances where the invalidity of that contract and the resulting damages were not conditioned by the delegee’s fault.
Article 6.122. Assumption of property or a legal person
1. A person who has assumed property or an enterprise with its assets and liabilities shall also assume the rights and obligations connected with the property assumed.
Article 6.123. Extinction of an obligation by performance
1. An obligation shall be extinguished by its proper performance. It shall likewise be extinguished where a creditor has accepted the performance of a different kind in substitution for the one originally called for.
2. After the acceptance of performance by the creditor, the burden of proof of non-performance or the improper performance thereof shall fall on the creditor.
Article 6.124. Extinction of an obligation by the expiry of a resolutory time limit
An obligation shall be extinguished by the expiry of a resolutory time limit which is a condition for the termination of the obligation.
Article 6.125. Extinction of an obligation by agreement of the parties
1. An obligation may be extinguished in whole or in part by agreement of the parties thereof. Such agreement may be concluded in any form, except in cases where its obligatory written or notarial form is established for the arising of the obligation.
Article 6.126. Extinction of an obligation by confusion
1. An obligation shall be extinguished where the qualities of creditor and debtor are united in the same person.
2. Where confusion ceases to exist, the obligation shall be restored unless it has been extinguished upon other grounds.
3. The confusion of the qualities of the parties to the obligation shall not affect the rights of third persons.
4. An obligation may not extinguish by confusion if the claim and the debt are related with separate and unconnected property.
5. In the event of suretyship, confusion of the qualities of creditor and debtor shall result in the extinction of the suretyship.
6. Confusion of the qualities of surety and creditor, or of surety and principal debtor shall not be the grounds for the extinction of the principal obligation.
7. Confusion of the qualities of creditor and one of the solidary debtors, or of debtor and one of the solidary creditors shall be the grounds for the extinction of the obligation only to the extent of the share of that solidary debtor or solidary creditor.
Article 6.127. Extinction of an obligation by impossibility of its performance
1. An obligation shall be extinguished when its performance becomes impossible as a consequence of superior force which is not imputable to the debtor. An obligation shall extinguish upon these grounds only in that event if the superior force arose before the obligation was violated by the debtor. The burden of proof of a superior force shall fall on the debtor. In the event where the performance was rendered impossible only in part, the obligation shall be extinguished when the debtor performs that part of the obligation whose performance is still possible.
2. In the event indicated in paragraph 1 of this Article, the debtor in a bilateral contract who has been released by impossibility of performance must return all the benefits which he has received from the other party, and he shall have no right to claim performance of the remaining part of the unperformed obligation of the creditor in accordance with the contract.
3. If the performance of the obligation has become impossible by reason of unlawful acts of state or municipal institutions, the parties may claim compensation of damages from the state or municipal budget. When such act is annulled, the obligation shall revive unless otherwise conditioned by the contract of the parties or the essence of the obligation, or the creditor has already lost interest therein.
Article 6.128. Extinction of an obligation upon the death of a natural person or liquidation of a legal person
1. An obligation shall be extinguished upon the death of a debtor if it cannot be performed without the participation of the debtor himself, or if it is in any other way inseparably connected with the person of the debtor.
2. An obligation shall be extinguished upon the death of a creditor where the performance of the obligation was assigned to the creditor personally, or where it is in any other way inseparably connected with the person of the creditor.
Article 6.129. Release of a debtor from the performance of an obligation
1. An obligation shall be extinguished where the creditor releases his debtor from performance of the obligation, or declares the obligation to be non-existent if such release does not violate the rights of third persons towards the property of the creditor.
2. Release must be expressed in a clear and unequivocal manner. Release may be onerous or gratuitous.
4. A creditor shall be presumed to grant a debtor release of the debt where the creditor voluntarily surrenders the document evidencing the debt to the debtor unless the circumstances indicate that the document evidencing the debt has been surrendered to the debtor after he has performed the obligation.
5. The creditor’s offer addressed to the debtor regarding the latter’s onerous release from performance of an obligation shall be considered accepted if it is not rejected by the debtor immediately upon receipt.
6. In the event where an obligation is solidary, release granted to one of the solidary debtors shall release the other co-debtors only from the performance of the released person’s part. Express release granted by one of the solidary creditors to a debtor shall release the debtor only from the performance of the part in which the claim of that creditor can be brought.
Article 6.130. Extinction of an obligation by a set-off
1. An obligation shall be extinguished by a set-off of a counter-claim which is of the same kind and its time limit has expired, or the time limit of its performance is not fixed, or it is defined by the moment of the demand to perform the obligation.
Article 6.131. Procedure of a set-off
1. Declaration of intention made by one party shall be sufficient for the effectuation of a set-off.
2. A set-off shall be effectuated by notifying the other party to the obligation thereof. The notification shall be deemed of no effect where the set-off is made dependable upon a certain condition, or a time limit established thereto.
3. Where the creditor possesses documentary evidence of the debt issued by the debtor, the set-off shall be effectuated by inscribing the declaration of a set-off in the document and by remitting it to the debtor.
4. If a set-off does not cover the entire claim, or where the creditor still needs the documentary evidence of the debt to exercise his other rights, the creditor shall have the right to retain the document with the inscription upon the set-off, although the creditor must also furnish the debtor with a written notice of the set-off.
Article 6.132. Period of grace in a set-off
A period of grace granted to the debtor for payment of one of the debts shall not prevent the application of a set-off.
Article 6.133. Set-off when the obligation is performed in a different place
1. The fact that the obligation must be performed in a different place shall not prevent the application of a set-off.
Article 6.134. Prohibition to effect a set-off
1. It shall be prohibited to effect a set-off of the following:
Article 6.135. Set-off in suretyship relations
1. A surety may refuse to satisfy the claim of the creditor if the principal debtor is entitled to the right of a set-off.
2. A surety shall have the right to effect a set-off for what the creditor owes to the principal debtor, i.e. by considering the relationships between the creditor and the debtor, but the principal debtor shall not have the right to effect a set-off in the interrelations of the creditor and the surety, i.e. for what the creditor owes to the surety.
Article 6.136. Set-off in the case of assignment of a claim
Where a claim is assigned, the debtor shall have the right to use for a set-off his claim against the previous creditor for the satisfaction of a claim of the new creditor (assignee) if the time limit of the debtor’s claim expired before the day when the notice about the assignment of the claim was received by him, or if the time limit is not established, or if it is defined by the moment of a demand to perform the obligation, with the exception of cases provided for in Article 6.108 of this Code.
Article 6.137. Set-off in the case of a solidary obligation
1. A solidary debtor may not use a set-off for what the creditor owes to his co-debtor, except for the share of that co-debtor in the solidary debt.
Article 6.138. Set-off in the case of several debts
Where several debts are owed by one debtor to the same creditor, a set-off shall be effected by applying the rules of priority of imputation of payment established in Articles 6.54 to 6.55 of this Code.
Article 6.139. Set-off in a contract concluded in favour of a third person
A person who has assumed an obligation in favour of a third person shall have no right to use his own claim against the other party to the obligation for a set-off to relieve himself.
Article 6.140. Set-off in the case of the debtor’s insolvency
After a debtor has proved to be insolvent, the claims of the creditors may be used for a set-off even though they are not due unless otherwise provided for by laws.
Article 6.141. Concept of novation
1. An obligation shall be extinguished when the parties by their agreement substitute the existing obligation with a new obligation of a different subject matter or different kind of performance (novation). Novation shall also be effected where a new debtor is substituted for the initial debtor who is discharged by the creditor. In such a case, novation may be effected without the consent of the initial debtor. Such conduct where by the effect of a new contract, a new creditor is substituted for the previous creditor towards whom the debtor is discharged shall likewise be considered novation.
2. Novation shall not be presumed, and the intention to effect it must be expressed clearly and unequivocally in all cases.
Article 6.142. Conduct that does not imply novation
Any extension or abridgement of the time limit of performance of an obligation, the issuance or change of a document confirming the existence of the obligation, and any other accessory modifications of an obligation shall not be considered novation.
Article 6.143. Influence of novation upon accessory rights
1. The right of pledge (hypothec), also other accessory rights arising from the original obligation shall be extinguished by novation, except in the cases where the parties agree to retain them.
2. If novation is made between the creditor and one of the solidary debtors with the effect of discharging from the performance of the obligation all other co-debtors, the right of pledge (hypothec) and other accessory rights arising from the original obligation may be retained only in respect of the property of the debtor who makes the new obligation (novation) with the creditor.
3. Where novation is effected by substituting a new debtor for the initial debtor who is discharged from the performance of the obligation, pledge (hypothec) by which the performance of the obligation is secured may not be transferred to the property of the new debtor. Pledge (hypothec) attached to the property of the discharged initial debtor may be retained only with the consent of the initial debtor. In the event where a new debtor acquires from the initial debtor a thing, the rights to which are encumbered by pledge (hypothec), the pledge (hypothec) shall be retained if the new debtor consents thereto.
Article 6.144. Other effects of novation
1. Where novation is a replacement of the original debtor, the new debtor may not invoke against the creditor the defences which he could have set up against the initial debtor, nor the defences which the initial debtor had against the creditor. However, the debtor may claim for the nullity of the transaction from which his obligation results.
2. In the event of novation of a creditor and a principal debtor, a surety of the debtor shall be released from the performance of the obligation.
Article 6.145. Grounds for restitution
1. Restitution shall take place where a person is bound to return to another person the property he has received either unlawfully or by error, or as a result of the transaction according to which the property has been received by him being annulled ab initio, or as a result of the obligation becoming impossible to perform because of a superior force.
Article 6.146. Mode of restitution
Restitution shall be made in kind, except in the instances where this is impossible or it would cause serious inconveniences for the parties. In these cases, restitution shall be effectuated by payment in monetary equivalence.
Article 6.147. Estimation of monetary equivalence
1. Monetary equivalence shall be estimated according to prices that were valid at the time when the debtor received what he is liable to restore.
2. In the case of destruction or alienation of property subject to restitution, the person must compensate for the value of the property which was at the time when the property was received, destroyed or alienated, or at the time of its restitution, taking into account whichever value is the lowest. In the event of the person liable to make restitution being in bad faith, or where the restitution is due to his fault, he must pay the highest value of the property.
Article 6.148. Indemnity for the lost property
1. If the property is destroyed by a superior force, the restitution shall not be applied, but the debtor shall be bound to assign to the creditor the claim for indemnity for the lost property, or to deliver him the indemnity he has received for the destroyed property.
2. In the event where the debtor is in bad faith, or the restitution is due to his fault, he shall be bound to return the value of the property calculated in accordance with the rules provided in paragraph 2 of Article 6.147 of this Code, except in the cases where the debtor proves that the property would have been destroyed even if it had been in the possession of the creditor.
Article 6.149. Partial destruction of the property
Where the property has suffered partial loss or any other depreciation in value, the debtor shall be bound to pay the creditor monetary equivalence of such partial loss or to indemnify the depreciation in value of the property unless it results from normal wear and tear of the property.
Article 6.150. Reimbursement of expenses relating to the care of the property
Expenses relating to the care and custody of the property subject to restitution incurred by the person who is bound to return the property shall be reimbursed in accordance with the provisions of Book Four of this Code applicable in respect of possessors in good faith and possessors in bad faith.
Article 6.151. Restoration of fruits and revenues
1. The fruits and revenues of the property subject to restitution shall belong to the person bound to make restitution. This person shall bear all the expenses incurred in the production of those fruits and revenues.
2. In the event where the person bound to make restitution is in bad faith, or if the restitution is due to his fault, he shall be obliged to return the fruits and revenues and to reimburse the creditor for any benefit he has derived from the property. However, the creditor must reimburse such person for the expenses incurred by him to obtain the fruits and revenues.
Article 6.152. Costs of restitution
1. Costs of restitution shall be borne by both parties in equal shares unless they have agreed otherwise.
Article 6.153. Effect of restitution on third persons
1. Third persons in good faith who, in accordance with a transaction of alienation by onerous title, have acquired property subject to restitution may invoke this transaction against a person who claims for restitution.
2. Third persons in good faith who, in accordance with a transaction of alienation by gratuitous title, have acquired property subject to restitution may not invoke this transaction against a person who claims for restitution if the time limit of prescription has not been exceeded by the latter.
Article 6.154. Concept of a contract
1. A contract shall mean an agreement between two or more persons to establish, modify or extinguish legal relationships by which one or several persons obligate themselves to one or several other persons to perform certain actions (or to refrain from performing certain actions) while the latter persons obtain the right of claim.
2. Contracts shall be subject to provisions of this Code that regulate bilateral and multilateral transactions.
Article 6.155. Scope of application
1. General rules of contract law provided for in this Chapter shall apply to all contracts, taking into account their nature.
Article 6.156. Principle of freedom of contract
1. The parties shall be free to enter into contracts and determine their mutual rights and duties at their own discretion; the parties shall also have the right to conclude other contracts not provided for in this Code if this does not contradict laws.
2. It shall be prohibited to compel another person to conclude a contract, except in cases when the duty to enter into a contract is established by laws or a free-will engagement.
3. The parties shall have the right to form a contract which contains elements of contracts of several types. Such contract shall be governed by rules regulating the separate types of contracts unless otherwise provided for by agreement of the parties, or this contradicts the essence of the contract.
4. The conditions of a contract shall be established by the parties at their own discretion, except in the cases where certain conditions of a contract are determined by the mandatory rules of law.
5. Where the conditions of a contract are established by a non-mandatory rule of law, the parties may agree on non-application of these conditions, or they may agree on any other conditions. In the absence of such an agreement between the parties, the conditions of the contract shall be determined in accordance with the non-mandatory rule of law.
6. Where some conditions of a contract are regulated neither by laws nor by agreement between the parties, in the case of a dispute, such conditions shall be determined by a court on the basis of usages, principles of justice, reasonableness and good faith, also by application of analogy of statutes and the law.
Article 6.157. Mandatory rules or law and a contract
1. The parties themselves may not agree on modification, restriction or abrogation of an effect or application of the mandatory rules of law, irrespective of by what law – national or international – these norms are determined.
Article 6.158. Good faith and fair dealing
Article 6.159. Elements of a contract
The following elements shall be sufficient to render a contract valid: an agreement between legally capable parties, and, when prescribed by laws, also the form of a contract.
Article 6.160. Types of contracts
1. Contracts may be unilateral and bilateral, onerous and gratuitous, consensual and real, contracts of successive performance and of instantaneous performance, consumer contracts and others.
2. According to the manner of their conclusion, contracts shall be divided into contracts by mutual agreement and contracts of adhesion.
3. According to the definiteness of advantages that the parties obtain, contracts shall be divided into aleatory (where receiving of advantages and the amount of the obligation of the parties is uncertain and dependant on occurrence or non-occurrence of a certain event) and commutative contracts (where the advantages and the extent of the advantages obtained by the parties are certain and determinate at the time when the contract is formed).
Article 6.161. Public contract
1. A public contract shall be a contract concluded by a legal person (trader) that renders services or sells goods to an indefinite number of persons, i.e. to everyone who makes a request (enterprises of transport, communications, electricity, heating, gas, water supply and others).
2. In rendering services or selling goods, a legal person (trader) must enter into contracts with every person who applies for those services, with the exception of cases approved in accordance with the procedure established by laws.
3. When concluding public contracts, a legal person (trader) shall have no right to grant privileges to anyone, except in cases provided for by law.
4. Prices and other conditions of goods and services under public contracts must be equal to all consumers of the same category, except in cases expressly provided for by laws where preferential conditions may be applied to the separate categories of consumers.
5. In the cases established by laws, a legal person (trader) must submit standard conditions of a public contract to the relevant state institution for approval. In the cases established by laws, public contracts may be concluded in accordance with standard conditions approved by the relevant state institution and binding on both parties.
Article 6.162. Formation of a contract
1. A contract shall be formed either by the proposal (offer) and the assent (acceptance) or by any other actions of the parties that are sufficient to show their agreement.
2. Where the parties agree on all essential conditions of a contract, the contract shall be effective, even though the parties have reserved an agreement as to secondary conditions. If the parties do not reach an agreement on the secondary conditions, the dispute may be resolved in judicial proceedings, taking account of the nature of the contract, non-mandatory rules of law, usages, and the principles of justice, reasonableness and good faith.
Article 6.163. Obligations of parties in pre-contractual relationships
2. Parties shall be free to begin negotiations and negotiate, and shall not be liable for failure to reach an agreement.
3. A party who begins negotiations or negotiates in bad faith shall be liable for the damages caused to the other party. It shall be considered bad faith for a party to enter into negotiations or continue them without intending to reach an agreement with the other party, likewise any other actions that do not conform to the criteria of good faith.
Article 6.164. Duty of confidentiality
1. Where in the course of negotiations one party furnishes the other with confidential information, the party that has learned or received such information shall be under the duty not to disclose it, or use it unlawfully for its own purposes, irrespective of whether a contract is subsequently concluded or not. The breach of confidentiality shall inflict liability of the faulty party in damages suffered by the injured party.
Article 6.165. Preliminary contract
1. A preliminary contract shall be an agreement between parties by which they obligate themselves to conclude another – principal – contract in future under the conditions negotiated in the agreement.
2. A preliminary contract must be made in writing. Failure to comply with the requirements as to the form of the contract shall render the preliminary contract null and void.
3. In the preliminary contract, the parties must establish a time limit within which the principal contract is to be formed. In the event where such time limit is not established in the preliminary contract, the principal contract must be formed within one year from the date of the conclusion of the preliminary contract.
4. If after conclusion of the preliminary contract a party without due grounds avoids or refuses to enter into a principal contract, it must compensate the other party for the damages caused.
Article 6.166. Presumption of knowledge
An offer, acceptance, their revocation or any other communication addressed to a given person shall be presumed to become known to him at the moment when they reach the addressee’s place of residence or business (registered office) or the e-delivery box unless the addressee proves that it was impossible for him to receive the communication through no fault of his own or any of his employees.
Article 6.167. Offer
1. A proposal for concluding a contract shall be deemed to be an offer if it is sufficiently definite and indicates the intention of the offeror to be restricted in his rights by a contract and to be bound in the case of acceptance.
Article 6.168. Effect of an offer
Article 6.169. Revocation of an offer
1. Until a contract is concluded, an offer may be revoked if the revocation reaches the offerer before he has dispatched the acceptance.
Article 6.170. Termination of an offer
An offer shall lose its effect when the notice on its rejection reaches the offeror, or no reply to the offer is received within the established time limit.
Article 6.171. Offer to the public
1. An offer to the public shall be a proposal for concluding a contract where such proposal is addressed to everyone, also the display of goods with the indicated prices on the shelves in a shop or in the shop window, or a promise to pay for the performance of certain actions.
2. Revocation of an offer to the public, if made in the same form as the offer, shall extinguish the offer even though not all persons who are aware of the offer have received the notice on the revocation.
Article 6.172. Death, bankruptcy, liquidation or limitation of legal capacity of an offeror or an offeree
The death, bankruptcy, liquidation, legal incapacity in this area or limitation of legal capacity in this area of an offeror or an offeree shall render an offer to conclude a contract invalid if these events occur before acceptance is received by the offeror.
Article 6.173. Acceptance and its forms
1. A statement made by the offeree or any other conduct thereof indicating assent to the offer shall be considered acceptance. Silence or inactivity per se shall not imply acceptance of an offer.
2. An acceptance of an offer shall produce legal effects from the moment it is received by the offeror.
3. If by virtue of the offer, or as a result of practices which the parties have established between themselves, or of existing usages, the possibility to accept an offer without notice to the offeror (by silence or by performing factual actions) is foreseen, the acceptance shall produce legal effects from the moment when certain actions expressing the will of the offeree are performed.
Article 6.174. Time limit of acceptance
1. An offer must be accepted within the time limit fixed by the offeror, in the event where no time limit is fixed, within a reasonable period, taking into account concrete circumstances, including the capacities of the means of communication used by the parties.
Article 6.175. Acceptance within a fixed time limit
1. The time limit for acceptance indicated by the offeror in his telegram or a letter shall begin to run from the moment the telegram is handed in for dispatch, or from the date indicated in the letter, or, if no date is indicated, from the date shown on the envelope. A time limit for acceptance indicated by the offeror by means of telecommunications terminal equipment shall begin to run from the moment when the offer reaches the offeree.
2. Official holidays or non-working days shall be included in calculating the time limit established for acceptance. However, if a notice of acceptance cannot be delivered to the offeror because the last day of the time limit falls on an official holiday or a non-working day, the time limit shall be extended until the first working day thereafter.
Article 6.176. Late acceptance
1. A late acceptance shall be effective if the offeror without delay informs about it the offeree or sends him an acknowledgement to that effect.
2. Where it is possible to establish from the letter or any other written notice containing a late acceptance that it was sent in time and that under normal circumstances it would have reached the offeror in due time, the late acceptance shall be deemed to be effective unless the offeror without delay informs the offeree that his offer has been extinguished.
Article 6.177. Revocation of acceptance
An acceptance shall become invalid if the notice on its revocation reaches the offeror before or at the same time as the acceptance becomes effective.
Article 6.178. Modified acceptance
1. A reply to an offer which contains additions, limitations or other modifications of conditions determined in the offer shall be considered a rejection of the offer and constitute a counter-offer.
2. A reply to an offer which purports to be an acceptance but contains additional or different conditions which do not alter the essence of the conditions of the offer shall constitute an acceptance if the offeror, after receiving the reply, does not immediately object to such discrepancy. If the offeror does not object, the contract shall be deemed to be concluded under the conditions of the offer with the modifications contained in the acceptance.
Article 6.179. Conflict of standard conditions
Where a contract is concluded by an interchange of standard conditions of a contract made between both parties, it shall be considered that the contract is concluded on the basis of standard conditions which are common in substance unless one party clearly indicates in advance its disagreement with the standard conditions proposed by the other party, or informs without delay the other party of its disagreement upon receipt of the standard conditions.
Article 6.180. Written confirmation
If the written confirmation which is sent by a party within a reasonable time after the conclusion of the contract, and by which the fact of conclusion of the contract is confirmed contains additional or modified conditions, such conditions shall become part of the contract unless they alter the conditions of the contract essentially, or the recipient of such confirmation objects without delay to the amendments and supplements provided.
Article 6.181. Time and place of formation of a contract
1. A contract shall be considered formed from the moment when the acceptance of the offeree to conclude the contract reaches the offeror unless otherwise provided for by the contract.
2. The place of formation of a contract shall be considered the place where the offeror’s residence or his business is located unless otherwise provided for by laws or the contract.
3. Where in the course of negotiations one of the parties declares that it will not consider the contract concluded until it is agreed upon specific conditions, or until the agreement is correspondingly formalised; no contract shall be deemed concluded until the parties agree on those conditions or correspondingly formalise their agreement.
4. Where a particular form is required by the law as a necessary condition of a contract, the contract shall be considered formed from the moment when the agreement of the parties is expressed in that form.
Article 6.182. Contract with conditions left open
1. The fact that the parties in the course of conclusion of a contract intentionally leave certain conditions to be agreed upon in future negotiations, or mandate them to be determined by third persons shall not prevent contractual relationships from coming into existence.
2. The validity of a contract shall not be affected by the fact that subsequently the parties reached no agreement on the conditions referred to in paragraph 1 of this Article, or the third persons failed to determine them, provided that there are other means or ways of determining those conditions.
Article 6.183. Modification clause
1. A written contract which contains a clause requiring any modification, supplementation or dissolution of the contract to be made only in writing may not be modified, supplemented or dissolved otherwise.
2. A party may be precluded by its conduct from invoking the clause provided for in paragraph 1 of this Article to the extent that the other party has acted in reliance on that conduct.
Article 6.184. Peculiarities of conclusion of public contracts
1. Where, under the law, the conclusion of a contract is obligatory for the party to whom the offer was sent, this party must, within 14 days from the receipt of the offer, send to the other party a notification of acceptance or rejection of the offer, or acceptance thereof under other conditions (protocol of disagreements).
2. A party who has sent an offer and received a notification of its acceptance with the protocol of disagreements must either accept the conditions indicated in the notification of acceptance, or apply to the court for the resolution of the dispute within 14 days from the date of receipt of the protocol of disagreements.
3. Where, under the law, the conclusion of a contract is obligatory for the party who has sent an offer, this party must, within 14 days from the date of receipt of the protocol of disagreements, notify the other party about acceptance of the conditions indicated in the protocol or about rejection thereof. In the event where the conditions indicated in the protocol of disagreements are rejected by the party that has received the protocol, or in the event of the latter’s failure to respond within the established time limit, the party that sent the protocol of disagreements shall have the right to apply to the court for the resolution of the dispute.
4. If the party for whom the conclusion of a contract is obligatory evades the conclusion thereof, the other party shall have the right to apply to the court with a request to obligate the evading party to conclude the contract and compensate for damages caused by the evading.
Article 6.185. Standard conditions of contracts
1. Standard conditions shall be such provisions which are prepared in advance for general and repeated use by one contracting party without their content being negotiated with the other party, and which are used in the formation of contracts without negotiation with the other party.
2. Standard conditions prepared by one of the parties shall be binding on the other party only if the latter was provided with an adequate opportunity to get acquainted with the said conditions.
3. In the event where both parties to a contract are enterprises (traders), it shall be considered that the other party was provided with the adequate opportunity referred to in paragraph 2 of this Article if:
1) the party who prepared the standard conditions delivered them in writing to the other party before or at the time of signing the contract;
2) the party who prepared the standard conditions informed the other party before the signing of the contract that the contract would be formed in accordance with the standard conditions which were accessible to the other party in the place indicated by the party who prepared the standard conditions;
Article 6.186. Surprising standard conditions of contracts
1. No surprising condition contained in a standard condition contract, i.e. such condition that the other party could not reasonably have expected to be included in the contract, shall be effective. Standard conditions shall not be considered surprising if they were expressly accepted by the party when they were duly disclosed thereto.
2. In determining whether a condition is of surprising character, regard must be taken of its content, wording and form of expression.
3. A party who enters into a contract of adhesion where the standard conditions are drawn up by the other party shall have the right to claim for dissolution or modification of that contract in the event where, even though the standard conditions of the contract are not contrary to the law, they exclude the party’s rights and possibilities that are commonly granted in a contract of that particular type, or exclude or limit civil liability of the party who prepared the standard conditions, or establish other provisions which violate the principle of equality of parties, cause imbalance in the parties’ interests, or are contrary to the criteria of reasonableness, good faith and justice.
Article 6.187. Conflict between standard conditions and non-standard conditions of contracts
In the event of conflict between standard conditions and non-standard conditions of a contract, preference shall be given to the latter, i.e. to those which have been individually negotiated by the parties.
Article 6.188. No longer effective from 13 June 2014.
Article 6.189. Effects of a contract
1. A contract which is formed in accordance with the provisions of laws and is valid shall have the force of law between its parties. The contract shall bind the parties not only as to what it expressly provides, but also to all the consequences deriving from its essence or determined by laws.
2. The parties may provide that the contract shall apply to their relationships arisen before that contract was concluded.
3. It may be established by the contract or laws that the obligations of the parties under the contract shall be extinguished by the expiration of the time limit allotted for the validity of the contract.
Article 6.190. Effects of contracts with respect to third persons
1. Upon the death or liquidation of one of the parties, the rights and duties arising from a contract shall pass to its heirs (successors) if it is permitted by the nature of the contract, laws, or the contract itself.
2. If one of the contracting parties by a contract made in its own name promises that a third person will undertake to perform an obligation or any other action, in the event where the third person fails to perform the obligation or any other action as promised, the contracting party – the promisor – shall itself be bound to perform the obligation or any other action agreed, and to compensate for damages suffered by the other contracting party.
Article 6.191. Contract in favour of a third person
1. If a contracting party has made a stipulation in a contract for the benefit of a third person, the stipulation shall give both the contracting party and the third person beneficiary the right to demand performance of the agreed obligation unless otherwise provided for by laws or the contract, or appears from the essence of the obligation.
2. In the case of the refusal by the third person to avail himself of the stipulation, the stipulator himself may exercise this right unless this is contrary to law, contract or the essence of the obligation.
3. The stipulation for the benefit of a third person may be revoked by the stipulator as long as the third person beneficiary has not declared of his assent to accept it.
4. If the performance is to be made to a third person only after the death of the stipulator, the latter may revoke the benefit by a testament (will).
Article 6.192. Form of a contract
1. The provisions of Articles 1.71 to 1.77 of this Code regulating the form of transactions shall apply in respect of the form of a contract.
2. Where, in accordance with the law or agreement between the parties, a contract must be concluded in a simple written form, it may be made either by drawing up one document signed by the parties, or by means of the parties exchanging written communications or information transmitted by telecommunications terminal equipment, providing the protection of the text is guaranteed and the signature of the sending party can be identified.
4. Amendments and supplements of a contract must be made in the form in which the contract had to be made, except in the cases where it is otherwise established by laws or the contract.
Article 6.193. Rules of the interpretation of contracts
1. A contract must be interpreted in good faith. In interpreting a contract, it shall be necessary to seek for the real intentions of the parties without being limited by the literal meaning of the words. In the event where the real intentions of the parties cannot be established, the contract must be interpreted in accordance with the meaning that could be attributed in the same circumstances by reasonable persons in the corresponding position as the parties.
2. All conditions of a contract must be interpreted taking into account their interrelation, the essence and purpose of the contract, and the circumstances under which it was formed. In interpreting a contract, regard must also be taken of the ordinary conditions, irrespective of their expression in the contract.
3. In the event of doubt as to concepts which may have several meanings, these concepts shall be understood in the sense most suitable to the nature, essence and subject matter of the contract.
4. In the event of doubt over conditions of a contract, they shall be interpreted against the contracting party that proposed them, and in favour of the party that accepted those conditions. In all cases, the conditions of a contract must be interpreted in favour of consumers and the adhering party.
Article 6.194. Linguistic discrepancies
Where a contract is drawn up in two or more languages and all the language versions are of equal legal power, in case of discrepancy between the language versions, preference shall be given to the version which was the first to be drawn up.
Article 6.195. Filling in gaps of a contract
Where the parties have left undiscussed certain conditions necessary for the performance of the contract, the court may, at the request of one of the parties, eliminate such gaps in the contract by determining appropriate conditions, taking into account non-mandatory legal norms, the intentions of the parties, the purpose and essence of the contract, and the criteria of good faith, reasonableness and justice.
Article 6.196. Types of contract terms
Article 6.197. Quality of performance of a contract
Where the quality of performance is determined neither by the contract nor by the law, the quality of performance must be of reasonable quality and not lower than the average quality in the concrete circumstances.
Article 6.198. Price of a contract
1. Where a contract does not fix the price or establish an order for determining the price, the parties shall be considered, in the absence of any indication to the contrary, to have made reference to the price commonly charged at the moment of the conclusion of the contract for such performance in comparable circumstances in the sphere of business concerned, or if such price does not exist, to a reasonable price.
2. In the event where the price is to be determined by one party, and such determination is manifestly unreasonable, it must be substituted by a reasonable price regardless of any other agreement between the parties.
3. If the price is to be fixed by a third person, and if that person does not or is unable to do so, the price of the contract shall be deemed to be a reasonable price.
Article 6.199. Contract for an indefinite period
A contract for an indefinite period may be terminated by either party, provided the party gives notice about its intention to dissolve the contract to the other party within a reasonable time in advance unless otherwise provided for by laws or the contract.
Article 6.200. Principles of performance of a contract
2. In performing a contract, each party shall be bound to contribute to and cooperate with the other party.
3. In performing a contract, the parties shall be bound to use the most cost-effective means with respect to the other party.
Article 6.201. Order of performance of a contract
The parties shall be bound to perform the contract simultaneously unless otherwise provided for by laws or the contract, or determined by its nature or circumstances.
Article 6.202. Permission of a state institution
1. Where certain laws require a permission of a relevant state institution affecting the validity of the contract or its performance, and where the law or the contract does not indicate otherwise, the measures necessary to obtain the permission must be taken by the party situated in the state, the laws of which provide for such permission.
2. Where the permission indicated in the preceding paragraph of this Article is required by the laws of the Republic of Lithuania and both parties are situated in Lithuania, the permission must be obtained by the party whose obligation to obtain it is established by the law, except in cases where the law does not establish thereof. In such event, the parties shall be bound to agree which of them must obtain the permission.
3. The contracting party must obtain the required permission or permissions in due time. Expenses of performance of the duty to obtain the obligatory permission shall be borne by the party under this duty unless otherwise established by the contract. This party shall also be bound to notify the other party without delay of the fact that the permission has been granted or refused.
Article 6.203. Refusal to grant permission
1. If, notwithstanding the fact that the party has taken all measures necessary, permission is neither granted nor refused within the established period, or, where no period has been agreed, within a reasonable time, the parties shall have the right to dissolve the contract.
2. In the event where the obligatory permission affects only some terms of a contract, paragraph 1 of this Article shall not apply when it is reasonable to uphold in force the terms of the contract.
3. A refusal to grant permission affecting the validity of the contract shall cause nullity of that contract. Where the refusal affects the validity of only some of the terms of a contract, the remaining terms of the contract shall be in force if the contract would have been formed even without the invalid terms.
Article 6.204. Performance of contractual obligations in the event of a change of circumstances
1. Where the performance of a contract becomes more onerous for one of the parties, this party shall be bound to perform the contract in accordance with the procedure established in other paragraphs of this Article.
2. The performance of a contract shall be considered obstructed under such circumstances which fundamentally alter the balance of the contractual obligations, i.e. either the cost of performance has essentially increased, or the value thereof has essentially diminished if:
1) these circumstances occur or become known to the aggrieved party after the conclusion of the contract;
2) these circumstances could not have been reasonably foreseen by the aggrieved party at the time of the conclusion of the contract;
3. In the event where the performance of a contract becomes obstructed, the aggrieved party shall have the right to make a request to the other party for the modification of the contract. Such request must be reasoned and made immediately after the occurrence of obstructions. The request for modification of the contract shall not in itself entitle the aggrieved party to suspend performance of the contract. Where within a reasonable time the parties fail to reach an agreement on the modification of the contractual obligations, any of them shall have the right to bring an action before a court. The court may:
Article 6.205. Non-performance or defective performance of a contract
Non-performance of a contract shall be deemed to be a failure to perform any of the obligations arising from the contract, including defective performance and delay of the time limit of performance.
Article 6.206. Actions of the other party
One party may not rely on the non-performance of the other party to the extent where such non-performance was caused by the first party’s acts or omissions, or by any other event of which the first party bears the risk.
Article 6.207. Suspension of performance of a contract
1. Where the parties are bound to perform a contract simultaneously, either party shall have the right to suspend performance until the other party begins to perform the contract.
2. Where the parties are bound to perform a contract consecutively, the party who is to perform later may suspend its performance until the first party has performed its obligations.
Article 6.208. Elimination of defects in performance
1. The party failing to perform a contract shall be entitled to eliminate any defects in performance at its own expense if:
1) it gives notice without undue delay to the other party indicating the manner and time of elimination of defects;
2. The right of elimination shall not be precluded by a declaration of the other party on the dissolution of the contract.
3. Upon effective notice of elimination, the rights of the aggrieved party that are inconsistent with the performance of the contract shall be suspended until the expiry of the time limit allotted for elimination of the defects in performance.
4. The aggrieved party may suspend performance of its obligations until the defects in performance are eliminated by the other party, and may also claim compensation for damages.
Article 6.209. Additional period for performance of a contract
1. In the case of non-performance, the aggrieved party may establish in writing an additional period of time of a reasonable length for the performance of the contract and notify the other party thereof.
2. Having established an additional period for performance, the aggrieved party may suspend the performance of its own obligations for that period and claim compensation for damages, but it may not invoke any other remedy. If the aggrieved party receives notice from the other party that the latter will not perform its obligations within the additional period, or if upon the expiry of that period the contract has not been performed, the aggrieved party may invoke other remedies available to it.
3. In the event where delay in performance is not essential violation of a contract, and the aggrieved party has established an additional period of time of a reasonable length for the performance, this party may dissolve the contract upon the expiry of that period. If the additional period is unreasonably short, it must be extended up to a reasonable length. The aggrieved party may stipulate in its notice upon the additional period that in the case of failure on the part of the other party to perform the contract within the additional period, the contract will be unilaterally dissolved.
Article 6.210. Interest
1. Where a debtor fails to meet his monetary obligation when it falls due, he must pay an interest at the rate of five per cent per annum on the amount overdue unless any other rate of interest has been established by the law or contract.
Article 6.211. Conditions excluding liability
The conditions of a contract which limit or exclude a party’s liability for non-performance of an obligation, or which permit to effectuate performance in a substantially different manner from what the other party reasonably expected, shall not be valid if, having regard to the nature of the contract and other circumstances, such conditions are unfair.
Article 6.212. Superior force (force majeure)
1. A party shall be exempted from liability for non-performance of a contract if it proves that the non-performance was due to the circumstances which were beyond its control and could not have been reasonably expected by it at the time of the conclusion of the contract, and the arising of such circumstances or consequences thereof could not have been prevented. A superior force (force majeure) shall not include such circumstances as absence in the market of goods needed for the performance of the obligation, or lack of the necessary financial resources on the part of the party, or violation of their own obligations committed by the contrahents of the debtor.
2. In the event where the impedimental circumstance is temporary, the non-performing party shall be exempted from liability only for such a period which is reasonable having regard to the effect of that impedimental circumstance on the performance of the contract.
3. The party who fails to perform the contract shall be obliged to inform the other party about the arising of an impedimental circumstance referred to in paragraph 1 of this Article and its effect on the performance of the contract. In the event where the notice is not received by the other party within a reasonable time after the non-performing party became or should have become aware of the impedimental circumstance, the latter party must compensate for damages resulting from the non-receipt of the notice.
Article 6.213. Demand of performance
1. In the event where a party fails to perform its monetary obligation, the other party shall have the right to demand performance in kind.
2. If a party fails to perform its non-monetary obligation, the other party may demand performance in kind, except in cases where:
2) performance of the contractual obligation in kind would be greatly burdensome or expensive for the debtor;
4) the party entitled to performance does not demand that performance within a reasonable time after it became aware or should have become aware of the non-performance of the contract;
Article 6.214. Repair or replacement of a defective performance
The right to obtain performance shall include the right to demand repair or replacement of a defective performance, or elimination of defects in performance by other means taking into consideration the provisions of Article 6.208 of this Code.
Article 6.215. Fine for non-performance of the requirement to perform an obligation in kind
1. Where the debtor fails to comply with a court judgment ordering the performance in kind of a contractual obligation, the court shall impose a fine upon the debtor.
2. The amount of a fine shall be established by the court with regard to concrete circumstances of the case. The fine may be imposed in the form of a lump sum payment or in the form of payment of interest on the delayed payments for every day exceeded.
Article 6.216. Change of remedies
Where the debtor fails to perform a non-monetary obligation in kind within a fixed time limit, or where the creditor does not have the right to demand the performance in kind, the creditor may require other remedies to be invoked.
Article 6.217. Dissolution of a contract
1. A party may dissolve the contract where the failure of the other party to perform it or the defective performance thereof is considered to be an essential violation of the contract.
2. In determining whether a violation of a contract is essential, the following conditions must be taken into account:
1) whether the aggrieved party is substantially deprived of what it was entitled to expect under the contract, except in cases when the other party did not foresee or could not have reasonably foreseen such result;
2) whether, taking into consideration the essence of the contract, strict compliance with the conditions of the obligation is of essential importance;
4) whether the non-performance gives the aggrieved party reason not to expect future performance of the contract;
3. In the case of delay in performance, the aggrieved party may dissolve the contract if the other party fails to perform the contract within the additional period fixed.
4. On any other grounds not established in this Article, the contract may be dissolved only within the judicial proceedings resulting from an action of the party concerned.
Article 6.218. Notice of dissolution of a contract
1. On the grounds indicated in Article 6.217 of this Code, the aggrieved party may dissolve the contract unilaterally without going to court. The other party must be notified of the dissolution of the contract in advance within the time limit established by the contract; if the contract does not indicate such time limit, the notice of dissolution must be given 30 days in advance.
2. Where the party who has essentially violated the contract submits an offer to perform the contract before the dissolution thereof, but this offer is belated or otherwise does not conform to the requirements of the contract, the aggrieved party shall lose the right to dissolve the contract unilaterally unless it gives notice to the other party within a reasonable time after it became aware or ought to have become aware of the offer to perform the contract, or such offer fails to conform to the proper performance of the contract.
Article 6.219. Anticipatory non-performance
A party may dissolve a contract if, before the expiry of the time limit for performance of the contract, it is reasonably foreseeable from the particular circumstances that the other party will commit a material breach.
Article 6.220. Assurance of due performance
1. A party who, having regard to the circumstances, believes that there may be an essential non-performance by the other party shall have the right to require the latter party to present an assurance of due performance. The party may suspend performance of its contractual obligations until the other party to the contract has provided the assurance that it will faithfully exercise a proper performance of the contract.
Article 6.221. Legal effects of the dissolution of a contract
2. Dissolution of a contract shall not preclude the right of claim for damages for non-performance of the contract, as well as the right of claim for penalty.
Article 6.222. Restitution
1. Upon dissolution of the contract, each of the parties may claim the return of whatever it has supplied to the other party under the contract if this party concurrently returns to the other party whatever it has received from the latter. If restitution in kind is not possible or appropriate to the parties due to modification of the subject matter of the contract, a compensation of value of what has been received shall be made in money, provided that such compensation does not contradict the criteria of reasonableness, good faith and justice.
2. If the performance of a contract is successive and divisible, the party may claim restitution only of what has been received after the dissolution of the contract.
Article 6.223. Modification of a contract
2. At the request of one of the parties, the contract may be modified by a court judgment, provided that:
3. An action for modification of a contract may be brought only after the other party has refused to modify the contract or has not responded to a proposal to modify the contract within 30 days unless a different procedure of modification is established by laws or the contract.
Article 6.224. Nullity of a contract
A contract may be declared null and void upon the grounds of invalidity of transactions established in Book One of this Code, likewise on any other grounds established by laws.
Article 6.225. Absolute and relative nullity of a contract
1. A contract shall be absolutely voidable (null contract) where a violation of the main principles of the contract law made in forming a contract has conditioned violation not only of the interests of a party of the contract, but also that of the public interests.
3. A contract shall be relatively voidable (disputable contract) where in contracting it one party acted in good faith, and the declaration of its nullity is necessary only for the protection of the private interest of the party in good faith.
Article 6.226. Partial nullity of a contract
1. The nullity of one of the condition of a contract shall not import the nullity of the entire contract unless the contracting parties would not have entered into the contract without the condition affected by nullity.
Article 6.227. Right to bring an action for nullity
1. An action on the absolute nullity of a contract may be brought by any person whose rights or legitimate interests are violated by such contract.
2. The fact of the absolute nullity of a contract and legal effects of this fact may be stated by the court ex officio (on its own motion).
3. An action on the relative nullity of a contract may be brought by a contracting party in good faith who has sustained damage from entering into that contract, or by a third person in whose interest it is concluded, or by a person whose rights or legitimate interests are violated by that contract.
Article 6.228. Gross disparity between parties
1. A party may withdraw from the contract or a particular condition thereof if, at the time of the conclusion of the contract, the contract or its particular condition unreasonably conferred an excessive advantage on the other party. In such cases, among other circumstances, regard must also be paid to the fact that one party has taken unfair advantage of the other’s dependent position, or of the other party’s economic difficulties, urgent needs, or of the latter’s economic weakness, lack of information or experience, its inadvertence or inexperience in negotiations; regard must also be taken of the nature and purpose of the contract.
2. Upon the request of the party entitled to withdraw from a contract or a particular condition thereof on the grounds established in paragraph 1 of this Article, the court shall have the right to revise the contract or its particular condition and adapt them respectively in order to make the contract or its particular condition meet the requirements of fairness and reasonable standards of fair dealing practices.
3. The court may modify the contract or particular conditions thereof also at the request of the party who has received a notice of withdrawal from the contract if this party upon receiving the notice has immediately informed the other party about its request to the court, and the latter still has not withdrawn from the contract.
Article 6.2281. Concept of a consumer contract and other terms
1. In a consumer contract, the trader shall undertake to transfer the goods to the consumer by the right of ownership or to provide services to the consumer, and the consumer shall undertake to accept the goods or services and to pay the price. In the cases specified in this Code, other contracts concluded between the trader and the consumer shall also be considered to be consumer contracts.
2. ‘Consumer’ means any natural person who seeks to conclude or concludes contracts for purposes which are outside his trade, business, craft or profession (for consumption purposes).
3. ‘Trader’ means any natural or legal person or another organisation, or a branch thereof, that seeks to conclude or concludes, including through any other person acting in his name or on his behalf, contracts for purposes relating to his trade, business, craft, or profession. A legal person may be considered a trader regardless of the legal form of its participants.
4. ‘Goods’ means:
2) electricity, water and natural gas where they are put up for sale in a limited volume or a set quantity;
6. ‘Digital service’ means:
7. ‘Functionality’ means the ability of the digital content or digital service to perform its functions having regard to its purpose.
8. ‘Integration’ means the linking and incorporation of digital content or a digital service with the components of the consumer’s digital environment in order for the digital content or digital service to be used in accordance with the quality requirements for digital content and digital services set out in this Chapter.
9. ‘Interoperability’ means the ability of the digital content or digital service to function with hardware or software different from those with which digital content or digital services of the same type are normally used.
10. ‘Digital environment’ means hardware, software and any network connection used by the consumer to access or make use of digital content or a digital service.
11. ‘Price of digital content or a digital service’ means money or a digital representation of value that is due in exchange for the supply of digital content or a digital service.
12. ‘Compatibility’ means the ability of the digital content or digital service to function with hardware or software with which digital content or digital services of the same type are normally used, without the need to convert the digital content or digital service.
13. ‘E-marketplace service’ means a service based on software, including a website, a part of a website or an application, which is provided by or on behalf of the trader and enables consumers to conclude distance contracts with other traders or consumers.
14. ‘E-marketplace service provider’ means a trader who makes an e-marketplace service available to consumers.
Article 6.2282. Prohibition of waiving or restricting consumer rights. Protection of consumer rights
1. Consumers may not waive the rights conferred upon them by this Code. The conditions of consumer contracts which directly or indirectly nullify or restrict the rights of consumers set out in this Code shall be null and void.
2. Where a trader violates a consumer’s rights, the consumer shall have the right to seek redress from consumer protection authorities or courts in accordance with the procedure laid down by law.
Article 6.2283. Application of the rules governing consumer contracts
1. The provisions of this Chapter shall apply to all consumer contracts other than those provided for in this Article. The provisions of this Chapter shall also apply where a trader supplies or undertakes to supply non-physical digital content or a digital service to a consumer and the consumer provides or undertakes to provide personal data to the trader, except where the trader only processes those personal data for the purposes of the provision of the non-physical digital content or digital service or to comply with legal requirements, and does not process those personal data for any other purposes.
2. The provisions of this Chapter, with the exception of Article 6.2284, shall not apply to the following contracts:
5) construction contracts for the construction of a new construction works or for the reconstruction of construction works;
7) timeshare, long-term holiday product, resale or exchange contracts (Articles 6.369 and 6.370 of this Code);
8) package travel contracts (Articles 6.747 to 6.755 of this Code), with the exception of the right of withdrawal specified in paragraph 1 of Article 6.22810 of this Code from an off-premises package travel contract, with the exceptions referred to in paragraph 2 of Article 6.22810 of this Code and the provisions laid down in paragraphs 3, 5 and 6 of Article 6.2285, paragraph 1 of Article 6.2286 and paragraphs 3 and 5 of Article 6.2288 of this Code, which apply to package travel contracts;
9) contracts for frequent and regular supply to the consumer of foodstuffs, beverages or other goods intended for current household consumption;
11) contracts concluded with communication service providers using call-box facilities or other public pay telephones for their use, and contracts concluded for a single use of telephone, internet or fax by the consumer;
13) contracts for the carriage of passengers, with the exception of paragraphs 3 and 6 of Article 6.2285 of this Code and paragraph 3 of Article 6.2288 of this Code;
3. The rules of this Chapter relating to the protection of consumer rights shall also apply in the following cases:
1) where a natural person enters into a contract for purposes of dual use, i.e., for consumption and business purposes, but, taking into account all the circumstances surrounding the contract, business purposes are not predominant;
Article 6.2284. Unfair terms in consumer contracts
1. A consumer shall have the right to claim within the judicial procedure for invalidity of unfair terms in a consumer contract. For the purposes of this Article, any contract concluded between a trader and a consumer shall be regarded as a consumer contract.
2. Terms of consumer contracts which have not been individually negotiated between the parties and which, by reason of a breach of the requirement of good faith, substantially undermine the balance of rights and obligations of the parties to the detriment of the consumer shall be regarded as unfair. It shall be presumed that unfair terms are the terms of the contract which:
1) exclude or limit the trader’s civil liability for damage caused by the loss of life, injury to the consumer’s health or damage to the consumer’s property;
2) improperly eliminate or restrict the consumer’s rights vis-à-vis the trader or another party in the event of the trader’s full or partial non-performance or defective performance of any of the obligations under the contract;
3) provide that the consumer is bound by the terms of the contract and that the trader’s obligation to perform the contract is subject to other terms the fulfilment of which depends solely on the trader’s will;
4) give the trader the right not to refund the sums received from the consumer when the consumer decides not to conclude or perform the contract and do not provide for the consumer’s right to receive the same sums from the trader when the trader unilaterally terminates the contract;
5) impose a disproportionately high civil liability on the consumer for non-performance or defective performance of the contract;
6) give the trader the right to unilaterally terminate the contract or to withdraw from it at any time at his discretion, without giving this right to the consumer, or give the trader the right not to reimburse the sums received from the consumer before the performance of the contract when the trader unilaterally terminates the contract or withdraws from it;
7) give the trader the right to unilaterally terminate an open-ended contract without sufficient grounds, without giving the consumer adequate prior notice of the intended termination of the contract;
8) give the trader the right to unilaterally and automatically renew a fixed-term contract, or provide for an unreasonably short period of time within which the consumer must express his views on the renewal of the contract, or that the consumer must give his consent or refusal to renew the contract at an unreasonably early stage;
9) oblige the consumer to perform contractual terms to which he did not have real access to before the conclusion of the contract;
10) give the trader the right to unilaterally modify the terms of the contract without contractual or sufficient grounds;
11) give the trader the right to alter unilaterally and without sufficient grounds any characteristics of the goods or services;
12) give the trader the right to fix unilaterally the prices at the time of transfer of goods and provision of services, or the right to unilaterally increase the price without providing the consumer with the right to withdraw from the contract if the final price is higher than the price stipulated in the contract. This provision shall not apply to contracts involving securities or other financial instruments, or to contracts for alienation of things or provision of services where the price is linked to fluctuations in exchange rates or indexes and is beyond the control of the trader, likewise to contracts for the purchase or sale of foreign currency, travellers cheques or international money orders denominated in foreign currency;
13) give the trader the right to decide unilaterally whether the goods or services supplied comply with the requirements of the contract;
15) limit the trader’s obligation to fulfil the commitments undertaken by his agents, or make this obligation subject to certain conditions;
16) obligate the consumer to fulfil all obligations to the trader, even if the trader fails to fulfil his own obligations or does not fulfil them fully;
17) give the trader the right to transfer his rights and obligations arising from the contract without the consumer’s consent, where this may reduce the guarantees offered to the consumer;
18) exclude or hinder the consumer’s right to bring an action or pursue other remedies (establishing exclusive territorial jurisdiction to resolve the dispute before the court of the place where the trader has his registered office, requiring that disputes be referred exclusively to arbitration, limiting the use of evidence, shifting the burden of proof to the consumer, etc.).
3. Any other terms of a consumer contract may be declared by the court to be unfair if they conform to the criteria set out in paragraph 2 of this Article. The burden of proving that a contractual term referred to in paragraph 2 of this Article is not unfair shall lie with the trader.
4. Pursuant to paragraph 2 of this Article, terms of a consumer contract the preparation of which could not have been influenced by the consumer shall be regarded as not having been individually negotiated, in particular where those terms are laid down in a standard contract drawn up in advance by the trader. In the event where certain terms in a standard contract prepared in advance were individually negotiated, the provisions established in this Article shall apply to other terms of that contract. The burden of proving that a particular term in a consumer contract has been individually negotiated shall lie with the trader.
5. The assessment whether a term in a consumer contract is unfair must be made taking into account the nature of the goods or services referred to in the contract as well as other circumstances which existed at the time of conclusion of the contract and exerted influence thereupon, likewise any other terms of that contract or of other contract it depends upon.
6. Any written term in a consumer contract must be expressed clearly and intelligibly. The terms which do not comply with this requirement shall be regarded as unfair. Where there is doubt as to the content of the terms of a consumer contract, the terms of the contract must be interpreted in favour of consumers. This rule shall not apply in cases of collective consumer redress, when prohibition of further use of the drawn-up standard terms of the contract is sought.
7. Terms which define the subject matter of a consumer contract, likewise those relating to the conformity between the goods sold or services rendered and the price thereof, ought not to be subjected to assessment from the point of view of unfairness, provided that they are expressed in a clear and understandable manner. In addition, terms in consumer contracts that are identical to provisions of laws or other legal acts ought not to be subjected to assessment from the point of view of unfairness.
8. Where the court declares a contractual term(s) to be unfair, the term(s) shall have no effect from the moment of conclusion of the contract while the remaining terms of the contract shall continue to be binding on the parties, providing that further performance of the contract is still possible after the elimination of the unfair terms.
9. The court hearing the case shall have the obligation to assess the conformity of the terms of consumer contracts with the criteria of unfairness ex officio.
10. Consumer claims for unfair terms in consumer contracts shall not be subject to limitation period. The general limitation period shall apply to consumer claims for the recovery of sums unduly paid under unfair terms in consumer contracts.
Article 6.2285. Price and other payments
1. The consumer must pay the trader for the goods and services at the price fixed in or under the consumer contract unless otherwise provided for in the contract or by law.
2. Where a consumer contract provides for advance payment of the price, but the consumer fails to pay the price within the time limit laid down in the contract, the consumer shall be deemed to have withdrawn from the contract unless otherwise provided for in the contract.
3. Prior to concluding a consumer contract, a trader must obtain the express consent of the consumer regarding any additional charges to be added to the price (compensation for the trader’s performance of the principal contractual obligation). If the trader did not obtain the consumer’s express consent, but inferred it from the preliminary statements with which the consumer would have had to disagree in order to avoid additional charges, the consumer shall be entitled to recover such charges.
4. The costs of concluding a consumer contract shall be borne by the consumer only if, at the time of conclusion of the contract, the trader has discussed them separately with the consumer and obtained his express consent to the payment of those costs.
5. If a trader gives a consumer the possibility of contacting him by telephone with regard to the contract concluded between them, the trader may not use a telephone number which entails a charge that is higher than the basic call rate, i.e. higher than the charge payable by the consumer for calls to public fixed or mobile telephone numbers. The trader who fails to comply with this obligation shall be liable for the costs incurred by the consumer.
6. A trader shall be prohibited from requiring a consumer to pay a charge for the use of certain payment instruments or for payment in cash which exceeds the expenses incurred by the trader for the use of those payment instruments or for payment in cash. Prohibition to request a consumer to pay a charge for the use of certain payment instruments may be provided for by law.
Article 6.2286. General requirements for consumers’ right to information
1. Before concluding a consumer contract other than a distance or off-premises contract, the trader must provide the consumer with the necessary, correct, complete and non-misleading information in a clear and comprehensible manner. The information must be provided to the consumer in the official language. The trader must, when marking the goods or otherwise, provide the consumer with the following information, unless it is obvious from the context:
1) the main characteristics of the goods or service (taking into account the means of information and the goods or service);
3) the total price of goods or services inclusive of taxes or where, due to the nature of the goods or services, the price cannot reasonably be calculated in advance, the method by which that price is calculated and, where appropriate, any additional transport, delivery and postal costs, or where such additional costs cannot reasonably be calculated in advance, the information that they may have to be paid;
4) where appropriate, the arrangements for payment, delivery and performance of the contract, the time limit for the delivery of goods or provision of services, and the procedure for dealing with consumer’s complaints by the trader;
5) the terms of the after-sales service and quality guarantee (commercial guarantee), if applicable, together with a reminder of the statutory guarantee (legal guarantee) of the goods, digital content or digital service;
6) where appropriate, the duration of the contract and, in the case of contracts of indefinite duration or automatic renewal, the conditions for terminating the contract;
7) where relevant, the functionality of goods with digital elements, digital content and digital services, including the technical protection measures applied;
2. Laws and retail rules may lay down requirements for the provision of additional information to be provided to consumers prior to the conclusion of consumer contracts for certain types of goods and services.
3. This Article shall not apply to small domestic contracts which are performed immediately after their conclusion.
4. The burden of proving that the information has been provided to the consumer in accordance with this Article shall lie with the trader.
Article 6.2287. Consumer’s right to information in the case of distance and off-premises contracts
1. Before concluding a distance or off-premises contract, the trader must provide the consumer with the following information in a clear and comprehensible manner:
1) the main characteristics of the goods or services (taking into account the means of information and the goods or service);
3) the address of the trader’s registered office, telephone number and e-mail address; Where the trader provides other means of online communication enabling the consumer to store on a durable medium any written correspondence with the trader, including the date and time of the correspondence, these other means of communication must be indicated. All these means of communication provided by the trader must allow the consumer to contact the trader quickly and to communicate effectively with him. In addition, details must be provided, where appropriate, of the trader on whose behalf the action is being taken (name, registered office address). The address of the place of economic activity of the trader and, where applicable, of the trader on whose behalf the action is being taken, at which the consumer may lodge complaints shall be indicated if the address of the place of economic activity is different from the address of the registered office;
4) the total price of goods or services inclusive of taxes, or where due to the nature of goods or services the price cannot be reasonably calculated in advance, the method by which that price is calculated and, where appropriate, any additional transport, delivery, postal and other costs, or where such additional costs cannot be reasonably calculated in advance, the fact that they may have to be paid. In the case of an open-ended contract or a contract providing for the payment of periodic instalments, the total price shall consist of the total cost of a given billing period. Where a fixed fee is to be paid under the contract, the total price shall also mean the total cost of the month. If all costs cannot be reasonably calculated in advance, the method used to calculate the price must be specified;
5) the cost of using the means of communication at the time of conclusion of the contract, if this is not calculated on the basis of basic (normal) rates;
6) arrangements for payment, delivery and performance of the contract, time limit for delivery of goods or provision of services and, where appropriate, the procedure for the handling of consumer complaints by the trader;
7) the right of withdrawal: the conditions, time limit and procedure for implementing this right in accordance with Article 6.22810 of this Code, as well as the model form of withdrawal or information that the consumer does not have the right to withdraw from the contract in accordance with Article 6.22810 of this Code or, where appropriate, the circumstances in which the consumer loses the right to withdraw from the contract;
8) if necessary, the information that the consumer must bear the costs of returning the goods after withdrawing from the contract and, in the case of distance contracts, the cost of returning the goods if, by their nature, the goods cannot normally be returned by post;
9) information that the consumer who withdraws from the contract in accordance with paragraphs 9 or 10 of Article 6.22810 of this Code must pay to the trader reasonable expenses in accordance with paragraph 9 of Article 6.22811 of this Code;
10) a reminder of the statutory guarantee (legal guarantee) of the goods, digital content or digital service;
11) where appropriate, consumer service, post-contractual service and quality guarantee (commercial guarantee) and their terms and conditions;
12) where appropriate, the code of conduct applicable to the trader and the information on how it can be accessed;
13) where appropriate, the duration of the contract and, in the case of contracts of indefinite duration or automatic renewal, the conditions for terminating the contract;
15) where appropriate, deposits or other financial guarantees to be provided or paid by the consumer at the request of the trader and the conditions under which they are to be applied;
16) where appropriate, the possibility of submitting a complaint or seeking an out-of-court redress and conditions for exercising it;
17) where relevant, the functionality of goods with digital elements, digital content and digital services, including the technical protection measures applied;
18) where appropriate, the compatibility and interoperability of goods with digital elements, digital content and digital services to the extent that the trader knows or needs to know;
2. The information referred to in points 7, 8 and 9 of paragraph 1 of this Article may be provided to the consumer by means of a completed model withdrawal information form. This form shall be approved by the Government of the Republic of Lithuania or an institution authorised by it. Where the trader has provided the consumer with a duly completed model withdrawal information form, the trader shall be deemed to have duly complied with the information provision requirements set out in points 7, 8 and 9 of paragraph 1 of this Article.
3. The information referred to in paragraph 1 of this Article shall form an integral part of a distance or off-premises contract. This information may be amended only by express agreement between the parties to the contract.
4. Where the trader has not duly complied with the requirement to provide the consumer with the information on additional charges or other costs referred to in point 4 of paragraph 1 of this Article or with the information on the costs of returning the goods referred to in point 8 of paragraph 1 of this Article, the consumer shall not be obliged to pay those charges or costs.
5. The burden of proving that the information has been provided to the consumer in accordance with this Article shall lie with the trader.
6. Before the conclusion of a consumer contract on the e-marketplace, the e-marketplace service provider must, taking into account the means of distance communication used, provide the consumer with the following information in a clear and comprehensible manner:
1) general information on the main parameters used to determine the ranking of products offered to consumers in response to a search query and the relative importance of those parameters compared to other parameters. This information must be provided in a separate part of the electronic interface, directly and easily accessible from the page where the proposals are submitted;
2) whether the goods, services or digital content are offered by a trader. This information is based on the declaration made by the person submitting the offer on the e-marketplace;
3) the fact that consumer protection requirements do not apply to a contract where the person offering the goods, services or digital content is not a trader;
4) where relevant, information on the allocation of contractual obligations between the person offering the goods, services or digital content and the provider of the e-marketplace service. This information may not replace the obligations of the e-marketplace service provider or trader arising from the performance of the contract, as laid down in other laws or European Union legislation.
Article 6.2288. Distance contracts
1. A distance contract shall be a contract between a trader and a consumer concluded in the framework of an organised distance sales or provision of services, without the trader and the consumer being physically present at the same place and using only means of communication prior to the conclusion of the contract and at the time of conclusion of the contract.
2. When concluding a distance contract, the trader must provide the consumer with the information referred to in paragraph 1 of Article 6.2287 of this Code in a clear and understandable manner or make that information properly available to the consumer taking into account the means of communication used. The information provided on a durable medium must be legible.
3. Where a distance contract concluded by electronic means obliges the consumer to pay, the trader must, in a clear and visible manner and immediately before the consumer’s order is placed, familiarise the consumer with the information specified in points 1, 4, 13 and 14 of paragraph 1 of Article 6.2287 of this Code. The trader must ensure that the consumer, when placing his order, explicitly confirms that the consumer is under an obligation to pay after placing the order. If the placing of an order requires the pressing of a button or the use of a similar function, the button or a similar function must be marked in such a way as to be easily legible (understandable), i.e. by including only the words ‘order with the obligation to pay’ or a similar unambiguous wording indicating that the placing of the order creates an obligation for the consumer to pay the trader. If the trader violates this requirement, the distance contract shall not create a payment obligation for the consumer.
4. Where a distance contract is concluded by means of communication which do not contain sufficient space or time to provide information, the trader must, before the conclusion of the contract, provide by such means at least the information specified in points 1, 2, 4, 7 and 13 of Article 6.2287 of this Code, except for the model withdrawal form. The other information referred to in paragraph 1 of Article 6.2287 of this Code, including the model withdrawal form, must be provided by the trader to the consumer as set out in part 2 of this Article.
5. The trader who makes a telephone call to a consumer with a view to concluding a distance contract must, at the beginning of the conversation with the consumer, disclose his identity (name) and, where appropriate, the identity (name) of the person on whose behalf he makes the call and specify the commercial purpose of the conversation. If in this case the consumer agrees to conclude a distance contract, the trader must confirm the offer to the consumer on a durable medium. A distance contract shall be deemed concluded when the consumer signs the offer or sends his or her written consent to the trader.
6. Within a reasonable period of time after the conclusion of the distance contract and at the latest at the time of delivery of the goods or before the provision of the services, the trader must provide the consumer with a confirmation of the contract on a durable medium. The confirmation of the contract shall contain all the information referred to in paragraph 1 of Article 6.2287 of this Code, with the exception of information provided by the trader to the consumer on a durable medium prior to the conclusion of the distance contract.
7. Other requirements for the conclusion of consumer contracts by electronic means may be laid down by law.
Article 6.2289. Off-premises contracts
1. An off-premises contract shall be a contract between a trader and a consumer which meets one of the following conditions:
1) it is concluded with the simultaneous physical presence of the trader and the consumer in a single place other than the trader’s commercial premises;
2) it is offered by the consumer and is subject to the conditions referred to in point 1 of this paragraph;
3) it is concluded at the trader’s commercial premises or by means of communication immediately after the trader has addressed the consumer personally and directly while they are physically present in a single place other than the trader’s commercial premises;
2. ‘Commercial premises’ shall mean both immovable premises on which the trader carries out regular retail trade and movable premises on which the trader normally carries out retail trade.
3. Off-premises contracts where the amount to be paid by the consumer is less than twenty-five euros shall be exempt from the provisions of this Article and Articles 6.2287 and 6.22810 of this Code.
4. When concluding an off-premises contract, the trader must provide the consumer with the information referred to in paragraph 1 of Article 6.2287of this Code in writing on paper or, with the consumer’s consent, on another durable medium. The information must be legible and presented in clear and comprehensible language.
5. The trader must provide the consumer with a signed copy of the off-premises contract or a written confirmation of that contract on paper or, with the consumer’s consent, on another durable medium.
Article 6.22810. Consumer’s right to withdraw from a distance and off-premises contract
1. The consumer shall have the right, without giving any reason or incurring any costs other than those provided for in Article 6.22811 of this Code, to withdraw from a distance or off-premises contract within 14 days, subject to the exceptions provided for in paragraph 2 of this Article.
2. The right of the consumer to withdraw from a distance and off-premises contract shall not apply to the following contracts:
1) service contracts where the services have been fully provided to the consumer and where the consumer is obliged to pay the price, provided that the consumer’s express consent and acknowledgement has been obtained prior to the commencement of the provision of the services that he will lose the right of withdrawal once the trader has fully performed the contract;
2) contracts where the price of the goods sold or services rendered depends on fluctuations in the financial market during the withdrawal period set out in paragraph 1 of this Article;
3) contracts for goods produced in accordance with the consumer’s specific instructions, i.e. goods which are not manufactured in advance and which are produced according to the consumer’s personal choice or instruction, whether or not the goods have been put into production, or for goods which are expressly tailored to the consumer’s personal needs;
5) contracts for packaged goods which have been unsealed after delivery and which are unfit for return for health or hygiene reasons;
6) contracts for goods which are, after delivery, according to their nature, inseparably mixed with other items;
7) contracts for alcoholic beverages, the price of which is fixed at the time of conclusion of the sales contract and which are delivered 30 days after the conclusion of the contract, and the fair value of the beverages is dependent on market fluctuations;
8) contracts concluded after the consumer has made a specific request to the trader for his arrival in order to carry out urgent repairs or maintenance work. If, in this case, the trader provides more additional services than specifically indicated by the consumer or sells more additional goods than necessary to carry out the repairs or maintenance work, those additional services or goods shall be subject to the right of withdrawal;
9) contracts for packed video or audio recordings or packaged software which have been unpacked after delivery;
10) contracts for the delivery of newspapers, periodicals or magazines, with the exception of contracts for subscriptions to these publications;
12) contracts for the provision of accommodation, carriage of goods, car rental, catering or leisure services, provided that the contract provides for a specific date or period for the provision of services;
13) contracts for the supply of digital content which have been put into effect and which provide for an obligation on the part of the consumer to pay the price, provided that all the following conditions are met:
a) the consumer has expressly consented in advance to the performance of the contract even though the time limit for exercising the right of withdrawal has not expired;
b) the consumer has acknowledged that he or she is no longer entitled to withdraw from the contract;
3. The withdrawal period for distance and off-premises contracts referred to in paragraph 1 of this Article shall expire after 14 days:
1) in the case of a contract for services or a contract for the sale of energy, from the date of conclusion of the contract;
2) in the case of a sales contract, from the date on which the consumer or a person designated by the consumer, other than the carrier, receives the goods ordered or:
a) where the consumer has ordered more than one item in one order and the goods are delivered separately, from the date on which the consumer or a person designated by the consumer, other than the carrier, receives the last item;
b) where the goods are delivered in different lots or parts, from the date on which the consumer or the person designated by the consumer, other than the carrier, receives the last lot or part;
4. If the trader has not provided the consumer with the information on the right of withdrawal pursuant to point 7 of paragraph 1 of Article 6.2287 of this Code, the consumer shall have the right to withdraw from the contract within 12 months of the expiry of the time limit set in paragraph 3 of this Article.
5. If the trader provides the consumer with the information referred to in point 7 of paragraph 1 of Article 6.2287 of this Code within 12 months of the expiry of the time limit set in paragraph 3 of this Article, the period of withdrawal shall expire 14 days after the day on which the consumer receives that information.
6. The consumer shall inform the trader of the withdrawal from a distance or off-premises contract:
1) by submitting a duly completed model withdrawal form. This form shall be approved by the Government of the Republic of Lithuania or an institution authorised by it; or
7. The trader may enable the consumer to submit electronically on the internet website the documents referred to in paragraph 6 of this Article for the withdrawal from a distance contract or an off-premises contract. In this case, the trader must immediately confirm to the consumer, on a durable medium, that he has received his withdrawal from the contract.
8. The burden of proving compliance with the requirements of this Article with regard to withdrawal shall rest with the consumer.
9. Where a consumer who has concluded a distance contract wishes to have services or energy supplied before the expiry of the withdrawal period set out in this Article and the consumer is contractually obliged to pay the price, the trader may only provide the services or energy upon the consumer’s explicit request on a durable medium and the consumer’s acknowledgement that the consumer loses the right of withdrawal upon the trader’s full performance of the contract.
10. Where a consumer who has concluded an off-premises contract wishes to have services or energy supplied before the expiry of the withdrawal period for the off-premises contract set out in this Article and the consumer is contractually obliged to pay the price, the trader may only provide the services or energy upon the consumer’s explicit request on a durable medium and the consumer’s acknowledgement that the consumer loses the right of withdrawal upon the trader’s full performance of the contract.
Article 6.22811. Legal consequences of withdrawal
1. The exercise of the right of withdrawal by the consumer shall terminate the obligations of the parties to perform a distance or off-premises contract or to conclude a distance or off-premises contract if the consumer has submitted an offer to conclude it.
2. The trader must, without delay and at the latest within 14 days from the date on which he receives the consumer’s notice of withdrawal from the contract, reimburse to the consumer all sums paid by the latter, including the costs of delivery of the goods paid by the consumer. When reimbursing all sums paid by the consumer, the trader must use the same means of payment as the consumer used to pay the trader, unless the consumer expressly agrees otherwise, and provided that the consumer does not incur any other additional costs as a result of such reimbursement..
3. The trader shall not be obliged to reimburse the consumer for any additional costs arising from the fact that the consumer has made a clear choice other than the cheapest usual method of delivery proposed by the trader.
4. The trader may withhold the reimbursement of sums paid by the consumer until the goods have been returned to the trader or until the consumer has provided proof that the goods have been dispatched to the trader, whichever occurs first, unless the trader is bound by the contractual obligation to take back the goods following the consumer’s withdrawal from the contract.
5. The consumer must, without delay and at the latest within 14 days from the date on which the notice of withdrawal was given to the trader, send or hand over the goods to the trader or to another person authorised by the trader unless the trader is contractually obliged to take back the goods following the consumer’s withdrawal.
6. The consumer shall bear only the direct costs of returning the goods, except where, under the contract, these costs are borne by the trader, or where the trader has not duly informed the consumer that such costs will be borne by the consumer.
7. Where, in the case of an off-premises contract, the goods were delivered to the consumer’s place of residence at the time of conclusion of the contract, following the consumer’s withdrawal from the contract, the trader must withdraw the goods at his own expense when, due to the nature of the goods, the goods cannot normally be returned by post.
8. The consumer shall be liable only for the reduction in value of the goods resulting from actions which are not necessary to determine the nature, characteristics and functioning of the goods. The consumer shall not be liable for the reduction in the value of the goods if the trader has not provided the consumer with information on the right of withdrawal in accordance with point 7 of paragraph 1 of Article 6.2287 of this Code.
9. The consumer who withdraws from a contract in the cases referred to in paragraph 9 or 10 of Article 6.22810 of this Code shall be obliged to compensate the trader in proportion to the services provided up to the moment when the consumer gave the notice of withdrawal to the trader. The amount to be paid by the consumer to the trader shall be calculated in proportion to the value of the services provided on the basis of the total price fixed in the contract. Where the total price is too high, the proportionate amount shall be calculated on the basis of the market value of the services provided.
10. The consumer shall not compensate for the services or energy supplied during the withdrawal period if:
1) the trader has not provided the consumer with information concerning the right of withdraw from the contract in accordance with point 7 of paragraph 1 of Article 6.2287 of this Code or with the information set out in point 9 of paragraph 1 of Article 6.2287 of this Code that the consumer must pay the trader’s reasonable costs in accordance with paragraph 9 of this Article; or
11. The exercise of the consumer’s right to withdraw from the contract may not lead to any other expenses not provided for in this Article or in Article 6.22812 of this Code.
12. Where the consumer exercises the right to withdraw from a distance or off-premises contract, ancillary contracts shall be automatically terminated at no cost to the consumer, except for the costs provided for in this Article or in Article 6.22812 of this Code. Contracts under which the consumer acquires goods or services relating to a distance contract or an off-premises contract and where those goods or services are supplied by the trader or by another person under an agreement with the trader shall be regarded as ancillary contracts. The consumer must inform the other party in writing without delay of the termination of the ancillary contract and provide details of the withdrawal from the distance or off-premises contract. A separate notice from the consumer shall not be required where the ancillary contract has been concluded with the same trader who has been notified of the withdrawal in accordance with Article 6.22810 of this Code.
13. When the consumer exercises the right of withdrawal, the trader must comply with the legal requirements for the protection of the consumer’s personal data.
14. The trader must refrain from using any content other than personal data, which was provided or created by the consumer when using the digital content or digital service supplied by the trader, except where such content:
1) has no utility outside the context of the digital content or digital service supplied by the trader;
2) only relates to the consumer’s activity when using the digital content or digital service supplied by the trader;
3) has been aggregated with other data by the trader and cannot be disaggregated or only with disproportionate efforts;
15. The trader must, at the request of the consumer, make available to the consumer any digital content other than personal data, which was provided or created by the consumer when using the digital content or digital service supplied by the trader, except in the cases provided for in points 1, 2 and 3 of paragraph 14 of this Article. The consumer shall be entitled to retrieve that digital content free of charge, without hindrance from the trader, within a reasonable time and in a commonly used and machine-readable format.
16. Once the consumer has exercised the right of withdrawal, the trader shall be entitled to prevent any further use of the digital content or digital service by the consumer by making the digital content or digital service inaccessible to the consumer or disabling the user account of the consumer or by other means.
Article 6.22812. Specific features of the consumer’s right of withdrawal from consumer contracts for the supply of digital content
4. Where a consumer contract for the supply of digital content is a distance contract or an off-premises contract the performance of which is requested by the consumer before the expiry of the withdrawal period laid down in Article 6.22810 of this Code, the trader must additionally state in the confirmation of the contract to the consumer that the consumer’s prior express consent and acknowledgement of the loss of the right to withdraw has been obtained.
5. The withdrawal period laid down in Article 6.22810 of this Code for consumer contracts for the supply of digital content shall start to run from the date of conclusion of the contract.
6. In the cases referred to in point 13 of paragraph 2 of Article 6.22810 of this Code, the consumer shall not have the right to withdraw from the contract for the supply of digital content.
7. The consumer shall not have the obligation to pay for all or part of digital content not supplied on a durable medium where at least one of the following conditions applies:
1) the consumer has not given his prior explicit consent to the commencement of the supply of digital content before the expiry of the time limit laid down in Article 6.22810 of this Code;
2) the consumer has not acknowledged the loss of the right of withdrawal when giving his consent to the commencement of the supply of digital content;
Article 6.22813. Quality and safety requirements for goods and services
1. Goods and services sold to consumers must be safe and of adequate quality. The quality and safety requirements for goods and services shall be laid down by laws and other legal acts.
2. The sale of goods whose shelf-life has expired or which have been relabelled, repackaged or otherwise treated to extend their shelf-life shall be prohibited. The manufacturer shall not be liable for the safety and suitability of the goods for their intended purpose (product characteristics) after the expiry of the shelf-life of the goods.
Article 6.22814. Quality guarantee (commercial guarantee)
1. Quality guarantee (commercial guarantee) shall mean an obligation on the part of the trader (seller or manufacturer) to reimburse the consumer for the price paid for the goods or services, or to replace, repair or otherwise remedy a defect in the goods or services where the goods or services do not conform to the conditions or requirements set out in the guarantee document or in the advertising provided at the time of or prior to the conclusion of the contract, which do not relate to the conformity of the goods or services with the contract.
2. The quality guarantee may not restrict the rights of the consumer as laid down in Article 6.3641 of this Code.
3. The quality guarantee must be provided in the official language. It must state that the quality guarantee does not restrict the consumer’s rights in the event of the purchase of goods or services of inadequate quality, and it must clearly and comprehensibly indicate the name and address of the registered office and e-delivery box of the guarantor as well as the terms and conditions of the guarantee, including its duration, territorial scope and the information needed for lodging a guarantee claim.
4. At the consumer’s request, the quality guarantee must be provided to him in writing on paper or on another durable medium accessible to him.
Article 6.22815. Trader’s liability and performance of an obligation in kind
If the trader fails to perform his obligations under a consumer contract, the payment of damages or the payment of penalties shall not exempt the trader from performing the obligation in kind.
Article 6.22816. Supply of goods or services without an order from the consumer
1. The consumer to whom unsolicited goods or services, including digital content, are supplied shall not have the obligation to pay for them. The consumer shall not incur any additional costs due to the receipt of unsolicited goods or services, as well as digital content.
2. An omission (silence) of the consumer to whom goods or services have been provided without his order shall not constitute consent to purchase.
Article 6.22817. Consumer contracts for the supply of digital content and digital services
1. The provisions of Articles 6.22817 to 6.22824 of this Code shall apply to contracts under which the trader supplies or undertakes to supply digital content or digital service to the consumer and the consumer pays or undertakes to pay the price of the digital content or digital service. The provisions of these Articles shall also apply where the digital content or digital service is produced in accordance with the instructions of the consumer.
2. In addition, the provisions of Articles 6.22817 to 6.22824 of this Code shall apply where the trader supplies or undertakes to supply digital content or a digital service to the consumer and the consumer provides or undertakes to provide personal data to the trader, except where the trader only processes those personal data for the purposes of the provision of the digital content or digital service or to comply with legal requirements, and does not process those personal data for any other purposes.
3. The provisions of Articles 6.22817 to 6.22824 of this Code shall also apply to any tangible medium which serves exclusively as a carrier of digital content, with the exception of Article 6.22818 and paragraphs 1, 2 and 3 of Article 6.22822 of this Code.
4. The provisions of Articles 6.22817 to 6.22824 of this Code shall not apply to digital content and digital services which are incorporated in or inter-connected with goods with digital elements and which are supplied together with those goods under the same sales contract, irrespective of whether the digital content or digital service is supplied by the seller or by another person. In the event of doubt as to whether the supply of incorporated or inter-connected digital content or an incorporated or inter-connected digital service forms part of the sales contract, the digital content or digital service shall be presumed to be covered by the sales contract.
5. The provisions of Articles 6.22817 to 6.22824 of this Code shall not apply to contracts regarding:
1) the provision of services other than digital services, regardless of whether digital forms or means are used by the trader to produce the output of the service or to deliver or transmit it to the consumer;
2) electronic communications services, with the exception of number-independent interpersonal communications services as defined in the Law of the Republic of Lithuania on Electronic Communications;
6) software offered by the trader under a free and open-source licence, where the consumer does not pay a price for the digital content or digital service and the personal data provided by the consumer are exclusively processed by the trader for the purpose of improving the security, compatibility or interoperability of that specific software;
7) the supply of digital content where the digital content is made available to the general public other than by signal transmission as a part of a performance or event, such as digital cinematographic projections;
6. Where digital content or digital services and other services or goods are supplied under the same consumer contract, the provisions of Articles Articles 6.22817 to 6.22824 of this Code shall only apply to the part of the contract concerning the digital content or digital service.
7. Where other laws or legal acts of the European Union regulating the protection of personal data lay down rules other than those provided for in Articles 6.22817 to 6.22824 of this Code, the rules of these Articles shall apply to the extent that they do not conflict with the rules governing the protection of personal data.
Article 6.22818. Supply of digital content or digital services
1. Unless the parties have agreed otherwise, the trader must supply the digital content or digital service to the consumer without delay after the conclusion of the contract.
2. The trader shall have complied with the obligation to supply when:
1) the digital content or any means suitable for accessing or downloading the digital content is made available or accessible to the consumer, or to a physical or virtual facility chosen by the consumer for that purpose;
Article 6.22819. Quality requirements for digital content and digital services
1. The trader must supply the consumer with the digital content or digital service complying with the requirements laid down in this Article.
2. The digital content or digital service must comply with all of the following requirements, provided that they are applicable:
1) be of the description, quantity and quality, and possess the functionality, compatibility, interoperability and other features, as required by the contract;
2) be fit for any particular purpose for which the consumer requires it and which the consumer made known to the trader at the latest at the time of the conclusion of the contract, and in respect of which the trader has given acceptance;
3) be supplied with all accessories, instructions, including on installation, and customer assistance as required by the contract;
3. In addition, the digital content or digital service must meet all of the following requirements:
1) be fit for the purposes for which digital content or digital services of the same type would normally be used, taking into account any applicable legal provisions, technical standards or, in the absence of such technical standards, applicable codes of conduct;
2) be of the quantity and possess the qualities and performance features, including in relation to functionality, compatibility, accessibility, continuity and security, normal for digital content or digital services of the same type and which the consumer may reasonably expect, given the nature of the digital content or digital service and taking into account any public statement made by or on behalf of the trader, or other persons in previous links of the chain of transactions, particularly in advertising or on labelling, except for the cases referred to in paragraph 4 of this Article;
3) where applicable, be supplied along with any accessories and instructions which the consumer may reasonably expect to receive;
4. The public statements referred to in point 2 of paragraph 3 of this Article shall not bind the trader if he proves that at least one of the following conditions is met:
1) the trader was not, and could not reasonably have been, aware of the public statement in question;
2) by the time of conclusion of the contract, the public statement had been corrected in the same way as, or in a way comparable to how, it had been made;
5. The trader must ensure that the consumer is informed of and supplied with updates, including security updates, that are necessary to ensure the adequate quality of the digital content or digital service, for the period of time:
1) during which the digital content or digital service is to be supplied under the contract, where the contract provides for a continuous supply over a period of time;
6. Where the consumer fails to install, within a reasonable time, updates supplied by the trader in accordance with paragraph 5 of this Article, the trader shall not be liable for any lack of conformity resulting solely from the lack of the relevant update, provided that both of the following conditions are met:
1) the trader informed the consumer about the availability of the update and the consequences of the failure of the consumer to install it;
7. Where the contract provides for a continuous supply of digital content or digital service over a specific period of time, the trader shall be responsible for the proper supply of the digital content or digital service throughout the duration of that period.
8. Where, at the time of the conclusion of the contract, the consumer was specifically informed that a particular characteristic of the digital content or digital service was deviating from the requirements laid down in paragraphs 3, 4 or 5 of this Article and the consumer expressly and separately accepted that deviation when concluding the contract, it shall be considered that the digital content or digital service is of adequate quality.
9. Unless the parties have agreed otherwise, digital content or a digital service must be supplied in the most recent version available at the time of the conclusion of the contract.
10. The trader shall be responsible for any lack of conformity resulting from the incorrect integration of the digital content or digital service into the consumer’s digital environment in the following cases:
1) the digital content or digital service was integrated by the trader or under the trader’s responsibility;
11. Where a violation of intellectual property rights or any other rights of other persons prevents or limits the consumer’s use of the digital content or digital service, the consumer shall be entitled to the remedies in accordance with the provisions of paragraphs 4 to 9 of Article 6.22822 of this Code.
Article 6.22820. Statutory guarantee
1. The trader shall be liable to the customer for any failure to supply the digital content or digital service in accordance with the requirements laid down in Article 6.22818 of this Code.
2. Where a contract provides for a single act of supply or a series of individual acts of supply of digital content or a digital service, the trader shall be liable for any lack of conformity with the requirements laid down in Article 6.22819 of this Code which exists at the time of supply and becomes apparent within a period of two years from the time of supply.
3. Where the contract provides for a continuous supply of digital content or a digital service over a period of time, the trader shall be liable for any lack of conformity with the requirements laid down in Article 6.22819 of this Code that occurs or becomes apparent within the period of time during which the digital content or digital service is to be supplied under the contract.
Article 6.22821. Burden of proof
1. The burden of proof with regard to whether the digital content or digital service was supplied in accordance with the requirements laid down in Article 6.22818 of this Code shall be on the trader.
2. Where a contract provides for a single act of supply or a series of individual acts of supply of digital content or a digital service and the inadequate quality of the digital content or digital service becomes apparent within one year of the supply of the digital content or digital service, the burden of proof with regard to whether the supplied digital content or digital service was in conformity with the quality requirements at the time of supply shall be on the trader.
3. Where the contract provides for a continuous supply of digital content or a digital service over a period of time and the inadequate quality of the digital content or digital service becomes apparent within that period, the burden of proof with regard to whether the digital content or digital service is in conformity with the quality requirements for the period covered by the contract shall be on the trader.
4. Paragraphs 2 and 3 of this Article shall not apply where the trader demonstrates that the digital environment of the consumer is not compatible with the technical requirements of the digital content or digital service and where the trader informed the consumer of such requirements in a clear and comprehensible manner before the conclusion of the contract.
5. The consumer must cooperate with the trader, to the extent reasonably possible and necessary, to ascertain whether the cause of the lack of conformity of the digital content or digital service, which became apparent within the period specified in paragraph 2 or 3 of Article 6.22820 of this Code, lay in the consumer’s digital environment. The obligation of the consumer to cooperate shall be limited to the technically available means which are least intrusive for the consumer. Where the consumer fails to cooperate, and where the trader informed the consumer of such requirement in a clear and comprehensible manner before the conclusion of the contract, the burden of proof with regard to inadequate quality of the digital content or digital service shall be on the consumer.
Article 6.22822. Consumer rights in cases of the failure to supply or inadequate quality of the digital content or digital service
1. Where the trader fails to fulfil his obligation to supply the digital content or digital service in accordance with Article 6.22818 of this Code, the consumer shall call upon the trader to supply the digital content or digital service. If the trader then fails to supply the digital content or digital service without delay, or within an additional period of time, as expressly agreed to by the parties, the consumer shall be entitled to unilaterally terminate the contract.
2. The provisions of paragraph 1 of this Article shall not apply, and the consumer shall be entitled to unilaterally terminate the contract immediately, where:
1) the trader has declared, or it is equally clear from the circumstances, that the trader will not supply the digital content or digital service;
2) the consumer and the trader have agreed, or it is clear from the circumstances attending the conclusion of the contract, that the supply of the digital content or digital service within the time period laid down in the contract is essential for the consumer and the trader has failed to supply them within the prescribed period.
3. Where the consumer terminates the contract on the grounds provided for in paragraph 1 or 2 of this Article, the provisions of Article 6.22823 of this Code shall apply.
4. In the case of a lack of conformity of the digital content or digital service with the requirements laid down in Article 6.22819 of this Code, the consumer shall be entitled to have the digital content or digital service brought into conformity, to receive a proportionate reduction in the price, or to unilaterally terminate the contract, in accordance with the provisions of this Article.
5. The consumer shall be entitled to have the digital content or digital service brought into conformity, unless this would be impossible or would impose costs on the trader that would be disproportionate, taking into account all the circumstances of the case including:
6. The trader must bring the digital content or digital service into conformity by complying with all of the following requirements:
1) within a reasonable time from the moment the trader has been informed by the consumer about the lack of conformity;
7. The consumer shall be entitled to either a proportionate reduction of the price where the digital content or digital service is supplied in exchange for a payment of a price, or the unilateral termination of the contract, in any of the following cases:
1) the remedy to bring the digital content or digital service into conformity is impossible or disproportionate for the trader taking into account all the circumstances;
2) the trader has not brought the digital content or digital service into conformity in accordance with paragraph 6 of this Article;
3) a lack of conformity appears despite the trader’s attempt to bring the digital content or digital service into conformity;
8. The reduction in price must be proportionate to the decrease in the value of the digital content or digital service which was supplied to the consumer compared to the value that the digital content or digital service would have if it were in conformity. Where the contract stipulates that the digital content or digital service is to be continuously supplied over a period of time in exchange for the payment of a price, the reduction in price shall apply to the period of time during which the digital content or digital service was not in conformity.
9. Where the digital content or digital service is supplied in exchange for the payment of a price, the consumer shall be entitled to terminate the contract only if the lack of conformity is not minor. The burden of proof with regard to whether the lack of conformity is minor shall be on the trader.
Article 6.22823. Termination of a contract
1. This Article shall apply where the consumer terminates the contract in accordance with the provisions of paragraphs 1, 2 or 7 of Article 6.22822 or Article 6.22824 of this Code.
2. The consumer shall exercise the right to terminate the contract by means of a statement to the trader expressing the decision to terminate the contract.
3. In the event of termination of the contract, the trader must reimburse the consumer for all sums paid under the contract. In cases where the contract provides for the supply of the digital content or digital service in exchange for a payment of a price and over a period of time, and the digital content or digital service had been in conformity for a period of time prior to the termination of the contract, the trader must reimburse the consumer only for the proportionate part of the price paid corresponding to the period of time during which the digital content or digital service was not in conformity, and any part of the price paid by the consumer in advance for any period of the contract that would have remained had the contract not been terminated.
4. Upon termination of the contract, the trader must comply with the consumer’s personal data protection requirements laid down in laws and European Union legal acts regulating the protection of personal data.
5. The trader must refrain from using any content other than personal data, which was provided or created by the consumer when using the digital content or digital service supplied by the trader, except where such content:
1) has no utility outside the context of the digital content or digital service supplied by the trader;
2) only relates to the consumer’s activity when using the digital content or digital service supplied by the trader
3) has been aggregated with other data by the trader and cannot be disaggregated or only with disproportionate efforts;
6. The trader must, at the request of the consumer, make available to the consumer any digital content other than personal data, which was provided or created by the consumer when using the digital content or digital service supplied by the trader, except in the cases provided for in points 1, 2 and 3 of paragraph 5 of this Article. The consumer shall be entitled to retrieve that digital content free of charge, without hindrance from the trader, within a reasonable time and in a commonly used and machine-readable format.
7. After the termination of the contract, the trader shall be entitled to prevent any further use of the digital content or digital service by the consumer by making the digital content or digital service inaccessible to the consumer or disabling the user account of the consumer or by other means.
8. After the termination of the contract, the consumer must refrain from using the digital content or digital service and from making it available to other persons.
9. Where the digital content was supplied on a tangible medium, the consumer must, at the request of the trader, return the tangible medium to the trader without delay. The costs of the return shall be borne by the trader. The trader shall have the right to make a request for the return of the tangible medium within 14 days of the day on which the trader is informed of the consumer’s decision to terminate the contract.
10. The consumer shall not be liable to pay for any use made of the digital content or digital service in the period, prior to the termination of the contract, during which the digital content or the digital service was not in conformity.
11. Any reimbursement that is owed to the consumer by the trader due to a price reduction or termination of the contract must be carried out no later than within 14 days of the date on which the trader is informed of the consumer’s decision to invoke the consumer’s right for a price reduction or to terminate the contract.
12. The trader must carry out the reimbursement using the same means of payment as the consumer used to pay for the digital content or digital service, unless the consumer expressly agrees otherwise, and provided that the consumer does not incur any additional expenses as a result of such reimbursement.
Article 6.22824. Modification of the digital content or digital services
1. Where the contract provides that the digital content or digital service is to be supplied or made accessible to the consumer over a period of time, the trader shall have the right to modify the digital content or digital service beyond what is necessary to maintain the digital content or digital service in conformity if all of the following conditions are met:
4) in the cases referred to in paragraph 2 of this Article, the consumer is informed reasonably in advance on a durable medium of the features and time of the modification and of the right to terminate the contract in accordance with paragraph 2 of this Article, or of the possibility to maintain the digital content or digital service without such a modification in accordance with paragraph 3 of this Article.
2. The consumer shall be entitled to terminate the contract if the modification negatively impacts the consumer’s access to or use of the digital content or digital service, unless such negative impact is only minor. The consumer shall be entitled to terminate the contract free of charge within 30 days of the receipt of the information referred to in point 4 of paragraph 1 of this Article or of the time when the digital content or digital service has been modified by the trader, whichever is later. In the event of termination of the contract by the consumer, the provisions of Article 6.22823 of this Code shall apply.
3. The provisions of paragraph 2 of this Article shall not apply if the trader has enabled the consumer to maintain without additional cost the digital content or digital service without the modification, and the digital content or digital service remains in conformity.
Article 6.229. Duties of a person managing the affairs of another person
1. Where a person voluntarily and without any mandate, instruction or previous assent to act undertakes the management of the affairs of another person, where such management does not fall within his duties, he must manage them in such a way that it conforms to the interests of that other person. The obligations arising on the basis of these activities shall be binding on the person managing the affairs of another person. The activities of the person managing the affairs of another person (manager) shall be governed mutatis mutandis by the provisions of Book Four of this Code regulating simple administration of another’s property.
2. A person who assumes the management of the affairs of another person shall be bound to continue the management undertaken until that other person (principal) is in a position to attend to it himself, or until his guardian, curator or administrator of the property is appointed; if the principal dies, the duty to continue the management shall remain in existence until his heirs take over the management.
3. A person managing the affairs of another person must as soon as reasonably possible inform the principal of everything that has been done; he must also render in writing a comprehensive account of income, expenditure and loss.
4. A person managing the affairs of another person must exercise the necessary concern in his management to the extent that can reasonably be required of him, taking into consideration the concrete circumstances in which he acts.
Article 6.230. Managing of the affairs of another person against his will
1. A person who manages the affairs of another person against the latter’s will being aware of that shall be liable to compensate the person against whose will he has acted for the damage caused by his actions.
2. A person’s consent or refusal to have his affairs managed by another person shall be of no effect in the instances where an obligation whose performance corresponds to the public interest, or the obligation to maintain another person would not be performed in time without such consent, or where effort is undertaken to avert danger threatening a person’s life.
3. Actions performed by the manager of the affairs of another person after he became aware of the person’s, for the benefit of whom the affairs are conducted, disapproval of such actions shall not create any obligations for the person concerned, neither for the person performing the indicated actions, nor third persons.
Article 6.231. Managing of the affairs of another person in case of danger
If a person has undertaken the management of the affairs of another person in order to protect the latter against real danger to his person or property, the former shall not be held liable for damages inflicted unless he acted intentionally or in gross negligence.
Article 6.232. Ratification of actions
Subsequent ratification of actions of a manager made by the person whose affairs were managed by the former without a mandate produces the same effects with respect to the management as would have arisen from a contract of mandate or any other contract best corresponding to the nature of the performed actions.
Article 6.233. Reimbursement of expenses incurred
1. When the management of the affairs of another person has been rightly undertaken and conformed to the principal’s interests, the principal shall be bound to perform the obligations assumed by the manager in his name. In addition, the principal must reimburse the manager for all the useful and necessary expenses incurred and compensate for the damages suffered by reason of the management of his affairs, irrespective of whether the desired result has been attained.
2. Expenses incurred in the cases provided for in paragraph 1 of Article 6.230 of this Code shall not be reimbursed.
3. In the instances indicated in Article 6.321 of this Code, reimbursement of expenses incurred may be claimed in any case.
4. Where management of the affairs of another person has yielded positive results to the latter, the manager, who has conducted the affairs, shall be entitled to remuneration. In the case of disagreement between the parties, the amount of remuneration shall be established by the court taking in consideration the concrete circumstances of the case and being guided by the principles of justice, reasonableness and good faith.
Article 6.234. Return of the received property
1. A person who has been managing the affairs of another person must return to the latter the property received by reason of the management, including the fruits and income therefrom.
Article 6.235. Legal effects of a transaction formed on behalf and in the interests of another person
1. Obligations arising from a transaction formed on behalf and in the interests of another person shall be assumed by the person on whose behalf and in whose interests the said transaction is formed, providing that the latter ratifies the transaction and the other party to the transaction does not contradict to such assumption, or that this other party on entering into the transaction was aware or ought to have been aware of the transaction being formed on behalf and in the interests of another person.
2. Where the principal assumes the obligations resulting from a transaction formed in his interests, the rights arising from the said transaction must be likewise transferred to the principal.
3. Where a transaction in the interests of another person is formed by the manager of affairs of that person on his own behalf, the latter shall be liable towards the third persons for obligations resulting from that transaction. However, this provision shall not affect the exercise of the manager’s and third persons’ rights connected with the person whose affairs were managed.
Article 6.236. Supposed managing of the affairs of another person
Provisions of this Chapter shall not apply if the management of the affairs of another person is performed by a person believing to be managing his own affairs.
Article 6.237. Obligation to return property not due
1. A person who intentionally or negligently, or in any other manner without any legal grounds acquires something that he could not and ought not to have acquired shall be obliged to return all that to the person on whose account it was acquired, except in cases provided for by this Code.
2. The same obligation shall arise where the grounds upon which the property is acquired become subsequently extinct, except in cases established in Article 6.241 of this Code.
3. The acquired property must be restituted in kind. Where the property has been lost or damaged, its fair value at the time of acquisition, as well as any losses caused by a subsequent change in the value of the property, must be compensated in cash. The acquirer of the property shall be liable towards the aggrieved person for any deterioration or shortage, including that of accidental character, of the property acquired that occurred after the acquirer became aware or should have become aware of the unjust enrichment, or the reception of a thing not due. Until the moment indicated above, the acquirer of the property shall be liable only for his deeds performed intentionally or in gross negligence.
4. Where a person in good faith sells the property acquired in the manner indicated in paragraph 1 of this Article, he shall be bound to repay only the amount received for the property sold.
5. The provisions of this Chapter shall likewise apply with respect to the obligations the performance of which is not connected with a transference of property but only with a supply of appropriate services, as well as in cases where the claim is connected with the recovery of a thing from illegal possession, or the restitution of performance resulting from an invalid transaction, or the compensation for damage, or the repayments between the parties to an obligation, or with the supply of services to each other.
Article 6.238. Right of a supposed debtor to demand the return of a debt unjustly paid
If a person mistakenly believing himself to be the debtor has paid the debt he was not bound to pay, he shall be entitled to demand the return of the paid sum from the person who received the payment. The aforesaid right shall become extinct where in consequence of the payment the person has destroyed the document proving the debt. In this case, the supposed debtor may claim the paid sum from the actual debtor.
Article 6.239. Obligation to return property transferred to a third person gratuitously
Where a person who has received property not due gratuitously transfers it to a third person, the obligation to return such property shall pass on to the third person.
Article 6.240. Repayments in returning unduly received property
1. A person who has received property without due legal grounds must return it and reimburse any income that he has received or should have received from this property from the time he became aware or should have become aware that the property he received was not due. An interest at the rate of five per cent per annum shall be payable for the sum of money received unduly. This interest shall be calculated from the moment when the person became aware or should have become aware of the reception or saving of the money not due.
2. If the recipient in good faith has accepted property not due by mistake, he shall in turn be entitled to claim reimbursement of the necessary expenses incurred by him in maintaining the unduly received property during the period indicated in paragraph 1 of this Article. Such recipient shall forfeit the right to claim reimbursement of the expenses if the person entitled to recover the property relinquishes that right and leaves the property to the person who has received it unjustifiably.
3. The person who has received property without due legal grounds and who has failed to ensure the maintenance of that property to the extent that a reasonable debtor would have ensured must reimburse for the decrease in the property that occurred after the recipient became aware or ought to have become aware that he was obliged to return the property.
4. Where the nature of the unduly received property is such that it cannot be returned, the value of what was received or performed at the time of the receipt or performance must be reimbursed if the recipient has been enriched, or if he has requested the performance thereof, or if he has consented to a counter-action.
5. Where a transaction is declared null and void, and the performance cannot be evaluated in monetary terms, or what has been received cannot be returned due to its nature, an action for repayment or compensation may not be satisfied if this would be contrary to the criteria of good faith, reasonableness and justice.
Article 6.241. Property that cannot be recovered
1. The following property may not be recovered as received unduly:
1) property transferred for the purposes of performance of an obligation prior to the expiry of the time limit allotted for the performance of that obligation unless the source of the obligation provides otherwise;
2) property transferred for the purposes of performance of an obligation after the expiry of the limitation period;
3) property transferred by a person who is aware of the absence of his duty to perform the obligation, or by a person who, even though not bound to perform the obligation, nevertheless makes the performance and where this was in accordance with good morals;
2. Where a person, without there being a legal ground to do so, accepts a sum of money that is assigned to a third person who has no right to receive it and delivers this sum to that third person, he shall be released from the obligation to repay the money if he proves that he did not know and ought not to have known that he was under an obligation to repay the money, and that he was unable to deliver that sum of money to the third person who had the right to receive it.
Article 6.242. Unjust enrichment
1. A person in bad faith who has enriched himself without any legal grounds at the expense of another person must compensate the latter for damages to the extent of the unjust enrichment.
2. A reduction in the enrichment may be taken into consideration and the sum subject to repayment may be reduced accordingly if this reduction results from a cause which cannot be imputed to the unjustly enriched person.
3. Enrichment shall not be considered unjust and achieved in bad faith if it results from such performance of an obligation where the party to the obligation who has suffered loss is unable, through his own fault, to exercise his rights in such a way as to avoid the loss, and the other person has been enriched as a result of actions performed by the impoverished party exclusively in his own interests and at his own risk.
Article 6.243. Effects of gambling and wagering
1. No obligations shall arise on the ground of gambling and wagering, except in cases established by laws. Claims relating to gambling and wagering shall not be defended in judiciary proceedings, except in cases established by laws.
2. In the events where games or wagers are prohibited by laws, no action may be brought by the benefited party (winner) claiming the agreed sum to be paid, likewise no recovery of the paid sum may be instituted by the losing party (loser).
Article 6.244. Lottery and other games based on risk and chance
1. Lottery or any other games based on risk and chance shall constitute a basis for obligations only if organised and carried out in accordance with the procedure established by laws. Otherwise, Articles 6.237 and 6.242 of this Code shall apply to the claims arising from lottery and games.
2. Where lottery or other games are organised pursuant to the procedure established by laws, a contract between the organiser and the participant of a lottery or other game shall be considered concluded in the form of either a ticket of the lottery or game, or a receipt, or any other document indicated in the regulations for the organisation of the lottery or any other game. These regulations shall be approved by the organiser of the lottery or the game concerned. The regulations must contain information about the time of the lottery or other game, rules for determining the winner, the amount of the prize and the procedure of its payment. The regulations must be made publicly available.
3. Where the organiser of a lottery or any other game refuses to organise it at the established time, the participants of such lottery or other game shall have the right to claim from the organiser compensation for the actual losses incurred due to the cancellation of the lottery or other game or due to the postponement of the period of time allotted for the organisation of the lottery or other game.
4. The organiser shall be bound to pay to the persons who are acknowledged as winners in accordance with the regulations of the lottery or other game the winnings in the amount and form (in money or in kind) established by the regulations. The winnings must be paid within the time limit established by the regulations and, where such time limit is not established, it must be paid within one month of determining the results of the lottery or other game. If the organiser of a lottery or other game fails to comply with this obligation, the winner shall have the right to demand from the organiser payment of the winnings and compensation of damages.
Article 6.245. Concept and types of civil liability
1. Civil liability shall mean a pecuniary obligation one party to which has the right to claim compensation of damages (damage) or demand payment of the penalty (fine, default interest), and the other party is bound to compensate for damages (damage) arising therefrom, or pay the penalty (fine, default interest).
2. Civil liability shall be of two types: contractual liability and non-contractual (delictual) liability.
3. Contractual liability shall mean a pecuniary obligation resulting from a failure to perform a contract or from its defective performance where one party to the obligation has the right to claim compensation of damages or demand payment of penalty (fine, default interest), and the other party is bound to compensate for damages, or to pay penalty (fine, default interest) caused by the failure to perform the contract, or by a defective performance thereof.
4. Non-contractual (delictual) liability shall mean a pecuniary obligation which is not related to contractual relations, except in cases where it is established by laws that delictual liability also results from damage related to contractual relations.
5. A creditor, before bringing claims for compensation of damages against a person who, in accordance with laws or the contract, is additionally liable together with another person (subsidiary liability), must bring a claim for damages against the principal debtor. If the principal debtor refuses to compensate damages or if the creditor does not receive a response to his claim from the debtor within a reasonable time, the creditor may bring a claim for damages against the debtor who is subsidiarily liable.
6. A creditor shall not be entitled to claim damages from the subsidiarily liable debtor where the creditor can satisfy his claim by the set-off of a counter-claim of the principal debtor. Before compensating damages to the creditor, the subsidiarily liable debtor must accordingly notify the principle debtor. If an action for damages has been brought against the subsidiarily liable debtor, he must also involve the principal debtor to participate in the judicial proceedings. Otherwise, the principal debtor shall be entitled to invoke against the counter-claim of the subsidiary debtor all defences which he would have been entitled to invoke against the creditor.
Article 6.246. Unlawful actions
1. Civil liability shall arise from non-performance of a duty established by laws or a contract (unlawful omission), or from performance of actions that are prohibited by laws or a contract (unlawful act), or from violation of the general duty to act with care.
2. It may be established by laws that damage must be compensated by a person who has not caused the damage himself but who is liable for the actions of the person who caused the damage (indirect civil liability).
Article 6.247. Causation
The only damages to be compensated shall be those relating to actions (acts or omissions) giving rise to civil liability of the debtor in such a manner that the damages, taking into account their nature and that of the civil liability, can be imputed to the debtor as a result of his actions (acts or omissions).
Article 6.248. Fault as a condition for civil liability
1. Civil liability shall arise only upon the existence of the fault of the obligated person, except in cases established by laws or a contract when civil liability arises without fault. The fault of a debtor shall be presumed, except in cases established by laws.
3. A person shall be deemed to be at fault where, having regard to the essence of the obligation and other circumstances, he failed to behave with the care and caution necessary under the conditions in question.
Article 6.249. Damage and damages
1. Damage shall include the loss of or damage to property sustained by a person and the expenses incurred (direct damages) as well as the incomes of which he has been deprived, i.e. the incomes he would have received if unlawful actions had not been committed. Damage expressed in monetary terms shall constitute damages. Where the amount of damages cannot be proved by the party with precision, it shall be determined by the court.
2. If the person who is liable towards another person has derived benefit from his unlawful actions, the benefit received may, upon the demand of the creditor, be attributed to damages.
3. The court may postpone the assessment of damage which has not yet occurred or assess future damage on the basis of the actual probability of its occurrence. In such cases, the court may adjudge either to pay a specific sum of money or to make periodic payments, or it may obligate the debtor to furnish security upon compensation for damage.
4. In addition to the direct damages and the incomes of which a creditor has been deprived, damages shall comprise:
5. Damage shall be assessed according to the prices valid on the day when the court judgment was passed unless the law or the nature of the obligation requires the application of prices that were valid on the day the damage arose or on the day when the action was brought.
Article 6.250. Non-pecuniary damage
1. Non-pecuniary damage shall be deemed to be a person’s physical pain, emotional suffering, inconveniences, mental shock, emotional depression, humiliation, deterioration of reputation, diminution of possibilities to associate with others, etc., evaluated by the court in terms of money.
2. Non-pecuniary damage shall be compensated only in cases provided for by laws. Non-pecuniary damage shall be compensated in all cases where it is incurred due to crime, health impairment or deprivation of life, as well as in other cases provided for by laws. In determining the amount of non-pecuniary damage, the court shall take into consideration the consequences of such damage sustained, the gravity of the fault of the person by whom the damage is caused, his financial status, the amount of pecuniary damage sustained by the aggrieved person, also any other circumstances of importance for the case, likewise to the criteria of good faith, justice and reasonableness.
Article 6.251. Compensation of damages in full
1. The damages incurred must be compensated in full, except in cases when limited liability is established by laws or a contract
2. The court, having considered the nature of liability, the financial status of the parties and their interrelation, may reduce the amount of repairable damages if awarding full compensation would lead to unacceptable and grave consequences. However, the reduction may not be less than the amount for which the debtor has or ought to have covered his civil liability by compulsory insurance.
Article 6.252. Agreements between the parties upon exclusion or limitation of civil liability
1. An agreement between the parties upon exclusion of civil liability for damages (damage) sustained by the reason of the debtor’s intentional fault or gross negligence, as well as any agreement concerning the limitation of the amount of civil liability for damages sustained by the reasons indicated above shall be null and void. It shall be prohibited to exclude or limit civil liability for impairment of health, deprivation of life or non-pecuniary damage.
Article 6.253. Non-application of civil liability or exemption from it
1. The grounds for non-application of civil liability or for exemption therefrom shall cover the following events which may, in whole or in part, release a person from civil liability: a superior force (force majeure), actions of the State, actions of a third party, actions of the aggrieved party, immediate necessity, indispensable defence and self-defence.
2. ‘Superior force’ means unavoidable events that cannot be controlled or escaped by the debtor, and which were not and could not have been foreseen (Article 6.212 of this Code).
3. ‘Actions of the State’ means binding and unforeseen actions (acts) of public authorities which render the performance of an obligation impossible and which could not be disputed by the parties.
4. ‘Activities of a third person’ means injurious actions (acts or omissions) committed by a person for whom neither the creditor nor the debtor is liable.
5. ‘Actions of the aggrieved person’ means actions committed through the fault of the aggrieved person himself and resulting in the appearance or increase of his damages. Such actions may be expressed in the form of consent of the aggrieved person to suffer the damage or to assume the risk. This consent of the aggrieved person may be the grounds for exemption from civil liability only under condition that such consent and causing of damage is not contrary to the mandatory legal provisions, public order, good morals, and the criteria of good faith, reasonableness and justice.
6. ‘Immediate necessity’ means the actions of a person by which he is compelled to cause damage in order to avert danger to himself, to other persons or to their rights, as well as to the interests of the society or the State by avoiding imminent occurrence of greater damage to the person who has already sustained damage or to any other person, providing that causing the damage in the concrete circumstances was the only way of avoiding greater damage. The court, taking into consideration the circumstances of the case and acting in accordance with the principles of good faith and justice, may obligate the damage to be compensated by the person in whose interests the injurious act was committed.
7. ‘Indispensable defence’ means the actions undertaken by a person with the purpose of defending himself or another person, property, inviolability of dwelling, other rights, interests of the society or the State against an initiated or imminent and direct unlawful dangerous assault, providing that such actions do not exceed the limits of indispensable defence.
8. ‘Self-defence’ means the actions of a person by which he lawfully enforces his right in the instances where competent authorities fail to provide timely assistance and where, in the absence of self-defence measures, the implementation of that right would be rendered impossible or essentially obstructed. However, a person who employs self-defence unlawfully or without due cause must compensate the damage caused.
Article 6.254. Civil liability insurance
1. In the instances provided for by laws or a contract, civil liability may be insured by concluding a contract of insurance against civil liability. Relationships connected with civil liability insurance shall be regulated by this Code and other laws.
Article 6.255. Preventive action
1. The grounds for bringing a preventive action shall be the emergence of real danger that damage may be inflicted in the future. Preventive action shall be deemed to be the action intended to prohibit the exercise of actions likely to create real danger of the infliction of damage in the future.
2. Where the damage results from the operation of an undertaking or installation, or from any other economic or non-economic activities, and there is a real danger for a repeated arising of damage resulting from the same sources, the court may, upon the request of the plaintiff, charge the defendant with the obligation to suspend or terminate the activities indicated above. The court may refuse to satisfy the request upon the suspension or termination of such activities in the instances where the suspension or termination thereof would be contrary to public order.
Article 6.256. Grounds for arising of contractual liability
2. Where a person fails to perform his contractual obligation or performs it defectively, he must pay compensation for damages caused to the other contracting party, and/or a penalty (fine, default interest).
3. Where the performance of a contract falls within professional activity of one of the parties, the party concerned must also perform the contract in accordance with the requirements applicable to that professional activity.
4. In the event of failure to perform or defective performance of a contractual obligation by an undertaking/trader, the undertaking/trader shall be liable in all cases if it/he fails to prove that the failure to perform or defective performance has resulted from a superior force unless otherwise provided for by laws or the contract.
Article 6.257. Liability for actions of third persons
A debtor who engages the services of third persons in performance of his obligation shall be liable towards the creditor where non-performance of the obligation or defective performance thereof results from the fault of the third persons concerned unless the law or the contract provides for the liability of the direct executor.
Article 6.258. Penalty and damages
1. It may be provided for by laws or a contract that the party liable for failure to perform an obligation or defective performance thereof must pay a penalty (fine, default interest).
2. Where penalty is established, the creditor may not concurrently demand from the debtor the performance of the principal obligation and the payment of the sum stipulated in the penal clause (the penalty), except in the cases where the time limit for performance of the obligation is delayed by the debtor. An agreement between the parties providing for any other stipulation shall be null and void. In the event of a claim for compensation of damages, the penalty shall be included in the damages.
3. The sum stipulated as a penalty (fine, default interest) may be reduced by the court if it is unreasonably excessive, or if the creditor has benefited from the partial performance of the obligation. However, this sum may not be reduced below the damages payable for the non-performance of the obligation or defective performance thereof. Penalty shall not be reduced once it has been paid.
4. The non-performing party (undertaking or trader) shall be liable only for the damages which he foresaw or could reasonably have foreseen at the time of the conclusion of the contract as being likely to result from the non-performance of obligation.
5. Where the party dissolves the contract on the grounds that the other party has violated it and and concludes, within a reasonable period of time, a contract replacing the dissolved contract, it shall be entitled to claim compensation from the party that has violated the contract for the difference in price and other subsequent losses.
6. Damages shall be calculated either in the currency in which the monetary obligation was expressed or in the currency in which the loss was suffered, whichever is more appropriate to the parties according to the circumstances of the case.
7. Unless otherwise provided for in the contract, interest on the damages for non-performance of an obligation shall be calculated from the moment of the non-performance.
Article 6.259. Fault of the creditor
1. In the event of the non-performance of an obligation or defective performance thereof due to the fault of both parties, the liability of the debtor may be correspondingly reduced or the debtor may be fully relieved from liability.
2. The rule established in paragraph 1 of this Article shall also apply in the cases where the creditor, through his intentional fault or negligence, contributes to the failure in the performance of the obligation or to the increase of damages caused by its defective performance, likewise where the creditor, through his intentional fault or negligence, has failed to take measures to reduce the damages.
Article 6.260. Effects of a debtor’s default by the delay in performance of an obligation
1. A debtor shall be deemed to have delayed performance of an obligation where he fails to perform it within the time limit established for the performance of the obligation.
2. The debtor who has delayed performance of the obligation shall be liable towards the creditor for the damages caused by the delay in performance, as well as for the impossibility to perform the obligation which accidentally results from the delay.
3. The creditor shall have the right to refuse performance offered to him after the delay therein and may claim for damages caused by the delay in performance where the debtor’s default by delay in performance results in the creditor’s loss of interest in that performance.
Article 6.261. Effects of a debtor’s default by delay in the performance of a monetary obligation
The debtor delayed in the performance of a monetary obligation must pay interest resulting from the contract or law, which is considered to be minimal damages. In addition, where the creditor proves any other damages, he shall be entitled to the compensation thereof.
Article 6.262. Effects of a creditor’s default by delay in the performance of an obligation
1. A creditor shall be considered to be delayed in performance if he refuses to accept the proper performance proposed by a debtor, or fails to perform the actions until the performance of which the debtor could not perform his obligations.
2. Where the creditor is delayed in performance, the debtor shall acquire the right to be compensated for damages caused by the delay unless the creditor proves that the time limit which has been set for the performance lapsed without the obligation having been performed not through the fault of the creditor himself nor through the fault of the persons obligated by laws or authorised by the creditor to accept the performance.
Article 6.263. Obligation to compensate for damage caused
1. Every person shall have the duty to abide by the rules of conduct so as not to cause damage to another person by his actions (act or omission).
2. Any damage caused to a person or property and, in the cases established by the law, non-pecuniary damage must be fully compensated by the liable person.
Article 6.264. Liability of an employer for damage caused by the fault of his employees
1. An employer must compensate for damage caused by the fault of his employees in the performance of their service (official) duties.
2. For the purposes of this Article, employees shall be considered to be persons carrying out work on the basis of an employment contract or a civil contract and acting on the instructions or under the control of the legal or natural person concerned.
Article 6.265. Liability for damage caused by others
1. Where damage is caused by a person, who is not an employee, acting on the instructions of another person who is not his employer, it must be compensated solidarily by both persons concerned.
Article 6.266. Liability of the owner/possessor of construction works
1. If damage has been caused by the collapse of buildings, construction works, installations or other constructions, including roads, or by other defects therein, the owner/possessor of the indicated objects must compensate for the damage unless he proves the occurrence of the circumstances indicated in paragraph 1 of Article 6.270 of this Code.
Article 6.267. Liability for damage caused by animals
1. Damage caused either by domestic animals or wild animals that are in a person’s custody must be compensated by their owner/possessor unless he proves the occurrence of the circumstances indicated in paragraph 1 of Article 6.270 of this Code. The person shall also be liable for the damage caused by animals that have escaped from him.
Article 6.268. Liability for damage caused by a natural person incapable of understanding the meaning of his actions
1. A legally capable natural person who has inflicted damage being in such a state where he was incapable of understanding or controlling his actions shall not be liable for the damage caused. However, the person shall not be exempted from liability if has brought himself into that state by the use of alcoholic drinks, narcotic or psychotropic substances, or in any other way.
2. In the event where damage has been caused to the health or life of a person, the court, having regard to the financial situation of the aggrieved person and the person who caused the damage, the criteria of good faith and reasonableness and other circumstances relevant to the case, may award compensation for the damage in whole or in part from the person who caused the damage.
3. The damage caused by a person declared to be of limited legal capacity in a certain area by reason of a mental or behavioural disorder shall be compensated under the ordinary procedure established for the compensation of damage.
4. Where damage has been caused by a person who by reason of his mental or behavioural disorder was incapable of understanding or controlling his actions, the court may obligate the person’s spouse who resides with him, his parents, or his children of full age to compensate for the damage, provided that they were aware of the mental state of the person concerned but failed to take any steps to have him declared to be of limited legal capacity in a certain area.
Article 6.269. Damage caused by a person in indispensable defence or self-defence
1. A person who causes damage in legitimate exercise of self-defence or in defence of another person shall not be liable for damage suffered by the assailant.
Article 6.270. Liability for damage caused by sources of increased danger
1. A person whose activities involve increased danger to the surrounding persons (operation of motor vehicles, machinery, use of electrical or nuclear energy, explosive or toxic substances, construction activities, etc.) must compensate for damage caused by the sources of increased danger, unless he proves that the damage was caused by superior force or by intent or gross negligence on the part of the aggrieved person.
2. The defendant under this Article shall be the possessor of the source of increased danger, i.e. the person who operates the source by the right of ownership or trust or on any other legitimate grounds (loan for use, lease, or any other contract, power of attorney, etc.).
3. The possessor of the source of increased danger shall not be liable for the damage caused if he proves that he has lost the ability to operate the source as a result of unlawful actions of other persons. In such event, the person or persons who unlawfully took possession of the source of increased danger shall be liable for the damage caused. Where the loss of operation of the source of increased danger results also from the fault of the possessor, the latter and the person who unlawfully took possession of the source of increased danger shall be solidarily liable for the damage. Upon having compensated for the damage, the possessor shall acquire the right of recourse for the recovery of sums paid against the person who unlawfully took possession of the source of increased danger.
4. In the event where damage was caused to a third person by the interaction of several source of increased danger, the possessors of the sources concerned shall be solidarily liable for the damage caused.
Article 6.271. Liability for damage caused by unlawful actions of public authorities
1. Damage caused by unlawful acts of state-level authorities must be compensated by the State from the state budget, irrespective of the fault of a concrete civil servant or other employee of the state-level authority. Damage caused by unlawful acts of municipal-level authorities must be compensated by the municipality from its own budget, irrespective of the fault of its employees.
2. For the purposes of this Article, the term ‘authorities’ shall mean any entity of public law (state or municipal institution, official, civil servant or any other employee of these authorities, etc.), as well as a private person performing the functions of a public authority.
3. For the purposes of this Article, the term ‘act’ shall mean any action (action or omission) of a public authority or its employees which directly affects the rights, freedoms and interests of persons (legal acts or individual acts, administrative acts, physical acts, etc. adopted by state or municipal institutions, with the exception of court judgments – verdicts in criminal cases, decisions in civil and administrative cases and orders).
Article 6.272. Liability for damage caused by unlawful actions of pre-trial investigation officers, prosecutors, judges and the court
1. Damage resulting from unlawful conviction, or unlawful application of a pre-trial detention measure, as well as from unlawful detention, or unlawful use of procedural coercive measures, or unlawful imposition of an administrative penalty in the form of arrest shall be compensated by the State in full, irrespective of the fault of pre-trial investigation officers, officers of the prosecutor’s office or the court.
2. Damage resulting from unlawful actions of a judge or a court in civil proceedings shall be compensated by the State in full where the damage is caused by the fault of the judge or any other officer of the court.
4. Where the damage arises from intentional actions of pre-trial investigation officers, officers of the prosecutor’s office or the court or judges, the State, after the damage has been compensated, shall acquire the right of recourse against the officers concerned for recovery, within the procedure established by laws, of the sums in the amount provided for by laws.
Article 6.273. Defendants in respect of the obligation of the State or municipality to compensate for damage
1. In cases concerning compensation for damage where the damage must be compensated by the State, the State shall be represented by the Government or an institution authorised by the Government.
Article 6.274. Liability for damage caused by immediate necessity
The court may, having regard to the circumstances in which the damage was caused, likewise other circumstances indicated in paragraph 6 of Article 6.253 of this Code, obligate the person in whose interests the person who caused the damage acted to redress the damage caused by immediate necessity.
Article 6.275. Liability for damage caused by minors under fourteen years of age
1. Parents or guardians of a minor under fourteen years of age shall be liable for damage caused by such a minor unless they prove that the damage was caused not through their fault.
Article 6.276. Liability for damage caused by a minor between fourteen and eighteen years of age
1. Liability for damage caused by a minor between fourteen and eighteen years of age shall arise on the general grounds.
2. In cases where a minor between fourteen and eighteen years of age has no sufficient property or earnings to compensate for the damage caused by him, the respective part of the damage must be compensated by his parents or curator unless they prove that the damage was caused not through their fault. The same legal effects shall occur where a minor between fourteen and eighteen years of age was under the supervision of an educational, training or health care institution, or a guardianship/curatorship institution at the time when the damage was caused.
3. The obligation of the persons indicated in paragraph 2 of this Article to compensate for the damage shall terminate when the person who caused the damage attains the age of majority or when he, before attaining majority, acquires the property or earnings sufficient for the compensation of damage.
Article 6.277. Civil liability of parents with restricted parental authority for damage caused by their minor children
Parents whose parental authority has been restricted due to their fault shall be liable for damage caused by their minor children on general grounds where the actions of their minor children result from the improper exercise of their parental authority, except in cases when a guardian or curator is appointed to the minor.
Article 6.278. Liability for damage caused by a natural person declared legally incapable in a certain area
1. Where damage is caused by a natural person declared legally incapable in a certain area, compensation shall be due from the latter’s guardian or an institution charged with the custody of the person unless they prove that the damage was caused not through their fault.
2. The obligation of the guardian or a relevant institution to compensate for damage shall not terminate even if the person who caused the damage is declared legally capable after the injurious act was committed.
3. Where the guardian dies or has no sufficient funds to compensate for the damage caused to the health or life of a person, while the person who has caused the damage has sufficient funds, the court may, taking into consideration the financial situation of both the person who is legally incapable in a certain area and the aggrieved person, as well as other circumstances relevant to the case, order recovery from the property of the person legally incapable in a certain area.
Article 6.279. Liability for damage caused jointly by several persons
1. Where several persons jointly take part in causing damage, they shall be solidarily liable for compensation thereof.
2. In determining the reciprocal claims of solidarily liable persons, the different degree of gravity of their respective fault shall be taken into consideration, except in cases when it is otherwise provided for by laws.
3. The aggrieved person may not claim more from all the liable persons than he could claim if only one person were liable.
4. Where damage may have resulted from different actions performed by several persons and they are liable for compensation, but it is established that the damage actually resulted from actions of only one of those persons, the obligation to compensate for the damage shall rest upon all these persons jointly unless the other persons prove that the damage could not have resulted from the event (actions) for which they are responsible.
Article 6.280. Right of recourse against the person who caused damage
1. A person who has compensated for the damage caused by another person shall have the right of recourse (the right of counter-claim) against the person by whom the damage was caused in the amount equal to the paid compensation unless a different amount is established by the law.
2. The person who has compensated for the damage caused by several persons jointly shall have the right of recourse against each of them in proportion to the degree of gravity of their fault. Where it is impossible to determine the degree of gravity of the fault of each of them, the portions of damage under compensation attributable to each of them shall be considered to be equal.
Article 6.281. Method and amount of compensation for damage
1. When awarding compensation for damage, the court shall, taking into consideration the circumstances of the case, obligate the person liable for causing the damage to compensate for it in kind (to deliver a thing equivalent in kind and quality, to repair the damaged thing, etc.) or to fully compensate for the damage caused.
Article 6.282. Assessment of damage in the light of the degree of the aggrieved person’s fault and the financial situation of the person who caused the damage
1. If the aggrieved person’s gross negligence contributed to causing or increasing damage, depending on the degree of the aggrieved person’s fault (and on the degree of the fault of the person by whom the damage was caused, in the event of the existence of such fault), compensation for damage may be reduced or the claim for damages may be dismissed unless otherwise provided for by laws.
2. The fault of the aggrieved person shall not be taken into consideration in recovering compensation for the damage caused by the death of the breadwinner and in compensating the costs of funeral expenses.
Article 6.283. Compensation for damage caused to another person’s health
1. Where the damage sustained by a natural person is bodily harm, i.e. he is mutilated or his health is impaired in any other way, the person liable for the damage caused shall be bound to compensate the aggrieved person for all his damages suffered, including non-pecuniary damage.
2. Damages in cases referred to in paragraph 1 of this Article shall be composed of the incomes the aggrieved person would have received had he not sustained the bodily harm, expenses related to the rehabilitation of health (costs of medical treatment, additional nourishment, purchase of medication, prosthetics, care of the injured person, acquisition of special means of transport, retraining of the injured person and other costs necessary for the rehabilitation of health).
3. If the health of the aggrieved person deteriorated after the judgment on the compensation for damages was passed, he shall have the right to bring an action for compensation of additional expenses, except in the cases when the damage was compensated in the form of a definite lump sum.
Article 6.284. Liability for damage caused by fatal injury
1. In the event of death of a natural person, the right to compensation for damage caused by the latter’s death shall be acquired by the persons who were under his maintenance or at the time of his death were entitled to be maintained by him (minor children, spouses, parents incapacitated for work, or other factual dependants incapacitated for work), likewise the children of the deceased born after his death. These persons shall also have the right to compensation for non-pecuniary damage.
2. Persons who have the right to compensation for damage caused by the death of their breadwinner shall be compensated for that part of the deceased person’s income which they received or were entitled to receive when the deceased person was alive.
3. The amount of the damage to be compensated may not be changed, except in cases when a child is born after the death of the breadwinner.
Article 6.285. Compensation for damage caused to the health of a natural person under fourteen years of age
1. In the event of mutilation or other impairment of health of a natural person under fourteen years of age who has no independent income, the person liable for the damage caused shall be obliged to compensate for the expenses connected with the impairment of health of the aggrieved person and for non-pecuniary damage.
2. Upon the attainment of the age of fourteen years by the aggrieved person, the person liable for the damage caused must also compensate such person for the damage connected with the loss or reduction of his capacity for work, taking into consideration the skills which the minor had prior to the injury, as well as the financial situation of his parents and that of the person by whom the damage was caused, likewise any other circumstances relevant to the case.
Article 6.286. Change of the amount of compensation upon the demand of the aggrieved person subsequent to a change of his capacity for work
An aggrieved person who has partially lost his capacity for work shall have the right at any time to demand from the person liable for the damage a corresponding increase of the compensation for the damage sustained if his capacity for work has decreased thereafter in connection with the impairment to health in comparison with that which remained at the time when the compensation was awarded, except in cases when the compensation for damage was awarded in the form of a definite lump sum.
Article 6.287. Change of the amount of compensation upon the demand of the persons ordered to pay compensation for damage
The person ordered to pay compensation for damage caused by mutilation or other impairment of the health of another person shall have the right to demand a corresponding reduction of the compensation if the capacity for work of the aggrieved person has increased in comparison with the remaining capacity for work he had at the time when the compensation was awarded, except in cases when the compensation for damage was awarded in the form of a definite lump sum.
Article 6.288. Payment of the compensation for damage
1. Damage shall be compensated from the day when it was caused; if the damage occurred later, it shall be compensated from the day of its occurrence.
2. Where the persons who have the right to compensation for damage apply for such compensation after a lapse of three years from the day when the damage was caused, the compensation shall be paid from the day it was applied for.
3. Damage related to mutilation or any other impairment of health of the aggrieved person, as well as fatal damage shall be compensated by periodic payments or a lump sum payment of the full amount of the damage. Where the damage is compensated by periodic payments, these payments shall be indexed in accordance with the procedure established by laws.
Article 6.289. Compensation for damage after the termination of a legal person or after the death of a natural person obliged to compensate for the damage
1. After the reorganisation of a legal person obliged to compensate for the damage which has caused impairment of health of a natural person or loss of his life, claims for damages shall be brought against the successor to the rights of the legal person. After the liquidation of a state or municipal enterprise or agency, the obligation to compensate for the damage shall be transferred to the State or the municipality. In the event of death of the natural person obliged to compensate for the damage, claims for damages shall be brought against the heirs of the deceased. The latter shall satisfy such claims in accordance with the rules established in Book Five of this Code.
2. Where a legal person obliged to compensate for the damage resulting from the injury to a natural person’s health or from a natural person’s death is liquidated, the respective sums for compensation of damage shall be capitalised by an immediate recovery of a definite lump sum in accordance with the procedure established by laws, or by concluding a contract of insurance.
Article 6.290. Imputation of social insurance payments
1. Payments of social insurance awarded in cases of impairment of health or death shall be included into the amount of the repairable damage.
Article 6.291. Compensation of funeral expenses
1. In the event of death of the aggrieved person, the person liable for the damage which is related to the death shall be obliged to compensate the expenses for the funeral to the person who incurred those expenses. Only such funeral expenses that conform to the criterion of reasonableness shall be subject to compensation.
Article 6.292. Liability of a producer and a supplier of services
1. A producer or a supplier of services must compensate for damage caused by defective products or defective services.
2. A producer shall mean the manufacturer of a finished product, a component part of a product or of raw materials, the supplier of services or any other person who by marking the product/services with his name, trade mark or any other distinctive sign indicates himself as a manufacturer/supplier of services.
3. Any person who in effectuation of his commercial activity imports into the territory of the states of the European Economic Area a defective product with the aim of selling, leasing or distributing it in any other way shall be held liable as a producer.
4. In the event where it is impossible to identify the producer of a product, any person involved in the sale of the product shall be regarded as producer unless he informs the aggrieved person within a reasonable period of time of the producer or the supplier of the product. This rule shall also apply in cases where a product has been imported without the indication of the importer, although the producer of the imported product is known.
Article 6.293. Concept of a product and services
1. For the purposes of this Section, the term ‘product’ shall mean any movable thing (property), including primary agricultural products and game/poultry, as well as a movable thing (property) incorporated into another movable or immovable thing. Electricity shall also be regarded as a product.
2. For the purposes of this Section, the term ‘service’ shall mean any activity by which a concrete material or non-material need of a consumer is being satisfied, with the exception of health care services, legal services, education services, heating, gas and water supply, waste water disposal and transport services.
Article 6.294. Concept of defectiveness
1. A product/service shall be considered defective if it does not conform to the safety requirements which a consumer can reasonably expect. Whether a product/services is defective or not shall be determined on the basis of the following criteria:
Article 6.295. Conditions of liability
Damage shall be compensated if the aggrieved person proves the occurrence of damage, existence of defects in the product/service and the causal link between the defects and the damages.
Article 6.296. Solidary liability
Where damage results from the actions performed by several persons (e.g., those of the producer of a defective product and a person who incorporates the defective product into another product), these persons shall be held solidarily liable.
Article 6.297. Fault of an aggrieved person
In the event where the aggrieved person himself or the person who has the right to claim damages contribute through their fault to causing or increasing the damage, the amount of damage subject to compensation may be reduced or the recovery of the damage may be excluded at all, taking into account all the circumstances of the case.
Article 6.298. Exemption from liability
1. The producer shall be exempted from liability if he proves that:
2) taking into consideration the circumstances, there are grounds to presume that the product was not defective at the time when it was put into circulation, or that its quality deteriorated later;
3) the product was manufactured not for the purposes of sale, lease or for any other form of commercial distribution, nor it was manufactured or distributed in the course of the producer’s business activities;
4) the defect of quality of the product resulted from the observance of mandatory rules established by the corresponding state institutions;
5) at the time of putting the product into circulation, the level of scientific and technical knowledge was not sufficient to identify the defect of quality;
2. The liability of the producer shall not be reduced if the damage was caused by both the defectiveness of the product and by an act or omission of a third person.
3. The liability of the producer may be reduced or he may be exempted from liability if, taking into account all the circumstances, damage was caused by both the defectiveness of the product and the fault of the aggrieved person or that of another person for whom the aggrieved person is responsible.
Article 6.299. Damage subject to compensation
1. For the purposes of this Section, the term ‘damage’ shall mean:
2) damage caused to the aggrieved person’s property which was intended and normally used to satisfy personal needs, with the exception of the defective product itself, where the amount of the damage is not less than five hundred euros. This sum shall not apply when damage is caused by defective services.
Article 6.300. Limitation period
1. Actions for compensation of damages (damage) caused by the use of defective products/services may be brought within three years from the date on which the aggrieved person became aware or should have become aware of the damage caused to him, the defect and the identity of the producer.
Article 6.301. Concept of misleading advertising
1. For the purposes of this Section, ‘misleading advertising’ shall mean any information related to economic and commercial, financial or professional activities which is promulgated in any form and by any means of conveyance with the aim to promote the sales/supply of goods or services, including the sales/supply of immovable property, rights and obligations, where such information in any way, including the manner of its presentation, deceives or is likely to deceive the persons to whom it is addressed or whom it reaches, and which causes damage by reason of its deceptive nature.
2. In determining whether the advertising which has caused damage is misleading, account shall be taken of its truthfulness, comprehensiveness and the criteria of its presentation:
1) the statements presented in advertising are incorrect if the advertiser cannot prove their truthfulness at the moment of their announcement. Whether there is sufficient evidence to prove the truthfulness of the statements shall be decided on a case-by-case basis taking into consideration concrete circumstances of the case. Testimony of persons whose activities are not related to the promulgated information shall not be considered sufficient evidence to prove the truthfulness of that information;
2) information communicated in an advertisement is not comprehensive if a certain element of information is omitted which, taking into account other information presented in that advertisement, is necessary in order to avoid deception of the consumers of advertising;
3) the advertising is presented in such a manner and form which enables its consumers to perceive an inferred misleading proposition in that advertisement;
3. In determining whether advertising is misleading, account must be taken of the information it contains concerning:
1) the advertiser or another person, their activity, registered office, trade name, trade mark or service mark, copyright or related rights, patents, licences, etc.;
2) the goods and services: their origin or the place of production, identity, experience or qualification of the producer or supplier of services, date and method of manufacture, purpose, quantity, composition, energy value, uses, fitness for designation and suitability for consumption/use, date, place and method of tests or checks carried out on the goods or services, ways of consumption/use, compliance of goods/services with the established standard, certification, official acknowledgement and awards at fairs and exhibitions, bonuses, gifts or prizes awarded for the goods or services purchased; likewise the use of scientific or professional terms, technical or statistical data of experiments, etc.;
3) the conditions of purchase and consumption/use of goods/services: the price or the manner in which the price is calculated, terms of payment, guarantees, terms of delivery, change, repair, maintenance or return, the volume of sale and supply, the reason or purpose of a special offer, etc.;
Article 6.302. Subject of liability
1. Damage resulting from misleading advertising shall give rise to liability on the part of advertiser, producer, intermediary or publisher of advertising.
2. The advertiser shall be liable unless he proves that the damage has been caused not through his fault.
3. The producer, intermediary or publisher of advertising shall be liable for damage resulting from misleading advertising only if they were aware or ought to have been aware that the advertising was misleading or that consumers were misled as to their actions in producing and publishing the advertisement, or if the producer, intermediary or publisher of advertising fail to prove the identity of the advertiser (producer).
Article 6.303. Conditions of liability
Persons indicated in Article 6.302 of this Code shall be liable for damage resulting from misleading advertising unless they prove that the published information corresponds to reality, and that there is no fault of theirs in relation to the content or presentation of the information and the occurrence of damage.
Article 6.304. Prohibition and refutation of misleading advertising
Upon the request of the persons concerned, the court hearing the case on the compensation for damage may order prohibition of further publication of misleading advertising or the prohibition of misleading advertising which has been prepared but not yet published; the court may likewise order to publish an adequate refutation of the misleading advertising.
Article 6.305. Concept of a sales contract
1. A sales contract shall be a contract by which one party (the seller) undertakes to transfer ownership or trust of the thing/goods to another party (the buyer) and the latter undertakes to accept the thing/goods in exchange for a fixed amount of consideration (price).
2. The provisions of this Chapter shall also apply to the purchase and sale of securities and currency unless other laws establish special rules for the purchase and sale thereof.
3. Specific features of the purchase and sale of things (goods) of certain types may be established by relevant laws.
Article 6.306. Subject matter of a sales contract
1. The things which form the subject matter of a sales contract may be either existing things, owned or possessed by the seller, or things to be manufactured or acquired by the seller in future, securities and other things or property rights.
3. The subject matter of a sales contract may be characterised both by individual characteristics and by its type.
Article 6.307. Sale of the thing of another’s
1. A sales contract under which the thing is sold by a person other than the owner or than a person charged with its sale or authorised to sell it by the owner or entitled under law to sell it may be declared null and void on the basis of an action filed by the owner, possessor or buyer of the thing.
2. Such sales contract shall not be null and void if the seller becomes the owner of the thing sold during the performance of the contract.
Article 6.308. Prohibition to buy or sell a thing
1. A person charged with the sale of a thing of another person shall not have the right to purchase the thing either directly or through intermediaries, save for the exceptions established by laws. This prohibition shall also apply to a person charged with administration of the property of another person in accordance with the provisions of Book Four of this Code.
2. The person charged with administration of the property of another person may not sell his own property for a price paid out of the property which he administers.
Article 6.309. Promise of sale or of purchase
1. The promise of sale of a thing with delivery thereof to the future buyer for actual possession shall be equivalent to the purchase and sale of the thing.
2. Any amount paid on the occasion of a promise of sale shall be recognised to be a deposit (advance payment) on the price unless otherwise agreed by the parties.
Article 6.310. Expenses incidental to the formation of a sales contract -
1. Unless the parties agree otherwise, the expenses incidental to the formation of a sales contract shall be assumed by the buyer.-
2. The expenses of delivery of the things, weighing and calculating (checking the quantity) thereof shall be assumed by the seller unless otherwise agreed by the parties.
Article 6.311. Form of the sales contract
The form of the sales contract shall be established by the rules set for the form of conclusion of transactions. Laws may prescribe special rules for the formation of certain sales contracts.
Article 6.312. Sales contract containing a clause relating to the use of the thing to be sold
1. The person who is a seller of a thing may include a clause in the contract stipulating that the thing must be used for a certain purpose, without prejudice to the rights and legitimate interests of other persons.
Article 6.313. Price
2. Where the price is not fixed in the sales contract either expressly or impliedly, or the manner for fixing the price is not specified in the contract, it shall be considered, unless otherwise agreed by the parties, that the parties have impliedly made reference to the price generally charged at the time of the conclusion of the contract for such thing sold under comparable circumstances in the trade concerned and, where the price is non-existent, the price meeting the criteria of reasonableness.
3. Where the price must be fixed according to the weight of the things, it shall be determined by the net weight unless otherwise agreed by the parties.
4. If the price is to be fixed by one of the parties and the price fixed in the said manner clearly fails to meet the criteria of reasonableness, the price in the contract must be replaced by a price meeting the criteria of reasonableness regardless of the agreement between the parties.
5. Where the price is to be fixed by a third person, but he does not or cannot fix the price, the price which meets the criteria of reasonableness shall be deemed to be the price of the contract.
6. Where the price is to be fixed on the basis of criteria which are non-existent or have disappeared or which cannot be established, the price shall be fixed on the basis of the criteria of the closest value.
7. Where the contract provides that the price must be changed having regard to certain indices affecting the price (cost, expenses, etc.) but does not specify the procedure for changing the price, the price shall be determined according to the ratio of the indices at the moment of conclusion of the contract and delivery of the thing. Where the seller delays delivery of the thing, the price shall be fixed according to the ratio of the said indices at the moment of conclusion of the contract and delivery of the thing provided for in the contract.
Article 6.314. Payment of the price
1. Unless bound to pay the price at a specified place, the buyer must pay the price to the seller at the place of delivery of the thing.
2. Unless bound to pay the price at a specified time, the buyer must pay the price at the time of delivery, under the contract or this Code, of the thing or documents of disposal thereof to the buyer.
3. The buyer shall not be obliged to pay the price until he has had an opportunity to examine the things, except where the agreement between the parties provides otherwise.
5. If the buyer fails to pay in due time for the things delivered to him, the seller shall be entitled to demand payment of the price and interest as provided for by law or contract.
6. Where the buyer refuses to accept delivery of the thing and to pay the price, the seller may, at his own discretion, demand from the buyer the payment of the price or refuse to perform the contract.
7. Where the seller is bound under the contract to deliver to the buyer not only the things for which the buyer has not yet paid the price, but also other things, the seller may suspend the delivery of the latter things until the buyer pays in full for the previously delivered things, unless otherwise provided for by law or the contract.
Article 6.315. Payment for the thing in advance
1. Where the contract provides that the buyer is bound to pay a part or the whole of the price in advance of delivery of the thing (advance payment), the buyer must pay the price at the date specified in the contract.
2. If the buyer fails to pay the price in advance, the seller shall be entitled to suspend the performance of the contract.
3. Where the seller, having received the advance payment, fails to deliver the thing to the buyer within the prescribed time limit, the latter shall be entitled to demand from the seller delivery of the thing or reimbursement of the amount paid.
4. Where the seller, having received the advance payment, fails to deliver the thing to the buyer within the prescribed time limit, he shall be bound to pay interest on the received amount fixed by law or under the contract, unless otherwise provided for by the contract. Interest shall begin to accrue from the date on which the seller was bound to deliver the thing and shall be payable until the date on which the buyer is actually delivered the thing or the price paid is refunded.
Article 6.316. Insurance of the thing
Article 6.317. Obligation of the seller to deliver the things
1. Under the sales contract, the seller must deliver the things to the buyer, i.e. put the things into the buyer’s possession by the right of ownership/trust and give warranty of title to the things and the quality thereof.
2. The seller’s warranty (guarantee) of title to and quality of the things shall exist regardless of whether or not such warranty is stipulated in the sales contract (warranty under law).
3. Unless otherwise provided for by the contract, the seller must deliver the things together with their appurtenances and accessories in the condition as it was at the time of conclusion of the sales contract.
4. The seller’s obligation to deliver the things shall be deemed performed when the seller puts the things into the buyer’s possession or consents to the buyer taking possession of the things and any obstacles to the buyer’s right of possession are removed.
Article 6.318. Place and time of delivery of the things and documents
1. The seller must, together with the things, deliver to the buyer the related documents and the titles of ownership in his possession, where this is prescribed by the contract or this Code. If the seller himself needs the above documents for exercising other rights not related to the things sold, the seller must deliver to the buyer copies of the documents certified in accordance with the established procedure.
2. If the seller is not obliged to deliver the things at a specific place, the following shall be deemed to be the delivery of the things:
1) where the sales contract provides for the carriage of the things, handing of the things to the first carrier for delivery to the buyer, unless otherwise provided for in the contract;
2) where, in cases other than those referred to in point 1 of this paragraph, things have to be drawn from certain stocks or manufactured and at the time of the conclusion of the contract the parties knew thereof, placing the things at the disposal of the buyer or the person indicated by him at the place where the stocks are located or manufactured;
3) in cases other than those referred to in points 1 and 2 of this paragraph, placing the things at the disposal of the buyer at the place where the seller had his place of business or residence at the time of the conclusion of the contract or where the things are transmitted to the person indicated by the buyer.
Article 6.319. Time limit for delivery of the things
1. The seller must deliver the things to the buyer at the time provided in the sales contract. Where the time limit for delivery is not specified in the contract, the things must be delivered within a reasonable time after the conclusion of the contract. In this case, Article 6.53 of this Code shall apply accordingly.
2. The sales contract shall be deemed to contain a clause for performance within a specified period of time if it is clear from the content of the contract that, in the event of breach of that time limit, the buyer loses an interest in the contract. Where the contract contains such a clause, the seller shall be entitled to perform the contract by the expiration of the time limit or after the expiration thereof only where the buyer grants his consent.
Article 6.320. Risk of accidental perishing of or damage to the things
1. Unless otherwise provided for in this Code or in the sales contract, the risk of accidental perishing of or damage to the things shall pass to the buyer from the moment when the seller is deemed, by law or contract, to have duly fulfilled his obligation to deliver the things, regardless of the time of passing of the right of ownership.
2. The risk of accidental perishing of or damage to the things sold during the carriage thereof shall pass to the buyer from the conclusion of the sales contract, unless the contract or trade customs provide otherwise.
3. A contractual term that the risk of accidental perishing of or damage to the things passes to the buyer from the handing of the things to the first carrier may be declared null and void at the buyer’s request if, at the time of entry into the sales contract, the seller knew, or ought to have known, that the things had perished or had been damaged, however, he did not notify the buyer thereof.
4. If the thing perished or was damaged after its delivery through no fault of the seller, the buyer must pay the price to the seller. The above rule shall also apply in cases where the seller was unable to deliver the thing to the buyer because the latter did not cooperate sufficiently with the seller and thereby breached the contract.
5. Where the subject matter of the contract are things characterised by description of the kind of the things and the buyer refuses to accept the things or is otherwise in breach of the contract, the risk of accidental perishing of or damage to the things shall pass to the buyer from the moment when the seller identifies the things and notifies the buyer thereof.
6. If the buyer brings a justified action for the nullity of the contract or replacement of the things, the risk of accidental perishing of or damage to the things shall be borne by the seller.
7. If the risk of accidental perishing of or damage to the things stays with the seller even after the delivery thereof to the buyer, the seller shall be liable for the perishing of or damage to the things, even though this would have occurred as a result of the buyer’s actions. However, from the moment the buyer could have reasonably foreseen that he had to return the things to the seller, the buyer shall be responsible for the safekeeping thereof.
Article 6.321. Seller’s obligation to give warranty of title to the things
1. The seller shall be bound to warrant the buyer that the things delivered are free from any rights or claims of a third party, unless the buyer agreed in advance to accept the things subject to such rights or claims, whereas the seller gave a due notice thereof to the buyer.
2. The seller shall be bound to discharge the delivered things of pledge (hypothec) irrespective of the registration of the pledge (hypothec), unless the buyer, after he has been given notice by the seller of the encumbrances, agrees to buy the things.
3. The seller shall be bound to warrant the buyer that the delivered things have not been seized and they are not an object of a legal action, also that the seller has not been deprived of the right to dispose of the things and that there are no encumbrances.
4. The seller of an immovable thing shall be bound to warrant the buyer that there are no violations or restrictions of public law that could affect the buyer’s right of ownership of that thing.
5. In cases where, at the time of conclusion of the contract, the seller has duly informed the buyer of the rights of third parties to the delivered things or of encumbrances of these rights, likewise where such rights of the third parties or such encumbrances have been registered in the public register, the buyer may not invoke the circumstance that the seller has breached his obligation.
6. Where the seller breaches his obligations specified in paragraphs 1 to 4 of this Article, the buyer shall be entitled to demand reduction of the price or to rescind the contract, unless the seller proves that the buyer was aware or ought to have been aware of the rights of third parties to the things or encumbrances of such rights.
Article 6.322. Obligations of the seller and the buyer in case of an action brought by a third party for the taking of the thing
1. Where an action for the taking of the thing is brought against the buyer by a third party on the grounds which arose before the performance of the sales contract, the buyer must bring the seller to be a party to the suit and the seller must join in the suit on the part of the buyer.
2. If the buyer fails to bring the seller to be a party to the suit, the seller shall be exempt from liability with respect to the buyer if he proves that, by taking part in the suit, he would have been able to prevent the taking of the sold thing from the buyer.
Article 6.323. Seller’s liability where the sold thing is revendicated against the buyer
1. Where the sold thing is revendicated against the buyer by the court on the grounds which arose before the performance of the contract, the seller must restore the price and pay the damages suffered by the buyer, unless the seller proves that the buyer was aware or ought to have been aware of the grounds.
Article 6.324. Consequences of failure to perform the obligation to deliver the thing
1. If the seller refuses without a valid reason to deliver the thing to the buyer, the latter shall have the right to refuse to perform the sales contract and claim damages.
Article 6.325. Consequences of failure to perform the obligation to deliver appurtenances, accessories and deeds
1. In case of failure or refusal by the seller to deliver to the buyer the appurtenances, accessories or deeds that he is obliged to deliver under the contract or by law, the buyer shall have the right to fix a reasonable time limit for the seller to perform the obligation.
Article 6.326. Seller’s obligation to preserve the sold thing
1. Where the right of ownership or trust passes to the buyer before the delivery of the sold thing, the seller must preserve the thing before the delivery and prevent it from deteriorating.
Article 6.327. Requirements in respect of the thing
1. The quality, quantity and other criteria of the thing sold must comply with the terms of the contract or, in the absence of contractual specifications, correspond to the regular requirements.
2. The seller shall not be liable under paragraph 1 of this Article for any lack of conformity of the thing if, at the time of the conclusion of the contract, the buyer was aware or could not have been unaware of such lack of conformity.
3. The seller shall be liable under the contract and this Code for any lack of conformity which exists at the time when the right of ownership passes to the buyer, even though the lack of conformity becomes apparent at a later date.
4. The seller shall be also liable for any lack of conformity which occurs after the time indicated in paragraph 3 of this Article and which is due to a breach of any of the seller’s obligations, including a breach of any guarantee that for a period of time the things will remain fit for their ordinary purpose or for some particular purpose or will retain the specified qualities or characteristics.
Article 6.328. Right to examine the thing
1. Unless otherwise agreed by the parties, the buyer shall have the right, from the moment of entry into the sales contract or presentation of the offer, before making the payment or before accepting the thing, to examine the thing at any place, at any time or in any manner which correspond to the criteria of reasonableness.
2. Unless otherwise agreed by the parties, the expenses of examining the thing shall be assumed by the buyer. The buyer shall have the right to claim from the seller reimbursement of the expenses of the examination if it is established during the examination that the thing does not correspond to the requirements set out for it.
Article 6.329. Quantity of things
1. The quantity of things which the seller is bound to deliver to the buyer shall be established in the sales contract in units of weight, quantity, volume or other units or in monetary terms. The contractual term regarding the quantity of the things may be agreed between the parties, establishing in the contract only the procedure for determining the quantity. Where the performance of the contract has been initiated, the contract shall be deemed concluded in respect of the quantity of things actually accepted by the buyer.
Article 6.330. Legal consequences of breach of the contractual term relating to the quantity of the things
1. If the seller, in breach of the contract, delivers to the buyer a quantity of things less than that indicated in the sales contract, the buyer shall be entitled, unless the contract provides otherwise, either to demand that the buyer makes up any deficiency in the quantity or to reject the delivered things and refuse to pay the price or, where the price has already been paid, to claim recovery of the price and damages.
2. Where the seller delivers to the buyer a quantity of things greater than that indicated in the sales contract, the buyer must give notice thereof to the seller within the time limit specified by laws or in the contract or, where there is no fixed time limit, within a reasonable time. If, upon receipt of the buyer’s notice, the seller fails to notify within a reasonable time of further actions that should be taken, the buyer shall have the right to take delivery of all things or refuse to take delivery of the things in excess of the contractual quantity, unless otherwise provided for in the contract.
Article 6.331. Range of things
1. Where it is provided in the sales contract that the seller must deliver things of a particular kind, model, size, colour or property characterised by other description (range of things), the seller must deliver things which are in conformity with the range of things agreed by the parties.
2. Where neither the range of things nor the procedure of determination thereof is specified in the contract, but it is evident from the content and substance of the contract that the things must conform with a certain range, the seller must deliver to the buyer things of the range that would conform with the needs of the buyer of which the seller is aware of at the moment of entry into the contract, or he shall be entitled to repudiate the contract.
Article 6.332. Legal consequences of breach of the condition concerning the range of things
1. Where the seller delivers to the buyer things which do not conform with the range provided for in the sales contract, the buyer shall have the right to refuse to accept delivery and pay for it or, if the payment has already been made, demand restoration of the price paid, unless the contract provides otherwise.
2. Where the seller delivers to the buyer both the things which conform with the range and those which do not, the buyer shall be entitled to choose:
1) to accept the delivery of the things which conform with the range and refuse to accept the non-conforming things;
3) to demand replacement of the things which do not conform with the range with the things provided for in the contract;
3. Where the buyer refuses to accept the delivery of the things which do not conform with the range or demands replacement thereof, he shall have the right to refuse to pay for the said things and, where the payment has already been made, to demand restoration of the price paid.
4. The things which do not conform with the range shall be deemed accepted if the buyer fails, within a reasonable time after the receipt thereof, to give notice to the seller of his refusal to accept the things.
5. If the buyer does not refuse to accept the things which do not conform with the range, he must pay for them the price agreed with the seller. Where the seller fails through his own fault to agree with the buyer upon the price within a reasonable time, the buyer must pay for the things at the price usually paid at the time of conclusion of the contract under analogous circumstances for analogous things.
Article 6.333. Quality of things
1. The seller must deliver to the buyer things the quality of which meets the terms and conditions of the sales contract and the requirements of documents determining the quality of things. The seller shall be liable for the defects of the things provided the buyer proves that the defects appeared before the delivery of the things or due to reasons which arose before the delivery of the things.
2. The laws or the contract may provide for the seller’s obligation to warrant the buyer that the things meet the terms and conditions of the contract and to warrant, at the moment of conclusion of the contract, against any latent defects which render them unfit for the use for which the things were intended or which so diminish their usefulness that the buyer would not have bought them or paid so high a price had he been aware of them. However, the seller shall not be obliged to warrant against any latent defects known to the buyer or any apparent defects that can be perceived by a prudent and diligent buyer without any need of expert inspection.
3. Where the seller warrants the quality of the things, he shall be liable for the defects thereof unless he proves that the defects appeared after the delivery of the things to the buyer due to the buyer’s breach of the rules governing the use or storage of the things or through the fault of third persons or as a result of superior force.
4. Where the quality of the things is not covered by the contract, the seller must deliver the things to the buyer in the condition fit for the use for which they are usually intended. If, however, at the time of conclusion of the contract the buyer made known to the seller the particular purpose for which he buys the things, the seller must deliver to the buyer things of such quality which would make the things fit for that particular purpose.
5. Where the contract is concluded according to a sample, model or description, the seller must deliver to the buyer things which correspond to the sample, model or description, except for the derogations set out in the contract.
6. The things shall be deemed not to meet quality requirements if they lack the qualities which the buyer could have reasonably expected, i.e. which are necessary for the things to be fit for the purpose they would ordinarily be used or for a particular purpose.
7. The things shall be deemed not to conform with the contract if the quantity, volume or weight of the delivered things does not conform with the conditions of the contract or things of the kind other than that provided for in the contract have been delivered.
8. Sale under judicial authority shall not give rise to the seller’s obligation to warrant the quality of the sold things, whereas the buyer may not invoke the fact that the seller has sold a thing of inadequate quality, except where the seller was aware of the defects of the things sold.
9. Where the rights of succession are sold without specifying the property, the seller shall be obliged to warrant only that he is the successor.
Article 6.334. Rights of buyers of things of inadequate quality
1. Where the things sold do not correspond to the quality requirements and the seller has not discussed the defects with the buyer, upon buying things of inadequate quality the buyer shall be entitled to demand, at his own choice:
1) that the thing which is characterised in the contract by its kind be replaced by the thing of adequate quality unless the defects are minor or appeared due to the fault of the buyer;
3) that the seller eliminates the defects free of charge within a reasonable time or reimburses the buyer’s expenses for the elimination of defects if these can be eliminated;
2. If the purchased things perish by reason of a latent defect that existed at the time of conclusion of the sales contract, the seller must restore the price to the buyer. If the loss results from superior force, or is due to the fault of the buyer, the buyer shall be only compensated for the difference between the value of the things at the time of their loss and the price of the things.
3. If the things perished by reason of a latent defect of which the seller was aware or ought to have been aware, he must not only restore the price, but also pay all damages suffered by the buyer.
4. The terms and conditions of the contract excluding or limiting the seller’s liability for the defects of the things shall be null and void unless he has disclosed to the buyer the defects of which the seller was aware or ought to have been aware or in the case where a buyer buys things at his own risk from a seller who is not a professional seller.
Article 6.335. Period of warranty of quality of things
1. The law or the contract may provide that the warranty of quality of things given by the seller is valid for a certain period of time. In this case, the warranty shall be valid for all component parts of the things unless otherwise established by law or the contract.
2. The period of warranty shall start to run from the moment of delivery of things unless the contract provides otherwise.
3. Where obstacles within the seller’s control prevent the buyer from using the things for which a period of warranty of quality has been set, the warranty period shall not run until the seller removes the obstacles.
4. Unless otherwise specified in the contract, the period of warranty shall be extended for the period the buyer was unable to use the things due to the defects, provided the buyer duly notified the seller of the perceived defects.
5. The component parts shall have the same period of warranty of quality as the principal thing, which shall commence to run together with the period of warranty of quality of the principal thing, unless otherwise provided for by the contract.
6. Where the seller replaces a thing or its component part within a fixed period of warranty of quality, the period of warranty of quality that has been fixed for the replaced thing or its component part shall be applied with respect to the thing or the component part presented in replacement, unless the contract provides otherwise.
Article 6.336. Period of fitness for use of things
1. Law or other legal statutes may fix periods of time upon the expiration whereof relevant items of things shall be deemed unfit for their ordinary purpose (period of fitness for use). In such cases, the producer, importer, seller or any other person who distributes the things in his own name must explicitly indicate the period of fitness for use of the things.
2. A thing for which the period of fitness for use has been fixed must be delivered to the buyer by the seller within the time limit which would allow the buyer to use the thing for its purpose before the expiration of the period of its fitness for use.
Article 6.337. Inspection of quality of things
1. The laws or the sales contract may establish mandatory inspection of quality of the things and the procedure and time limits for performing the inspection.
2. Unless the procedure and time limits for quality inspection of the things are established by laws or the contract, the inspection of quality of the things must be carried out within a reasonable time period and in accordance with the usual conditions for the quality inspection of things and custom of the trade.
3. Where the laws or the sales contract provide for the seller’s obligation to inspect the quality of the things which are delivered to the buyer (trial, examination, measurement, etc.), the seller must, together with the things, hand over to the buyer documents certifying the performance of the quality inspection of the things.
Article 6.338. Time limits for filing claims regarding the defects of the sold things
1. Unless the contract or laws establish otherwise, the buyer shall have the right to file claims regarding the defects of the things sold, provided they were established within the time limits specified in this Article.
2. Where the time period of warranty of quality or fitness for use of the item of the thing has not been established, the buyer may file claims regarding the defects of the thing within a reasonable time but not later than within two years from the day of delivery of the thing, unless a longer time limit is provided for by law or the contract. The time limit for filing claims in respect of the defects of the thing transported or conveyed by post shall run from the day of arrival of the thing at the appointed destination.
3. Where the time period of warranty of quality of the thing has not been fixed, claims regarding the defect of the thing may be filed provided the defects are established within the period of warranty. If the period of warranty of quality valid for the component parts is shorter than the period of warranty of quality of the principal thing, the claim regarding the defects of the component part may be filed within the period of warranty of quality of the principal thing. Where a period of warranty of quality applied in respect of the component part is longer than that of the principal thing, a claim regarding the defects of the component part discovered within the period of warranty may be filed regardless of the expiration of the period of warranty of quality of the principal thing.
4. The buyer may file claims regarding a thing, in respect of which a time period of fitness for use has been fixed, provided the defects are established within the time period of fitness for use of the thing.
5. Where the period of warranty of quality fixed for a thing in the contract is less than two years and the defects of the thing are established after the expiration of the time period but not after the lapse of two years from the day of delivery of the thing, the seller shall be liable for the defects of the thing if the buyer proves that the defect appeared before the delivery of the thing or due to the reasons which appeared before the delivery and for which the seller is liable.
Article 6.339. Completeness of things
1. The seller must deliver to the buyer things which are in conformity with the requirements of the terms and conditions of the sales contract, which determine the completeness of things.
Article 6.340. Complete set of things
1. If the sales contract provides for the seller’s obligation to deliver to the buyer a certain assortment of things constituting a set (set of things), the seller shall be deemed to have fulfilled his obligation only when he delivers all the items constituting the set.
Article 6.341. Legal consequences of delivery of incomplete things
1. In case of delivery by the seller of incomplete things, the buyer shall have the right to demand, at his choice:
2. Where the seller fails to deliver the missing accessories within a reasonable time, the buyer shall have the right, at his choice:
Article 6.342. Containers and packaging of things
1. Unless the contract or the nature of the obligation provides otherwise, the seller must deliver to the buyer things in containers and packaged, except in cases where due to the nature of the things there is no need to deliver them in containers or packaged.
2. Where the contract does not lay down requirements regarding the containers and packaging of things, the things must be delivered packaged in the manner customary for such things, whereas in cases where the containers and packaging may be varied, the things must be packaged in such a manner or in such containers which would ensure fitness of the type of things during storage or carriage under normal conditions.
Article 6.343. Legal consequences of violation of requirements relating to containers and packaging of things
1. Where the seller, in breach of his obligation, delivers to the buyer things in bulk or without containers or incorrectly packaged or in unfit containers, the buyer must refuse to accept them and require the seller to package the things or to deliver them in containers or to supply the packaging or containers, unless otherwise provided for by the contract or determined by the nature of the obligation or things.
Article 6.344. Buyer’s obligation to pay the price and other expenses
1. The buyer shall be obliged to pay the price of the things within the time limits laid down in the contract or laws and at the specified place.
2. For late payment of the price, the buyer shall be obliged to pay interest, which starts to run from the time of delivery of the things or the expiration of the period agreed by the parties, unless the contract or laws provide otherwise.
3. The buyer shall also be obliged to pay any other expenses incidental to the deed of purchase and sale.
4. Where the laws establish that the sales contract must be concluded in a notarised form and thereafter must be registered in the public register, the buyer shall be obliged to pay the price of purchase into the notary’s deposit account at the time of conclusion of the contract, whereas the notary shall transfer the money to the seller following the registration of the contract in the public register, unless the agreement between the parties provides for a different settlement procedure.
Article 6.345. Legal consequences of the buyer’s non-performance of the obligation to pay the price
1. Where the movable things have already been delivered to the buyer but the latter fails to pay the sale price, the seller shall have the right to repudiate the contract, notifying the buyer thereof in writing and recover the things. If only a part of the price has not been paid, the seller may recover only the unpaid part of the thing, provided the thing is divisible. The seller shall retain the right of recovery only until the things are in the country of their delivery or until they have been transferred for consideration to a third party, have not been pledged or subject to the right of usufruct.
2. In case of insolvency of the buyer, the seller may not recover the things for which the price has not been paid if, within a reasonable time, the buyer’s administrator offers to pay the price or presents a guarantee of performance of the obligation.
Article 6.346. Buyer’s obligation to accept the things
1. The buyer must accept the delivered things, unless he is entitled to demand replacement of the things or rescission of the contract.
2. Unless otherwise provided for by laws or the contract, the buyer must take such measures and perform such actions which are necessary, in accordance with the requirements normally expressed, for the due delivery and acceptance of things.
Article 6.347. Buyer’s obligation to preserve the things
1. Where the buyer has the right under the law or the contract to return to the seller the things delivered to him, the buyer must properly preserve the things to be returned until their return. In this case, the buyer shall be entitled to retain them until he has been reimbursed his reasonable expenses by the seller.
2. If the things to be returned to the seller have been placed at the buyer’s disposal at their destination, he shall be obliged to return them at his own expense, unless the seller or his agent is present at the destination or provided this does not cause the buyer unreasonable inconvenience or unreasonable expense.
Article 6.348. Buyer’s obligation to notify the seller of improper performance of the sales contract
1. The buyer must notify the seller of the breach of any terms and conditions of the contract specifying the quality, quantity, range, completeness, containers and packaging of the things within the time limit established by law or the contract or, where the time limit is not established, within a reasonable time after the breach of a certain term or condition was discovered or, in view of the nature and purpose of the things, ought to have been discovered.
2. In case of failure by the buyer to perform the obligation laid down in paragraph 1 of this Article, the seller shall have the right to refuse, fully or in part, to meet the buyer’s demands to replace the things, to deliver the missing things, to eliminate the defects of the things, to complete the things, to pack the things or deliver them in containers or to replace the containers or packaging, provided that he proves that following the breach of the obligation by the buyer his demands can no longer be met or that meeting of the demands would cause the seller unreasonable expenses compared to those the seller would have incurred if the buyer had duly notified the seller of the breach of the contract.
Article 6.349. Prohibition to dispose of things
1. If the sales contract provides that the title to delivered things is reserved until the payment of full price or fulfilment of other conditions, before the title to the things passes to the buyer, the latter shall have no right to sell or otherwise dispose of the things, unless the purpose of the contract or characteristics of the things determine otherwise.
Article 6.350. Concept of a consumer sales contract
1. Under a consumer sales contract, the seller, being a trader, shall undertake to sell a good to the buyer, being a consumer, while the buyer shall undertake to pay the price. A consumer contract under which goods and services are sold shall be considered a consumer sales contract.
Article 6.3501. Scope of application
1. The provisions of this Section shall apply to consumer sales contracts, including contracts relating to goods to be produced.
2. The provisions of this Section shall not apply to contracts for the supply of digital content or digital services other than digital content and digital services which comply with the following requirements:
1) they are incorporated in or inter-connected with a good with digital elements in such a way that without the digital content or digital service the good would not be able to perform its functions;
2) they are supplied together with a good containing digital elements under the same sales contract, irrespective of whether the digital content or digital service is supplied by the seller or another person. In the event of doubt as to whether the supply of incorporated or inter-connected digital content or an incorporated or inter-connected digital service forms part of the sales contract, the digital content or digital service shall be presumed to be covered by the sales contract.
3. The provisions of this Section shall not apply to:
2) goods which are realised in accordance with the procedure laid down by the Code of Civil Procedure during enforcement proceedings and in other cases provided for by laws;
4. For the purposes of this Section:
1) ‘functionality’ means the ability of goods to perform their functions having regard to their purpose;
2) ‘compatibility’ means the ability of the goods to function with hardware or software with which goods of the same type are normally used, without the need to convert the goods, hardware or software;
3) ‘interoperability’ means the ability of the goods to function with hardware or software different from those with which goods of the same type are normally used;
Article 6.351. Form of a consumer sales contract
Unless the laws provide otherwise, a consumer sales contract shall be deemed concluded from the moment the buyer chooses the thing to be purchased or expresses his will in any other manner.
Article 6.352. Public offer
1. Presentation of the things in advertisements, general circulation catalogues or descriptions shall be deemed a public offer, provided that the principal conditions of the sales contract are specified.
2. Display of things in shop windows, on the counter or in other places of their sale, also demonstration of samples of the things or offering of information on the things on sale (description, catalogues, photographs, etc.) in the place of their sale shall be considered as public offer, irrespective of whether or not the price of the thing or other conditions of the sales contract are indicated, unless the seller explicitly and unambiguously states that certain things are not for sale.
Article 6.353. Seller’s obligation to inform the buyer
1. The seller must provide the buyer with information in accordance with Articles 6.2286 or 6.2287 of this Code.
2. The seller must indicate the selling price of each thing or of the things of one kind and the price of a suitable standard unit of a thing. The selling price shall be the final price of a thing or of the quantity of things, including all taxes. A standard unit price shall mean the price, including all taxes, of one kilogram, one litre, one metre, one square metre or one cubic metre of a thing.
3. The selling price of a thing or the price of a standard unit may be omitted where the things:
4. The price of a standard unit of the things may be omitted where:
5. Only a standard unit price of things must be indicated where things are not pre-packaged and their quantity is determined in the presence of the customer.
6. The selling price and the standard unit price must be conspicuous, unambiguous, clearly legible and easily identifiable.
7. In any advertisement of the thing, the indicated selling price must be accompanied by the standard unit price, save for the exceptions specified in paragraphs 3 and 4 of this Article.
8. The seller must provide the buyer with information about the price reduction applied. Any notice of reduction of the price of a thing must include information on the previous price. The previous price shall be considered to be the lowest price charged by the seller during the 30-day period preceding the price reduction. In cases where the price of a thing is gradually reduced, the previous price shall be considered to be the price of the thing prior to its first reduction. If the thing has been offered to buyers for less than 30 days, the actual time limit for offering the thing to buyers shall apply. The provisions of this paragraph shall not apply to perishable products or to things which rapidly lose their commercial value.
9. The buyer shall be entitled to examine the things before entering into the contract and to demand that the seller inspect the things in his presence or demonstrate the way they are used, provided this is possible given the nature of the things.
10. In case of failure by the seller to promptly provide the buyer with an opportunity to obtain the information specified in paragraphs 1 to 8 of this Article at the place of sale of the things, the buyer shall have the right to claim from the seller compensation of damages for any loss occasioned by avoidance to conclude the contract or, where the contract has been concluded, to rescind the contract unilaterally within a reasonable time and to demand refund of the price paid and compensation of other damages. The seller must refund the price paid by the buyer and compensate for other damages without delay, but not later than fourteen days after the date of termination of the contract or the date of receipt of the buyer’s claim for damages.
11. The seller who fails to provide the buyer with an opportunity to receive the relevant information about the things shall be liable for the defects of the things which appeared after the delivery of the things to the buyer, if the buyer proves that the defects appeared because he did not possess the relevant information.
Article 6.354. No longer effective from 13 June 2014.
Article 6.355. Sale of things conditional on acceptance thereof by the buyer within a certain period
1. A consumer sales contract may contain a provision that the buyer is bound to accept the things within a certain period fixed in the contract, within which the seller has no right to sell the things to another buyer.
2. Unless otherwise provided for in the contract and if the buyer fails to arrive within the fixed period or fails to perform other actions necessary for the acceptance of the things within the period fixed in the contract, the buyer shall be deemed to have refused to perform the contract.
Article 6.356. Sale of things by sample
1. A consumer sales contract may be concluded on the basis of samples of the things offered to the buyer by the seller (description of the goods, catalogues of goods, models, etc.).
2. Unless otherwise provided for by laws or the contract, a contract by sample shall be deemed concluded when the seller delivers the things to the destination specified in the contract, and in case there is no indication of the destination in the contract, to the consumer’s place of residence.
3. The buyer shall have the right to repudiate the contract by sample before the transfer of the things. In such case, however, the buyer must reimburse the seller’s reasonable expenses incidental to the performance of the contract prior to the repudiation, unless the contract provides otherwise.
Article 6.357. No longer effective from 13 June 2014.
Article 6.358. Sale of things by vending machines
1. If things are sold by vending machines, the owner of the machines must inform the buyer in a notice on the machine or in any other way about the seller (seller’s name and registered office), mode of operation of the machine, as well as the actions the buyer is bound to perform in order to be delivered the thing and the sequence of the actions.
2. In this case, the contract shall be deemed concluded from the moment the buyer performs the actions required in order to obtain delivery of the thing from the vending machine.
3. In case of non-delivery to the buyer of the thing payment for which has been made, the seller must promptly, upon the buyer’s demand, deliver the thing or restore the price.
Article 6.3581. Requirements for the sale of certain types of things and certain types of places of trading
Requirements for the sale of certain types of things only in designated places of trading (specialised shops, specialised divisions of shops, markets or other places of trading) and requirements for certain types of places of trading may be laid down by law.
Article 6.359. Sale of things conditional on their delivery to the buyer
1. Where a consumer sales contract provides that the things must be delivered to the buyer, the seller shall be bound to deliver the things to the place indicated by the buyer or, where there is no indication of the place of delivery, to the buyer’s place of residence.
2. The seller must deliver the things to the buyer by transferring them or their possession to him not later than within thirty days from the conclusion of the contract, unless the parties agree otherwise.
3. The contract shall be deemed performed from the moment of delivery of the things to the buyer or, in the buyer’s absence, from the delivery of the things to the person who presents a receipt or any other document confirming conclusion of the contract or the right to receive the delivered things, unless the contract provides otherwise.
4. Where the seller fails to fulfil his obligation to deliver the things within the time limit set in the contract or in paragraph 2 of this Article, the buyer shall present a demand for the delivery of the things within an additional reasonable period, taking into account the circumstances. Where the seller fails to deliver the things within the additional time limit set by the buyer, the buyer shall have the right to unilaterally terminate the contract.
5. Paragraph 4 of this Article shall not apply where the seller has refused to deliver the things or where the delivery within the time limit laid down in the contract is essential in the light of all the circumstances relating to the conclusion of the contract or where, before the conclusion of the contract, the buyer has informed the seller that the delivery of the things within the time limit laid down in the contract is essential. In these cases, where the seller fails to deliver the things within the time limit set in the contract or in paragraph 2 of this Article, the buyer shall have the right to unilaterally terminate the contract without delay.
Article 6.3591. Risk transfer
Where a consumer sales contract provides for the carriage of the things and the seller dispatches the things to the buyer, the risk of accidental perishing of or damage to the things shall pass to the buyer when he or a person designated by him, other than the carrier, accepts the things. Where the things are handed over to the carrier selected by the buyer and the seller has not offered such delivery, the risk provided for in this paragraph shall pass to the buyer when the things are handed over to the carrier.
Article 6.360. No longer effective from 13 June 2014.
Article 6.361. Lease-purchase contract
1. It may be stipulated in the contract that until the passing of ownership of the things to the buyer he remains the lessee of the delivered things (lease-purchase contract).
Article 6.362. Replacement and return of things
1. The buyer shall be entitled to replacement of the purchased things, other than food products, at the place of purchase or elsewhere, as indicated by the seller, within fourteen days from the delivery thereof to the buyer, unless the seller has set a longer time period, receiving in exchange analogous things of different measurements, form, colour model or completeness. In case of a difference in prices between the things to be replaced and things offered in replacement, the buyer must pay the seller the recalculated price.
2. If the buyer does not possess things suitable for replacement, the buyer shall have the right to return the things to the buyer within the time period set in paragraph 1 of this Article and recover the money paid. The seller must refund the buyer the price paid by the latter without delay, but not later than within fourteen days from the return of the thing.
3. The buyer’s claim for replacement of the things shall be satisfied provided the things have not been in use, have not been damaged, have retained their fitness for use, and have not lost their merchantability and the buyer is in possession of proof confirming that he purchased the things from the seller.
Article 6.363. Quality requirements for goods
1. The seller must deliver to the consumer goods meeting the requirements laid down in this Article.
2. The goods must comply with all of the following requirements, provided that they are applicable:
1) be of the description, quantity and quality, and possess the functionality, compatibility, interoperability and other features, as required by the sales contract;
2) be fit for any particular purpose for which the consumer requires them and which the consumer made known to the seller at the latest at the time of the conclusion of the sales contract, and in respect of which the seller has given acceptance;
3) be supplied with all accessories and instructions, including on installation, as required by the sales contract;
3. In addition, the goods must meet all of the following requirements:
1) be fit for the purposes for which goods of the type would normally be used, taking into account any applicable legal provisions, technical standards or, in the absence of such technical standards, applicable codes of conduct;
2) where applicable, be of the quality such as the sample or model supplied to the consumer by the seller before the conclusion of the contract and correspond to the description of that sample or model;
3) where applicable, be delivered along with any accessories (including packaging, installation or other instructions) which the consumer may reasonably expect to receive;
4) be of the quantity and possess the features, including in relation to durability, functionality, compatibility and security, normal for goods of the same type and which the consumer may reasonably expect, given the nature of the goods and taking into account any public statements made by or on behalf of the seller, or other persons, including the manufacturer, particularly in advertising or labelling the goods;
4. The public statements referred to in point 4 of paragraph 3 of this Article shall not bind the seller if he proves that at least one of the following conditions is met:
1) the seller was not, and could not reasonably have been, aware of the public statement in question;
2) by the time of conclusion of the contract, the public statement had been corrected in the same way as, or in a way comparable to how, it had been made;
5. The seller of goods with digital elements must ensure that the consumer is informed of and supplied with updates, including security updates, that are necessary to ensure the adequate quality of the goods:
1) for the period that the consumer may reasonably expect, given the type, purpose and digital elements of the goods and taking into account the circumstances and nature of the contract, where the sales contract provides for a single act of supply of digital content or a digital service;
6. Where the consumer fails to install, within a reasonable time, updates supplied in accordance with paragraph 5 of this Article, the seller shall not be liable for any lack of conformity resulting solely from the lack of the relevant update, provided that both of the following conditions are met:
1) the seller informed the consumer about the availability of the update and the consequences of the failure of the consumer to install it;
7. Where, at the time of the conclusion of the sales contract, the consumer was specifically informed that a particular characteristic of the goods was deviating from the requirements laid down in paragraphs 3 or 5 of this Article and the consumer expressly and separately accepted that deviation when concluding the contract, it shall be considered that the goods are of adequate quality.
8. The seller shall be liable for any lack of conformity resulting from the incorrect installation, fitting or assembly of the goods in the following cases:
1) the installation is the subject matter of the sales contract and it has been carried out by or under the responsibility of the seller;
Article 6.364. Statutory guarantee
1. The seller shall be liable to the consumer for any non-conformity with the quality requirements of the goods, including goods with digital elements, at the time of delivery of the goods and which becomes apparent not later than within two years from the delivery of the goods (statutory guarantee).
2. Where the contract for the sale of goods with digital elements provides for a continuous supply of digital content or a digital service over a period of time, the seller shall be liable for any defects in the digital content or digital service which occur or become apparent within two years of the delivery of the goods with digital elements. Where the contract provides for a continuous supply of the digital content or digital service for more than two years, the seller shall be liable for any defects in the digital content or digital service which occur or become apparent during the period of supply of the digital content or digital service provided for in the contract.
3. The seller and the consumer may agree on a shorter term of liability of the seller for second-hand goods than laid down in paragraphs 1 and 2 of this Article, but this period may not be less than one year.
4. A defect in goods, including goods with digital elements, which becomes apparent within one year of its delivery shall be deemed to have existed at the time of delivery, unless the seller proves otherwise or where this is incompatible with the nature of the goods or the nature of the defect.
5. Where the contract for the sale of goods with digital elements provides for a continuous supply of digital content or a digital service over a period of time, the burden of proof with regard to whether the digital content or digital service is of adequate quality during the period specified in paragraph 2 of this Article shall shall lie with the seller if the defect becomes apparent during that period.
Article 6.3641. Consumer rights when the goods are of inadequate quality
1. Where the goods do not meet the quality requirements, the consumer shall have the right, in accordance with the conditions laid down in this Article, to demand that the adequate quality of the goods be ensured, a proportional reduction in the price of the goods or to unilaterally terminate the sales contract.
2. In order to ensure the adequate quality of the goods, the consumer shall have the right to choose to require repair or replacement of the goods, unless it would be impossible to comply with the requirement or it would entail disproportionate costs for the seller compared to the costs of complying with the other requirement, taking into account all the circumstances, including:
3. The seller shall have the right to refuse to ensure the adequate quality of the goods if repair or replacement of the goods is impossible or would entail disproportionate costs for the seller, taking into account all the circumstances, including those referred to in points 1 and 2 of paragraph 2 of this Article.
4. The consumer shall have the right to demand a proportionate reduction in the price of the goods or to terminate the sales contract in accordance with Article 6.3643 of this Code where:
1) the seller has not repaired or replaced the goods or the repair or replacement of the goods does not meet the requirements laid down in paragraphs 2 and 3 of Article 6.3642 of this Code, or the seller has refused to ensure the adequate quality of the goods in accordance with paragraph 3 of this Article;
2) the defect of the goods has occurred despite the seller’s attempts to ensure the quality of the goods;
5. The consumer shall not have the right to terminate the contract where the defect is minor. The burden of proof with regard to whether the defect is minor shall lie with the seller.
6. The consumer shall have the right to suspend payment of the price or part of the price of the goods until the seller performs the seller’s obligations under this Section.
7. The consumer shall be entitled to compensation for damage caused by the inadequate quality of the goods.
8. In order to exercise the rights set out in this Article, the consumer must inform the seller of the non-conformity with the quality requirements of the goods not later than within two months from detection of the non-conformity. The burden of proving that the consumer has missed that time limit shall lie with the seller.
Article 6.3642. Repair or replacement of the goods
1. The seller shall have an obligation to ensure that the goods are repaired or replaced in compliance with the following requirements:
1) free of charge, i.e. without charging for the costs necessary to repair or replace the goods, including costs of postal services, transport services, work or materials;
2) within a reasonable time from the moment the seller has been informed by the consumer about the inadequate quality of the goods;
2. The consumer shall return the goods to the seller for repair or replacement. The costs of returning the goods shall be borne by the seller.
3. If the goods have been properly installed, fitted or assembled before the defect becomes apparent, taking into account their nature and purpose, the seller’s obligation to repair or replace the goods shall include the removal of the goods and the installation of the repaired or replaced goods or covering the costs of removing and installing the goods.
Article 6.3643. Price reduction and termination of the sales contract
1. The price reduction must be proportionate to the decrease in the value of the goods received by the consumer compared to the value that the goods would have in the absence of defects.
2. The consumer shall exercise his right to terminate the sales contract by submitting to the seller a statement expressing his decision to terminate the sales contract.
3. Where only part of the goods delivered under the sales contract become defective and there are grounds for terminating the contract laid down in Article 6.3641 of this Code, the consumer shall be entitled to terminate the sales contract only in respect of defective goods and other directly related goods acquired together.
4. In the event of termination of the sales contract by the consumer:
Article 6.3644. Specific features of the quality guarantee (commercial guarantee) of the goods
1. ‘Quality guarantee (commercial guarantee) of the goods’ means the obligation of the seller or manufacturer (guarantor) to the consumer, additional to the statutory guarantee of the goods, to refund the price paid or to replace, repair or provide maintenance services of the goods if the goods do not meet the conditions or other requirements set out in the quality guarantee document or advertising published at the time of conclusion of the contract or prior to the conclusion of the contract or other requirements not related to those laid down in Article 6.363 of this Code. For the purposes of this Article, the ‘producer’ means the manufacturer of goods, the importer of goods into the territory of the Union or any person purporting to be a producer by placing his name, trade mark or other distinctive sign on the goods.
2. The quality guarantee of the goods shall bind the guarantor in accordance with the terms and conditions set out in the quality guarantee document and related advertising published at the time of the conclusion of the contract or before the conclusion of the contract. Unless other legal acts provide otherwise, where the producer provides the consumer with a quality guarantee as to the durability of the goods during a given period, the producer shall be directly liable to the consumer for the repair or replacement of the goods in accordance with Article 6.3642 of this Code for the duration of that guarantee. The producer may offer more favourable conditions to the consumer in the quality guarantee document for the durability of the good.
3. Where the terms and conditions set out in the quality guarantee document are less favourable to the consumer than those set out in the related advertising, the terms and conditions set out in the advertising shall apply, unless the advertising has been corrected prior to the conclusion of the contract, in the same or a similar way to that in which it was published.
4. The quality guarantee document must be made available to the consumer on a durable medium at the latest on delivery of the goods. The quality guarantee document must be be expressed clearly and intelligibly. It must contain all of the following information:
1) a clear statement that, as a result of the inadequate quality of the goods, the consumer is entitled by law to require the seller to ensure the free exercise of the rights set out in Article 6.3641 of this Code and that the quality guarantee of the goods does not affect the exercise of those rights;
3) the procedure to be followed by the consumer to ensure that the quality guarantee of the goods is fulfilled;
5. The consumer shall have the right to claim the quality guarantee of the goods regardless of the fact that it has been granted in breach of the requirements laid down in paragraph 4 of this Article.
Article 6.365. No longer effective from 13 June 2014.
Article 6.366. No longer effective from 13 June 2014.
Article 6.367. No longer effective from 13 June 2014.
Article 6.368. No longer effective from 13 June 2014.
Article 6.369. Timeshare, long-term holiday product, resale or exchange contracts
1. The parties to timeshare, long-term holiday product, resale or exchange contracts shall be the seller, a person acting for purposes relating to business or profession or any person acting on behalf of, or for the benefit of, the seller, and the buyer, a natural person acting for purposes other than business or profession.
2. ‘Timeshare contract’ means a contract concluded for a duration of more than one year whereby the buyer, for consideration, acquires the right to use overnight accommodation at a given time for more than one period of occupation.
3. ‘Long-term holiday product contract’ means a contract concluded for a duration of more than one year whereby the buyer, for consideration, acquires the right to obtain discounts or other benefits in respect of accommodation separately or in combination with travel or other services. Payments under long-term holiday product contracts may be made only in annual instalments of equal value in accordance with the payment schedule. No later than fourteen days before the date of payment of each instalment, the seller shall, using a durable medium accessible to the buyer, notify the buyer of the obligation to pay an annual instalment.
4. By means of a resale contract, the seller shall, for consideration, assist the buyer in buying or selling timeshare rights or a long-term holiday product.
5. When concluding an exchange contract, the buyer shall, for consideration, join a timeshare exchange system which allows an access to overnight accommodation or other services in exchange for giving other persons temporary access to the rights deriving from a timeshare contract.
6. When determining the period of validity of a timeshare or long-term holiday product contract, consideration shall also be given to the implied terms of the contract with regard to renewal or extension of the period of validity of the contract.
7. A timeshare right or a long-term holiday product may not be offered or sold as investment services.
8. Within a reasonable period of time before the conclusion of timeshare, long-term holiday product, resale or exchange contracts, the seller must provide the buyer, free of charge and on a durable medium accessible to him, with the clear and accurate information provided by the Government or an institution authorised by it on the terms of the contracts. Buyer information forms shall be approved by the Government or an institution authorised by it.
9. The buyer information referred to in paragraph 8 of this Article shall be an integral part of the contract and may not be altered unless the parties expressly agree otherwise. The seller shall have the right to unilaterally alter the information referred to in paragraph 8 of this Article only where the alterations are made due to circumstances outside the seller’s will, which the seller could not have foreseen and whose consequences could not have been avoided even if every care had been taken. In addition to the information referred to in paragraph 8 of this Article, the contract shall also indicate the identity of each party, their place of residence/registered office, and the date and place of conclusion of the contract; the contract must be signed by the parties. In all cases, before the conclusion of the contract the terms of the contract and the possible amendments thereto referred to in this paragraph must be made available to the buyer on a durable medium accessible to him and clearly indicated in the contract. The seller must give one copy of the contract to the buyer at the time of the conclusion of the contract.
10. Prior to the conclusion of the contract, the seller must clearly inform the buyer of the right to repudiate the contract, the repudiation periods set out in paragraphs 1, 2 and 3 of Article 6.370 of this Code and the prohibition of advance payments provided for in paragraph 8 of Article 6.370 of this Code. The buyer shall sign under the above-mentioned terms of the contract separately in the form referred to in paragraph 8 of this Article.
11. The contract presented to the buyer must be accompanied by a repudiation form laid down in legal acts and approved by the Government or an institution authorised by it.
12. The information referred to in paragraph 8 of this Article shall be submitted to the buyer and the contract shall be drawn up, at the choice of the buyer, in the official language or one of several official languages of the Member State in which the buyer resides or the nationality of which the buyer holds, provided this language is also an official language of the European Union. Where the seller carries out his activities in the Republic of Lithuania, the contract shall also be drawn up in Lithuanian. For the purposes of this paragraph, the term ‘Member State’ means a Member State of the European Union or a Member State of the European Economic Area.
13. Any advertisement offering a timeshare right, a long-term holiday product, or the conclusion of resale or exchange contracts must inform where and how the buyer can obtain the information referred to in paragraph 8 of this Article on the terms of the contract. Any invitation to an event that will involve offers to conclude timeshare, long-term holiday product, resale or exchange contracts must clearly state the commercial purpose and nature of the event. During such an event, the buyer must be given the opportunity to obtain, at any time, the information referred to in paragraph 8 of this Article on the terms of the contracts.
14. Where the subject matter of timeshare, long-term holiday product, resale or exchange contracts is an immovable thing situated in the Republic of Lithuania or the contract is not directly related to an immovable thing but the seller carries out his activities in the Republic of Lithuania or redirects, by any means, these activities to the Republic of Lithuania, this Article and Article 6.370 of this Code shall apply irrespective of the fact that foreign law is applicable to the contract.
Article 6.370. Buyer’s right of repudiation in the case of timeshare, long-term holiday product, resale or exchange contracts
1. The buyer shall have the right, without giving any reason, to unilaterally repudiate timeshare, long-term holiday product, resale or exchange contracts by informing, on a durable medium accessible to him, the seller thereof within fourteen days from the date of conclusion of the respective contract, including the preliminary contract, or from the date of receipt of such a contract, whichever date is later. When repudiating the contract, the buyer shall have the right to use the form specified in paragraph 11 of Article 6.369 of this Code. Where an exchange contract is offered to the buyer together with a timeshare contract, both contracts shall be subject to the same period of repudiation of fourteen days from the date of conclusion of the timeshare contract, including the preliminary contract, or from the date of receipt of such a contract, whichever date is later.
2. Where the buyer has not been provided with the information referred to in paragraph 8 of Article 6.369 of this Code on the terms of the contract or the provided information does not include all the mandatory particulars, the buyer shall have the right to unilaterally repudiate the contract within three months and fourteen days from the date of conclusion of the contract, including the preliminary contract, or from the date of receipt of such a contract, whichever date is later, in accordance with the procedure laid down in paragraph 1 of this Article. Where the information on the terms of the contract containing all the mandatory particulars is served on the buyer within three months from the date of conclusion of the contract, including the preliminary contract, or from the date of receipt of such a contract, whichever date is later, the buyer shall have the right to repudiate the contract, including the preliminary contract, within fourteen days from the date of serving the information on the terms of the contract on him.
3. Where at the time of conclusion of the contract the buyer has not been provided with a form of a repudiation of the contract, as laid down in legal acts, the buyer shall have the right to unilaterally repudiate the contract within one year and fourteen days from the date of conclusion of the contract, including the preliminary contract, or from the date of receipt of such a contract, whichever date is later, in accordance with the procedure laid down in paragraph 1 of this Article. Where the form of a repudiation of the contract containing all the mandatory particulars is served on the buyer within one year from the date of conclusion of the contract, including the preliminary contract, or from the date of receipt of such a contract, whichever date is later, the buyer shall have the right to repudiate the contract within fourteen days from the date of serving the form of a repudiation of the contract on him.
4. Where the buyer exercises the right to repudiate timeshare, long-term holiday product, resale or exchange contracts when the given rights are paid for fully or in part by a consumer credit granted to the buyer by the seller or a third party in accordance with the contract concluded between the seller and the third party, the buyer shall have the right to terminate the consumer credit agreement without incurring any costs.
5. Upon exercise of the right to repudiate a timeshare or long-term holiday product contract, all additional exchange or other contracts, whereby the buyer receives services relating to the timeshare or long-term holiday product contract from the seller or third parties under agreement with the seller, shall also terminate. The buyer may not be obliged to pay the costs due to the termination of the additional contracts referred to in this paragraph.
6. When the buyer exercises the right to repudiate a contract, as laid down in this Article, the obligations of the parties to perform the contract shall terminate and the buyer shall not incur any costs or pay for the services provided prior to the date of a repudiation of the contract.
7. The buyer’s right to repudiate a contract provided for in this Article shall not be subject to any restrictions in the form of additional obligations or payments or to any limitation or abolition.
8. Until the end of the period when the buyer has the right to repudiate a timeshare, long-term holiday product or exchange contract or until the performance of a resale contract or its expiry otherwise, the seller or the third party shall be prohibited from accepting any advance payment from the buyer. An advance payment shall be considered to be the issuing of the buyer’s guarantee, an amount reserved in the bank account, the acknowledgement of the debt, and the payment of any amount of money to the seller or the third party.
9. Where a long-term holiday product contract is concluded, the buyer shall, after the payment of the second or subsequent instalment, have the right to terminate the contract by notifying the seller thereof not later than within fourteen days of receipt of the notice of payment without paying any fine and incurring any additional costs.
Article 6.371. Concept of a wholesale contract
Under the wholesale contract, the seller, who is the person engaged in trade, or his agent shall undertake to deliver, at a specific time, things manufactured or purchased by him to the buyer under the right of ownership/trust for the latter’s business needs or other needs not related to personal, family or household need, whereas the buyer shall undertake to pay the price.
Article 6.372. Time limits for the delivery of things
1. Where a long-term contract for the sale of things has been concluded under which things are delivered in lots and the contract does not provide for the time limits for the delivery of things, the lots of things must be delivered on a monthly basis in equal parts, unless a different conclusion is to be drawn having regard to the custom of the trade or the essence of the obligation.
Article 6.373. Delivery of things
1. If the means of transportation and terms of transportation of the things by the seller to the buyer are not specified in the contract, the seller shall be bound to arrange for carriage of the things by means of transportation appropriate in the circumstances and according to the usual terms for such transportation, unless it is reasonable to infer otherwise in view of the custom of the trade or the essence of the obligation.
Article 6.374. Acceptance of things
1. The buyer must take the necessary measures to ensure that all delivered things are accepted in due manner within the time limit fixed in the contract or, where the time limit is not fixed, within a reasonable time, and to examine the quantity and quality of the things in accordance with the procedure provided for in the contract and promptly notify the seller of the discovered defects and deficiency in the quantity.
Article 6.375. Preservation of the unaccepted things
1. The buyer who refuses to accept the things delivered to him under the contract must preserve the things (responsible preservation) and promptly notify the seller of his refusal.
2. Upon receipt of the notification specified in paragraph 1 of this Article, the seller must, within a reasonable period of time, take the things back or inform the buyer what he should do with them. In case of failure by the seller to do so, the buyer shall have the right to re-sell the things or return them to the seller.
3. The seller must reimburse the buyer for the necessary expenses incidental to the preservation, sale or return of the things. Having sold the things, the buyer shall make the necessary deduction of expenses incidental to the sale and preservation of the things and restore the balance to the seller.
4. In case of refusal by the buyer to accept the things in the absence of the grounds provided for by law or the contract, the seller shall have the right to demand from the buyer payment of the full price.
Article 6.376. Taking possession of the things
1. In case the buyer is bound under the contract to take possession of the things at the seller’s place of business or any other place, when taking possession of the things at the place of their delivery the buyer must examine their quantity and quality, unless the contract provides otherwise.
2. If the buyer fails to take possession of the things within the time limit fixed in the contract or, where the time limit is not fixed, within a reasonable time period after the seller has notified that the things may be taken possession of, the seller shall have the right to repudiate the contract or demand payment of the price and reimbursement of expenses incidental to preservation of the things.
Article 6.377. Containers and packaging
1. Unless otherwise provided for in the contract, the buyer must return to the seller, at his own expense, the reusable containers and packaging in which the things were delivered.
Article 6.378. Sale of things of inadequate quality or completeness
Where the things delivered by the seller are of inadequate quality or completeness, the buyer shall have the right to make demands specified in Articles 6.334 and 6.341 of this Code, except in cases where the seller, upon receipt of the buyer’s notification, promptly replaces the things of inadequate quality with quality things or delivers the product in its completeness.
Article 6.379. Unilateral rescission of the contract
1. The buyer shall have the right to unilateral rescission of the contract in the event of a fundamental breach thereof by the seller.
2. A breach of the contract committed by the seller shall be deemed fundamental if:
1) the delivered things are of inadequate quality and their defects cannot be eliminated within the time period the buyer finds acceptable;
3. The buyer shall be considered to have committed a fundamental breach of the contract and the seller shall acquire the right to a unilateral rescission of the contract if the buyer:
Article 6.380. Concept of a public procurement contract
Under a public procurement contract, a state or municipal institution or a state or municipal enterprise, agency or organisation shall purchase things or make payment for works or services (including lease) with the resources of the state budget, municipal budgets, State Social Insurance Fund budget and other state or municipal funds for the purpose of meeting the needs of the State or municipality, or the needs of state or municipal institutions, enterprises, agencies and organisations.
Article 6.381. Specifics of conclusion of public procurement contracts
Public procurement contracts shall be concluded by holding competitive bidding, except where the laws establish otherwise.
Article 6.382. Regulation of public procurement contracts
The provisions of this Code shall apply to public procurement contracts to the extent it is not established otherwise by other laws.
Article 6.383. Concept of an energy sales contract
1. Under an energy (or energy resources) sales contract, the energy supply enterprise shall undertake to supply the subscriber, through the connected energy supply network, with the amount of energy of the type provided for in the contract, whereas the subscriber shall undertake to pay for the supplied energy and comply with the energy consumption regime specified in the contract, ensuring safety of exploitation of the energy supply network and maintenance in good condition of the installations and facilities owned by him.
2. An energy sales contract shall be concluded with the subscriber only provided he is in possession of energy consuming devices and internal network which meet the prescribed technical requirements and which are connected to the energy supply network and where energy metering devices are installed. In the case of the construction of new energy supply networks, advance contracts for the purchase and sale of energy shall not be subject to the requirements of this paragraph. In cases set out by legal acts, an energy sales contract may be concluded with a subscriber also where there is no direct accounting of the above energy resources between the energy supplier and subscriber.
Article 6.384. Conclusion and extension of an energy sales contract
1. Where under the contract the subscriber is a natural person who uses energy for domestic consumption, the contract shall be deemed concluded from the moment the consumer’s equipment is connected to the energy transmission network. The contract shall be considered concluded for the term of unlimited duration, unless the contract provides otherwise.
2. If, before the expiration of the term of the contract, neither of the parties declares that the contract will be terminated or modified or that a new contract will be concluded, the energy sales contract concluded for a term of limited duration shall be deemed extended for the same period and under the same conditions.
Article 6.385. Energy amount and rates (tariffs)
1. The energy supply enterprise must sell to the subscriber the amount of energy provided for in the contract in compliance with the energy supply regime agreed between the parties. The amount of the energy supplied and consumed shall be determined on the basis of energy meter readings or in any other manner specified in the contract.
2. The contract may provide for the subscriber’s right to change the amount of energy received provided that the subscriber would compensate for the losses incurred by the energy enterprise due to the requirement to ensure the supply of a larger amount of energy not provided for in the contract.
3. The subscriber, in the case of a natural person who is a consumer using energy for domestic consumption, may use as much energy as he needs.
Article 6.386. Energy quality
1. Energy quality must conform to the standards of the contract and quality standards as well as to the requirements established by other regulations.
2. If the energy supply enterprise violates the energy quality requirements, the subscriber shall be entitled to refuse to pay for the energy. However, the energy supply enterprise in this case shall be entitled to request that the subscriber compensate for the value of what the subscriber saved without a legal justification by using energy.
Article 6.387. Buyer’s duties relating to the maintenance of installations
1. The subscriber must ensure the adequate condition of the energy supply network, other facilities and installations owned by him and safety of their operation, also comply with the established energy consumption regime and notify the energy supply enterprise without delay of any accident, fire, damage of energy metering equipment or any other violations related to the use of energy.
2. In the case of a natural person who is a consumer using energy for domestic consumption, the adequate technical condition and safe operation of the energy supply network, energy metering equipment and their safe use must be ensured by the energy supply enterprise, unless otherwise provided for by the contract or laws.
Article 6.388. Payment for energy
1. The subscriber shall pay for the amount of energy actually used according to the readings of the energy meters, unless the contract establishes otherwise.
Article 6.389. Sub-subscriber
1. The subscriber may, without exceeding the capacity permitted for use, transmit to another person (sub-subscriber) electricity received from the energy supply enterprise without the latter’s consent.
2. The subscriber may transmit heat, cold and hot water to another person (sub-subscriber) only provided the supply enterprise gives its consent thereto.
Article 6.390. Modification and rescission of the contract
1. If under the energy sales contract the subscriber is a natural person who is a consumer using energy for domestic consumption, he shall be entitled to unilateral rescission of the contract notifying the energy supply enterprise thereof, provided that he has fully paid for the energy consumed. The consumer residing in a multi-apartment house may exercise this right only if such an act will not be detrimental to the residents of other apartments in that house.
2. If the subscriber is a legal person, the energy supply enterprise shall be entitled to unilaterally refuse to perform the contract on the grounds provided for in Article 6.217 of this Code unless the contract provides otherwise.
3. Termination, suspension or limitation of energy supply shall only be allowed by agreement between the parties, except in cases where state energy supervisory authorities identify such deficiencies in the subscriber’s installations which may cause an accident or endanger human life and safety. The energy supply enterprise must notify the subscriber in advance of the termination, suspension or limitation of energy supply.
4. Termination, suspension or limitation of energy supply without coordination with the subscriber or without prior notice to the subscriber shall be allowed only in cases when this is necessary in order to prevent an accident or as a response to an accident in the energy supply network. However, in such cases, the subscriber must also be promptly notified of the termination, suspension or limitation of energy supply.
Article 6.391. Scope of application
The provisions of this Article shall apply with respect to supply of electricity, heat energy, gas, oil and oil products, water and other forms of energy through the distribution network, unless the laws establish otherwise or unless, taking into account the essence of the obligation, a different conclusion should be made.
Article 6.392. Scope of application
1. The provisions of this Section shall apply with respect to the purchase and sale of land, buildings, residential houses, apartments, and other immovable things.
Article 6.393. Form of a contract
1. A sales contract of an immovable thing must be in a notarial form, with the exception of the sales contracts of an immovable thing concluded in the course of bankruptcy proceedings.
3. A sales contract of an immovable thing may be invoked against third persons only in the event of it being registered in the public register in accordance with the procedure established by laws.
4. Ownership of an immovable thing shall pass to the buyer from the moment of delivery of the thing. The fact must be registered in the document executed in accordance with the procedure established in Article 6.398 of this Code. If any of the parties avoids registering the fact of passing of ownership of an immovable thing, the court may, at the request of the other party, adopt a decision on the registration of the contract. In such case, the contract shall be registered on the basis of the court decision. The party who has unjustifiably avoided registering the passing of ownership right must compensate the other party for the damages incurred by reason thereof.
Article 6.394. Rights to a land plot
1. Under the sales contract of a building, installation or other immovable thing, the seller shall transfer to the buyer, together with the right of ownership to the thing, the rights specified in paragraphs 2 and 3 of this Article to the part of the land plot which is occupied by the thing and which is necessary for the thing to be fit for the purpose it would ordinarily be used.
2. Where the seller is the owner of the land plot on which the immovable thing being sold is situated, the buyer shall be transferred the rights of ownership to the land plot or the right of land lease or right of superficies, depending on what is provided for in the contract. A contract in which the buyer’s rights to the land plot are not contemplated may not be certified by a notary and, if certified, shall be null and void.
3. Where the owner of the immovable thing is not the owner of the land plot on which the thing is situated, he may sell the immovable thing without the consent of the owner of the land plot only provided that this is in compliance with the conditions of use of the land plot laid down by laws and/or the contract. In the event of sale of such an immovable thing, the buyer shall acquire the right to use the appropriate part of the land plot under the same terms and conditions as the seller of the immovable thing.
Article 6.395. Rights to an immovable thing in the event of sale of a land plot
1. In the event of sale of a land plot containing buildings, construction works, installations, plantations or other objects, the issue of passing of the right of ownership thereto must be contemplated in the contract. If the issue is not contemplated in the contract, the right of ownership to the buildings, construction works, installations, plantations or other objects situated on the land plot shall be deemed to have passed to the buyer of the land plot.
2. If the land plot containing buildings or other immovable things belonging to the seller by the right of ownership is sold without transferring to the buyer the rights of ownership to the above-mentioned immovable thing, the seller shall retain the right to use the part of the land plot which is occupied by the immovable thing and is necessary for the use thereof by the right of superficies or any other right and under the terms and conditions provided for in the contract.
3. Where the seller’s right to use a part of the land plot and the conditions of use are not contemplated in the sales contract, the servitude shall be established for the seller with respect to the part of the land plot which is occupied by an immovable thing and which is necessary for it to be used for the purpose it would ordinarily be used.
Article 6.396. Subject matter of the contract
1. The sales contract of an immovable thing must contain the information relating to the immovable thing which the seller is obliged to transfer to the buyer under the contract, also the indication of the location of the thing in the relevant land plot or the location of the immovable thing being sold in another immovable thing.
Article 6.397. Price
1. The price of the immovable thing being sold must be indicated in the sales contract of the immovable thing. The regulations set forth in paragraphs 2 to 6 of Article 6.313 of this Code shall not apply to sales contracts of the immovable thing. If the price is not indicated in the contract, the contract shall be deemed not to have been concluded.
2. The price of the land plot being sold shall include the price of the buildings, construction works, installations, plantations and other objects located on the plot, unless the laws and contract provide otherwise.
Article 6.398. Transfer of a thing
1. Transfer and acceptance of an immovable thing must be executed by the transfer and acceptance deed or any other document provided for in the contract, signed by the seller and buyer.
2. Unless otherwise provided for by the laws or contract, the seller’s obligation to transfer the immovable thing shall be deemed performed from the moment of transfer of the thing to the buyer and signing of the relevant document regarding the transfer thereof.
3. Where one of the parties to the contract avoids signing the document of transfer specified in the contract, it shall be deemed that the buyer refuses to accept and the seller refuses to transfer the thing.
4. The circumstance that the buyer has accepted an immovable thing which does not conform with the terms and conditions of the sales contract shall not constitute grounds for releasing the seller from liability for improper performance of the contract even in the cases where such non-conformity was contemplated in the document of transfer of the thing.
Article 6.399. Transfer of a thing of inadequate quality
Where, under the sales contract of an immovable thing, the seller transfers to the buyer a thing of inadequate quality, the provisions of Article 6.334 of this Code shall apply, except with respect to the buyer’s right to request replacement of the thing of inadequate quality with a thing of adequate quality.
Article 6.400. Conditions and content of sales contracts of a residential house or apartment
In addition to the conditions provided for in Articles 6.396 and 6.397 of this Code, the essential condition of the sales contract of a residential house or apartment, which at the moment of its sale is inhabited by the persons who, under laws or contracts, retain the right to use the residential premises after the change of owner thereof, shall be the listing (list) of such persons and the content of their right to use the residential premises which are being sold.
Article 6.401. Contract for the sale of a planned residential house or apartment
1. The buyer, being a natural person, may conclude a preliminary sales contract of a planned residential house or apartment whereby the seller, being a legal person, undertakes, by itself or upon enlisting the help of other persons, to build the residential house or apartment provided for in the preliminary contract and thereafter to conclude a sales contract of the residential house or apartment with the buyer, whereas the buyer undertakes to purchase the built residential house or apartment for the price indicated in the preliminary contract.
2. The following must be indicated in the preliminary contract:
1) the buyer’s right to repudiate the preliminary contract within ten days from the date of conclusion of the contract;
2) the price of the planned residential house or apartment and the terms and conditions of its revision or changing;
3) the description of the subject matter of the contract and the works to be performed by the seller;
6) the contractor, architect, engineer and other persons who will carry out and supervise the construction work;
3. Where the preliminary contract provides for the seller’s right to claim indemnity from the buyer for the losses the seller would suffer if the buyer exercised the right specified in point 1 of paragraph 2 of this Article, the amount of indemnity may not exceed one-fifth of the price of the immovable thing indicated in the sales contract.
4. The project of the residential house or apartment, its estimate and other documents shall constitute an inseparable part of the preliminary contract.
5. It may also be stipulated in the preliminary contract that the buyer finances the construction of the residential house or apartment under the conditions laid down in the contract whereas the seller shall perform the functions of the customer. In this case, the buyer shall acquire the right of full ownership of the residential house or apartment upon payment of the full construction price provided for in the preliminary contract.
Article 6.402. Concept of a contract for the sale of an enterprise
1. Under a contract for the the sale of an enterprise, the seller shall undertake to transfer to the buyer by the right of ownership the whole enterprise as a property complex or a substantial part of the enterprise, with the exception of the rights and duties which the seller has no right to transfer to other persons, while the buyer shall undertake to accept it and pay the price.
2. The right to the name of the firm, trade name or service name or to other marks identifying the seller or his goods or services supplied by him, also to the rights possessed by the seller under the licence agreement shall pass to the buyer, unless otherwise provided for in the contract.
3. The seller’s rights which he acquired under authorisations/licences shall be transferred to the buyer only provided the possibility of such transfer has been stipulated by the laws or the licence. The transfer to the buyer alongside with the enterprise of obligations which he cannot perform since he does not have the authorisation/licence for the performance of such obligations shall not release the seller from liability to creditors for non-performance of such obligations. In such cases, the seller and the buyer shall be jointly liable to creditors for non-performance of the obligations.
Article 6.403. Form of a contract
1. A contract for the sale of an enterprise must be a document in writing, signed by both parties to the contract, certified by a notary and containing the accompanying documents specified in Article 6.404 of this Code.
2. Non-compliance with the requirements as to the form of the contract shall render the contract null and void.
Article 6.404. Content of the contract and the accompanying documents
1. The contract must specify the composition of assets of the enterprise being sold and the price of the enterprise as well as the person to whom the payment will be made and who will settle with the creditors of the enterprise (Article 6.405 of this Code).
2. In order to fulfil the duty specified in paragraph 1 of Article 6.405 of this Code, the following accompanying documents must be drawn up, agreed between the parties and signed before the signing of the contract:
3) the opinion of an independent auditor regarding the composition and price of the assets of the enterprise;
Article 6.405. Protection of rights of creditors of the enterprise
1. The buyer must not later than twenty days before the conclusion of the contract notify in writing all creditors of the enterprise named in the list of enterprise debts (obligations) of the intended sale of the enterprise. In the event of failure by the buyer to fulfil the above duty, the seller’s creditors shall have the right to submit their claims directly to the buyer. It shall not be necessary to notify the creditors of the enterprise of the sale thereof only if the price of the enterprise is paid in cash and the amount thereof is sufficient to settle with all creditors of the enterprise.
2. Having received the notification specified in paragraph 1 of this Article, the creditor of the enterprise must within twenty days from the date of receipt thereof notify the buyer in writing of the share and nature of his claim.
3. The buyer shall pay part of the price provided for in the contract to the person specified in the contract, who shall be charged with settling with the creditors of the enterprise, while the remaining amount shall be paid to the seller. Only a bank, other credit institution or insurance company may be chosen by the parties as the person to be charged with settling with the creditors.
4. The person charged with settling with the creditors of the enterprise shall, within twenty days from the payment of the price, draw up and send to the creditors the deed of price distribution for the settlement of debts of the enterprise that is being sold.
5. Unless the creditors contest the deed of price distribution, they shall be paid the share of the price proportionate to the amount of their claims.
6. In the event the creditor(s) file objections to the deed of price distribution within twenty days from the receipt of the deed of price distribution, the person to whom the price has been paid must apply to the court for the determination of the priority of creditors and procedure of satisfaction of claims.
7. The buyer shall not have to comply with the procedure laid down in this Article if he presents to all creditors of the enterprise an acceptable security for the satisfaction of claims. If the buyer has duly performed his duties specified in this Article, the creditors of the enterprise shall lose the right to assert any claims against him or the assets of the sold enterprise, however, they shall retain the right to address their claims to the seller.
Article 6.406. Legal consequences of violation of right of the enterprise creditors
1. In case of improper performance by the buyer of the duties laid down in Article 6.405 of this Code, the fact of sale of the enterprise may not be set up against the creditors of the enterprise whose right of claim arose before the conclusion of the contract for the sale of the enterprise, unless the buyer satisfies the creditors’ claims by paying for the value of assets of the purchased enterprise.
2. The claims of creditors provided for in paragraph 1 of this Article may be satisfied if submitted within one year from the day on which they became aware or ought to have become aware of the sale of the enterprise and provided that not more than three years have elapsed from the date of sale of the enterprise.
3. The seller and buyer of the enterprise shall be jointly and severally liable for the actions of the person to whom the price was paid and who had to settle with the creditors, however, the buyer shall only be liable to the extent of the value of the assets of the enterprise purchased by him.
Article 6.407. Transfer of the enterprise
1. The seller shall transfer the enterprise to the buyer under the deed of transfer and acceptance. The deed must contain the information relating to the enterprise and its assets, the condition of the assets, obligations of the parties to the creditors of the enterprise and the performance thereof.
2. Unless the contract provides otherwise, the seller must prepare the enterprise for sale and draw up the deed of transfer and acceptance at his own expense.
3. The enterprise shall be deemed transferred to the buyer from the moment the deed of transfer and acceptance is signed by both parties.
4. The risk of accidental perishing of or damage to the assets of the enterprise shall pass to the buyer from the moment of signing of the deed of transfer and acceptance of the enterprise.
5. Where the contract provides that the seller retains the right of ownership to the enterprise until the buyer pays the full amount of the price or until he fulfils other conditions, the buyer shall be entitled, until ownership of the enterprise passes to him, to use the assets of the enterprise and the incidental rights to the extent and in the manner that is required for the purpose for which the enterprise was acquired.
Article 6.408. Legal consequences of sale of a defective enterprise
1. In case the seller is transferred an enterprise which does not conform to the quality and other requirements contemplated in the contract, the buyer may exercise the rights provided for in Articles 6.321 to 6.323, 6.330, 6.334, 6.341, unless otherwise provided for in paragraphs 2 to 4 of this Article or in the contract.
2. Where the enterprise is transferred and accepted under the transfer and acceptance deed in which the defects of the enterprise or its assets are specified, the buyer shall be entitled to demand a reduction in the price if, under the contract, he is not entitled to present any other demands in such a case.
3. The buyer shall be entitled to demand a reduction in the price if he has been assigned the seller’s debts (obligations) not specified in the contract or the enterprise transfer and acceptance deed, except in cases where the seller proves that the buyer was aware or ought to have been aware of the debts (obligations) at the moment of conclusion of the contract and transfer of the enterprise.
4. If the seller receives the buyer’s notification of discovery of defects of the transferred assets or of the fact that certain assets provided for in the contract are altogether missing, the seller shall have the right to promptly replace the assets of inadequate quality with assets of adequate quality or to offer to the buyer the missing assets.
5. Where the defects of the enterprise for which the seller is liable render the enterprise unfit for the use indicated in the contract and the defects cannot be eliminated or the seller has not eliminated them within the fixed lime limit, the buyer shall have the right to apply to the court for the dissolution or modification of the contract and compensation for the damage.
Article 6.409. Legal effects of nullity of transactions and dissolution or modification of a contract
For a contract for the sale of an enterprise, the legal effects of nullity of transactions and modification or dissolution of a contract provided for in this Code shall arise only provided this does not essentially violate the rights of the seller’s and buyer’s creditors and their interests protected under law and is not contrary to public order.
Article 6.410. Cases in which the provisions of this Section do not apply
1. The provisions of this Section governing the purchase and sale of an enterprise shall not apply in cases where the pledged assets of the enterprise are sold, as well as when the assets of the enterprise are sold by a bailiff.
Article 6.411. Contract of sale by instalment
1. Under a contract of sale by instalment (credit), the seller shall retain the right of ownership to the thing which is being sold until the payment of the full sale price set in the contract, unless the contract provides otherwise.
2. A reservation of ownership in respect of the thing which is not subject to registration, acquired for the service or operation of an enterprise, may be used against third persons only if the sales contract has been registered in the public register in accordance with the procedure prescribed by law.
Article 6.412. Risk of accidental perishing of or damage to the things
The risk of accidental perishing of or damage to the things transferred to the buyer shall be borne by the buyer, except in consumer contracts, unless otherwise provided for by the contract of sale by instalment.
Article 6.413. Form and content of a contract
Article 6.414. Price and settlement procedure
1. The price of the thing and the procedure for effecting settlement in the sale thereof under an instalment contract shall be established by agreement between the parties. Unless the parties establish otherwise in the contract, subsequent change in the price of the thing sold by instalment shall not affect mutual settlement between the parties. Where, in case of a reservation of ownership right to the property, the buyer fails to comply with the schedule of payment of regular instalments laid down in the contract, the seller may demand immediate payment of the instalments due or take back the sold thing. Unless otherwise provided for in the contract, the buyer shall have the right to demand refunding his instalments from the seller who has taken back the thing. If the buyer has paid more than half or the price of the thing, the seller shall have no right to take back the thing, unless the contract provides otherwise. The costs of depreciation and use of the thing provided for in the contract shall be deducted from the repayable instalments.
2. Where the right of ownership passes to the buyer from the moment of delivery of the thing, it shall be considered, from the moment of delivery of the thing to the buyer until the payment of the full price, that the thing has been pledged to the seller seeking to secure performance of obligations by the buyer (compulsory pledge (mortgage), unless the contract provides otherwise.
3. Where the buyer without having obtained the seller’s consent transfers to another person the things delivered to him or the things are seized due to unlawful actions of the buyer, the seller shall have the right to demand immediate payment of the balance of the sale price due.
4. If the contract of sale by instalment has been registered, the seller, having taken the things back, must within twenty days or within sixty days, where the subject matter of the contract is an immovable thing, cancel the registration of the contract in accordance with the procedure established by law.
Article 6.415. Interest
The contract of sale by instalment may provide for the obligation of the buyer to pay interest in case of his default on the timely payment of regular instalments. In this case, the period for which the interest is payable shall run from the day of lapse of the time limit until the payment of instalments.
Article 6.416. Specifics of sale by instalment where the buyer is a consumer
The provisions of this Code regulating consumer contracts shall apply to the contracts of sale by instalment where they are consumer contracts.
Article 6.417. Contract of sale with a right of redemption
1. Under a sales contract with a right for redemption, the seller shall undertake to sell the thing at the same time reserving the right to redeem the sold thing, whereas the buyer shall undertake to possess, use and dispose of the thing in such a way as to allow the seller to exercise the right of redemption.
2. A sales contract with a right of redemption in respect of the things which are not subject to registration, acquired for the service or operation of an enterprise, may be used against third persons only if it has been registered in the public register in accordance with the procedure established by law.
Article 6.418. Exercise of the right of redemption
1. The seller wishing to exercise his right of redemption must give notice of his intention to the buyer or any other person against whom he intends to exercise this right. Such notice must be published not later than twenty days before the date of exercise of the right of redemption if the thing is movable and not later than before sixty days if the thing is immovable. In case the contract has been registered, notice of the intention to exercise the right of redemption must also be given to the data processor of the public register.
2. Where the seller exercises his right of redemption, he shall take back his thing free of any charges or encumbrances, or additional contributions or compensation to the buyer provided the notice of the intention to exercise the right of redemption was published in accordance with the procedure laid down in this Law.
3. If the buyer of an undivided part of a thing which is subject to a right of redemption acquires the remaining part of the undivided thing, he may require the seller, exercising his right of redemption, to buy the rest of the thing acquired by the buyer.
4. Where the thing is sold by several sellers jointly by way of a single contract, and they wish to redeem the thing or where several heirs left by the seller wish to exercise the right to redeem the thing, the buyer shall be entitled to require one seller or heir to buy back not only his share but also the whole thing.
5. Where it is provided for in the contract that the right of redemption is the security of a loan, the seller shall be treated as a borrower (receiver of the loan) and the buyer shall be treated as a mortgagee.
Article 6.419. Sale of things by auction
1. Sale of things by auction shall mean that things are offered for sale to several persons through an intermediary – the auctioneer, and the contract is deemed concluded with the buyer – the bidder of the highest price for the thing offered for sale.
2. A public auction shall be a method of sale where the things or services are offered for sale to several persons who participate in the auction personally or who are enabled to participate personally and who are publicly competing by bidding through the auctioneer, while the contract for the purchase of the things or services is concluded with the bidder offering the highest price.
3. An auction sale may be either voluntary or forced. The peculiarities of an action as a forced sale shall be determined by the Code of Civil Procedure.
4. The regulations laid down in this Section shall apply to the purchase and sale by auction of things owned by the State and municipalities to the extent it is not provided otherwise by other laws.
5. Where, after the auction, the contract is concluded between the trader and the consumer, the rules governing consumer contracts shall apply to the contract, unless other laws provide otherwise. Where a contract is concluded by way of a public auction, the information specified in points 2 and 3 of Article 6.2287 of this Code may be furnished about the auctioneer.
6. Where, following a public auction in respect of second-hand goods, a contract is concluded between the trader and the consumer, clear and comprehensive information must be easily accessible to the consumer that the contract is not subject to the provisions of this Code governing the specifics of consumer sales contracts.
Article 6.420. Price and conditions of the auction
1. The seller may fix the initial price of the thing offered for sale and any other conditions of the auction. However, unannounced conditions of the auction may not be set up against the bidders, unless the auctioneer has announced the conditions to the bidders before receiving the bids.
2. The seller shall have the right not to disclose his identity, but if his identity is not disclosed to the successful bidder, the auctioneer shall be liable for all the obligations of the seller to the successful bidder.
Article 6.421. Moment of conclusion of the contract
1. The sales contract by auction shall be deemed concluded when the auctioneer announces this by the fall of his hammer or any other customary action. If, at the moment when the completion of the auction sale of the thing is announced by the fall of the auctioneer’s hammer, a new bid is received, the auctioneer shall have the right to extend the auction or declare the thing sold for the last price bid before the fall of the hammer.
2. The entry in the auctioneer’s register of the bid and the name of the successful bidder shall constitute proof of the conclusion of the contract. In the absence of such an entry, the fact of the conclusion of the contract may be proved on the basis of the testimony of witnesses.
3. In case an immovable thing is sold at the auction, the seller and the buyer must conclude a contract in the form prescribed by law within ten days of the sale.
Article 6.422. Payment of the price
1. The buyer must pay the price in accordance with the procedure and within the time limits prescribed by the conditions of the auction.
2. If the buyer does not pay the price in compliance with the established procedure and within the set time limits, the auctioneer shall be entitled to exercise all the rights of the seller. Moreover, the auctioneer shall have an additional right to announce, after notifying the buyer within a reasonable time, that he is holding a new auction for the resale of the thing. In such event, a false bidder shall not be entitled to bid again at a new auction. He shall be bound to cover the auctioneer’s expenses incidental to arranging and holding a new auction and also pay the difference in prices if the thing was resold at a lesser price than the price the false bidder did not pay.
Article 6.423. Withdrawing the thing from auction
If the auctioneer has invited to make bids, the thing for the sale whereof auction sale has been announced may not be withdrawn, except in cases where no bid has been received within a reasonable time. In a special auction, the thing for the sale whereof the auction has been announced may be withdrawn at any time.
Article 6.424. Protection of the buyer’s rights
When a thing, which the buyer has purchased by auction, is arrested in compliance with requirements of the creditors of the seller, the buyer shall be entitled to withdraw from the contract and to request that the seller refund to him the paid amount and compensate for the damage incurred, provided that the buyer was neither aware nor could have been aware of the creditors’ claims regarding the property.
Article 6.425. Contracts for the purchase and sale of rights
The provisions of this Chapter shall apply to contracts for the purchase and sale of rights to the extent this is not contrary to the nature and essence of the rights.
Article 6.426. Sale of rights of succession
1. A person who, upon accepting the property received by succession, sells rights of succession without specifying in detail the property affected shall be bound to warrant to the buyer only his quality as an heir.
2. The seller shall be bound to hand over to the buyer all the fruits and revenues he has received from the succession together with the capital of any claim due and the price of any things he has sold which formed part of the succession.
3. The buyer shall be bound to reimburse the seller for the expenses incidental to accepting the succession and pay the amounts due to the seller from the succession.
4. The buyer shall be bound to reimburse the seller for the debts of the succession that he has paid.
Article 6.427. Sale of litigious rights
1. A right shall be litigious when it is contested by a person bringing an action or there is reason to presume that such an action maybe brought.
2. No advocate, judge, notary or bailiff or their family members or close relatives shall have the right to acquire contested litigious rights. Contracts, concluded by the above persons for the purchase and sale of litigious rights shall be null and void.
3. Where litigious rights are sold, the person from whom they are claimed shall be fully discharged by paying to the buyer the sale price, the costs related to the sale and interest on the price. This right of redemption may not be exercised where the sale is made to a creditor in payment of what is due to him or to a co-heir or co-owner of the rights sold. Nor may the right of redemption be exercised where a court has rendered a judgment affirming the right sold.
Article 6.428. Sales contracts of securities and currency
Peculiarities of conclusion of sales contracts of securities and currency shall be established by separate laws.
Article 6.429. Conclusion of a sales contract by way of a tender
1. A sales contract shall be concluded by way of a tender by the seller with the buyer determined by the tender commission in accordance with the conditions of the tender.
Article 6.430. Conclusion of sales contracts on the exchange
1. Conclusion of sales contracts on commodity or stock exchanges shall be regulated by the laws determining the activities of the exchange and the rules for trading on the exchange.
Article 6.431. Sales contract with a reservation regarding the right of ownership
1. Under the sales contract with a reservation regarding the right of ownership, the seller shall retain the right of ownership to the thing being sold until the performance by the buyer of the obligations provided for in the contract.
Article 64311. Sales contract of a motor vehicle
The sales contract of a motor vehicle must contain the data about the motor vehicle which the seller is bound to transfer to the buyer under the contract. In the sales contract, the seller must indicate (declare) the mileage data to the buyer and inform the buyer of all traffic or other accidents that have caused damage to the motor vehicle during the seller’s ownership of the motor vehicle and of all traffic or other accidents that have caused damage to the motor vehicle as far as the seller is aware of. The list of mandatory particulars about a motor vehicle and its defects to be indicated in the sales contract shall be approved by the Government or an institution authorised by it.
Article 6.432. Concept of a contract of exchange
1. Under a contract of exchange, each of the parties shall undertake to transfer to the ownership of the other party one thing in exchange for another.
2. The provisions governing sales contracts (Chapter XXIII of this Book) shall apply to the contract of exchange if this is not contrary to the provisions of this Chapter and the essence of exchange. Within the contract of exchange, each of the parties shall be deemed to be the seller of the goods being transferred and the buyer of the goods being accepted in exchange.
Article 6.433. Price and expenses of concluding a contract
1. Unless otherwise provided for by the contract of exchange, it shall be presumed that the goods subject to exchange are of equal value and exchanged without any extra payment, while the expenses for the transfer and acceptance thereof must be effectuated in each instance by that party which bears the respective duties.
2. Where the contract provides that the goods to be exchanged are not of equal value, the party obliged to transfer the goods whose price is lower than the price of the goods being transferred in exchange shall not be bound to pay the difference in price to the other party unless otherwise provided for by the contract.
Article 6.434. Performance of the obligation to transfer things
Both parties shall be bound to perform the obligation to transfer the respective things simultaneously unless otherwise provided for by the contract.
Article 6.435. Legal consequences for eviction of things acquired under a contract of exchange
1. In the event when a thing acquired by a party under a contract of exchange is evicted pursuant to the claim of a third person, this party shall have the right to claim from the other party either damages or recover the things transferred to the latter in exchange.
2. If a party, after having received the things transferred to him in exchange, becomes aware that the other party was not the owner of those things, he shall have the right to return the things received to the party who has transferred them. In this event, the other party (in bad faith) may not demand from the party who has returned the things to deliver the things the latter has promised in exchange.
Article 6.436. Concept of a contract of giving in payment
1. Under a contract of giving in payment, the debtor shall transfer his property which is not pledged to a creditor into the latter’s ownership in payment of his monetary or any other property debt.
2. A contract of giving in payment shall be governed by the rules pertaining to sales contracts. The person who transfers property according to the contract of giving in payment (debtor) shall assume all duties of the seller.
Article 6.437. Prohibition to agree on giving in payment in advance
The parties shall be prohibited from including a clause in the contract by which the creditor reserves an irrevocable right to become the owner of the property of the debtor or the right to dispose of it if the debtor fails to perform his obligation. Such contract clauses shall be null and void.
Article 6.438. Contract of alienation for rent
1. Under a contract of alienation for rent, the lessor shall transfer the ownership of an immovable thing to the lessee in exchange for a rent. The obligation to pay the rent shall rest on the lessee.
2. The rent shall be payable at the end of each year in money or in kind from the day on which the contract enters into force unless the contract provides otherwise.
3. The lessee (payer of rent) shall have the right to relinquish at any time periodical annual payments of rent by informing about this the lessor (recipient of rent) and offering instead to pay the capital value of the rent in a lump sum payment. However, the lessee (payer of rent) may not transfer the obligation to pay the capital value of the rent in a lump sum payment to the insurer of the thing or to any other person.
4. The lessee shall be personally liable towards the lessor for the payment of rent. He shall not be discharged from the performance of his obligations upon relinquishing his ownership right in the immovable or due to its destruction by force majeure.
Article 6.439. Concept of a contract of rent
1. Under a contract of rent, one party – the payer of rent (debtor) – shall undertake, gratuitously or in exchange for the capital transferred to his ownership, to perform periodical payments to the other party – the recipient of the rent – of a monetary amount determined in the contract (rent) or to grant maintenance to the recipient of the rent in any other form.
2. Duty to pay rent may be established not only by a contract but likewise by laws, a court judgment or a will. In such cases, payments of rent shall be correspondingly governed by the provisions of this Chapter.
Article 6.440. Capital transferable under a contract of rent
1. Under a contract of rent, the recipient of the rent may undertake to transfer to the ownership of the payer of rent a movable or immovable thing or a sum of money.
2. Where the transfer of an immovable thing for payment is provided for by a contract, such a contract shall constitute a sales contract for rent and shall be correspondingly governed by the provisions regulating a sales contract.
Article 6.441. Contract of rent for the benefit of a third person
It may be provided under a contract of rent that the recipient of the rent shall be a third person, but not the person who transfers ownership of the capital for the benefit of the payer of rent.
Article 6.442. Duration of a contract of rent
1. It may be provided under the contract of rent that a rent is constituted for the life of the recipient of rent (life annuity), in perpetuity (permanent rent) or for a fixed term.
3. It may be stipulated in the contract that the payment of rent shall be continued after the death of the recipient of rent for the benefit of his heir or any other person.
4. A contract of rent set up for a deceased person or a person who dies within the following thirty days from the day when the contract was formed shall be null and void. The same rule shall apply also in the case where a rent is constituted for a person who does not exist on the day when the contract is formed unless the recipient of rent had already been conceived at that time and was born alive.
5. Where a life annuity is set up for the lifetime of several persons successively, it shall have effect only if the first of those persons existed on the day the contract was concluded or if he had already been conceived at that time and was born alive.
Article 6.443. Form of a contract of rent
Article 6.444. Encumbrance of rights in an immovable thing by rent
1. A rent shall be deemed to encumber the right in an immovable thing if this thing is transferred under the condition of payment thereof. In the case of alienation of such thing by the payer of the rent, his obligations under the contract of rent shall pass to the acquirer of the thing.
2. The person who has transferred an immovable thing, the rights in which are encumbered by rent, to the ownership of another person shall be subsidiary liable with the new owner of the thing with regard to the claims of the recipient of the rent for violation of the contract of rent unless their solidary liability has been established by laws or the contract.
Article 6.445. Security for payment of rent
1. When an immovable thing is transferred under condition of payment of rent, the recipient of the rent shall acquire the right of pledge on this immovable thing as security of the obligation of the payer of the rent (forced hypotheque).
2. If, under the contract of rent, a movable thing or a sum of money is transferred to the payer of rent, the essential condition of the contract of rent shall be the duty of the payer of rent to grant security for the performance of his obligation or to insure his civil liability for the failure to perform or improper performance of the contract of rent.
3. If the payer of rent fails to fulfil the duties provided for in paragraph 2 of this Article, likewise, in the event of loss or substantial deterioration, under the circumstances for which the recipient of rent is not liable, of the thing by which performance of obligations of the payer of rent is secured, the recipient of rent shall have the right to dissolve the contract and claim compensation of damages.
Article 6.446. Interest for delay of payment of rent
In the event of delay of the payment of rent, the payer of rent shall pay the interest established by laws or a contract to the recipient of rent.
Article 6.447. Protection of interests of a recipient of rent
1. The capital accumulated for the payment of rent shall not be subject to seizure on the ground of claims of the payer’s creditors and no exaction may be levied thereon. In the event of a dispute, the amount of non-seizable means shall be established by the court.
2. A stipulation to the effect that the rent is inalienable or that no exaction may be levied thereon shall be without effect unless the rent is paid gratuitously to the recipient as maintenance. In such event, the stipulation shall have effect only in respect of the amount of rent necessary to maintain the recipient.
Article 6.448. Substitution of a payer of rent
1. A payer of rent shall have the right to transfer his duty to pay rent to an insurance enterprise entitled to engage in such activity by paying it the value of the rent. In such event, the insurance enterprise shall acquire all rights and duties of the payer of rent.
2. The consent of the recipient of rent shall not be necessary for the substitution of the payer of rent provided for in paragraph 1 of this Article, however, the recipient of rent shall have the right to demand that the duty to pay rent be transferred to an insurance enterprise other than the one chosen by the payer of rent.
Article 6.449. Recipient of rent in perpetuity (permanent rent)
1. Only natural persons or non-profit legal persons engaged in guardianship/curatorship may be recipients of rent in perpetuity (permanent rent) to the extent that this is not contrary to laws and the documents of their activities.
Article 6.450. Form and amount of rent in perpetuity (permanent rent)
1. Rent in perpetuity (permanent rent) shall be paid in money. Its amount shall be established by the contract of rent.
2. It may be stipulated in the contract of rent in perpetuity (permanent rent) that the payment of rent may be effectuated by means of transferring things, carrying out works, or rendering services whose price corresponds to the value of the monetary amount of the rent.
Article 6.451. Periods of payment of rent in perpetuity (permanent rent)
Unless otherwise provided for by the contract of rent, the rent in perpetuity (permanent rent) shall be paid at the end of every month.
Article 6.452. Right of the payer of rent to purchase rent in perpetuity (permanent rent)
1. The payer of permanent rent shall have the right to refuse further payment of rent in perpetuity (permanent rent) by means of purchasing it.
2. The refusal to pay rent shall be valid only on condition that the recipient is notified by the payer of rent not later than three months prior to the termination of the payment of rent or within a longer period established by the contract. Nevertheless, even in this event, the obligation to pay rent shall not terminate until the entire amount of the purchase is received by the recipient of the rent unless otherwise provided for by the contract.
3. A clause of a contract of rent in perpetuity (permanent rent) upon the waiver of the payer’s right to purchase rent shall be null and void.
Article 6.453. Purchase of rent in perpetuity (permanent rent) at the demand of the recipient of rent
The recipient of rent in perpetuity (permanent rent) shall have the right to demand the purchase of rent by the payer thereof in the instances when:
1) the payer of rent fails to effectuate the payment within the set time limit by more than one year unless otherwise provided for by the contract;
2) the payer of the rent violates his obligation to secure the payment of rent (paragraph 2 of Article 6.445 of this Code);
3) the payer of rent is declared to be insolvent or other circumstances have arisen which clearly testify that the payer of the rent will not be able to pay the rent in the amount and within the time limits which have been established by the contract;
4) the immovable thing transferred under the contract of rent has become common ownership of several persons;
Article 6.454. Purchase price of rent in perpetuity (permanent rent)
1. The purchase of rent in perpetuity (permanent rent) shall be made at the price determined by the contract of rent.
2. If the price of the purchase of rent is not determined in the contract, the property which has been transferred for payment under the contract of rent in perpetuity (permanent rent) shall be purchased at the price corresponding to the yearly amount of the payable rent.
Article 6.455. Risk of accidental perishing or damage of property transferred under payment of rent in perpetuity (permanent rent)
1. The risk of accidental perishing or damage of property transferred gratuitously under payment of rent in perpetuity (permanent rent) shall be borne by the payer of rent.
Article 6.456. Recipient of rent for life
1. A rent for life may be paid to a natural person who has transferred property under the condition of payment of rent or to another natural person specified by him.
2. A rent for life may be paid to several natural persons. In this case, the participatory share of right to receive rent shall be equal unless otherwise provided for by the contract of rent.
3. In the case of death of one of the recipients of rent, his participatory share in the right to receive rent shall pass to the recipients of rent who survive him unless otherwise provided for by the contract of rent. The obligation to pay the rent shall terminate upon the death of the last recipient of rent. In the event of rent being constituted for the benefit of both spouses, on the death of either of the spouses the rent shall be reverted upon the life of the surviving spouse unless otherwise provided for by the contract of rent.
Article 6.457. Amount of rent for life
1. A rent for life shall be determined in the contract as a sum of money to be paid periodically to the recipient of rent during his life.
Article 6.458. Dissolution of contract of rent for life at the demand of the recipient of rent
1. In the case of essential violation of a contract of rent for life by the payer of rent, the recipient of rent shall have the right to demand from the payer of rent the purchase of rent under the conditions provided for in Article 6.454 of this Code or dissolution of the contract and compensation of damages.
2. If an apartment, dwelling house or other property under payment of rent for life has been alienated gratuitously and the contract has been violated essentially by the payer of rent, the recipient of rent shall have the right to require a return of that property. In this case, the value of the property shall be set off against the purchase price of the rent.
Article 6.459. Risk of accidental perishing or accidental damaging of property transferred under payment of rent for life
Accidental perishing or accidental damaging of property transferred under payment of rent for life shall not relieve the payer of rent from the obligation to pay it under the conditions established in the contract.
Article 6.460. Contract of life annuity
1. Under a contract of life annuity, the annuitant – a natural person – shall transfer a dwelling house, apartment, land plot or other immovable thing belonging to him to the ownership of the debtor of the annuity and the latter shall be obliged to maintain the annuitant and/or another person(s) specified by him for life.
Article 6.461. Duty to grant life annuity
1. The duty of the debtor of the annuity to grant life annuity to the annuitant shall include providing him with a dwelling, clothes and other wear, alimentation and, where the state of health of the annuitant so requires, also providing care for him. The duty of the debtor of the annuity to pay the expenses of funeral services of the annuitant may also be provided for in the contract.
2. The value of the entire amount of annuity may be determined by the parties in the contract of life annuity. In this case, the value of the total amount of maintenance per month may not be less than the amount of one minimum monthly wage.
Article 6.462. Replacement of a life annuity by periodical payments
The possibility of replacing a life annuity in kind by the payment of periodical payments in money may be established by the parties in the contract. These periodical payments shall be paid during the life of the annuitant.
Article 6.463. Right of the debtor of the annuity to dispose and use alienated property
1. The debtor of the annuity may alienate, pledge or otherwise encumber the right in an immovable thing transferred to him in exchange for life annuity only upon prior written consent of the annuitant. Such written consent must be confirmed by a notary.
Article 6.464. Termination of life annuity
2. In the event of essential violation by the debtor of the annuity of his obligations, the annuitant shall have the right to demand from the debtor of the annuity the return of the immovable thing transferred to him or the payment of the purchase price thereof under the conditions established in Article 6.454 of this Code. In this case, the debtor of the annuity shall have no right to demand compensation of the expenses related to the maintenance of the annuitant.
Article 6.465. Concept of a contract of gift
1. Under a contract of gift, one party (donor) transfers by gratuitous title property in ownership or a property right (claim) to another party (donee) or relieves the donee of a property duty to himself or to a third person.
2. A promise to gift property or a property right or to relieve someone of a property duty in the future shall not constitute a contract of gift. However, the beneficiary of the promise to be gifted in the future shall have the right to claim from the promisor damages incurred in preparing to accept the gift if the donor has refused to conclude the contract of gift without any justifiable grounds.
3. A contract of gift providing for the right of the donor to recover by his unilateral decision the gifted property or the property right shall be null and void.
Article 6.466. Transactions not deemed to be a gift
1. A contract providing for the transfer of a gift to the ownership of the donee after the death of the donor shall be null and void. Relations of such kind shall be governed by the provisions regulating legal relationships of inheritance.
2. The donee’s unconditional renouncement of succession or a property right that he has not yet acquired shall not constitute a gift.
3. When between the parties to a contract of gift there exists a counter transfer of certain property or property rights or counter obligations, such contract shall not be deemed to be a gift. Legal consequences resulting from simulated transactions shall occur in such event. When one person transfers to another person property or a property right for remuneration, the contract of gift may be deemed to be constituted only for the part of the property or the property right in excess of the remuneration unless a different conclusion may result from the essence of the obligation concerned.
Article 6.467. Contract of gift under condition
1. A person, in gifting the property, may establish a condition for the property to be used exclusively for a definite purpose without prejudice to the rights and legitimate interests of other persons.
2. In the event when the donee fails to comply with a condition established in the contract of gift, the donor shall have the right to demand, within judicial proceedings, the compliance with that condition or annulment of the contract of gift and return of the property.
Article 6.468. Right of refusal of a donee to accept a gift
1. The donee shall have the right to refuse to accept the gift at any time before it is transferred to him.
Article 6.469. Form of a contract of gift
1. A contract of gift of a sum of money exceeding one thousand five hundred euros must be concluded in the written form.
2. A contract of gift of immovable property likewise a contract of gift whose object exceeds fourteen thousand five hundred euros must be made in the form of a notarial act.
Article 6.470. Capacity to make and receive gifts
1. A person legally incapable in this area may not act in the capacity of a donor. A person with limited legal capacity in this area may act in the capacity of a donor with the consent of the curator. Where the curator does not give his consent, the consent to act in the capacity of a donor may be granted by the court at the request of the person with limited legal capacity in this area. The consent of the curator shall not be required where the person with limited legal capacity in this area gives symbolic gifts, the value whereof does not exceed the amount of one base social benefit. It shall be prohibited for the guardian of a person legally incapable in this area to give the property of the latter as a gift in the name of the latter, except for giving symbolic gifts, the value whereof does not exceed the amount of one base social benefit.
2. Only the guardian of a person legally incapable in this area shall have the right to accept gifts made to the latter, except for symbolic gifts, the value whereof does not exceed the amount of one base social benefit. A person with limited legal capacity in this area shall have the right to accept gifts made to him with the consent of the curator. Where the curator does not give his consent, the consent to accept gifts may be granted by the court at the request of the person with limited legal capacity in this area. The consent of a curator shall not be required where a person with limited legal capacity in this area accepts symbolic gifts, the value whereof does not exceed the amount of one base social benefit.
3. A contract of gift shall be null and void where the donor is a person who does not own the gift or is not properly authorised to conclude such contract.
5. A gift shall not be permitted to politicians, officials of state and municipal institutions, and other public servants, as well as to their close relatives where it is connected with the official position of the politician, official or public servant or with the performance of their official duties.
6. A contract of gift of property which does not exist at the time of conclusion of the contract likewise a contract of gift of property to be created in future shall be null and void.
Article 6.471. Limitations to make a gift
1. The gift of property in joint common ownership shall be permitted exclusively upon the written consent of all participants in the joint common ownership.
2. The gift of property managed by the right of trust shall be permitted exclusively upon the written consent of the owner of the property unless otherwise provided for by laws or the contract.
3. The gift of the right of claim shall be effectuated in compliance with the rules established in Articles 6.101 to 6.104 and Article 6.107 of this Code.
4. A gift by means of the performance for the donee of his obligation to a third person or by acceptance of the debt of the donee to a third person shall be effectuated in compliance with the rules established in Articles 6.50, 6.115, 6.116, 6.118 and 6.119 of this Code.
Article 6.472. Revocation of a gift
1. The donor shall have the right to start judicial proceedings with the action in revocation of a gift if the donee has committed an attempt on his life or the life of his close relatives, or has intentionally caused them serious bodily injury, also if, taking into consideration the nature of the gift, the personal qualities of the parties to the contract of gift and their interrelations, the donnee has committed against the donor such actions which are undoubtedly strictly reprehensible from the point of good morals. In the event of the intentional deprivation of life of the donor made by the donnee, the heirs of the donor shall have the right to bring an action in revocation of a gift.
2. The donor shall also have the right to start judicial proceedings with the action in revocation of a gift if the treatment by the donee of the gifted property, which is of great non-pecuniary value to the donor, creates a real threat of its loss.
3. The revocation of a gift shall obligate the donnee to restore to the donor the property he has received under the contract of gift in accordance with the provisions of this Book pertaining to restitution if this property still exists at the moment of revocation of the gift.
4. The action in revocation on the grounds provided for in this Article may be brought by the donor or by his heirs within a one-year limitation period which is calculated from the day the donor or his heirs became aware or ought to have become aware of the arising of such grounds.
Article 6.473. Duties of a donor
1. The donor must, under the contract, transfer the property to be gifted without any encumbrance of the right thereto which is not established in the contract and which would hinder the use or disposal, as well as the possession of the property by the donee.
2. The donor may transfer only those rights in connection with the property gifted which he himself holds therein.
3. The donor shall not be liable for the latent defects in the property gifted if he was not aware or could not have been aware thereof.
4. The donee may claim from the donor compensation of damages if the donee has incurred expenses in connection with the lifting of the encumbrances of the right to the property or with the elimination of defects in that property, and if the donor was aware or should have been aware of those encumbrances and defects but failed to disclose that to the donee.
Article 6.474. Liability of the donee for debts of the donor
Unless otherwise provided for by laws or the contract, the donee shall only be liable for the debts of the donor which are directly connected with the received gift.
Article 6.475. Compensation for damage
Damage caused to the life, health or property of the donee as a consequence of defects of the property gifted shall be compensated by the donor on the general grounds if it is proved that the defects arose before the transfer of the property to the donee and were not obvious, while the donor, although being aware of them, failed to disclose this to the donee.
Article 6.476. Donations (aid and charity)
1. A gift of property or property right for certain useful purposes shall be deemed to be a donation.
3. A donation must be used for the determined designation. If the donation is accepted by a legal person, the latter must keep accounts of all operations relating to the use of the donated property.
4. The designation of the donation may be stated by the person who makes the donation or expressed by the request or actions of the person receiving the donation. If the use of donated property in accordance with the specified designation becomes impossible in the consequence of a change of circumstances, it may be used for another designation only with the consent of the donor, and in the event of the donor’s death/termination, only by a decision of the court.
5. In the event of donated property being used not in accordance with the designation specified by the donor, the donor or his successors shall have the right to demand within judicial proceedings revocation of the donation. This provision shall not apply in respect of donations of domestic character or those of minor value.
Article 6.477. Concept of a contract of lease
1. Under a contract of lease one party (lessor) shall undertake to grant to the lessee a thing for payment in temporary possession and use, and the other party (lessee) shall undertake to pay a lease payment.
2. The subject matter of a contract of lease may be any durable thing. Laws may establish the kinds of things the lease of which is prohibited or restricted.
3. A thing or its features enabling to define the thing which is to be transferred by the lessor to the lessee must be specified in the contract of lease. In the absence of such features in the contract, and if the subject matter of the contract of lease cannot be determined on the basis of other features, the contract of lease shall not be considered concluded.
Article 6.478. Form of a contract
Article 6.479. Term of a contract
1. A contract of lease may be fixed-term or concluded for an indefinite period, but in all cases the term of lease may not exceed one hundred years.
2. The term of a contract of lease shall be determined by agreement between the parties. If the term of the contract of lease has not been determined in the contract, the contract of lease shall be considered to have been concluded for an indefinite period.
Article 6.480. Consequences of a contract of lease concluded for an indefinite period
If the contract of lease is indeterminate, both of the parties shall have the right at any time to repudiate the contract having warned the other party one month in advance, and in the event of the lease of immovable things, three months in advance. A more extensive period may be established in the contract of lease for the issue of warning about the termination thereof.
Article 6.481. Continuance of use of property after the expiry of the term of a contract
A contract of lease shall be considered to become concluded for an indefinite period where the lessee continues to use the property for more than ten days after the expiry of the term of the contract without any opposition from the lessor.
Article 6.482. Preferential right of the lessee to renew a contract of lease
1. The lessee who has duly performed his duties assumed under the contract of lease shall have a preferential right before other persons to renew the contract upon the expiry of the term thereof.
2. The lessor must inform the lessee in writing within the period determined in the contract of the latter’s right to conclude a contract of lease for a new term, and if such period is not determined in the contract, within a reasonable period before the termination of the contract of lease.
3. When concluding a contract of lease for a new term, the conditions of the contract may be modified by agreement between the parties.
4. If the lessor refused to conclude a contract with the lessee for a new term, but within a year from the termination of the contract of lease concluded a contract of lease upon the same thing with another person without informing the previous lessee, the latter shall have the right, at his choice, to claim either the transfer to him of the rights and duties of the lessee under the contract of lease concluded or compensation of damages resulting from the refusal to conclude a contract of lease for a new term.
Article 6.483. Delivering property to the lessee
1. The lessor must deliver property to the lessee in the state corresponding to the conditions of the contract and designation of the property. The lessor must guarantee that the thing is fit to be used for the purpose for which it is leased throughout the whole period of the lease.
2. The lessor shall not be held liable for the defects of the property leased which were stipulated by him when concluding the contract.
3. The lessor must deliver to the lessee the documents relating to the thing leased and appurtenances thereof (technical passport, certificate of quality, etc.) which are necessary for the use of that thing unless otherwise provided for by the contract.
Article 6.484. Consequences of not delivering the thing to the lessee
In the event of the failure by the lessor to deliver into the use of the lessee the leased thing, its documents and appurtenances, the lessee shall have the right to recover this thing from the lessor and to claim damages caused by the delay of performance or to demand dissolution of the contract and compensation of damages caused by the non-performance of the contract.
Article 6.485. Liability of the lessor for defects of the thing
1. The lessor shall be liable for defects of the thing leased which wholly or partially obstruct the use thereof for its designation even in those instances where the lessor was not aware of those defects at the time of concluding the contract.
2. In the event of discovery of such defects as indicated in paragraph 1 of this Article, the lessee shall have the right at his choice:
1) to demand from the lessor either elimination of those defects free of charge or a commensurate reduction of the lease payment, or compensation of the expenses of the lessee incurred in the elimination of the defects;
2) to withhold the amount of expenses incurred for the elimination of defects from the lease payment if the lessor was informed of this in advance;
3. The lessor who has been informed about the demands of the lessee or about the latter’s intention to eliminate the defects of the thing at the expense of the lessor shall have the right to replace the leased thing of inadequate quality with another analogous thing of adequate quality or to eliminate the defects of the thing himself free of charge.
4. In the event where, after the satisfaction of the demands of the lessee or after the withholding of expenses for the elimination of defects from the lease payment, damages caused to the lessee are not fully compensated, he shall have the right to demand the reparation of the uncompensated part of the damages.
5. The lessor shall not be liable for those defects of the leased thing which were stipulated by him when concluding the contract or which should have been known to the lessee, or which could have been noticed by the lessee without any additional inspection when concluding the contract or delivering the thing, but which were not discovered through his own gross negligence.
Article 6.486. Rights of third persons to leased property
2. Prior to the conclusion of a contract of lease, the lessor must inform the lessee about all rights of third persons to the thing upon lease (pledge, servitude, usufruct, etc.). If the lessor fails to perform this duty, the lessee shall have the right to demand a reduction of lease payment or dissolution of the contract and compensation of damages.
Article 6.487. Lease payment
1. The lessee must pay the lease payment on time. Unless otherwise provided for by laws or the contract, he shall have the right to demand a commensurate reduction of the lease payment if, due to circumstances for which he is not responsible, conditions of the use of the thing established in the contract or the state of the thing have deteriorated substantially.
2. If the concrete amount of the lease payment or the method of its calculation is not determined in the contract, each of the parties to the contract shall have the right to apply to the court with the request to appoint independent experts for determination of the amount of the lease payment.
3. Upon agreement between the parties, the lease payment may be established in the following forms:
4. The parties may agree on a combination of these forms for the determination of the amount of the lease payment or may establish another form of calculating the lease payment.
5. Unless otherwise provided for by the contract of lease, the lease payment may be changed by agreement between the parties within the periods agreed between them, but not more often than twice a year if laws do not foresee differently.
6. Unless otherwise provided for by the contract of lease, in the event of essential violation by the lessee of the periods for paying the lease payments, the lessor shall have the right to demand from the lessee effectuation of the lease payment in advance within the periods established by the lessor, but not for more than two consecutive payment terms.
Article 6.488. Right of a lessee to incomes received from the leased thing
The incomes, fruits, livestock increase received from the leased thing shall belong to the lessee unless otherwise provided for by the contract.
Article 6.489. Use of leased property
1. The lessee must use the leased thing in accordance with the contract and designation of the thing.
2. The lessee must use the leased thing in such a way as not to hinder the use of that thing by other lawful users.
3. The lessee shall be liable towards the lessor and other lessees for the performance of the duty determined in paragraph 2 of this Article. In addition, the lessee shall be liable for actions of other persons to whom he grants the right or possibility to use the leased thing.
4. Where one of the lessees violates the duty provided for in paragraph 2 of this Article, the other lessees shall be entitled to a reduction of the lease payment if the lessor has been notified of the hindrances.
Article 6.490. Sublease
1. The lessee shall have the right to sublease the leased thing only with the written consent of the lessor unless otherwise provided for by the contract. The contract of sublease may not be concluded for a period exceeding the term of the contract of lease.
2. A refusal of the lessor to consent to the sublease of the thing must be reasonably motivated. If the lessor refuses to consent without any reasonable grounds, the lessee shall have the right to dissolve the contract before its expiry.
3. If the consent of the lessor for the sublease of a thing is not necessary, the lessee, before concluding the contract of sublease, must inform the lessor about the contract of sublease and the sublessee.
6. The lessee shall be liable towards the lessor both in the event of sublease and the lease for use. If a sublessee substantially violates the contract of sublease and inflicts damage by his actions to the lessor or to other lawful users of that thing, the lessor shall have the right to demand dissolution of the contract of sublease.
Article 6.491. Assignment or encumbrance of rights and duties of a lessee
1. The lessee shall have the right, upon the written consent of the lessor obtained in advance, to assign his rights and duties under the contract of lease, to pledge the right of lease or to transfer it as a property contribution or to effectuate any other encumbrance thereof unless otherwise provided for by the contract of lease.
Article 6.492. Duty of the lessor to make major repairs of a leased thing
1. The lessor must make major repairs of the leased thing at his own expense unless otherwise provided for by laws or the contract.
2. If the lessor fails to comply with the duty provided for in paragraph 1 of this Article, the lessee shall acquire the right, upon obtaining the authorisation of the court, to make major repairs and recover from the lessor the price of the repairs, or to withhold it from the lease payment, or to dissolve the contract and claim damages caused by failure to perform the contract. In this event, the lessee must submit to the lessor the estimate and invoice of the works of major repairs.
3. The lessee must provided all the conditions necessary for the proper performance of the duty of the lessor indicated in paragraph 1 of this Article.
4. In the performance of his duty indicated in paragraph 1 of this Article, the lessor shall have the right to require from the lessee to temporarily desist from the use of the leased thing if major repairs are necessary and urgent. If major repairs are not urgent and the lessee does not agree to be temporarily dispossessed of the leased thing, the lessor must obtain the authorisation of the court for the temporary restriction of the lessee’s right to use the leased thing.
Article 6.493. Duty of a lessee with regard to maintenance of a leased thing
1. The lessee must maintain the leased thing in a proper state and bear expenses for the maintenance of the thing and to make its current repairs at his own expense unless otherwise provided for by laws or the contract.
2. The lessee, on becoming aware of damage or any other serious defects of the leased thing for the elimination of which urgent major repairs are necessary, must immediately inform the lessor thereof.
3. In the event where the lessor, after he was informed by the lessee, fails to eliminate the defects, the lessee shall have the right to undertake the necessary repair works even without the authorisation of the court when it is necessary to ensure the preservation of the leased thing; in doing so the lessee shall inform the lessor accordingly and subsequently submit to him the documents confirming the value of the performed works as well as the replaced parts of the thing. Where necessary, the lessee may perform the necessary repairs of the thing by withholding the amount of the expenses from his payment of lease.
Article 6.494. Validity of a contract in the event of the transfer of a thing to another owner or in the event of death of a lessee
1. When the right of ownership of the leased thing passes from the lessor to another person, the contract of lease to be registered shall remain in force for the new owner, provided the rights resulting from the contract of lease have been registered in the public register in accordance with the procedure laid down by law.
2. The contract of lease shall remain valid even where the thing is passed from one state/municipal institution (lessor) to another.
3. Transfer of the right of ownership to the leased property from the lessor to another person shall be the grounds for the termination of the contract of lease in case of a demand of the lessee.
4. In the event of death of a lessee – natural person – who was leasing an immovable thing, his rights and duties under the contract of lease shall be passed to his heirs unless otherwise provided for by laws or the contract. In such event, the lessor shall have no right to refuse the heir of the deceased lessee the assignment of the rights and duties of the previous lessee for the remaining period of the lease, except in the cases when the conclusion of the contract was conditioned by the personal qualities of the lessee.
Article 6.495. Duty of a lessor to inform about a contract of lease
The lessor, in selling or in any other way transferring a leased thing, as well as pledging it or otherwise encumbering the right of ownership thereto, must inform the purchaser of the thing or the party to any other contract about the contract of lease in operation, likewise to inform the lessee of the intended sale, any other alienation of the thing, or of the encumbrance of the right thereto.
Article 6.496. Termination of a contract of lease upon expiry of its time limit
A fixed-term contract of lease shall terminate upon expiry of its time limit unless the parties renew the contract by concluding a new agreement or in accordance with the procedure laid down in Article 6.481 of this Code.
Article 6.497. Dissolution of a contract before expiry of the term upon demand of the lessor
1. The lessor shall have the right to bring an action before a court for the dissolution of a contract of lease before expiry of the term if:
1) the lessee uses the thing in violation of the contract or not according to the designation of the thing;
4) the lessee fails to perform major repairs in those cases where the laws or the contract obligate him to do so;
2. Unless otherwise provided for by the contract of lease, termination of the contract of lease before expiry of the term shall also entail the termination of the contract of sublease.
3. The lessor shall have the right to demand dissolution of the contract of lease before expiry of the term only after he has sent a written warning to the lessee about the necessity to perform the obligation or eliminate violations within a reasonable time, but the lessee, having received such warning, failed to perform the obligation or to eliminate the violations within a reasonable time.
Article 6.498. Dissolution of a contract before time upon demand of a lessee
The lessee shall have the right to bring an action to a court for dissolution of a contract of lease before time, if:
3) the lessor fails to transfer the thing to the lessee or hinders the use of the thing in accordance with its designation and the conditions of the contract;
4) the thing transferred has defects which were not stipulated by the lessor and were unknown to the lessee and which render the thing impossible to be used in accordance with its designation and the conditions of the contract;
Article 6.499. Return of a thing to the lessor
1. Upon the termination of the contract of lease, the lessee must return the thing to the lessor in the state he received it, taking into account normal wear and tear, or in the state agreed in the contract.
2. In the event where the lessee returns the thing after the term, the lessor shall have the right to demand effectuation of the lease payment for the entire time of the delay and compensation for damages incurred by such delay.
Article 6.500. Liability of a lessee for deterioration of a thing
In the event of the lessee causing deterioration of the leased thing, he must compensate the lessor for damages caused by the deterioration, except in the cases where the lessee proves that the deterioration occurred not due to his fault.
Article 6.501. Improvement of a thing
1. In the instances where the lessee with the permission of the lessor has made improvements of the leased thing, he shall have the right to compensation of the necessary expenses incurred by him for that purpose.
2. In the event where the improvements made by the lessee without the permission of the lessor are separable without harm to the leased thing, and where the lessor does not agree to compensate for them, they may be taken out by the lessee.
Article 6.502. Liability of a lessee for loss of a thing
1. The lessee shall be liable for the loss of a thing unless he proves that the loss was not due to his fault or the fault of other persons to whom he, upon the permission of the lessor, granted the right of use of the leased thing or allowed access thereto.
Article 6.503. Purchase of leased property
1. It may be provided for by laws or the contract of lease that the leased thing shall pass to the ownership of the lessee upon the expiry of the time limit of the contract of lease or before the expiry thereof if the lessee pays the entire amount of the price stipulated by the contract of sale by instalment (leasing).
2. Where the condition on the purchase of the leased thing is not provided for in the contract, it may be established by an additional agreement between the parties in which they may agree upon the set-off of the previously paid lease payment against the price of the thing.
Article 6.504. Concept of a contract of consumer lease
1. Under a contract of consumer lease, the lessor, i.e. the person whose permanent business activity is leasing of things, shall undertake to grant a movable thing to the lessee (consumer) into his temporary possession and use for payment for the personal purposes of the lessor or his family, or for household purposes thereof, provided that it is not connected with business or professional activity, while the lessee shall undertake to pay the payment of lease.
Article 6.505. Term of a contract of consumer lease
2. Rules established in Articles 6.481 and 6.482 of this Code shall not apply to the contract of consumer lease.
Article 6.506. Form of a contract of consumer lease
A contract of consumer lease must be concluded in written form or in any other specially determined form (invoice, tag, etc.).
Article 6.507. Duty of the lessor to make repairs of the thing under a contract of consumer lease
The lessor must make major and current repairs of the thing leased under a contract of consumer lease.
Article 6.508. Delivery of a thing to the lessee
Upon the conclusion of the contract of consumer lease, the lessor must, in the presence of the lessee, check the state of the thing being leased, familiarise the lessee with the rules for the use of that thing or furnish him with written instructions on the use thereof.
Article 6.509. Elimination of defects in a leased thing
1. In the event of discovery of defects in the leased thing which wholly or partly obstruct the use thereof, the lessor must, within ten days from the date of receiving the statement of the lessee concerning the defects, unless a shorter period has been determined by the contract of consumer lease, eliminate the defects free of charge on the site or replace it with an analogous thing in a proper state.
Article 6.510. Lease payment
1. The lease payment shall be determined in the contract of consumer lease in the form of a sum of money to be paid in a lump sum or in several instalments.
2. In the event where the lessee returns the thing to the lessor before time, the latter must return to the lessee the corresponding part of the lease payment calculated from the day following the day of the actual return of the thing.
Article 6.511. Limitation of the rights of the lessee
The lessor under the contract of consumer lease shall have no right to sublease a leased thing, to transfer his rights and duties under the contract of consumer lease to another person, to conclude a contract of loan for use in respect of that thing, to pledge the rights under the contract of consumer lease, or transfer them in the form of property contribution.
SECTION FIVE
LEASE OF MEANS OF TRANSPORT WITH PROVISION OF
SERVICES RELATING TO DRIVING AND TECHNICAL MAINTENANCE
Article 6.512. Concept of a contract of lease of means of transport with provision of services relating to driving and technical maintenance
1. Under a contract of lease of means of transport with provision of services relating to driving and technical maintenance, the lessor shall undertake to grant means of transport to the lessee for his temporary use for payment and render services with regard to driving and technical maintenance thereof, while the lessee shall undertake to pay the lease payment.
Article 6.513. Form of a contract
Irrespective of its duration, a contract of lease of means of transport with provision of services relating to driving and technical maintenance must be concluded in writing.
Article 6.514. Duty of the lessor relating to maintenance of means of transport
The lessor must, throughout the entire period of the contract of lease, ensure the proper technical state of the means of transport leased, likewise make the current and major repairs and provide necessary appurtenances.
Article 6.515. Duty of the lessor to provide services relating to driving and technical maintenance
1. The lessor must provide services relating to driving and technical maintenance of means of transport, which would allow ensuring its normal and safe operation in accordance with the conditions of the contract of lease. In the contract of lease of means of transport, the parties may foresee other services to be provided to the lessee by the lessor.
2. The lessor must ensure that the skills of the person or persons who drive the means of transport as well as other requirements established thereto conform to the criteria determined in laws and the contract of lease of means of transport.
3. Persons driving the leased means of transport shall be employees of the lessor. They shall follow the instructions of the lessor with respect to the technical maintenance of the means of transport, as well as to the requirements of the lessee with respect to the use of the means of transport.
Article 6.516. Duty of the lessee to pay the expenses connected with the use of means of transport for commercial purposes
Unless otherwise provided for by the contract of lease of means of transport, the lessee must bear expenses arising from the use of means of transport for commercial purposes, the cost of fuel and other materials utilised, as well as the payment of dues.
Article 6.517. Insurance of means of transport
Unless otherwise provided for by the contract of lease of means of transport, the duty to insure the means of transport and the civil liability of its operator shall rest upon the lessor.
Article 6.518. Contracts with third persons
1. Unless otherwise provided for by the contract of lease of means of transport, the lessee shall have no right to sublease the means of transport to third persons without the consent of the lessor.
2. Unless otherwise provided for by the contract of lease of means of transport, the lessee shall have the right, without the consent of the lessor, to conclude in his own name contracts of carriage as well as other contracts with third persons where this is not contrary to the purposes of the use of the means of transport.
Article 6.519. Liability for damage caused to means of transport
Where the leased means of transport is destroyed or damaged, the lessee must compensate the lessor for the damage caused if the lessor proves that the means of transport was destroyed or damaged due to the circumstances for which the lessee is responsible.
Article 6.520. Liability for damage caused to third persons
The lessor shall be held liable for the damage caused to third persons by the leased means of transport. Having compensated the damage, the lessor shall have the right of recourse against the lessee for recovery of the amount paid in the event where the damage was caused through the fault of the lessee.
Article 6.521. Peculiarities of lease of individual types of means of transport with provision of services relating to driving and technical maintenance
Peculiarities of lease of certain types of means of transport with provision of services relating to driving and technical maintenance may be determined by the codes regulating individual modes of transport.
SECTION SIX
LEASE OF MEANS OF TRANSPORT WITHOUT PROVISION OF
SERVICES RELATING TO DRIVING AND TECHNICAL MAINTENANCE
Article 6.522. Concept of a contract of lease of means of transport without provision of services relating to driving and technical maintenance
1. Under a contract of lease of means of transport without provision of services relating to driving and technical maintenance, the lessor shall undertake to provide the means of transport to the lessee in temporary possession and use for payment, while the lessee shall undertake to pay the payment of lease.
Article 6.523. Form of a contract
Irrespective of its duration, a contract of lease of means of transport without provision of services relating to driving and technical maintenance must be concluded in writing.
Article 6.524. Duty to maintain the means of transport
The lessee must, throughout the entire period of lease, ensure the technical maintenance and proper state of the means of transport leased and effectuate current and major repairs thereof unless otherwise provided for by the contract.
Article 6.525. Duty of the lessee in respect of driving and operation of the means of transport
The driving and commercial and technical operation of the means of transport leased shall be ensured by the lessee with his own forces and at his own expense.
Article 6.526. Duty of the lessee with regard to payment of expenses connected with the use of the means of transport and other expenses
Unless otherwise provided for by the contract of lease of means of transport, the lessee must bear expenses connected with the use and sustenance of the means of transport, likewise pay insurance contributions.
Article 6.527. Contracts with third persons
1. Unless otherwise provided for by the contract of lease of means of transport, the lessee shall have no right, without the consent of the lessor, to sublease the means of transport to third persons under the conditions of the contract of lease.
2. Unless otherwise provided for by the contract of lease of means of transport, the lessee shall have the right, without the consent of the lessor, to conclude in his own name contracts of carriage as well as other contracts with third persons where this is not contrary to the purposes of the use of the means of transport.
Article 6.528. Liability for damage caused to third persons
The lessee shall be held liable for the damage caused to third persons by the leased means of transport.
Article 6.529. Peculiarities of lease of individual types of means of transport without provision of services relating to driving and technical maintenance
Peculiarities of lease of certain types of means of transport without provision of services relating to driving and technical maintenance may be determined by the codes regulating individual modes of transport.
Article 6.530. Concept of a contract of lease of buildings, construction works and installations
1. Under a contract of lease of buildings, construction works and installations, the lessor shall undertake to transfer for payment a building, construction works or installation to the lessee in temporary possession and use or temporary use, while the lessee shall undertake to pay the payment of lease.
Article 6.531. Form of a contract
1. A contract of lease of buildings, construction works and installations must be concluded in writing.
Article 6.532. Rights to a plot of land
1. Under a contract of lease of buildings, construction works and installations, the rights of the use of that part of the land plot which is occupied by the relevant buildings, construction works and installations and is necessary for the use thereof in accordance with their designation shall pass to the lessee simultaneously with the transfer of the subject matter of lease.
2. In the event where the lessor is the owner of the land plot on which the leased buildings, construction works or installations are situated, the land plot shall be provided for the use of the lessee under the right of lease or on any other right stipulated in the contract of lease of buildings, construction works and installations.
3. In the event where the rights of the lessee to the land plot occupied by the relevant buildings, construction works or installations are not determined in the contract of lease of buildings, construction works and installations, it shall be deemed that the lessee is granted, for the entire period of the lease, the right to use gratuitously that part of the land plot which is necessary for the use of the buildings, construction works and installations in accordance with their designation.
4. The lease of buildings, construction works or installations situated on the plot of land which does not belong to the lessor by the right of ownership shall be permitted without the consent of the owner of this plot exclusively where this is not contrary to laws or the contract between the owner of the plot of land and the lessor of the buildings, construction works and installations.
Article 6.533. Right of the lessee to use a land plot in the event of substitution of its owner
In the event where the land plot occupied by the leased buildings, construction works or installations is sold or transferred on any other grounds into the possession of another person under the right of ownership, the lessee shall retain the right to use that part of land plot which is necessary for the use of buildings, construction works and installations in accordance with their designation under the same terms as existed before the alienation of the land plot into the ownership of another person, providing the contract of lease was registered in the public register in accordance with the procedure established by laws.
Article 6.534. Payment of lease
2. The payment of lease established in the contract shall include payment for the use of the land plot on which the leased buildings, construction works or installations are situated unless otherwise provided for by laws or the contract of lease.
3. In the instances where the payment of lease has been established per unit of space of the building, construction works or installation or any other dimension thereof, the lease payment shall be determined taking into account the actual size of the leased building, construction works or installation.
Article 6.535. Transfer of a building, construction works or installation
1. The transfer of a building, construction works or installation and the acceptance thereof shall be effectuated under the transfer and acceptance deed. The deed shall be signed by both parties.
2. Unless otherwise provided for by laws or the contract, the obligation of the lessor to transfer the building, construction works or installation to the lessee shall be considered to have been performed after the actual granting of the building, construction works or installation to the lessee or upon the signing of the transfer and acceptance deed.
3. In the event of one party of the contract avoiding to sign the transfer and acceptance deed of a building, construction works or installation under the conditions agreed in the contract of lease, it shall be considered as a refusal, respectively, by the lessor to perform his obligation with regard to the transfer of the relevant building, construction works or installation, or by the lessee to accept them.
Article 6.536. Concept of a contract of lease of an enterprise
1. Under a contract of lease of an enterprise, the lessor shall undertake to grant to the lessee in temporary possession and use for payment an enterprise as a property complex used for business purposes, while the lessee shall undertake to pay the payment of lease. The granting of an enterprise as a property complex to the lessee shall also comprise a transfer of the plot of land, buildings, construction works, installations, equipment, other means of production specified in the contract, raw materials, stocks, working capital, rights to the use of the land, water and other natural resources, buildings, construction works or installations, likewise any other property rights connected with the enterprise, the rights to the product or service mark and the name of the firm as well as other exclusive rights. The transfer of an enterprise as a property complex shall also comprise the assignment of the rights to claim and obligation of debts determined in the contract of lease. The transfer of the rights of possession and use of property which is in the ownership of other persons, likewise the transfer of rights of possession and use of land and other natural resources shall be effectuated in accordance with the procedure established by laws.
2. The rights of the lessor acquired by him on the basis of an authorisation (licence) may not be transferred to the lessee under the contract of lease of the enterprise, except in cases provided for by laws or the contract. The inclusion in the composition of obligations of the transferable enterprise of such obligations whose performance by the lessee is impossible in the absence of pertinent authorisation (licence) shall not relieve the lessor from the relevant obligations to the creditors.
Article 6.537. Rights of the creditors of the enterprise in the event of its lease
1. The lessor of an enterprise must, before the transfer thereof to the lessee, notify in writing the creditors of the enterprise about its lease.
2. A creditor of the enterprise who has not communicated to the lessor in writing his prior consent to the delegation of the debt shall have the right, within three months from the date of receiving notification about the lease of the enterprise, to demand dissolution of the contract concluded by him or early performance of that contract and compensation of damages.
3. A creditor of the enterprise who has not been informed about the lease of the enterprise in accordance with the procedure established in paragraph 1 of this Article shall have the right to bring the claims provided for in paragraph 2 of this Article against the lessor within the period of one year from the date when he became aware or should have become aware of the lease of the enterprise.
Article 6.538. Form of a contract
1. A contract of lease of an enterprise must be concluded in written form by means of drawing up one document.
2. Failure to comply with the requirements as to the form of a contract of lease of an enterprise shall render the contract null and void.
Article 6.539. Transfer of an enterprise
Article 6.540. Use of property of a leased enterprise
1. Unless otherwise provided for by the contract of lease of the enterprise, the lessee shall have the right, without the consent of the lessor, to sell, exchange, transfer for temporary use raw materials, stocks, manufactured products which are part of the property of the leased enterprise, to sublease them and transfer his rights and obligations in respect of those valuables under the contract of lease, on condition that this does not entail violation of the provisions of the contract of lease of the enterprise and reduction of the value of the enterprise.
2. Unless otherwise provided for by the contract of lease of the enterprise, the lessee shall have no right, without the consent of the lessor, to make changes in the leased enterprise as a property complex, perform its reconstruction, modernisation, expansion of its capacity, technical re-equipment or introduce any other transformations.
Article 6.541. Duty of a lessee to ensure the operation of a leased enterprise
1. The lessee of an enterprise must, within the entire term of the lease, ensure proper technical state of the enterprise and perform its current and major repairs.
Article 6.542. Improvements of an enterprise
1. The lessee of an enterprise shall have the right to compensation for the expenses incurred in respect of inseparable improvements of the enterprise providing that the consent of the lessor for such improvement was obtained, except in cases when otherwise provided for by the contract of lease of the enterprise.
2. The lessor may be relieved from the obligation to compensate expenses indicated in paragraph 1 of this Article if he can prove that the expenses of the lessee increased the value of the enterprise incommensurately to the improvements of its quality and/or operational properties, or that when effectuating such improvements the criteria of good faith and reasonableness were violated.
Article 6.543. Arising of effects of nullity of transactions and other legal effects to a contract of lease of an enterprise
The provisions of this Code concerning the effects of nullity of transactions, the legal effects of dissolution or change of a contract, likewise those providing for the return of property or the recovery in kind shall apply to contracts of lease of an enterprise to the extent that this does not violate in essence the rights and interests of the lessor, lessee and other persons, and is not contrary to public order.
Article 6.544. Return of a leased enterprise
In the event of the termination of a contract of lease of the enterprise, the lessee must return the enterprise to the lessor in accordance with the rules established in Articles 6.536, 6.537 and 6.539 of this Code. The preparation of the enterprise for the transfer, likewise the drawing up of the transfer and acceptance deed shall be the duty of the lessee to be performed at his own expense unless otherwise provided for by the contract of lease of the enterprise.
Article 6.545. Concept of a land lease contract
1. Under a land lease contract, one party (lessor) shall undertake to transfer for payment a plot of land to the other party (lessee) in temporary possession and use for the purposes specified in the contract and under conditions established therein, while the lessee shall undertake to pay the payment of land lease indicated in the contract.
Article 6.546. Subject matter of a land lease contract
The subject matter of a land lease contract shall be a plot of land (or a part thereof) in the state or private ownership formed in accordance with the procedure established by laws and registered in the Real Property Register.
Article 6.547. Form of a land lease contract
2. A land lease contract may be invoked by the parties against third persons only if it is registered in the public register in accordance with the procedure established by laws.
Article 6.548. Lessor of land and the lessee of land
2. A contract of lease of public land shall be formed, within its remit, by an institution which performs the functions of the manager of public land.
3. In the event of a plot of land belonging to several persons under the right of co-ownership, the land plot concerned may be leased upon the written consent of all the co-owners.
Article 6.549. Duration of a land lease contract
1. The duration of a contract of lease of land in private ownership shall be established by agreement between the lessor and the lessee. The parties may also conclude an open-ended land lease contract.
2. The duration of a contract of lease of public land shall be established by agreement between the lessor and the lessee; nevertheless, the term may not exceed ninety-nine years.
4. Where the land plot pursuant to the territorial planning documents is allocated to be used for public needs, such land plot shall be leased only for a period until it is expropriated for the intended purposes. In the event of the contract being concluded for a longer period, it shall be deemed to be concluded only for the duration until the expropriation of the land plot.
Article 6.550. Content of a land lease contract
1. The following must be indicated in a land lease contract:
3) the data on the object of the land lease registered in the land cadastre and the public register;
6) conditions of use of the construction works and installations situated on the leased land and belonging to the owner of the land or any other persons by the right of ownership, as well as conditions for erecting new buildings and construction works, building of roads and water reservoirs, or other conditions, likewise the intended use of the buildings or construction works upon the expiry of the time limit of the land lease contract;
7) conditions of use of the surface and subterranean waters, mineral resources (with the exception of amber, oil, natural gas and quartz-sand) found in the leased land to the extent that they are not contrary to laws;
11) payment for the land lease. It shall include payment for the land reclamation installations, roads, bridges, engineering equipment, etc., likewise indexing of the payment in the event of the lease of public land;
12) other commitments of the lessor and the lessee related to the use of the land plot and its return upon the expiry of the land lease contract;
2. A land lease contract may not provide for:
1) authorisation issued to the lessee to represent the owner of the land and dispose of the private land of this owner and any other immovable property situated therein;
Article 6.551. Lease of public land
1. Public land, with the exception of cases provided for in paragraph 2 of this Article, shall be leased by competitive bidding in accordance with the procedure established by the Government to a person who offers the highest payment for the lease of land.
Article 6.552. Payment of land lease
1. Payment of lease of land in private ownership shall be determined by agreement between the lessor and the lessee.
Article 6.553. Sublease of land
1. The lessee of land shall have the right, upon written consent of the lessor, to sublease the leased land in compliance with the requirements and conditions stipulated in the land lease contract.
2. Land designated for agricultural purposes may not be subleased for any other purposes than determined in the land lease contract.
Article 6.554. Reimbursement of expenses incurred by the lessee for the improvement of land designated for agricultural purposes
Expenses incurred by the lessee for the improvement of land designated for agricultural purposes shall be reimbursed where it is provided for in the land lease contract or when both parties agree (by additional written agreement) prior to the commencement of the work concerned upon the character, scope and costs of the land improvement work.
Article 6.555. Duty of the lessor to repair land reclamation installations, roads, bridges and other engineering facilities
1. Unless otherwise provided for by laws or the land lease contract, the lessor must repair, at his own expense, land reclamation installations, roads, bridges and other engineering facilities owned by him. In the event where the lessor fails to perform this duty, which renders the land plot impossible to be used for its designation, the lessee shall have the right to dissolve the contract.
2. Where the lessor fails to perform the repair work indicated in paragraph 1 of this Article, which has been declared necessary and urgent by the relevant public authorities, the lessee shall have the right to perform the repair work himself and recover from the lessor, within judicial proceedings, the repair expenses necessary to ensure the functioning of the leased property.
Article 6.556. Duty of the lessee in regard to the preservation of the soil and its quality, proper maintenance of land reclamation installations, roads, bridges, other engineering facilities and plantations
1. The lessee shall be prohibited from performing any actions in the leased land plot which might result in destruction or pollution of the fertile layer of the soil. Unless otherwise provided for by the land lease contract, the lessee must perform, at his own expense and within the procedure established by laws, minor maintenance work of the land reclamation installations, roads, bridges and other engineering facilities belonging to the lessor, preserve protective and other signs, likewise ensure the compliance with the environmental requirements in the territory. Where the lessee fails to perform these duties, the lessor shall have the right to recover, within the judicial proceedings, from the lessee the funds necessary for the performance of the indicated work and damages incurred as a result of the non-performance of the duties specified in this Article, and to dissolve the land lease contract.
Article 6.557. Right of the lessee to compensation for erected buildings, construction works and installations
1. Upon the expiry of the time limit of the land lease or upon its dissolution before the term, the owner of the land shall compensate the lessee for the erected buildings, construction works and installations, the construction of which was provided for in the land lease contract; and where the buildings remain in the possession of the lessee by the right of ownership, the latter shall have the right to the land servitude, providing that it was stipulated in the land lease contract or in the additional written agreement.
2. In the event where the buildings, construction works and installations were erected without permission, or where the erected buildings, construction works and installations were not stipulated in the land lease contract, the lessee must demolish them and restore the land plot. If the lessee fails to comply, this shall be executed by the lessor at the expense of the lessee, or the buildings, construction works and installations concerned shall pass to the lessor by the right of ownership, providing they conform to the requirements established in the territorial planning documents and are legitimised in accordance with the procedure established by laws.
Article 6.558. Validity of a land lease contract upon the substitution of the lessee of land
1. Upon the death of the lessee, the rights and duties thereof related with the lease contract shall pass on to his heirs, providing that they do not relinquish these rights and duties. In the event of the lessee’s heirs relinquishing the land lease contract, they must compensate the lessor for the damages incurred in connection with this.
Article 6.559. Validity of a land lease contract upon the substitution of the lessor of land
In the event of the death of the land owner, or passing of the land ownership rights to another owner on any other legal grounds, or upon the substitution of the lessor of public land, the land lease contract shall be valid in respect to the new owner of the land or the new lessor of public land, providing that the contract was registered in the public register in accordance with the procedure established by laws.
Article 6.560. Duty of the lessor to notify about the lease contract
Before executing the sale or any other alienation of the leased land, likewise before mortgaging the land or otherwise encumbering the rights thereto, the lessor must notify the acquirer of the land plot as well as the prospective mortgager about the existence of the land lease contract, while the lessee must be notified about the forthcoming alienation of the land plot or any other encumbrance of the rights thereto.
Article 6.561. Prohibition to lease mortgaged land
In the event of failure by the owner of mortgaged land to satisfy debt obligations within the time established in the contract, and after a ruling is passed by a mortgage judge to arrest the mortgaged land, it shall be prohibited to lease the land concerned.
Article 6.562. Expiry of a land lease contract
A land lease contract shall be terminated:
2) after the death of the lessor of land where his heirs do not assume the rights and duties related to the lease contract, or in the case of absence of any heirs;
5) upon the dissolution of the land lease contract on the grounds established in Articles 6.563, 6.564 and 6.565 of this Code;
Article 6.563. Dissolution of a land lease contract upon the expropriation of land for public needs
In the event of the land being expropriated for public needs, the land lease contract shall be dissolved and the damages incurred by the lessor and the lessee compensated in accordance with the procedure established by laws.
Article 6.564. Dissolution of a land lease contract at the demand of the lessor before the expiry of its time limit
1. A land lease contract may be dissolved at the demand of the lessor before the expiry of its time limit:
1) if the lessee of the land fails to use the land in conformity with the contract or the principal designation of land use;
2) if the lessee of the land fails to execute payment for the land lease within the period of three months from the payment date established in the land lease contract;
2. A written notice about the dissolution of a land lease contract must be given by the lessor to the lessees of agricultural land not later than three months prior to the dissolution of the lease contract, and to the lessees of any other land, not later than two months prior to the dissolution of the lease contract.
Article 6.565. Dissolution of a land lease contract at the demand of the lessee before the expiry of its time limit
1. In the event of lease of agricultural land, a lease contract of such land may be dissolved before the expiry of its time limit at the demand of the lessee upon prior notification of the lessor not later than three months before the dissolution, and in the event of lease of any other land, not later than two months before the dissolution of the contract of lease.
Article 6.566. Right of a lessee to renew a land lease contract
Upon the expiry of the time limit of a land lease contract, and along with the previous lessee there being several other contenders for the lease of the land on the same conditions, priority right to form a new land lease contract shall be awarded to the former lessee, providing that he duly performed the duties assumed under the land lease contract.
Article 6.567. Concept of a leasing (financial lease) contract
1. Under a leasing (financial lease) contract, one party (the lessor) shall undertake to acquire from a third party a thing specified by the other party (the lessee) and place it, in return for payment, at the possession of the lessee for business purposes provided that, upon payment of the total amount stipulated in the leasing contract, the thing will pass to the ownership of the lessee, unless otherwise provided for by the contract. The provisions of this Chapter shall also apply mutatis mutandis in cases where the lessor is the owner of the leased property.
2. The lessor shall select the seller and the thing in accordance with the instructions of the lessee and shall not be liable with respect to the selection of the seller or the leasing object, unless otherwise provided for by the leasing contract.
Article 6.568. Subject matter of a leasing contract
1. The subject matter of a leasing contract may be any non-consumable movable or immovable thing, with the exception of land and natural resources.
2. The lessor may transfer to third parties all or part of his rights related to the leasing contract and its subject matter. Such transfer of rights shall be without prejudice to the lessor’s obligations under the leasing contract where the time limit for meeting such obligations is due before transfer of such obligations to third parties and shall be without prejudice as to the substance of the leasing contract.
3. The lessee may transfer the right to the use of the subject-mater of the leasing contract or any other right under the leasing contract only upon a prior written consent of the lessor.
Article 6.569. Lessor’s duty to notify of the leasing contract
When acquiring a thing for the purpose of leasing it to the lessee, the lessor must notify the seller of his intention to transfer the thing, under leasing conditions, to a specific lessee.
Article 6.570. Transfer of the leasing object
1. Unless otherwise provided for by the leasing contract, the seller shall transfer the thing, which is the subject matter of the leasing contract, directly to the lessee at the latter’s place of business.
2. Where the thing (the subject matter of the leasing contract) is not transferred to the lessee within the time limit specified in the leasing contract and if the time limit has not been specified in the leasing contract– within a reasonable time limit, the lessee shall have the right to terminate the leasing contract and claim damages where the failure to timely transfer the thing is due to circumstances the responsibility for which lies with the lessor.
Article 6.571. Risk of accidental perishing of or damage to the thing
1. The risk of accidental perishing of or damage to the thing (the subject matter of the leasing contract) shall pass to the lessee from the moment when such thing is transferred to him, unless otherwise provided for by the leasing contract.
3. Unless otherwise provided for by the leasing contract, the lessor shall not be liable to the lessee for the defects of the subject matter of the leasing contract, with the exception of cases where the lessee relied on the lessor’s experience and knowledge and also where the lessor intervened in the selection of the seller and the subject matter of the contract.
4. The lessee must use and maintain the thing with diligence and due care and keep it in the condition in which it was handed over to him subject to fair wear and tear and to any modification agreed by the parties in the contract.
Article 6.572. Effect of the leasing contract on third parties
1. The lessor’s right of ownership in the subject matter of the leasing contract which is not subject to registration may be enforced against third parties only if the leasing contract has been registered in accordance with the procedure established by laws.
2. In the case of the lessee’s bankruptcy, the lessor’s rights may be enforced against the lessee’s creditors and the insolvency administrator only if the leasing contract has been registered in accordance with the procedure established by laws.
3. The leasing contract whose subject matter is an immovable thing shall mutatis mutandis be subject to the rules provided for in paragraph 2 of Article 6.478 of this Code.
Article 6.573. Seller’s liability
1. The seller shall be directly bound towards the lessee with respect to all claims resulting from the contract for the sale of the leasing object (with respect to the quality and completeness of the property, hand-over period, etc.). Save for the duty to pay for the acquired property, the lessee shall enjoy all rights and duties of the buyer provided for in this Book to the same extent as if he were a party to the sales contract. However, the lessee shall not have the right to terminate the sales contract without the consent of the lessor.
2. The lessor and the lessee shall have the rights and duties of solidary obligation with respect to the seller’s creditors.
3. Unless otherwise provided for by the leasing contract, the lessor shall not be liable to the lessee for the failure on the part of the seller to comply with his obligations, with the exception of cases where the lessor was responsible for the selection of the seller. Where the seller is selected by the lessor and the former is in breech of the sales contract, the lessee shall have the right to make claims resulting from such contract, at his own discretion, to both the seller and the lessor. In such case, the seller and the lessor shall be solidarily liable to the lessee.
Article 6.574. Termination of the leasing contract
In the event of a material breech of the leasing contract by the lessee, the lessor must require in writing that the lessee eliminates, within a reasonable time limit, the breach if this is possible taking into account specific circumstances. Where the lessee fails to do so, the lessor shall have the right to require early payment of rentals or to terminate the leasing contract. Where the leasing contract is terminated, the lessor shall have the right to require that the subject matter of the agreement be returned to him and to recover such damages as would place the lessor in the position in which he would have been had the lessee duly performed the contract.
Article 6.575. Scope of application
The provisions of this Chapter shall determine the procedure of formation, performance and termination of contracts of lease of dwellings where the premises concerned belong to:
Article 6.576. Concept of a contract of lease of a dwelling
Under a contract of lease of a dwelling, the lessor shall undertake to provide, for payment, the lessee with a dwelling for temporary possession and use for residence, while the lessee shall undertake to use the premises in accordance with their designation and pay the payment of lease.
Article 6.577. Grounds for concluding a contract
1. Contracts of lease of state-owned or municipal dwellings shall be concluded upon the decision of state or municipal institutions. Enterprises, offices or organisations shall conclude contracts of lease of dwellings with their employees within the framework of a collective agreement, and in the event where such agreement is not concluded, the lease shall be effectuated on the grounds and within the procedure of an agreement between the administration and the employees.
Article 6.578. Parties to a contract
2. The lessor shall be the owner of the dwellings or the possessor thereof upon any other legal grounds. A lessee may act in the capacity of a lessor of dwellings if he forms a contract of sublease under the procedure established by laws.
3. A lessee shall be a natural person who concludes a contract of lease of a dwelling in his own name and in his own interests, or those of his family, or the former members of his family. In the event where a minor who does not have parents or cannot live with them remains residing in the dwelling, a contract of lease of the dwellings in his name may be formed by a person authorised by law.
4. The lessor shall have no right to refuse forming a contract of lease of a dwelling with a person, or to extend it, or to impose more onerous conditions on the lessee for the sole reason that the person concerned is a pregnant woman or this person has minor children, with the exception of cases where such refusal is justified by the size of the dwelling or by the arrest thereof (paragraph 2 of Article 6.587 of this Code).
Article 6.579. Form of a contract
1. In the event where the lessor is the State, municipality or a legal person, a contract of lease of a dwelling must be concluded in writing. It shall be signed by an authorised official and the lessee.
3. A fixed-term contract of lease of a dwelling must be concluded in writing irrespective of who is the party thereto.
Article 6.580. Content of a contract
1. A contract of lease of a dwelling must include the following data: the address of the leased premises, the number of rooms or any other premises, dwelling space, engineering (technical) installations present in the premises, the appurtenances and the conditions for the use of common premises, the amount of the lease payment and periods for this payment, and the procedure for the payment for public utilities.
3. At the time of concluding a contract of lease of a dwelling, the lessor must submit to the lessee a copy of the the statutes of the association of owners of the residential building or a copy of any other document establishing the requirements for the care, use and maintenance of common premises and other rules. A copy of this document shall be an inherent part of a contract of lease of a dwelling. However, a lessee shall have no right to demand dissolution of the contract of lease of a dwelling solely on the grounds of the lessor’s failure to furnish him with a copy of this document.
4. Null and void shall be the terms of the contract of lease of a dwelling which:
3) establish the dependence of the lessee’s rights upon the number of his family members, with the exception of cases where the change of the lessee’s rights is justified by the size of the dwelling;
4) limit the right of the lessee to purchase things or receive services from persons whom the lessee wishes to chose at his own discretion;
5) provide the lessor with the right to demand from the lessee the payment of lease in the form of a lump sum for the whole duration of the lease in the event of the lessee’s delay to make the payment of lease for one period;
6) enable the lessor to perform unilateral assessment of the state of the dwelling and make a conclusion on it being fit for residence;
Article 6.581. Subject matter of a contract
Only a fit for residence dwelling house or its part, a separate apartment or an isolated dwelling consisting of one or several rooms with related non-residential premises may be the subject matter of a contract of lease of a dwelling. A part of a room or a room which is connected with another room by a common entrance (communicating rooms), likewise non-residential premises (kitchens, corridors, storage rooms, etc.) may not be the subject matter of a separate contract of lease of a dwelling. In apartments which are leased to several lessees under separate contracts of lease, such non-residential premises may be leased for common use.
Article 6.582. Duration of a contract
2. A written contract of lease shall be deemed to be concluded from the date when the parties sign it, while an oral contract shall be deemed to be concluded from the day when the parties agree on the conditions of the contract or a permission to take residence in the premises concerned is given.
3. A fixed-term contract, the duration of which is determined by a certain event, shall become open-ended in the case of non-occurrence of this event. Where the date of the occurrence of the event concerned is put forward to a later time, the fixed term of the contract shall be postponed accordingly.
Article 6.583. Payment of lease
2. The lessee must effectuate the lease payment for the dwellings every month not later than by the twentieth calendar day of the following month unless other periods are provided for by agreement between the parties. Payment of lease for the state and municipal dwellings shall be calculated in accordance with the procedure established by the Government.
3. Payment of lease for the dwellings leased out by enterprises, offices and organisations to their employees shall be determined in the collective agreement, and in the instances where organisations do not conclude such agreements, it shall be determined by agreement between the organisation and the employees concerned; however, the maximum amount of the lease payment may not exceed the maximum lease payment determined in accordance with the procedure established by the Government.
4. The amount of lease payable for dwellings leased out on commercial grounds by enterprises, offices, organisations and legal persons shall be determined by agreement between the parties; however, the maximum amount of the lease payment may not exceed the maximum lease payment determined in accordance with the procedure established by the Government.
5. The lessor shall have no right to demand the payment of lease in advance, with the exception of the lease payment for the first month.
6. The contract of lease of a dwelling may provide for an adjustment of the amount of lease payment by agreement between the parties, but not more often than once a year. The clauses of a contract of lease of a dwelling entitling the lessor to unilaterally adjust the lease payment or to demand such adjustment before the expiry of a twelve-month period from the date of conclusion of the contract or more often than once a year shall be null and void.
Article 6.584. Payment for water, energy and public utilities
1. In the event of lease of state or municipal dwellings, payment for cold and hot water, electric energy, gas, heating and public utilities (disposal of garbage, lifts, cleaning of common-use premises and the territory, etc.) shall be effectuated separately from the payment of lease. Payment for cold and hot water, electric energy, gas, heating and public utilities shall be executed in accordance with the procedure established by the Government within the period indicated in paragraph 2 of Article 6.583 of this Code.
2. The amounts, periods and procedure of payment for public utilities in the event of lease of dwellings by legal persons to their employees shall be determined within the framework of the collective agreement, and in the instances where organisations do not conclude such agreements, it shall be determined by agreement between the administration and the employee concerned.
Article 6.585. Validity of a contract of lease of a dwelling upon the change of the owner of the dwelling
In the event of the right of ownership to a dwelling having passed from the lessor to another person, the contract of lease of a dwelling shall remain valid in respect of the new owner, providing the contract of lease of the dwelling was registered in the public register in accordance with the procedure established by laws.
Article 6.586. Grounds for declaring a contract null and void
1. A contract of lease of a dwelling may be declared null and void upon the grounds of nullity of transactions established in this Code when, inter alia, the data presented to the lessee in respect of the lessor’s rights to the dwelling are false; the contract of lease of a dwelling prejudices valid rights of other persons to that dwelling; the actions of officials related to the conclusion of the contract of lease of a dwelling were unlawful.
2. A contract of lease of a dwelling may not be declared null and void upon the demand of the lessor if he knew that the other person, at the moment of conclusion of the contract, by reason of his condition was unable to comprehend the meaning of his actions or to control them, or the contract was concluded with a lessee who was legally incapable in this area or of limited legal capacity in this area.
3. In the event of a contract of lease of a dwelling being declared null and void, the lessee, together with all other persons residing with him, shall be evicted without other dwelling being granted to them, except in cases specified in paragraph 4 of this Article.
4. In the event of a contract of lease of a state or municipal dwelling being declared null and void on the grounds of it having violated valid rights of other persons to that dwelling while the lessee did not know and could not have known thereof, the lessee, together with all other persons residing with him, shall be evicted with another dwelling being granted to them. In other instances, the lessee shall be entitled only to compensation for damages incurred by him.
Article 6.587. Duties of the lessor of a dwelling
1. The lessor must transfer to the lessee a dwelling that is vacant and fit for residence, as specified in the contract of lease of the dwelling. The dwelling shall be deemed not fit for residence if it is in such a state that residing therein would pose danger to the health or safety of the lessee or that of his family members, or public safety and health.
2. The lessor shall have no right to refuse to conclude or extend a contract of lease of a dwelling, or to impose more onerous conditions for the sole reason that the lessee or a member of the lessee’s family is pregnant, likewise if the lessee or a member of the lessee’s family has children, with the exception of cases where the lessor cannot lease the dwelling due to its arrest or because of the size thereof (paragraph 4 of Article 6.578 of this Code).
3. Clauses of a contract of lease of a dwelling which exclude or limit civil liability of the lessor in respect of the lessee, or which establish liability of the lessee without his fault, shall be null and void.
4. Clauses of a contract of lease of a dwelling which enable the lessor to unilaterally modify the conditions of the lease contract because of an increase in the number of the lessee’s family members, or restrict the right of the lessee to purchase things or receive services from persons chosen by the lessee shall be null and void.
5. Clauses of a contract of lease of a dwelling which establish in respect of the lessee penalty in excess of real damages incurred by the lessor, or which entitle the lessor to demand from the lessee the payment of lease in the form of a lump sum for the whole duration of the lease in the event of the lessee’s failure to pay the lease on time shall be null and void.
6. The lessor must ensure the proper use of the dwelling house in which the leased dwelling is situated, provide or ensure that the necessary public utilities specified in the lease contract are provided to the lessee for payment, guarantee the repair of the common property of the multi-apartment house and of the equipment for the provision of public utilities situated in the house.
Article 6.588. Members of the lessee’s family
1. Members of the lessee’s family shall be the spouse/cohabitee, their minor children, parents of the lessee and those of the spouse, residing together with the lessee.
2. Children of full age, their spouses/cohabitees and grandchildren of the lessee shall be attributed to his family members where they maintain a common household with the lessee.
3. Guardians and person under guardianship, having taken residence in the dwelling of their guardian or the person under guardianship, shall not acquire the rights of a member of the family of the guardian or the person under guardianship. In the event where they continue to reside together and maintain a common household after the termination of guardianship, they may be recognised as family members under judicial proceedings upon the request of either of them.
4. Close relatives, other dependants who have resided with the lessee, his family members or with any one of them at least for a period of one year and have maintained a common household, may be recognised as family members of the lessee under judicial proceedings.
5. By taking residence in the leased dwelling, parents, children of full age and their spouses/cohabitees shall acquire the rights of family members if they maintain a common household with the lessee and upon consent of the lessee and his family members.
6. The lessee and his family members of full age shall be liable towards the lessor for the actions of the lessee’s family members who violate the contract of lease of a dwelling.
Article 6.589. Rights and duties of the lessee’s family members
1. The family members of the lessee of a dwelling shall have the same rights and duties arising from the contract of lease of a dwelling as the lessee himself.
Article 6.590. Right of family members to take occupancy of the leased dwelling
1. In accordance with the contract of lease of a dwelling, the right to take occupancy of the dwelling shall be enjoyed by those family members of the lessee as well as former family members who are indicated in the contract. In the event of those persons failing to take occupancy of the dwelling within six months from the date of conclusion of the contract, they shall forfeit the right to take this occupancy. For persons who are temporarily away, this term shall start to run upon the expiry of the time limit established in Article 6.591 of this Code; in the event of an earlier return of these person, it shall start to run from the date of their return.
2. The lessee of a state or municipal dwelling or the members of his family of full age shall have the right, upon the consent of other family members of full age, to house in the dwelling the spouse/cohabitee, children, his own parents and those of his spouse. Minor children shall not need such consent for taking occupancy together with their parents. The lessee of dwellings of enterprises, offices, organisations and natural persons leased out on commercial grounds shall have the right to house the persons specified in this paragraph only with the permission of the lessor. Such permission shall not be required in respect of the spouse/cohabitee of the lessee or his family member and their minor children. The contract of lease of a dwelling may establish other clauses regulating the taking of occupancy by family members.
Article 6.591. Preservation of the right to use a state or municipal dwelling upon temporary departure
1. Upon temporary departure of the lessee, the right to the state or municipal dwelling shall be retained by his family member or a former family member for six months on condition that the lease payment and public utilities will be paid.
2. Upon temporary departure of the lessee, the right to the state or municipal dwelling shall be retained by his family member or a former family member for the whole duration of the absence thereof in the following cases:
3) upon departure for an extended business trip abroad: for the whole duration of the business trip;
4) upon departure to take over the duties of a guardian or curator: for the whole duration of those duties;
5) in respect of children placed in an educational institution, or with relatives, a guardian or curator: for the whole duration of the children’s stay at the institution or with the persons concerned;
6) in respect of conscripts or persons serving in an international military unit: for the duration of the service established by laws;
3. Upon the expiry of the circumstances indicated in paragraph 2 of this Article, the temporarily absent lessee, his family member or a former family member shall retain the right to the leased dwelling for a further six months.
4. Upon the expiry of the period indicated in paragraph 3 of this Article, the temporarily absent lessee, his family member or a former family member shall forfeit the right to the leased dwelling.
5. In the event where the temporarily absent person, who returns after the fixed term, is accepted by the remaining lessee, members of the family or former members of the family to take occupancy of the leased dwelling, the forfeited right to the leased dwelling shall be deemed restored.
6. Upon the action of the temporarily absent person, the court may recognise his right to the leased dwelling if it is established that he has missed the term specified in this Article due to important reasons.
Article 6.592. Use of a state or municipal dwelling upon temporary departure of the lessee, a member of his family or former member of his family
Upon temporary departure of the lessee of a state or municipal dwelling, a member of his family or former member of his family, the remaining members of the family or former members of the family shall have the right to maintain occupancy of the dwelling. In the event where there are no remaining lessee, members of his family or former members of the family, the departing lessee may sublease the dwelling or temporary residents may take occupancy of the dwelling. Upon the return of the person who was temporarily absent, the sub-lessee or the temporary resident must immediately vacate the dwelling, and the persons who fail to vacate the dwelling concerned shall be evicted without prior notice and without another dwelling being provided to them.
Article 6.593. Reservation of a state or municipal dwelling
In the event of the lessee, a member of his family or all members of his family departing to another location or abroad for a period exceeding six months, the state or municipal dwelling leased by him may be reserved. A dwelling shall be reserved on condition that the payment of lease and for public utilities will be effectuated. A decision in respect of reservation shall be taken by a relevant state or municipal institution. A refusal to execute reservation may be disputed under judicial proceedings. The reservation of a dwelling shall be made in the form of a written contract between the relevant state or municipal institution and the departing persons, providing that the remaining family members give their consent thereto. The consent of the remaining persons shall be expressed in the form of their signature in the reservation contract. A refusal to give consent may be disputed under judicial proceedings.
Article 6.594. Use of a reserved state or municipal dwelling
1. In the instances where not all members of the family depart, the reserved state or municipal dwelling shall be used by the remaining persons. In the event of departure of the lessee and all of his family members, the lessee shall have the right to permit the dwelling to be used by other persons under a contract of sublease or allow temporary dwellers to take occupancy thereof. It may be stipulated in the contract of reservation that the State or municipality will lease the dwelling under a fixed-term contract of lease.
2. Upon the return of the lessee or any member of his family, the persons maintaining occupancy in the dwelling concerned must, upon the demand of the former, immediately vacate the dwelling, irrespective of the termination of the reservation period.
Article 6.595. Sublease of a dwelling
1. The lessee shall have the right, upon the written consent of all the family members residing together with him as well as that of the lessor, to sublease the dwelling. The contract for the sublease of a dwelling may be formed both in written and oral form, and for fixed or indeterminate term; however, the duration of the contract of sublease may not be longer than the duration of the contract of lease.
3. Upon the termination of the period of sublease, the sublessee shall have no priority for a renewal of the contract and must, upon the demand of the lessee, vacate the premises held under the contract of lease. In the event where a contract of sublease is formed without a term being fixed, the lessee must notify the sublessee three months in advance about the dissolution of the contract of sublease. In the event of the refusal of the sublessee to vacate the dwelling, he must be evicted under judicial proceedings without another dwelling being provided to him.
Article 6.596. Temporary dwellers
1. Having agreed among themselves and having accordingly informed the lessor beforehand, the lessee and his family members may allow temporary gratuitous occupancy in the dwelling in their use to other persons (temporary dwellers) without forming a contract of sublease. Upon the demand of the lessee or his family members, temporary dwellers must vacate the dwelling immediately. In the event of their refusal to vacate the dwelling, the lessee and his family members shall have the right to apply to the court for the eviction of the temporary dwellers without another dwelling being provided.
Article 6.597. Eviction of sublessees and temporary dwellers upon termination of the contract of lease of a dwelling
1. Upon termination of a contract of lease of a dwelling, a contract of sublease shall also terminate at the same time. The sublessee, as well as the temporary dwellers who refuse to vacate the dwelling shall be evicted under judicial proceedings without another dwelling being provided to them.
Article 6.598. Modification of a contract
1. A contract of lease of a state or municipal dwelling may be modified in the cases specified in Articles 6.599 to 6.603 of this Code. In the instances where the lessee, his family members or former family members refuse to modify the contract of lease on the grounds established in the collective agreement or the agreement between the administration and the employees, the dispute between the parties to the contract of lease of a dwelling shall be resolved in judicial proceedings.
2. Any modification of a contract of lease of dwellings of enterprises, offices, organisations and legal persons leased out on commercial grounds may be effectuated exclusively upon agreement between the lessee and the lessor.
3. Upon modification of a written contract of lease of a dwelling, a new written contract shall be concluded with the modifications of the previous contract indicated therein.
Article 6.599. Modification of a contract upon dividing the apartment
1. An adult member of the family of the lessee and a former member of the family shall have the right to conclude a separate contract of lease of a dwelling (to divide the apartment) if the lessor, the lessee and other family members of full age do not object. Such family member, taking in regard the part of the dwelling area attributable to him, may lease a separate isolated dwelling premise. In such event, separate contracts of lease of dwellings shall be concluded with every lessee. The lessee, his family members of full age or former family members may determine the procedure and conditions for the use of the leased dwelling without modifying the contract of lease.
Article 6.600. Modification of a contract where one dwelling is exchanged for several ones
1. In the event where such possibilities exist, the State or a municipality may exchange, with the consent of the lessee, his family members or former family members, the dwelling leased by them for several other dwellings. In this event, every member of the family shall be entitled to an area not exceeding ten square meters of the contractual dwelling space, while the dwelling occupied before shall remain within the hold of the municipality. Upon the request of the lessee, his family members of full age or former family members, one contract of lease of a municipal dwelling may be exchanged for several ones. Any disputes arising from the modification of a contract where one dwelling is exchanged for several ones shall be resolved in judicial proceedings.
Article 6.601. Modification of a contract upon the uniting of the lessees into one family
1. When several natural persons (lessees) maintaining occupancy of one leased dwelling under separate contracts of lease unite to make one family, they may conclude one contract of lease of the leased dwellings (to join the apartments) upon the consent of their family members and the lessor. The contract shall be concluded with the lessee proposed by the members of the united family.
Article 6.602. Modification of a contract upon recognition of another family member as the lessee
1. Upon the agreement between the lessee and his family members, the original lessee may be replaced by another person.
2. Upon the agreement between the family members of the lessee, the contract of lease of a dwelling shall be changed in the event of the lessee’s death where his family members continue to occupy the leased dwelling and inform the lessor accordingly within two months after the lessee’s death.
Article 6.603. Modification of a contract upon the transfer of a vacated room
1. In the event where, in a dwelling leased by the State or municipality to several lessees under separate contracts of lease, an adjacent room which is not isolated from the dwelling of one of the lessees is vacated, at the request of that lessee this room shall be transferred to his use.
2. In the instances where an isolated room is vacated, it shall be transferred to the use of the lessee who has the least total useful floor area per one family member, or to another lessee in the event of a refusal by the former. In the event of refusal by all the lessees, the vacated dwelling shall be leased to other lessees.
Article 6.604. Modification of a contract of lease of a dwelling after termination of labour relations by the lessee
1. Where the lessee terminates the labour relations with the legal person whose dwelling he is leasing, this shall not constitute grounds for the termination of the contract of lease of a dwelling. In this event, the contract of lease of a dwelling may be modified by the legal person on the grounds and in accordance with the procedure determined in the collective agreement, and in the organisations where such agreement is not concluded, pursuant to the agreement between the administration and the employees. Any disputes between the legal person and the lessee, his family members or former family members related with such modification of the contract shall be resolved in judicial proceedings.
Article 6.605. Right of the lessee to modify and change the plan of the dwelling
1. The lessee of a dwelling of the State, municipalities and legal persons and his family members may modify and change the plan of the dwelling and non-residential premises only upon written permission of the lessor and the consent of the family members of full age residing together, as well as upon the consent of other persons concerned whose rights and legitimate interests may be violated in the course of executing modification and change of the plan of the dwelling and non-residential premises. In the event of disagreement between the lessee, his family members and other persons concerned, the dispute may be resolved in judicial proceedings.
Article 6.606. Relocation of the lessee for the duration of major repairs and reconstruction of the dwelling
1. Upon the necessity to perform major repairs or reconstruction of the premises leased by the State, municipalities, enterprises, offices and organisations to their employees, the repairs of which cannot be effectuated without vacating the premises, and in the event where the dwelling is retained after the repairs, the lessor shall offer to the lessee together with his family members to temporarily take residence in another dwelling for the duration of the repairs. The dwelling offered must conform to sanitary and technical requirements. In the event of the lessee’s refusal to move to the dwelling offered, the lessor may demand his relocation under judicial proceedings.
2. In the instances where the leased dwelling might be rendered smaller or larger in area as a consequence of the major repairs or reconstruction, the lessee shall have the right of choice whether to lease that dwelling. Where the lessee agrees to lease the increased or reduced dwelling after the repairs or reconstruction, he shall move or be relocated to another dwelling for the duration of the repairs or reconstruction in accordance with the procedure established in paragraph 1 of this Article.
3. The contract of lease of a dwelling shall not be interrupted for the duration of the major repairs or reconstruction; however, the lessee shall have the right to pay the lease payment for the temporary dwelling.
4. The lessee shall have the right to move back into the dwelling after the completion of the major repairs or reconstruction. Where the lessee refuses to lease the increased or reduced dwelling, likewise where the dwelling is not retained as a result of major repairs or reconstruction, the lessee shall be provided with another properly equipped dwelling. In the cases where the lessee refuses to move into another adequately equipped dwelling provided, the lessor may relocate him under judicial proceedings.
5. Issues related to vacating, for the duration of major repairs or reconstruction, dwellings leased by enterprises, offices, organisations and legal persons on commercial grounds as well as other related issues shall be resolved by agreement between the lessor and the lessee. In all cases, the lessor must inform the lessee about the intended repair work due to which the lessee has to be temporarily relocated not later that fourteen days in advance before the start of the work. In the event where the lessor lacks the possibility to temporarily relocate the lessee for the duration of the repair, he must, before the date of the relocation, pay compensation to the lessee adequate to cover the costs of temporary relocation thereof. By agreement between the parties, the costs of the relocation of the lessee for the duration of the repair may be included into the future lease payment.
Article 6.607. Priority right of the lessee to renew the contract of lease
1. Upon expiration of the term of the contract of lease, the lessee shall have priority right to conclude a contract of lease of the dwelling for a new term providing that he duly performed the conditions of the contract. The contract shall be renewed for the same term, and where the previous term of the contract exceeded twelve months, the contract shall be renewed for twelve months unless the parties agree otherwise.
2. The lessor must, not later than three months before the termination of the contract of lease, inform the lessee in writing about his proposal to conclude a new contract of lease under the same or different conditions or about his refusal to renew the contract where he does not intend to lease out the premises concerned at least for a period of one year. In the event of failure by the lessor to perform this duty, and if the lessee does not refuse to renew the contract, the contract of lease shall be deemed to be renewed for the same period and under the same conditions.
3. In the instances where the lessor, after having refused to renew a contract of lease, leases the same dwelling within a period not exceeding one year to another person under the same conditions, the lessee shall have the right to demand that such contract be declared null and void and claim compensation of damages caused by the refusal to renew the contract. This provision shall not apply in the event where the lessee refused to renew the contract under the conditions proposed by the lessor and did not apply to the court for the approval of the conditions of the contract.
4. Upon renewing the contract, the lessor shall have the right to modify the conditions of the contract of lease, likewise the term of the contract of lease and the amount of the lease payment if he has informed the lessee about the intended modification of the conditions in writing not later than three months and not earlier than six months before the expiry of the period of the contract of lease. In the cases where the duration of lease is shorter than twelve months, such notification must be submitted to the lessee not later than one month before the expiry of the term of the contract of lease. The clauses of the new contract of lease must be clearly indicated in the notification.
5. In the event where the lessee disagrees with the modifications of the clauses of the contract of lease proposed by the lessor, he must, within one month from the date of receiving the notification, inform the lessor in writing about such disagreement or about a dissolution of the contract of lease. Where the lessee fails to comply with this requirement, he shall be deemed to have agreed with the new clauses for the renewal of the contract of lease.
6. In the event where the lessee objects to the modifications of clauses of the contract of lease proposed by the lessor and informs the latter accordingly within the time limits and in accordance with the procedure established in paragraph 5 of this Article, the lessor wishing to renew the contract of lease under new conditions shall have the right, within one month from the receipt of the notification from the lessee, to apply to court for the determination of the conditions of the contract of lease under judicial proceedings. Where the lessor fails to do that, the contract shall be deemed to have been renewed under the previous conditions.
Article 6.608. Exchange of dwellings
1. A lessee of a state or municipal dwelling, having received written consent of all his family members of full age residing together with him, including those temporarily absent, and with the consent of the lessor, may exchange the dwelling with another lessee of a state or municipal dwelling.
2. Objections of the State or municipalities to such exchange of dwellings may be challenged in court.
3. The exchange of dwellings shall be formalised by new contracts of lease. The contract of exchange shall become effective from the last day of the conclusion of a new contract of lease of a dwelling, and where the dispute is decided by the court, from the day when the court judgment becomes final.
4. In the event where the family members fail to agree upon the exchange, while the change of dwellings might offer a possibility of resolving the conflict developed in the family, any of the family members shall have the right to demand within judicial proceedings compulsory exchange of the leased dwelling by another dwelling or dwellings in different houses/apartments.
Article 6.609. Right of a lessee to dissolve the contract
1. The lessee of a dwelling shall have the right to dissolve the contract of lease by giving the lessor a written notice a month in advance. In the event of failure by the lessee to comply with this requirement, the lessor shall have the right to compensation of damages incurred.
2. The lessee may revoke his warning before the expiration of its time limit if the lessor has not concluded a contract of lease of that dwelling with another lessee.
3. In the event where the lessee, his family members and former family members depart to take residence elsewhere, the contract of lease of a dwelling shall be deemed to be dissolved from the date of their departure.
4. Upon receiving the lessee’s warning in respect of the dissolution of the contract, the lessor shall have the right to inspect the condition of the dwelling premises upon having informed the lessee beforehand about the date and time of such inspection. In this event, the lessor shall also have the right to show the premise to a prospective lessee upon having informed the lessee beforehand about the date and time of such visit. Except in urgent cases, the lessor shall have no right to inspect the dwelling premise or show it to a prospective lessee in the hours between 9:00 p.m. and 9:00 a.m.
Article 6.610. Procedure of dissolving a contract and evicting persons
A contract of lease of a dwelling may be declared null and void, it may be dissolved, likewise the eviction of natural persons from the dwelling premises may be executed exclusively within judicial proceedings, except in the cases of eviction executed with the sanction of the public prosecutor provided for in this Code.
Article 6.611. Dissolution of a contract upon the violation of conditions of the contract of lease by the lessee
In the instances where the lessee regularly (at least for three months unless a more extended period is provided for in the contract) fails to pay the lease payment or the payment for public utilities, where the lessee, his family members or other persons residing together with him destroy or damage the dwelling or use it for a purpose other than its designation, the contract of lease may be dissolved and the persons concerned evicted from the dwelling without other dwelling being provided. In the event where the lessee, his family members or other persons residing together with him create, by their improper behaviour, such conditions which render it impossible for other persons who reside together or in the neighbourhood to lead a normal life, they may be evicted upon the request of the lessor or the latter persons without other dwelling being provided.
Article 6.612. Eviction from wilfully occupied dwellings
Where persons wilfully occupy a dwelling, i.e. move in without concluding a contract of lease, they shall be evicted through court proceedings, without another dwelling being provided. In the instances where persons wilfully occupy a dwelling, i.e. move in without concluding a contract of lease, they shall be evicted within judicial proceedings without another dwelling being provided to them.
Article 6.613. Effects of termination of a fixed-term contract of lease of a dwelling
Upon the expiration of the time limit of a contract of lease of a dwelling, the lessee, his family members or former family members must vacate the dwelling upon the demand of the lessor, while those who fail to comply shall be evicted without another dwelling being provided to them.
Article 6.614. Dissolution of an open-ended contract of lease of a dwelling
1. An open-ended contract of lease of a dwelling leased by legal and natural persons on commercial grounds may be dissolved upon the demand of the lessor with a written notice issued to the lessee six months in advance.
Article 6.615. Eviction from dwelling houses or apartments at risk of collapse
Where dwellings of the State, municipalities or legal persons are at risk of collapse or become unfit for habitation due to natural disasters, fire or technical wear and tear, natural persons shall be evicted with the sanction of the public prosecutor with another adequately equipped dwelling being provided to them. This dwelling shall be provided by the owner of the building where the dwelling which is at risk of collapse or unfit for habitation is located. In such instances, the former contract of lease shall be deemed to have terminated.
Article 6.616. Dissolution of a contract and eviction of persons with another adequately equipped dwelling being provided
1. Natural persons may be evicted from dwellings of the State, municipalities and legal persons leased to their employees with another adequately equipped dwelling being provided to them in the following instances:
2) the dwelling is not retained after major repairs, reconstruction or change of planning of the premises;
Article 6.617. Provision of another adequately equipped dwelling to evicted persons
1. Another adequately equipped dwelling provided must be located in the same residential district and be properly equipped in accordance with the conditions of that district, it must also conform to the sanitary and technical requirements.
2. Another adequately equipped dwelling provided may not be of smaller floor area or have fewer rooms than the previously occupied dwelling. Where in the previously occupied dwelling the useful floor area per member of the family was smaller than established by laws, upon eviction, the floor area provided may not be smaller than established. The dwelling provided must be of such size as to avoid the necessity of sharing a room by two persons over nine years of age of different gender, except spouses, and must conform to the condition of health of those to be evicted as well as to other circumstances.
Article 6.618. Legal status of employee housing accommodation
1. Employee housing accommodation shall be provided by the employer for the purpose of housing employees/civil servants, taking in regard the character of their employment/service or conditions established by laws, for the period until the change in the character of their employment/service, termination of the labour relations with the employer, or disappearance of the conditions established by law.
2. Dwellings shall be attributed to the category of employee housing accommodation or removed therefrom as well as the lists of the categories of employees eligible for employee housing accommodation shall be determined by a decision of a public authority or a governmental institution, a municipal council or a management body of the legal person concerned.
Article 6.619. Procedure for providing and using employee housing accommodation
1. The decision concerning the provision of employee housing accommodation shall be taken by a person authorised by a public authority or a governmental institution, an executive municipal institution or a management body of the legal person. On the basis of this decision, a contract of lease of employee housing accommodation shall be concluded. The conclusion of such a contract shall be effectuated in accordance with the procedure established by this Code in respect of contracts of lease of a dwelling unless otherwise provided for by laws.
2. The procedure for the use and accounting of employee housing accommodation shall be established by the Government or its authorised institution.
Article 6.620. Eviction from employee housing accommodation
Upon the termination of an employment/service contract, the employee to whom employee housing accommodation was provided in accordance with the established procedure must vacate the leased employee housing accommodation together with the family members residing with him. Natural persons who fail to do so shall be evicted without another dwelling being provided to them, except in cases stipulated in Article 6.616 of this Code.
Article 6.621. Eviction from employee housing accommodation by providing another dwelling
In the cases stipulated in Article 6.616 of this Code, natural persons evicted from employee housing accommodation shall be provided with another dwelling, likewise in the events when the evicted persons are:
1) employees/civil servants discharged from employment/service as a result of their capacity for work having been rated at 0-40 per cent or having been rated as having high or moderate special needs due to the reasons related to their employment/service;
Article 6.622. Provision of another dwelling to evicted natural persons
Another dwelling provided to evicted natural persons must be in the same residential district and conform to the sanitary and technical requirements.
Article 6.623. Dormitories
1. Workers, civil servants, students and pupils may be accommodated in dormitories during their time of employment or study. Dormitories shall be dwelling houses built and equipped specifically for this purpose. The procedure for providing accommodation in a dormitory and the use thereof shall be established in the collective agreements of legal persons. In the organisations where such agreement is not concluded, this procedure shall be established upon the agreement between the administration and the employees, and in educational establishments and higher education and research institutions, upon the decision of the management bodies thereof.
2. Upon the expiration of the employment contract or the period of study, the employees shall be evicted from the dormitory, except in cases provided for by Article 6.621 of this Code. The persons who study shall be evicted at the end of an academic year. Dormitory dwellers may be evicted without other dwelling being provided in the instances where they create, by their improper behaviour, such conditions which render it impossible for others to maintain occupancy together or in the neighbourhood, likewise in the instances where they continuously damage the dwelling or use it not according to its designation.
Article 6.624. Prohibition to sublease dormitory dwellings
Lessees who maintain occupancy in dormitories shall have no right to sublease their dwelling or to provide occupancy for temporary dwellers.
Article 6.625. Temporary relocation
In the event of necessity (due to repair, emergency, etc.), the lessor shall have the right to relocate the lessee without the latter’s consent from one dwelling in the dormitory to another dwelling either in the same or another building within the same neighbourhood.
SECTION FIVE
HOTELS, HOMELESS SHELTERS AND RESIDENCY IN
THE PREMISES OF HEALTH AND SOCIAL CARE INSTITUTIONS
Article 6.626. Hotels
1. Legal and natural persons shall have the right to possess hotels, which are especially equipped premises for the temporary accommodation of visitors.
3. Natural persons who maintain occupancy in the hotel for a longer period than agreed or without paying for the hotel, or violate the requirements for the use of the hotel, shall be evicted with the sanction of the public prosecutor under the motion of the administration without another dwelling being provided.
Article 6.627. Homeless shelters
The rules in respect of the operation and use of homeless shelters established on charity or any other grounds and granting the possibility to gratuitously spend the night for persons in need shall be determined and registered with the municipality by their founders. Any disputes related with the use of such homeless shelters and eviction therefrom shall be decided pursuant to those rules.
Article 6.628. Residency in the premises of health and guardianship/curatorship institutions
Persons who, for the purposes of medical treatment or care, temporarily or permanently reside in the premises of health and guardianship/curatorship institutions shall not be deemed to be lessees. The relationships between such persons and health and guardianship/curatorship institutions shall be determined by relevant service contracts and laws.
Article 6.629. Concept of a contract of loan for use
1. Under a contract of uncompensated use of a thing (loan for use), one party (lender) shall transfer a durable thing for temporary uncompensated possession and use to another party (loan recipient), while the loan recipient shall undertake to return this thing in the same state in which it was received, taking into account normal wear and tear, or in a state stipulated in the contract.
Article 6.630. Limitations on concluding a contract of loan for use
Legal persons operating for profit shall have no right to transfer a thing under a contract of loan for use to persons who are founders, participants or members of the bodies of those legal persons.
Article 6.631. Legal effects of a promise to transfer a thing for uncompensated use
Failure to honour a promise to transfer a thing for uncompensated use without adequate grounds shall vest the loan recipient with the right to claim compensation of expenses incurred in relation with the acceptance of the thing to be transferred for uncompensated use.
Article 6.632. Lender
The right to transfer a thing for uncompensated use shall be enjoyed only by the person who is the owner of the thing, or by other persons authorised by the owner or by laws.
Article 6.633. Transfer of a thing for uncompensated use
1. The lender must transfer a thing to the loan recipient in a state corresponding to the conditions of the contract of loan for use and the designation thereof.
2. A thing shall be transferred to the loan recipient with all of the auxiliaries and documents relating thereto (instruction manuals for use, technical passport, etc.) unless otherwise provided for by the contract.
3. In the event where such auxiliaries and documents were not transferred, and without them the thing cannot be used for its designation, or its use without the auxiliaries and documents loses value for the loan recipient, the latter shall have the right to require such auxiliaries and documents to be transferred to him by the lender, or to dissolve the contract and demand from the lender compensation for the damages suffered.
Article 6.634. Liability of the lender for defects of the thing
1. The lender shall be liable for defects of the thing transferred for uncompensated use which he intentionally or through gross negligence did not stipulate when concluding the contract for use, as well as for the damage caused to the loan recipient by these defects.
2. In the event of discovery of such unstipulated defects, the loan recipient shall have the right, at his choice, to require from the lender uncompensated elimination of the defects or compensation of the costs of their elimination, or dissolution of the contract and compensation of the direct damages incurred.
3. The lender, who was notified about the demands of the loan recipient, or of his intention to eliminate the defects of the thing at the expense of the lender, shall have the right to immediately replace the defective thing with another analogous thing of adequate quality.
4. The lender shall not be liable for the defects which were stipulated by him at the time of conclusion of the contract, likewise for the defects that were known to the loan recipient beforehand or ought to have been discovered by the loan recipient during the transfer of the thing, or its inspection, or testing when concluding the contract.
Article 6.635. Rights of third persons to the thing transferred under the contract of loan for use
1. The transfer of a thing for uncompensated use shall not constitute grounds for the change or termination of the rights of third persons in that thing, providing those rights have been registered in the public register in accordance with the procedure established by laws, except in cases where those rights are not subject to registration pursuant to laws.
2. When concluding a contract of loan for use, the lender must warn the loan recipient about the rights of third persons in the thing transferred. The failure to perform this duty shall give the loan recipient the right to demand dissolution of the contract and compensation for the direct damages incurred.
Article 6.636. Duty of the loan recipient to maintain and preserve the thing
The loan recipient must maintain and preserve the thing transferred to him under the contract, likewise to perform current and major repairs, and to bear all expenses for the maintenance thereof unless otherwise provided for by the contract.
Article 6.637. Duty of the loan recipient to use the thing in accordance with its designation
1. The loan recipient must use the thing transferred to him only in accordance with its designation specified in the contract.
Article 6.638. Risk of accidental perishing of or damage to the thing
1. The loan recipient shall bear the risk of accidental perishing of or damage to the thing if the thing perished or was damaged while being used for other purposes than those indicated in the contract, or transferred to a third person without prior written consent of the lender. The loan recipient shall also bear the risk of accidental perishing of or damage to the thing if he continued using the thing after the expiry of the time limit of the contract of loan for use, or taking into account the actual circumstances, he could have saved the thing by using his own property, but failed to do so.
2. If the loan recipient, with the purpose of saving the thing transferred to him, destroys his own thing, or permits it to be destroyed, he shall have the right to claim from the lender compensation for the necessary and immediate expenses incurred in the attempt to save the transferred thing.
Article 6.639. Liability for damage caused to third persons
The loan recipient shall be liable for damage caused to third persons as a consequence of the use of the thing transferred under the contract of the loan for use unless he proves that the damage was caused by intent or gross negligence of the lender or a person to whom the thing was transferred with the consent of the lender.
Article 6.640. Prohibition to use the right of retention
The loan recipient shall have no right of retention in respect of a thing transferred to him, except in cases where the obligation of the lender entails compensation of necessary and immediate expenses related with the preservation of the thing.
Article 6.641. Dissolution of a contract of loan for use before time
1. The lender shall have the right to demand dissolution of the contract before time in the instances where the loan recipient:
2. The lender shall also have the right to demand dissolution of the contract of loan for use before time in the instances where due to unpredicted and extraordinary circumstances the thing is urgently and inevitably needed by the lender himself.
3. The loan recipient shall have the right to demand dissolution of the contract before time:
1) in the event where defects of the thing are discovered, which make the normal use of the thing impossible or obstructed and about the existence of which he did not know or could not have known at the time of concluding the contract;
2) if the thing, by virtue of circumstances for which the loan recipient is not liable, becomes not fit for use in accordance with its designation;
3) if at the time of concluding the contract the lender failed to warn him about the rights of third persons in that thing;
Article 6.642. Right to withdraw from a contract of loan for use
1. Each of the parties to a contract of loan for use shall have the right to terminate, at any time, an open-ended contract of loan for use having notified the other party thereof three months in advance unless another time limit has been provided for by the contract.
Article 6.643. Change of the parties to a contract of loan for use
1. The lender shall have the right to sell the thing or transfer it for use to a third person for payment. In this event, the rights and duties under the previous contract of loan for use shall pass to the new owner or user if that contract, in the case of it being subject to registration, was registered in the public register in accordance with the procedure established by laws, or the new owner and user knew or should have known about it at the time of concluding the contract.
Article 6.644. Concept of a contract for work
1. Under a contract for work, one party (the contractor) shall undertake to perform certain work at his own risk in accordance with the instruction of another party (the client), and transfer the results thereof to the client, while the latter shall undertake to accept the work performed and pay for it.
2. The provisions determined in this Section shall be correspondingly applicable to individual types of contract (consumer, construction, etc.) unless otherwise provided for by the provisions of other Sections of this Chapter.
Article 6.645. Subject matter of a contract for work
1. A contract for work shall be concluded for the manufacture or transfer of the results of a certain work, or for the performance of any other work with the ensuing transfer of the results created in the process of this work to the client. Prior to the conclusion of the contract, the contractor must submit to the client all the necessary information related to the performance of the work, likewise the information concerning the materials and the time necessary for the performance of the work.
2. Where the contract is concluded for the manufacture of a thing, the contractor shall transfer to the client, together with the manufactured thing, the rights thereto.
3. Unless otherwise provided for by the contract, the contractor shall perform the work at his own risk and independently determine the methods of fulfilling the task set by the client.
Article 6.646. Permits/licences for individual types of work
It may be provided for by laws that certain types of work may be performed only upon obtaining a permit/licence issued in accordance with the procedure established by laws.
Article 6.647. Performance of work using the materials and means of the contractor
1. Unless otherwise provided for by the contract, the contractor must perform the work agreed in the contract using his own materials and with his means and forces.
Article 6.648. Performance of work using the materials of the client
1. In supplying the contractor with materials, the client must also transfer to him the documents certifying the conformity of the materials.
2. Where the materials supplied by the client are not fit for use or defective, of which the contractor needs to know, the contractor must immediately notify the client thereof.
3. If the work is performed in whole or in part using the materials of the client, the contractor shall be liable for the improper consumption of the materials. The contractor must submit to the client a report on the expenditure of the materials and return the balance thereof or, with the consent of the client, reduce the price of the work by taking into account the cost of the unconsumed materials remaining with the contractor.
4. Where the work is performed using the materials of the client under the contract of client order, the receipt issued by the contractor to the client when concluding the contract must contain the precise name, description and valuation of the materials determined by agreement between the parties.
5. The contract for work may provide for the consumption rate of the materials, the time limits for the return of their balance and basic waste, likewise the liability of the contractor for the failure to perform these duties, or improper performance thereof.
6. Where the contractor has not achieved the result stipulated by the contract or the result achieved has defects which make the thing unfit for use in accordance with the designation provided for in the contract or it its normal designation due to defects in the materials granted by the client, the contractor shall have the right to demand payment for the work performed only if he proves that the defects in the materials were impossible to be noticed in accepting them from the client.
Article 6.649. Distribution of risks between the parties
1. Unless otherwise provided for by laws or a contract for work:
1) the risk of accidental perishing or damaging of the materials or equipment transferred for the performance of work shall be borne by the party granting them;
Article 6.650. General contractor and the subcontractor
1. Unless the laws or the contract for work stipulate that the contractor has to perform the task personally, the contractor shall have the right to involve other persons (subcontractors) to perform his obligations. In the event where subcontractors are involved for the performance of the task, the contractor shall act in the capacity of a general contractor.
2. The contractor who has involved subcontractors to perform the contract in violation of laws or the rules established in the contract shall be liable towards the client for any damage caused by the subcontractors in the performance of the contract.
3. The general contractor shall be liable towards the client for the failure to perform or improper performance of the obligations by the subcontractors, and towards the subcontractors, for the failure to perform or improper performance of the obligations by the client.
4. Unless otherwise provided for by laws or the contract, the client and the subcontractor shall have no right to raise monetary claims to one another connected with the violation of the contracts concluded by each of them with the general contractor.
Article 6.651. Particularities of a contract for work where the work is performed by several persons
1. Where the work is performed by two or more persons, in the event of the indivisibility of the subject matter of the obligation, they shall be liable towards the client as solidary co-debtors and co-creditors.
2. In the event of the divisibility of the subject matter of the obligation, each of the persons indicated in paragraph 1 of this Article shall acquire the rights and duties with respect to the client within the limits of the corresponding participatory share (partial obligation) unless otherwise provided for by the contract.
Article 6.652. Time limits for the performance of work
1. The beginning and end of performance of work shall be indicated in the contract for work. The parties may also determine the time limits for completing individual stages of work (intermediate time limits).
2. Unless otherwise provided for by laws or the contract, the contractor shall be liable for the violation of the time limits for both the beginning and end of work, likewise for the violation of the intermediate time limits.
3. Upon the agreement of the parties, the time limits for the performance of the work specified in the contract may be changed in accordance with the procedure indicated in the contract for work.
4. Where the contractor violates the time limit for the performance of the entire work, the client shall have the right to refuse acceptance of the work performed as a result of fulfilment of the obligation and claim damages from the contractor related to the delay in fulfilment in the cases where, due to the delay, the fulfilment of the obligation became of no significance to the client.
Article 6.653. Price of work
1. The contract for work shall specify the price of work or the methods and criteria for its calculation. In the event where the price is not specified in the contract, it shall be determined in accordance with the procedure established in Article 6.198 of this Code.
2. The price indicated in the contract for work shall include the payment to the contractor for the work performed and the compensation of expenses incurred by him.
3. The price of the work specified in the contract may be determined by drawing up a definitive or approximate estimate. Where the work is performed in accordance with the estimate drawn up by the contractor, the estimate shall enter into force and become part of the contract for work from the moment it is confirmed by the client.
4. Where it is necessary to perform additional work or where, for any other important reasons, the contractor has to increase the price of some individual works, he must inform the client thereof in due time. If the client refuses to increase the price, the contractor shall have the right to withdraw from the contract. In this event, the contractor shall have the right to demand from the client payment for the work performed. The contractor who fails to inform the client in due time about the necessity to increase the price for the work must perform the contract for the price foreseen therein.
5. In the instances where a definite price for the work to be performed is indicated in the contract, the contractor shall have no right to increase the price, nor the client to reduce it. The same provision shall apply to those instances where, at the moment of concluding the contract for work, it was not possible to determine the exact amount of work subject to performance nor all the expenses necessary for the performance thereof.
6. In the event of a substantial increase of the price of materials or equipment supplied by the contractor, or also of the services rendered to the contractor by third persons, and where the contractor could not have foreseen such increase at the time when the contract for work was concluded, the contractor shall have the right to demand an increase of the established price of the work or to dissolve the contract in accordance with the provisions established in Article 6.204 of this Code.
Article 6.654. Economies of the contractor
1. In the event where the actual expenses of the contractor prove to be lower than those taken into account in determining the price of work, the contractor shall retain the right to the payment for work as established in the contract for work unless the client proves that the economies produced negative effect on the quality of work as determined in the contract.
Article 6.655. Procedure for payment for work
1. Unless advance payment for work performed or individual stages thereof has been provided for in the contract for work, the client must pay the contractor the stipulated price after the final acceptance of the results of work on condition that the work has been performed properly and on time or, with the consent of the client, before the set time limit.
Article 6.656. Right of the contractor to exact remuneration due to him
Where the client fails to perform his obligation to pay the remuneration established in the contract for work or other amount agreed by the parties to the contract, the contractor shall have the right to exact the amounts due to him under the contract for the work performed using the equipment belonging to the client, balance of the unused materials, or any other property of the client, until full payment by the client, or to retain the result of the work until proper performance of the obligation by the client.
Article 6.657. Liability of the contractor for failure to preserve the property granted to him by the client
The contractor must take all measures necessary to ensure the preservation of the property entrusted to him by the client and shall be liable towards the client for any loss or damage of this property.
Article 6.658. Rights of the client during the performance of work
1. The client shall have the right to verify the progress and quality of work at any time without interfering in the economic and commercial activities of the contractor.
2. In the event of the contractor failing to embark upon the performance of work on time, or where he is working so slowly that the completion of the work on time becomes clearly impossible, the client shall have the right to revoke the contract and claim compensation of damages.
3. If during the performance of work it becomes evident that it will not be properly performed, the client shall have the right to designate a reasonable period to the contractor for the elimination of defects, and in the event of the failure to perform this demand by the independent work contractor within the designated period, to revoke the contract and either claim compensation of damages or authorise a third person to rectify the work at the expense of the contractor.
4. In the event of emergence of important reasons, the client shall have the right, at any time before the work is completed, to revoke the contract at the same time effectuating payment to the contractor for the performed part of the work and compensating the damages caused by the dissolution of the contract, including into the damages the economies received by the contractor due to the dissolution of the contract.
5. In the event of defects being discovered in the course of acceptance of the work, the client shall have the right to deduct from the amounts due to the contractor for the work performed the amount necessary to eliminate the defects. The client shall retain this right also in the instances where hidden defects of work are discovered. However, the client shall have no such right in the event where the contractor adequately ensures the performance of his obligation.
Article 6.659. Circumstances of which the contractor is obliged to warn the client
1. The contractor must immediately warn the client and, until receiving instructions from him, suspend the work in the event of discovering:
1) unfitness or inferior quality of the materials, other property or documents received from the client;
2) possible consequences threatening the fitness or stability of the work due to the compliance with the instructions of the client concerning the methods of performance of work;
2. The contractor who fails to warn the client about the circumstances indicated in paragraph 1 of this Article, or continues to work without awaiting for the receipt of the client’s reply within the period indicated in the contract, or, where this period is not indicated, within a reasonable time, or fails to comply with the timely instructions of the client, shall not be entitled to refer to the circumstances indicated in paragraph 1 of this Article and shall be liable for the defects of the thing.
3. If the client, notwithstanding a timely and substantiated warning by the contractor concerning the circumstances indicated in paragraph 1 of this Article, within a reasonable time fails to replace unfit or inferior quality materials, other property or documents, or to change his instructions concerning the methods of performance of work, or to eliminate other circumstances which threaten the fitness or stability of the work to be performed, the contractor shall have the right to revoke the contract and claim compensation of damages.
Article 6.660. Assistance of the client
1. The client must, in the instances and in accordance with the procedure established in the contract for work, render assistance to the contractor in the performance of work. Where the client fails to perform this duty, the contractor shall have the right to claim from him compensation of damages, including additional expenses caused by idle time or postponement of the time limits for the performance work or by the increase of the cost of work.
2. In the instances where the performance of work under the contract has become impossible as a consequence of failure on the part of the client to fulfil his obligation indicated in paragraph 1 of this Article, or improper fulfilment thereof, the contractor shall have the right to demand the payment of the price specified in the contract, taking into account the part of the work performed, and the compensation of damages, or to dissolve the contract.
Article 6.661. Legal effects of the failure to perform counter-duties of the client
1. The contractor shall have the right not to embark upon the work, or to suspend the work in progress in the event of failure on the part of the client to perform his counter-duties established in the contract for work (failure to grant materials, equipment, documents, etc.), or if the client obstructs the performance of the contract by the contractor, or if there any other circumstances which explicitly testify to the fact that the contractor will fail to perform his duties on time (Article 6.219 of this Code).
Article 6.662. Acceptance of work performed
1. The client must, within the periods and in accordance with the procedure provided for in the contract for work, inspect with the participation of the contractor and accept the work performed or its result. In the event of discovering any deviations from the terms of the contract which impair the quality of the result of work, or any other defects in the work, the client must immediately inform the contractor accordingly. The acceptance of the work performed shall be formalised by drawing up an act by which the client certifies an unconditional acceptance, or that with a reservation clause, and the contractor certifies the transfer of the work performed.
2. Having discovered any defects of work in the course of acceptance, the client may rely upon the fact of the defects only in the instances where in the act or any other document certifying the acceptance of the work performed, these defects were recorded, or the right of a subsequent claim on the part of the client concerning their elimination is stipulated.
3. Unless otherwise provided for by the contract, the client, having accepted the work without verification, shall lose the right to rely upon the fact of defects which could have been discovered by ordinary means of acceptance of the work (obvious defects).
4. Having discovered, after the acceptance of the work, defects thereof or any deviations from the contract which could not have been discovered by ordinary means of acceptance of the work (latent defects), likewise those intentionally concealed by the contractor, the client must notify the contractor thereof within reasonable time after their discovery.
5. In the event where a dispute arises between the contractor and the client because of the defects of the work, each party shall have the right to demand expert examination. The expenses of the expert examination shall be borne by the contractor, except in cases where the expert examination establishes the absence of any violations of the contract on the part of the contractor, or any causal link between the actions of the contractor and the defects discovered. In such events, the expenses of the expert examination shall be borne by the party which requested such examination, and if it was designated by agreement between the parties, by both parties equally.
6. Unless otherwise provided for by the contract for work, in the event where the client evades acceptance of the work performed, the contractor shall have the right, upon the expiry of one month from the date when the work should have been accepted under the contract and after having notified the client in writing twice, to sell the result of the work and to deposit the amount received, less all payments due to him, in the name of the client (Article 6.56 of this Code).
7. In the event where the evasion of the client to accept the work entails delay in the transfer of the results of the work, the risk of accidental perishing or damaging of the result of the work shall pass to the client from the moment when the transfer of the result to the client should have been executed.
Article 6.663. Quality of work
1. The quality of the work performed by the contractor must conform to the conditions of the contract for work and, in the absence of any determination of quality in the contract, to the requirements ordinarily presented for work of the respective nature. The result of the work performed must, at the moment of transfer to the client, possess the characteristics specified in the contract for work or ordinarily required and must be fit for use in accordance with its designation within the limits of a reasonable period.
2. In the event where obligatory requirements for work to be performed are established by the law or the contract for work, the contractor, acting as an entrepreneur, must comply with those requirements. The parties may establish in the contract for work a duty of the contractor to perform the work in accordance with requirements which are higher than the established obligatory requirements.
Article 6.664. Guarantee of the quality of work
1. In the event where a guarantee period for the result of the work is established by the law or the contract for work, the result of the work must correspond to the established quality requirements during the entire guarantee period.
2. Unless otherwise provided for by the contract for work, the guarantee of the quality shall extend to all component parts of the result of the work.
Article 6.665. Liability of the contractor for the improper quality of work
1. In the instances where the work is performed with deviations from the conditions of the contract, which renders the result of the work unfit for use in accordance with its designation as determined in the contract or impairs the possibilities (conditions) for its use in accordance with its designation under the contract and, where the designation is not specified in the contract, in accordance with its ordinary use, the client shall have the right, unless otherwise provided for by the law or the contract, at his choice to require from the contractor:
2. The contractor shall have the right instead of eliminating the defects to perform the work anew without compensation and compensate to the client damages caused by the delay of performance. In this event, the client must return the result of work previously transferred to him to the contractor, provided that it is possible to do so in view of the character of the work.
3. Where the contractor fails to eliminate the deviations from the contract or other defects within a reasonable time, or the defects prove to be essential and cannot be eliminated, the client shall have the right to dissolve the contract and claim the compensation of damages.
4. The conditions of a contract for work which relieve the contractor from liability for certain defects shall not exempt him from liability if the client proves that such defects were caused by the fault or gross negligence of the contractor.
Article 6.666. Time limit for the discovery of defects of work
1. Unless otherwise provided for by the law or the contract for work, the client shall have the right to present demands connected with defects in the result of work on condition that they have been discovered within the time limits established in this Article.
2. In the instances where no guarantee period is established, the defects in the result of work must be discovered within a reasonable time but not exceeding two years from the date when the result of work was transferred unless other time limits are provided for by the law or the contract for work.
3. The client shall have the right to present demands connected with defects in the result of work which were discovered within the period of guarantee.
4. In the instances where the guarantee period provided for by the contract does not exceed two years and the defects in the result of work are discovered by the client upon the expiry of the guarantee period but within the limit of two years from the date when the result of work was transferred, the contractor shall be held liable for those defects if the client proves that the defects arose before the transfer of the result of the work or for reasons which occurred before that moment.
5. Unless otherwise provided for by the contract for work, the guarantee period shall start to run from the moment when the result of the work was accepted or ought to have been accepted by the client.
Article 6.667. Prescription
1. Prescription for claims arising in connection with defects of the work performed shall constitute one year, except in cases provided for by this Code.
2. In the instances where, under the contract for work, the result of the work was accepted in parts, the prescription shall commence from the date of acceptance of the result of the work as a whole.
Article 6.668. Duty of the contractor to transfer information to the client
The contractor must transfer to the client, together with the result of the work, information about the use of the subject matter of the contract for work if such duty of the contractor is established in the contract for work, or the character of the information is such that without it the use of the result of the work is impossible for the designation specified in the contract.
Article 6.669. Duty of the parties in respect of confidentiality
If any of the parties in the framework of performance of a contract for work has received information from the other party considered to be commercial secret or any other confidential information stipulated in the contract, this party shall have no right to communicate such information to third persons without the consent of the other party.
Article 6.670. Return of property to the client
In the instances where the client dissolves the contract on the grounds provided for in paragraph 2 of Article 6.658 and paragraph 3 of Article 6.665 of this Code, the contractor must return to the client the materials and any other property transferred, and where this proves to be impossible, compensate their value in money.
Article 6.671. Legal effects of the dissolution of a contract for work before acceptance of the result of work
In the event of the dissolution of a contract for work on the grounds provided for by the law or contract before the acceptance of the result of work, the client shall have the right to demand transference to him of the result of the work performed, and the contractor in this event shall have the right to demand payment for the actually performed work.
Article 6.672. Concept of a contract for consumer work
1. Under a contract for consumer work, the contractor, who is an entrepreneur, shall undertake to perform, in accordance with the order of the client, who is a consumer, certain work intended to satisfy domestic or other personal needs of the client or those of his family, while the client shall undertake to accept the result of the work performed and pay for it.
Article 6.673. Guarantees of the client
1. The contractor shall have no right to demand inclusion of additional work or services into a contract for consumer work. The client shall have the right to refuse payment for work or services that have not been indicated in the contract.
Article 6.674. Granting information to the client about the proposed work
1. Prior to the conclusion of the contract, the contractor must submit to the client all the necessary and accurate information related to the proposed work, its types, price and form of payment, also, upon the request of the client, other data related to the contract and the work to be performed. In the event where it is significant due to the character of the work, the contractor must indicate to the client the specific person who will perform the work provided for in the contract.
2. The client shall have the right to dissolve the contract without paying for the work performed and claim compensation of damages in the instances where, as a consequence of incompleteness or inaccuracy of information submitted by the contractor, a contract was concluded for the performance of work not possessing the properties which the client had in mind.
Article 6.675. Performance of work using the materials of the contractor
1. If the work is performed using the materials of the contractor, upon the conclusion of the contract, the client shall pay for the materials the entire or a part of the price specified in the contract, the materials shall be paid for by the client when concluding the contract in whole or in a part of the price specified in the contract, with the final payment executed to the contractor after the completion of the work.
2. The contract for consumer work may specify that the material is granted by the contractor on credit, also that the client will pay for the material by instalments.
Article 6.676. Price and payment for work
2. The work must be paid for by the client after the transference of the result of the work by the contractor. With the consent of the client, the work may be paid for when concluding the contract in full or by issuing an advance, or the payment may be effectuated later at the time agreed upon by the parties.
Article 6.677. Duty of the contractor to notify the client about the conditions of use of the result of work
In transferring the result of work to the client, the contractor must notify him about the conditions of its use and indicate to the client the requirements to be complied with when using the result of the work, as well as possible consequences for the client himself and other persons of the failure to comply with such requirements.
Article 6.678. Legal effects of discovery of defects in the work
1. In the event of the discovery of defects during the acceptance of the result of work or during the use thereof, the client must, within the time limits established in Article 6.666 of this Code, at his choice, present one of the demands stipulated in Article 6.665 of this Code, or require repeated performance of the work without compensation, or claim compensation for the expenses incurred by him for the elimination of the defects.
2. The demand concerning the elimination without compensation of such defects in the result of the work which may pose danger to the life or health of the client or other persons may be presented by the client or his legal successor within two years, and where the subject matter of the contract was a building, installation or any other construction works, within the period of ten years from the moment of acceptance of the result of work unless a more extended period is determined by laws or the contract. Such demand may be presented irrespective of when these defects were discovered, likewise if they were established after the expiry of the guarantee period.
3. Where the contractor fails to fulfil the demands specified in paragraph 2 of this Article, the client shall have the right, within the same period, to require either the return of part of the price paid for the work or compensation for the expenses incurred by him for the elimination of the defects.
Article 6.679. Legal effects of the failure by the client to appear for receipt of the results of work
1. In the event of the failure by the client to appear for receipt of the result of work or other avoidance to accept the work, the contractor must warn the client in writing of his duty to accept the result of the work.
2. In the event of the failure by the client to take over the result of work within two months from the date of the warning indicated in paragraph 1 of this Article, the contractor shall have the right to sell the subject matter of the contract for a reasonable price and to deposit the amount received, less all payments due to him, in the name of the client into a depository account of the notary, bank or any other credit institution located in the place of residence of the client.
Article 6.680. Rights of the client in the event of the failure by the contractor to perform the work indicated in the contract or improper performance thereof
In the event of the failure by the contractor to perform the work indicated in the contract for consumer work or improper performance thereof, the client shall have the right to take advantage of the rights of a purchaser established in Article 6.334 of this Code.
Article 6.681. Concept of a construction contract
1. Under a construction contract, the contractor shall undertake, within the period established in the contract, to build the construction works or perform other construction work according to the task of the client, while the client shall undertake to create the necessary conditions for the contractor to perform the construction work, to accept the result of the work performed, and pay the price stipulated in the contract.
2. A construction contract shall be concluded for the construction or reconstruction of enterprises, buildings, dwelling houses and other construction works, as well as for the performance of assembly, launching or any other work. The provisions of this Section shall likewise apply to work related to major repairs of buildings or installations unless otherwise provided for by the contract.
3. A construction contract may establish the duty of the contractor to ensure the maintenance of the constructed object after its acceptance by the client within a period specified in the contract.
4. In the instances when under a construction contract the work is performed for the purpose of satisfaction of a natural person’s (client’s) personal, family or household needs not related with his business or profession, the provisions governing the contract for consumer work shall apply to this contract.
Article 6.682. Distribution of risk between the parties
1. The risk of accidental perishing or damage of the object of construction or a part thereof shall be borne by the contractor until its acceptance by the client.
2. In the event of accidental perishing or damage of the object of construction or a part thereof before its acceptance as a consequence of inferior quality of materials, components or structures granted by the client, or due to the performance of erroneous instruction of the client, the contractor shall have the right to demand payment of the entire price of the work indicated in the contract, provided that the contractor has performed the duties established in paragraph 1 of Article 6.659 of this Code. In the event of the failure by the client to comply with the request of the contractor to change materials, components, structures or instructions which may pose a threat to the surroundings or would result in essential violations of the technical regulations established in the construction documents, the contractor must immediately dissolve the contract.
Article 6.683. Insurance of the object of construction
1. A construction contract may establish the duty of the party on whom the risk of accidental perishing or damage of the construction object is placed to insure the construction object, materials or other property used in the construction process, likewise the duty to insure civil liability of that party for damage caused to other persons.
2. The party on whom the duty to insure the construction object or his civil liability is placed must submit to the other party, within the periods established in the contract, the evidence of conclusion of the contract of insurance, also the data on the insurance enterprise, the sum of insurance and the essential conditions of insurance.
Article 6.684. Technical construction regulations and estimates
1. The contractor must perform the construction work in accordance with the requirements established in the technical construction regulations and the contract/contractual documentation determining the price of work and quality requirements applicable to the construction works/work.
2. The composition of the documents related with the contract (technical construction regulations) must be indicated therein. The contract must likewise specify which of the parties and within what period must grant certain technical construction regulations.
3. Unless otherwise provided for by the construction contract, the contractor shall be deemed to be obliged to perform himself all the work indicated in the technical construction regulations.
4. Where the contractor discovers, in the course of construction, the need for work which is not indicated in the technical construction regulations and which requires performance of additional construction work and a corresponding increase in the price of the contract, the contractor must inform the client accordingly. Where the contractor does not receive a reply from the client to his communication within the period established in the contract or, where such period is not indicated in the contract, within a reasonable time, the contractor shall have the right to suspend the performance of the work concerned. In this case, the damages caused by the suspension of the work must be borne by the client unless he proves the absence of necessity to perform additional work.
5. In the event of the failure by the contractor to perform the duty indicated in paragraph 4 of this Article, he shall be deprived of the right to demand payment from the client for the additional work performed and claim compensation of damages incurred unless he proves that the necessity for immediate actions was in the interests of the client while the suspension of work might have brought about perishing or damage of the construction object.
Article 6.685. Change in the contractual documentation
1. The client shall have the right to make changes in the contractual documentation on condition that the price of the additional work caused by the changes does not exceed fifteen per cent of the total price of construction work specified in the contract, and the changes do not alter the character of the work provided for in the contract. The parties may also provide for other conditions for making changes in the contractual documentation.
2. The contractor shall have the right to demand a revision of the price of the contract if, for reasons beyond his control, the actual price of the work has increased by more than fifteen per cent (Article 6.204 of this Code).
Article 6.686. Supply of materials and equipment for construction
1. The duty relating to the supply of materials, equipment, components and other structures for construction shall be borne by the contractor unless the construction contract attributes this duty to the client.
2. The party whose duty it is to supply materials and equipment for construction shall be liable for the defects thereof which render those materials and equipment impossible to be used without impairing the quality of the construction work unless it is proved that it was impossible to use those materials and equipment due to circumstances for which the other party is liable.
3. In the event where the defects referred to in paragraph 2 of this Article are discovered in the materials and equipment provided by the client, and the client refuses to replace them, the contractor must dissolve the contract and demand payment for the actually performed work.
Article 6.687. Payment for work
1. The client must pay for the construction work performed within the periods and in accordance with the procedure determined in the construction contract.
Article 6.688. Other duties of the client
1. The client must provide, in a timely manner, a land plot for construction (construction site). The size and condition of the land plot provided must conform to the conditions specified in the construction contract and enable the timely commencement of proper performance and timely completion of the construction by the contractor.
2. In the instances and in accordance with the procedure provided for by the contract, the client must also transfer for the use of the contractor buildings and installations, provide transportation services, install temporary electric power or water supply networks, obtain the necessary permits authorising the contractor to perform certain work, as well as render other services provided for in the contract.
Article 6.689. Right of the client to control and supervise construction work
1. The client shall have the right to exercise control and supervision of the course and quality of construction work being performed, the compliance with the schedules of construction work, the quality of the materials supplied by the contractor, and the use of the materials provided by the client. In implementing this right, the client shall have no right to interfere in the economic and commercial activities of the contractor.
2. Upon the discovery of any deviations from the conditions of the contract which may impair the quality of construction work or any other defects, the client must immediately notify the contractor thereof. Failure by the client to notify about the detected defects shall deprive him of the right to rely on them in the future.
3. The contractor must follow the client’s instructions received in the course of the construction if such instructions are not contrary to the conditions of the construction contract and the technical construction regulations, and do not represent interference in the economic and commercial activities of the contractor.
4. Where the contractor fails to properly perform the contract, he shall have no right to rely on the fact that the client failed to exercise control and supervision of the construction work, except in the cases where the duty of the client to exercise such control and supervision is established by law or the contract.
Article 6.690. Participation of the projecting and other institutions in the fulfilment of the duties and exercise of the rights of the client
1. The client shall fulfil his duties and exercise his rights relating to control and supervision of the construction with the participation of the projecting and other institutions (engineer, constructor, consultant, etc.). The rights and duties of the projecting institution relating to control and supervision of the construction shall be determined in the contract concluded between the client and the projecting and other institutions, as well as in the construction contract.
2. The list of construction works subject to authorial supervision of the construction to be exercised by the projecting institution shall be determined by the technical construction regulations.
Article 6.691. Cooperation of the parties to a construction contract
1. In the course of performing a construction contract, the parties to the contract shall be obliged to cooperate (duty of cooperation). In the event of appearance of obstacles which hinder proper performance of the contract, each of the parties to the contract shall be obliged to take all reasonable measures within their control to eliminate such obstacles. The party which fails to perform this duty shall lose the right to claim compensation of damages caused by the failure to eliminate the relevant obstacles.
Article 6.692. Duties of the contractor related to ensuring environmental protection and work safety
When performing construction and work connected therewith, the contractor must comply with the requirements of laws and technical construction regulations concerning environmental protection and work safety. The contractor shall be liable for the violation of these requirements.
Article 6.693. Legal effects of conservation of construction work
If, for reasons beyond the control of the parties, the construction work is suspended and the construction object subjected to conservation, the client must effectuate payment in full for all the construction work performed until conservation, likewise compensate damages caused by the suspension of work and conservation of the object, including therein all the advantages which the contractor has received or could have received as a consequence of the termination of work.
Article 6.694. Handing over and acceptance of work
1. Upon receipt of the contractor’s notification of the readiness to hand over the result of work or, where this is provided for in the contract, of the completion of a stage of the work performed, the client must immediately embark upon the acceptance thereof. The conditions of handing over and acceptance of work shall be determined by laws and the contract for work concluded by the parties.
2. The acceptance of work shall be organised and effectuated by the client at his expense unless otherwise provided for by the construction contract. In the instances provided for by laws and technical construction regulations, representatives of the relevant state and municipal institutions shall participate in the acceptance of the result of work.
3. Having accepted the result of an individual stage of work, the client shall bear the risk of accidental perishing or damage of this result, except in cases where this occurs due to the fault of the contractor. In the instances where the client starts to use the construction works before acceptance, the risk of accidental perishing thereof shall be borne by the client unless otherwise provided for by the contract.
4. The handing over of the work and the acceptance thereof shall be formalised by an act to be signed by both parties. In the event of the refusal of one of the parties to sign the act, a relevant notation shall be made thereon, and the act shall be signed by the other party. A unilateral act of handing over may be declared null and void by the court if it decides that the first party had substantial grounds for the refusal to sign the act.
5. In the instances provided for by laws or the construction contract or where it arises from the character of work, preliminary testing and control measurements must be performed prior to the acceptance of the result of the work. In those instances, the acceptance of work may be effectuated only upon obtaining positive results of the preliminary testing and control measurements.
Article 6.695. Liability of the contractor for the quality of work
1. The contractor shall be liable to the client for any deviations from the requirements of the technical construction regulations and also for the failure to achieve the indicators of the objects of construction specified in these documents or the contract (productive capacity of the enterprise, resistance, etc.).
2. In the event of reconstruction of constructions works and installations, the contractor shall be liable for any reduction or loss of reliability, durability or resistance of the construction works or installations.
Article 6.696. Liability for the collapse of a construction works
1. The contractor, the architect, the contractor of an expert examination of the design documentation of a construction works and the technical supervisor of the construction shall be respectively liable for the collapse of the constructions works and the resultant damage if the object collapsed due to the defects in the design, constructions or the performance of construction work, or due to unsuitable ground soil.
2. The architect, the contractor of an expert examination of the design documentation of the construction works, or the technical supervisor of the construction may be relieved from liability if it is proved that the collapse of the object was not caused by defects in the design, constructional defects or inadequate supervision or control of the construction work, but through faulty actions of the contractor or the client.
3. The contractor may be relieved from liability if it is proved that the collapse of the object occurred through the fault of the architect, the contractor of an expert examination of the design documentation of the construction works, or the technical supervisor of the construction who were chosen by the client, or through faulty actions of the client.
Article 6.697. Guarantee of the quality of work
1. Unless otherwise provided for in the construction contract, the contractor shall ensure, throughout the whole guarantee period, the compliance of the object of construction with the indicators established in the technical construction regulations and its fitness for use for the designation specified in the contract.
2. The parties to the contract shall have the right to establish, upon their agreement, a more extended guarantee period.
3. The contractor, the architect, the contractor of an expert examination of the design documentation of the construction works, and the technical supervisor of the construction shall be liable for the defects discovered within the guarantee period unless it is proved that the defects occurred as a consequence of the normal wear and tear of the object or parts thereof, its inappropriate use, or improper repair made by the client or third persons engaged by him, or any other faulty actions of the client or third persons engaged by him.
4. The guarantee period shall be interrupted for the entire period during which the object could not be used as a consequence of the discovered defects for which the contractor is liable.
Article 6.698. Guarantee periods
1. The contractor, the architect, the contractor of an expert examination of the design documentation of the construction works and the technical supervisor of the construction shall be liable for the collapse of the object or any defects if the object collapsed or the defects were discovered within the time limit of:
2) ten years, where hidden elements of the construction works (constructions, pipelines, etc.) exist;
2. The time limits specified in paragraph 1 of this Article shall start to run from the day when the result of all the work completed by the contractor is handed over to the client (when the construction is carried out by contracting) or from the day of completion of construction (in the case of self-dependent or mixed-type construction).
Article 6.699. Elimination of defects at the expense of the client
1. A construction contract may provide for the duty of the contractor, at the request of the client and at the client’s expense, to eliminate the defects of the work for which the contractor is not held liable.
2. The contractor shall have the right to refuse fulfilment of the duty indicated in paragraph 1 of this Article in the instances where the elimination of the defects is not directly connected with the subject matter of the construction contract or they cannot be eliminated for reasons beyond the control of the contractor.
Article 6.700. Concept of a contract for design and survey work
Under a contract for design and survey work, the contractor (architect, surveyor) shall undertake to perform survey and design work in accordance with the task of the client, draw up technical documentation or produce any other result of work and transfer it to the client, while the latter shall undertake to accept the result and pay for it.
Article 6.701. Task of design and survey work
1. Within the periods and in accordance with the procedure established in the contract, the client must submit to the contractor the task for design and survey work as well as any other data necessary for drawing up the technical documentation. The task and other primary data may also be prepared by the contractor under the authorisation of the client. In that event, the task shall become obligatory to both parties from the moment when it is confirmed by the client.
Article 6.702. Duties of the contractor
1. The contractor must:
1) perform design and survey work in accordance with the requirements established by the contract, the task and other primary data;
2) coordinate the prepared technical documentation with the client in accordance with the procedure stipulated in the technical construction regulations, and in the cases established by the law, with the relevant state or municipal institutions, or perform an expert examination of the technical documentation;
3) cooperate with the client in the course of performing the work and coordinating the prepared technical documentation;
4) within the periods and in accordance with the procedure established in the contract, transfer the prepared technical documentation or the result of the survey work to the client;
2. The contractor shall have no right to transfer the result of work to third persons without the consent of the client.
Article 6.703. Liability of the contractor for the quality of work
1. The architect/surveyor shall be liable for improper drawing up of the technical documentation or performance of survey work, as well as for the re-performance of the construction work as a consequence of improperly performed design/survey work or improperly drawn up technical documentation, as well as for defects of work/documentation which were discovered in the course of the work in accordance with the prepared technical documentation or when accepting the result of survey, or in the process of operation of the object produced on the basis of that work.
2. In the instances of discovery of defects in the technical documentation or in the survey work, the contractor must, at the request of the client, correct without compensation the defects of the technical documentation or re-perform the survey work, and compensate for the damage to the client, unless otherwise provided for by the contract.
Article 6.704. Duties of the client
In accordance with a contract for design and survey work, the client must:
1) pay to the contractor the established price in full after the completion of all the work or in parts after the completion of individual stages of work provided for in the contract;
2) use the result of work received from the contractor exclusively for the purposes specified in the contract, not transfer it to third persons, nor publish the data of the result of the work without the consent of the contractor;
3) cooperate with the contractor in the course of work and coordination of the prepared technical documentation;
4) compensate the contractor for additional expenses caused by a change of the task or the primary data, where the changes were conditioned by the circumstances beyond the control of the contractor;
Article 6.705. Performance of construction and design work for the needs of the State or municipalities
1. Construction, design or survey work, as well as architectural and engineering activities and related technical consultations intended for the satisfaction of the needs of the State or municipalities financed from the budget of the State or municipalities shall be performed under contracts for works concluded on the basis of a public tender, except in cases provided for by laws.
Article 6.706. Content of a contract for work concluded on the basis of a public tender
In the event where a contract for work is concluded on the basis of a public tender, the content of the contract shall be determined in accordance with the announced conditions of the tender and the proposals submitted by the contractor who has won the tender.
Article 6.707. Concept of a contract for research, experimental, development or technological work
1. Under a contract for research, one party (the executor) shall undertake to conduct research in accordance with the terms of reference of the other party (the client), and, in accordance with a contract for experimental, development or technological work, to work out a model of a new product or its production development documentation, or a new technology, while the client shall undertake to accept the work and pay for it.
2. A contract with the executor may be concluded for the performance of the work in total or for its individual stages (elements).
3. Unless otherwise provided for by laws, the risk of accidental impossibility to perform the contract shall be borne by the client.
Article 6.708. Performance of work
1. The executor must conduct research personally. The executor shall have the right to involve third persons for the performance of research work pursuant to the contract only upon a written consent of the client.
Article 6.709. Confidentiality of information
1. Unless otherwise provided for by the contract, both parties must ensure confidentiality of information related with the subject matter of the contract, the performance of the contract and the results obtained. The type of information to be deemed confidential pursuant to the contract shall be determined by agreement between the parties.
Article 6.710. Right of the parties to the result of work
1. The parties to the contract shall have the right to use the result of work performed to the extent and on the terms determined in the contract.
Article 6.711. Duties of the executor
Under a contract for research, experimental, development or technological work, the executor must:
1) perform the work in accordance with the terms of reference agreed upon with the client and transfer the results of the work to the client within the period indicated in the contract;
2) agree with the client upon the necessity of using the legally protected results of intellectual activity that belong to third persons and the acquisition of the rights for the use thereof;
3) eliminate by his own means and at his own expense defects violating the conditions of the contract or the terms of reference, which occurred through his fault;
4) immediately inform the client about the impossibility of obtaining the anticipated results or the inexpediency of continuing the work;
Article 6.712. Duties of the client
1. The client must transfer to the executor the information indicated in the contract as necessary for the performance of work, accept the results of the work performed and pay for them.
Article 6.713. Impossibility of achieving the anticipated results in conducting research
In the event where, in the course of conducting research, it becomes obvious that it is impossible to achieve the anticipated results as a consequence of circumstances beyond the control of the executor, the client shall be obliged to pay the executor for the work performed before the impossibility became obvious, but not in excess of the respective part of the price of the work specified in the contract.
Article 6.714. Impossibility of continuing experimental, development or technological work
In the event where, in the course of performance of experimental, development or technological work, it becomes obvious that it is impossible or inexpedient to continue the work through no fault of the executor, the client shall be obliged to pay a part of the price of the work specified in the contract which is proportional to the part of the work performed, as well as to pay other reasonable expenses incurred by the executor in attempting to perform the work.
Article 6.715. Liability of the executor for violation of the contract
1. The executor shall be liable towards the client for violation of the contract unless he proves that the contract was violated not through his fault.
2. The executor shall be obliged to compensate to the client for the damages caused by the defects of the work within the limits of the value of the work performed in the event where it is established in the contract that the damages shall be subject to compensation within the limits of the value of the work performed. Lost incomes shall be compensated only in the instances provided for in the contract.
Article 6.716. Concept of a service contract
1. Under a service contract, one party (the provider of services) shall undertake to provide to the other party (the client), by commission of the latter, certain services of non-material nature (intellectual) or other services which are not related to the creation of a material object (to perform certain actions or pursue certain activities), and the client shall undertake to pay for the services provided.
2. The provisions of this Chapter shall apply only to those services in respect of which no relationship of employment or other subordination exists between the provider of services and the client.
3. The rules established by the provisions of this Chapter shall apply to the provision of audit, consultancy, personal healthcare, veterinary, information, education, tourist or other remunerative services, to the exclusion of the services provided in accordance with the rules laid down in Chapters XXXIII, XXXIV, XXXVI, XXXVIII, XL, XLI, XLII, XLIV, XLVI, XLVII and L of this Book.
4. The consumer service contract shall be governed by the provisions of this Code on the consumer contract.
Article 6.717. Performance of the service contract
1. Unless the service contract establishes otherwise, the provider of services must provide the services himself.
2. In compliance with the contract, the provider of services shall be free to choose the methods and measures to perform the contract.
3. Unless the contract establishes otherwise, the provider of services may involve third persons to perform the contract. In the latter case, however, the provider of services shall be personally liable to the client for the proper performance of the contract.
Article 6.718. Priority of the interests of the client
1. The provider of services must be honest and reasonable in the provision of services, so as to serve the best interests of the client.
2. Having regard to the type of services, the provider of services must, in the provision of services, act in accordance with the established practices and standards applicable to the relevant profession.
3. The provider of services must provide the services in accordance with the terms of the contract and following the instructions of the client. If the instructions of the client are in violation of laws, established rules of the professional activities, standards, professional ethics or the terms of the contract, the provider of services shall have the right to refuse to follow such instructions and to terminate the contract.
4. The provider of services shall have the right to deviate from the terms of the contract or the instructions of the client where specific circumstances necessitate such deviation for the interests of the client or in order to discharge the latter’s commission, and where the executor was unable to inform the client thereof in advance. In this case, the executor must notify the client of the deviations as soon as the circumstances permit.
5. If the contract provides for an obligation on the part of the provider of services to achieve a certain result, the provider of services may be relieved from liability for the non-performance of the said obligation only where the provider of services proves that he could not meet the obligation for reasons of force majeure.
Article 6.719. Duty of the provider of services to furnish information
1. Before entering into a service contract, the provider of services must provide the client with detailed information concerning the nature of the services to be provided, the terms of their provision, the price of the services, the schedule for the provision thereof, possible consequences, and any other information which may have an influence on the client’s determination to enter into the contract.
2. Where public services are rendered, or where the provision of services constitutes a business of the provider of services, the client must be given public access to the information indicated in paragraph 1 of this Article either at the registered office of the provider of services or at any other place freely accessible to each potential client.
Article 6.720. Price of services and payment
1. The price of services shall be fixed by agreement between the parties and may be modified after the conclusion of the contract only in accordance with the terms of the contract and in the cases stipulated by the contract.
2. The client shall be obliged to pay an increase in the price of services exceeding the price fixed at the time of the conclusion of the contract only where the provider of services furnishes proof that the increase was unavoidable to ensure proper performance of the contract and could not have been foreseen at the time of the conclusion of the contract.
3. The client shall pay for the services rendered within the time and in accordance with the procedure established in the contract. Unless the contract provides otherwise, the client shall be obliged to pay the whole price when all the contracted services are provided. By agreement between the parties, part of the price may be paid at the time of the conclusion of the contract or at any agreed time thereafter, and the final settlement shall be effectuated upon the performance of the contract by the provider of services.
4. If the performance of the contract is impossible through the fault of the client, the client shall be obliged to pay the whole price fixed in the contract, unless the contract provides otherwise.
5. If the performance of the contract is impossible as a result of the circumstances for which no party to the contract is responsible, the client shall be obliged to remunerate the provider of services for the actual expenses incurred by the latter, unless the contract provides otherwise.
6. The client shall also be obliged to reimburse the provider of services for the expenses incurred by the latter and related to the performance of the contract to the extent that such expenses are not covered by the price of the services. The client shall also be obliged to reimburse the provider of services for the latter’s losses related to the provision of services and incurred at the time of the provision of services in the event of unforeseen specific circumstances for which the provider of services is not responsible. Where the provision of certain services constitutes professional activities (business) of their provider, the client shall be obliged to reimburse such provider for the losses incurred by the latter only where the losses result from specific circumstances not covered by a normal risk characteristic to a certain type of profession or business.
Article 6.721. Unilateral termination of the contract
1. The client shall have the right to unilaterally terminate the contract even though the provision of services by the provider is already in progress. In this case, the client must pay the provider of services a part of the agreed price in proportion to the services rendered and reimburse other reasonable expenses incurred by the provider of services for the purpose of performance of the contract before the date of receipt of the notice of termination of the contract from the client.
Article 6.722. Report of the provider of services
Unless the service contract provides otherwise, the provider of services must:
1) at the request of the client, communicate to him all the information on the services rendered and the progress in their provision;
2) at the request of the client, forthwith submit a report to the client on the services rendered or progress in their provision;
Article 6.723. Termination of the service contract
1. The death of the client does not terminate the contract unless it has been entered into specifically in view of the personal qualifications of the client, or the performance of the contract thereby becomes impossible or useless. The contract on the said grounds shall be terminated from the date the provider of services becomes aware or ought to have become aware of the death of the client. The provider of services must, in all cases, ensure that all adequate measures available to him are taken to protect the interests of the client.
2. The contract shall be terminated by the death or legal incapacity in this area of the provider of services, or his limited legal capacity in this area unless analogous services may be adequately continued by his successors who are entitled thereto. The successors of the provider of services, who are aware of the commission, must ensure that all adequate measures available to them are taken to protect the interests of the client.
Article 6.724. Subsidiary application of other provisions of this Code to service contracts
The provisions of this Book, which establish general provisions of the contract for work (Articles 6.644 to 6.671) and regulate the contract for consumer work (Articles 6.672 to 6.680) shall apply to service contracts in so far as they are not in violation of Articles 6.716 to 6.723 of this Code and peculiarities of the subject matter of the service contract.
Article 6.725. Contract for personal healthcare services
1. Under a contract for personal healthcare services, a person who is entitled to provide healthcare services due to his professional or business activities (the provider of healthcare services) shall undertake to provide to the other party (the patient) healthcare services stipulated in the contract, and the patient shall undertake to pay the agreed price to the provider of healthcare services. Where personal healthcare services are provided to a third person rather than the person who has entered into the contract, the said third person shall be considered as the patient (the actual recipient of personal healthcare services). In this case, the person who has entered into the contract shall be the client.
2. The concept of personal healthcare services referred to in paragraph 1 of this Article shall mean activities, including examination and counselling directly relating to an individual, undertaken for the purpose of treating the individual, preventing him from falling ill or assessing the condition of his health. This concept shall also include nursing of the patient and related activities, as well as material provision for the patient, which is necessary for the pursuit of personal healthcare activities, with the exception of pharmaceutical activities.
3. The rules of this Section shall not apply to the following types of activities: activities intended for determining the health condition of an individual or for providing healthcare to an individual who is represented by the provider of such care in the settlement of a dispute in court or in the fulfilment of obligations, so that the represented individual receives insurance benefits or social benefits; as well as activities aimed at determining one’s endowment or aptitude for learning, fitness to work or to perform a specific type of activity; and forensic pathology. Similarly, the rules of this Section shall not apply to personal healthcare services the costs of which are paid (compensated), pursuant to laws, from the budget of the compulsory health insurance fund, the State budget or municipal budgets.
Article 6.726. Patients who are minors
1. A minor who has reached the age of sixteen may enter into the contract for personal healthcare services in his own name and perform other legal actions directly related to such a contract.
2. A minor who has reached the age of sixteen shall be responsible for the fulfilment of all obligations arising from this contract, and this may not have any affect on his parents’ duty to bear the costs of care for and upbringing of the minor.
Article 6.727. Provision of information to the patient
1. The provider of personal healthcare services must inform the patient, in a form comprehensible to the latter and with an explanation of the special medical terms involved, of the condition of his health, disease diagnosis, possible treatment methods, prognosis of the treatment and other circumstances which may have an effect upon the patient’s decision to consent to or refuse the proposed treatment, as well as of the consequences of the patient’s refusal of the proposed treatment.
2. The provider of personal healthcare services shall have the right to withhold the information indicated in paragraph 1 of this Article from the patient only in those instances where such notification would have a detrimental effect upon the patient (would cause harm to the health of the patient or even endanger his life). In such instances, all the information indicated in paragraph 1 of this Article shall be submitted to the patient’s representative and shall be considered as information provided to the patient. The said information shall be communicated to the patient as soon as the risk of causing the said harm to the patient by the notification of such information is eliminated.
Article 6.728. Right not to know
1. The information provided for in paragraph 1 of Article 6.727 of this Code must not be provided to the patient against his will. The will of the patient must be clearly expressed and attested by his signature.
Article 6.729. Consent of the patient
1. The patient may not be treated or be provided any other healthcare and/or nursing against his will, unless otherwise established by legislation. The laws may provide for the cases where a written consent of the patient is required for the provision of healthcare services to the patient.
2. The patient under the age of sixteen may not be treated or be provided any other healthcare and/or nursing against the will of at least one of his parents or his statutory representative, unless the laws provide otherwise. The patient under the age of sixteen, on condition that his age and the level of development permit him to correctly assess the condition of his health and a proposed course of treatment, may not be treated against his will, unless the laws provide otherwise. The laws may provide for the cases where a written consent of at least one of the parents of the minor or of his statutory representative is required to provide healthcare services to the patient. The doctor must select the methods of treatment that would most suit the interests of the minor.
Article 6.730. Indication of the patient’s consent in his medical documents
The provider of personal healthcare services must include information on all the actions undertaken (personal healthcare services), to which the patient has given his consent, into the medical documents of the patient, and the patient or his representative must attest these documents by their signature.
Article 6.731. Cooperation of the patient with the provider of personal healthcare services
The patient must give to the provider of personal healthcare services all possible information and assistance which may be reasonably required for the performance of the contract.
Article 6.732. Degree of care
In the pursuit of his activities, the provider of personal healthcare services must ensure such a degree of care which is expected from an honest provider of personal healthcare services. His activities must be based on responsibility stipulated by the relevant laws, other legal acts and professional standards of providers of healthcare services.
Article 6.733. Necessity of patients’ medical documents
Providers of personal healthcare services must keep at their disposal (process and fill in) patients’ medical documents of the established form and type (patient medical records and other medical documentation), fill in the said documents and store them in accordance with the procedure prescribed by laws.
Article 6.734. Destruction of records in the medical documents
1. The provider of personal healthcare services shall destroy the documents indicated in Article 6.733 of this Code within a period of three months after the destruction is demanded (requested) by the patient, with the exception of derogations established by the relevant laws.
2. Paragraph 1 of this Article shall not apply if a request for destruction concerns the stored documents, which may reasonably be considered as having a certain legal or medicinal value to other individuals rather than the patient, as well as in cases where the destruction of the documents is forbidden by the relevant law.
Article 6.735. Patient’s right to access the records contained in his medical documents
1. The patient must, at his request, be provided with all his medical documents, with the exception of cases when this may be harmful to the patient’s health or even endanger his life. In the said cases, the restrictions on the provision of information must be noted in the medical documents of the patient.
2. The patient shall have the right to request that copies of his medical documents be made at the expense of the patient. This right of the patient may be restricted only in accordance with the procedure prescribed by laws. The provider of personal healthcare services must explain to the patient the meaning of the records contained in his medical documents. If the request of the patient is based on reasonable grounds, the doctor must rectify, complete, eliminate, clarify and/or change the inaccurate, non-exhaustive or ambiguous data, or the data which is not related to the diagnosis, treatment or nursing.
Article 6.736. Provision of information
1. The provider of personal healthcare services may not furnish any other persons with the information on the patient without the latter’s consent and may not give access to the copies of the official documentation referred to in Article 6.733 of this Code. If information is nevertheless provided to other persons, it may be provided in so far as this does not cause any harm to the private life of the patient or any other person. Information on the patient must be furnished if the provision of information is prescribed by legislation.
2. Persons directly participating in the performance of the contract for healthcare services as well as the person who acts as an auxiliary of the person providing healthcare, provided that the information is necessary to the latter to act as an auxiliary, shall not be considered as other persons.
3. This category shall also exclude those persons whose consent in performing the contract for personal healthcare services is required in accordance with Articles 6.729 and 6.744 of this Code. However, where the provider of personal healthcare services, in furnishing information on the patient or giving access to such information or copies of the patient’s documents, may not be considered as complying with the degree of care which is expected from an honest provider of personal healthcare services, the provider of personal healthcare services shall not perform such actions.
Article 6.737. Research
The laws shall regulate the conduction of research and the provision of information on the patient for the purpose of research.
Article 6.738. Observers
1. The provider of personal healthcare services shall provide healthcare services without the presence of any other person to the exclusion of the patient himself, unless the patient has expressed his consent to the presence of external observers at the time of provision of healthcare services.
Article 6.739. Right to terminate the contract
1. Unless there are important reasons for the termination of the contract for personal healthcare services (failure to follow the instructions of the provider of healthcare services, failure to pay for the services rendered, etc.), the provider of healthcare services may not terminate this contract.
Article 6.740. Price of the contract
The client (the patient) shall pay to the provider of personal healthcare services the agreed price fixed by the contract, except where the provider of personal healthcare services receives remuneration for his work by law or on some other grounds, as prescribed in the contract.
Article 6.741. Healthcare institutions
Where personal healthcare services under a contract are provided in a healthcare institution that is not a party to the contract, in all cases liability on the part of the healthcare institution shall also arise, which shall be analogous to liability of the party to the contract.
Article 6.742. Prohibition to limit or exclude liability
Liability of the provider of personal healthcare services and, in cases provided for in Article 6.741 of this Code, liability of the healthcare institution, may not be limited or excluded.
Article 6.743. Scope of application
Where personal healthcare services are provided in accordance with the general requirements set for the profession of a medical practitioner or the principles of medical ethics/deontology, i.e. not pursuant to the contract for personal healthcare services, the rules of this Section shall apply in so far as this is compatible with the nature of legal relations.
Article 6.744. Statutory representatives
1. If the patient has not reached the age of sixteen, the obligations of the provider of healthcare services shall be discharged to the parents of the minor or the guardian/curator of the patient.
2. The rule specified in paragraph 1 of this Article shall also apply in cases where the minor, even though he or she has attained the age of sixteen, cannot be considered to be capable of reasonably assessing his interests, to the exclusion of the cases where the patient whose capacity to make reasonable assessment is doubted has reached the age of majority, and the person has been placed under guardianship/curatorship or the guardian/curator has been appointed to him. In the latter case, the obligations shall be discharged to the guardian/curator.
3. Where the adult patient cannot be considered to be capable of reasonably assessing his interests, and neither curatorship nor guardianship has been established in respect of such person, all the obligations of the provider of personal healthcare services to the patient shall be discharged to the person who is authorised in writing by the patient to act on behalf of the patient. In the absence of the authorised person or where the authorised person fails to take the necessary actions, the obligations must be discharged to the patient’s spouse or cohabitee/partner, unless the latter refuse that, or in the absence of the patient’s spouse or cohabitee/partner, the obligations shall be discharged to the patient’s parent or to an adult child, or to an adult sibling, or to an adult grandchild, or to a grandparent, unless the latter refuse that. Where the adult patient cannot be considered to be capable of reasonably assessing his interests, his family members shall be requested to give a consent for discharging the obligations of the provider of personal healthcare services to the patient in the following order: the spouse, cohabitee/partner, parents/adoptive parents, adult children, adult siblings, adult grandchildren, grandparents. Upon receipt of the consent of one of the persons, in accordance with the order of priority established in this paragraph, for discharging the obligations of the provider of personal healthcare services to the patient, the consent of other persons shall not be required.
4. The provider of personal healthcare services shall fulfil his obligations to the patient’s statutory representatives as provided for in paragraphs 1 and 2 of this Article, as well as to persons listed in paragraph 3 of this Article, provided that the fulfilment of such obligations complies with the degree of care that is expected from an honest provider of personal healthcare services.
5. The person established in this Section, to whom the provider of personal healthcare services must discharge his obligations pursuant to paragraph 2 or 3 of this Article, must act with such care which is expected from an honest representative. In the discharge of his obligations, the person must involve the patient as much as possible.
Article 6.745. Emergencies
Where, pursuant to Article 6.744 of this Code, instead of the patient’s consent, the consent of the person indicated in the said Article is required for the provision of healthcare services, the services may be provided without the consent of such person provided that there is insufficient time to obtain the consent of the said person in cases where immediate action is needed to save the life of the patient.
Article 6.746. Use of human tissues and organs
Human tissues and organs taken from an anonymous person during the provision of personal healthcare services may be used in cases and pursuant to the procedure prescribed by laws.
Article 6.747. Package travel contract
1. Under a package travel contract, one party (the tour organiser) shall undertake to organise, in return for payment, a package travel for the other party (the tourist), while the tourist shall undertake to pay the tour organiser for the services provided. A package travel shall also include a tour where it is sold by concluding separate contracts on the provision of tourism services between the tourist and the provider(s) of tourism services.
Article 6.748. Provision of information and documentation prior to conclusion of a package travel contract
1. When offering its services, the tour organiser must, prior to conclusion of a package travel contract, provide the tourist with clear, comprehensible, and non-misleading written information on paper or on other durable medium, including:
1) the basic terms and conditions of the package travel and/or the main characteristics of the services provided:
a) the tour destination(s), travel route and durations of stay with dates indicated, and where accommodation is included, the number of included overnight stays;
b) the means of transport, its data and categories, points, dates and time of departure and return, waiting time, locations, and transport connections at stopovers. In cases where the exact time has not yet been set, the tour organiser or the travel retailer shall inform the tourist of an approximate time of departure and return;
c) the place and main characteristics of accommodation, and where it is established in accordance with the relevant rules of the host country, information on the tourist category or class;
f) whether a particular travel service will be provided to the tourist as a member of a group (in cases where this is not obvious, depending on the circumstances) and, where possible, information on the approximate size of the group;
g) the language in which the services will be provided where the access of the tourist thereto depends on the information supplied orally;
h) the information on whether the package travel is essentially suitable for persons with reduced mobility and, at the request of the tourist, accurate information on the suitability of the package travel depending on the needs of the tourist;
2) the details or contact information (name and surname of the natural person or name, address, telephone number, and e-mail (if any) of the legal person) of the tour organiser and/or the travel retailer;
3) the total cost of the package travel, which includes taxes, any additional contributions, charges and other expenses, or, where those costs cannot be calculated on reasonable grounds before the conclusion of the contract, information on the additional costs which the tourist may still incur;
4) the procedure for paying for the package travel, including the part of the price to be paid in advance, and the payment schedule of the remaining amount;
5) the minimum number of tourists required for the package travel to take place and the time limit referred to in paragraph 2 of Article 6.751 of this Code during which the tourist may terminate the contract if the minimum number of tourists is not obtained for the package travel;
7) health-related formalities (information on the epidemiological status of communicable diseases in the country of destination, compulsory and recommended preventive measures, information on the procedure of health insurance);
8) the right of the tourist to terminate the package travel contract in accordance with the procedure laid down in Article 6.750 of this Code;
9) the right of the tourist to withdraw, within fourteen days, in accordance with the procedure laid down in paragraph 1 of Article 6.22810 of this Code, from the package travel contract concluded outside the commercial premises;
2. The tour organiser shall inform the tourist in a clear, comprehensible and prominent manner in a form preferred by the tourist of any change to the information referred to in paragraph 1 of this Article. The tour organiser shall provide all this information on a durable medium prior to conclusion of the package travel contract.
3. Where the tour organiser fails to provide the tourist with the information referred to in point 3 of paragraph 1 of this Article prior to conclusion of the package travel contract, the tourist shall not be obliged to pay any additional fees, charges or other costs levied by the tour organiser which have not been included in the total cost of the package travel.
4. The tour organiser shall provide the tourist with the necessary receipts, vouchers, tickets, and information on the scheduled time of departure and, where applicable, the duration of registration and scheduled waiting time at stopovers and transport connections and time of arrival in good time before the commencement of the package travel. The documents referred to in this paragraph shall be provided to the tourist in the form in which the package travel contract referred to in Article 6.749 of this Code has been drawn up.
Article 6.749. Conclusion and content of the package travel contract
1. The package travel contract must be drawn up in a clear and comprehensible language. The contract concluded in a written form must be legible.
2. The tour organiser must include in the package travel contract the information specified in paragraph 1 of Article 6.748 of this Code, as well as clear and comprehensible information on:
2) the fact that the tour organiser is responsible, in accordance with Article 6.754 of this Code, for proper provision of all services under the package travel contract and that the tour organiser must provide necessary assistance to the tourist;
3) the name and contact details of the insurance undertaking which has issued the guarantee of fulfilment of obligations or the name and contact details of the financial institution which has granted the financial guarantee, including their address, and the contact details of the institution authorised by the Government (address, telephone, e-mail);
4) the name, address, telephone, e-mail and, if any, fax number of the local representative, tour manager, contact point of the tour organiser or other service which enables the tourist to contact the tour organiser quickly, communicate with or seek assistance from the tour organiser in the event of difficulties, or to lodge a claim for improper performance of or failure to perform the package travel contract;
5) the obligation of the tourist to inform, without undue delay, the tour organiser, using contact details referred to in point 4 of this paragraph, of any case of improper performance of or failure to perform the package travel contract discovered by the tourist during the package travel;
6) the details to directly contact a minor or a person accompanying a minor in the current location of the minor where, in accordance with the package travel contract which includes accommodation, the minor travels unaccompanied by his parent or other accompanying person;
7) the internal procedure for settlement of claims by the tour organiser, alternative means of dispute settlement applied to a concluded package travel contract, where applicable, the entity for out-of-court consumer dispute resolution dealing with disputes over the performance of the package travel contract, and electronic means of dispute settlement;
3. The information referred to in paragraph 2 of this Article and paragraph 1 of Article 6.748 of this Code shall be considered an integral part of the package travel contract. The information referred to in points 1, 3, 4, 5 and 7 of paragraph 1 of Article 6.748 of this Code may not be altered, unless the parties to the package travel contract expressly agree otherwise.
4. The standard terms of the package travel contract shall be approved by an institution authorised by the Government.
5. The tour organiser, after the conclusion of the package travel contract or without undue delay thereafter, shall present to the tourist, on a durable medium, a copy of the package travel contract or an acknowledgement of the conclusion of the contract. The tourist shall have the right to request a paper copy of the package travel contract where it has been concluded in the physical presence of the parties.
Article 6.750. Right of the tourist to terminate and withdraw from the package travel contract
1. The tourist shall have the right to terminate the package travel contract at any time before the commencement of the package travel.
2. Where the tourist terminates the package travel contract, the tour organiser may require the tourist to pay a reasonable fee for the termination of the package travel contract. In cases where a termination fee is laid down in the package travel contract, the amount of the fee shall depend on the time remaining before the commencement of the package travel, the estimated reduction of costs incurred by the tour organiser, and the income which the tour organiser expects to receive or would receive if the package travel was sold to another person. In cases where no termination fee is provided for in the package travel contract, the termination fee must correspond to the price of the package travel, less the amount saved due to the decrease in the costs of the tour organiser and the income resulting from the sale of the package travel to another person.
3. At the request of the tourist, the tour organiser must provide the justification for the amount of the termination fee. In any case, the amount of the termination fee may not exceed the price of the package travel established in the package travel contract.
4. The tourist shall have the right to terminate the package travel contact without paying any termination fee referred to in paragraph 2 of this Article in the following cases:
1) where the tour organiser changes the terms of the package travel contract before the commencement of the package travel in the circumstances specified in paragraph 2 of Article 6.752 of this Code;
2) where, due to the shortcomings indicated by the tourist, the package travel contract may no longer be performed and the tour organiser fails to eliminate the shortcomings within a reasonable period set by the tourist. In the cases provided for in paragraph 3 of Article 6.7521 of this Code, the tourist may request a reduction of the price of the package travel or a compensation for damage;
3) in the event of force majeure at the place of destination of the package travel or in its immediate vicinity, which may render it impossible to operate the package travel or to transport the tourists to the place of destination of the package travel. In this case, the tourist shall be entitled to request a refund for the payments made for the package travel, but he shall not be entitled to any additional compensation for damage.
5. The tourist shall have the right, without indicating any reasons, to withdraw within fourteen days from the package travel contract concluded outside the commercial premises, giving notice to the tour organiser in accordance with the procedure laid down in paragraphs 6 and 7 of Article 6.22810 of this Code.
Article 6.751. Right of the tour organiser to terminate the package travel contract before the commencement of the package travel
1. The tour organiser shall have the right to terminate the package travel contract before the commencement of the package travel, reimburse the tourist for any money paid for the package travel and compensate for the damage suffered by the tourist.
2. Where the number of persons who have acquired a package travel is smaller than the minimum number of tourists specified in the contract, the tour organiser shall have the right to terminate the package travel contract only if the tour organiser has provided information on the termination of the package travel contract on this ground on a durable medium no later than:
1) twenty days before the commencement of the package travel if the duration of the travel is longer than six days;
2) seven days before the commencement of the package travel if the duration of the travel is not shorter than two days and not longer than six days;
3. The damage referred to in paragraph 1 of this Article shall not be compensated where:
1) the number of persons who have acquired a package travel is smaller than the minimum number of tourists specified in the package travel contract and the tourist has been informed in writing of the right of the tour organiser to withdraw from the contract on this ground within the time limit specified in paragraph 2 of this Article;
4. The tour organiser shall reimburse, not later than within fourteen days from the date of the termination of the package travel contract, all the payments made by the tourist or on his behalf for the package travel, except where, within this time limit, the tourist and the tour organiser agree, in the cases specified by the Law on Tourism, on the compensation for the unperformed package by means and under the conditions laid down in this Law.
Article 6.752. Changes to the terms and conditions of the package travel contract before the commencement of the package travel
1. The tour organiser shall have no right to unilaterally change the terms and conditions of the package travel contract before the commencement of the package travel, with the exception of the price in accordance with the procedure laid down in Article 6.7521 of this Code, unless all of the following circumstances exist:
2. The tourist shall have the right, at his choice, to agree, within a reasonable period specified by the tour organiser, to the changes to the terms and conditions of the package travel contract proposed by the tour organiser or to terminate the package travel contract and not to pay the termination fee in the presence of at least one of the following circumstances/conditions:
1) the tour organiser is forced to substantially change any of the main conditions and/or characteristics of the package travel services referred to in point 1 of paragraph 1 of Article 6.748 of this Code before the commencement of the package travel;
2) the tour organiser cannot meet the special requirements of the tourist specified in the package travel contract;
3. Where the tourist terminates the package travel contract on the basis of the circumstances referred to in paragraph 2 of this Article, the tour organiser may offer the tourist another package travel of equivalent or higher quality.
4. Where the changes to the package travel contract referred to in paragraph 2 of this Article or the package travel contract referred to in paragraph 3 of this Article result in a lower quality or a lower price of the package travel, the tourist shall be entitled to claim a partial refund of the payments made.
5. Where the package travel contract is terminated in accordance with paragraph 2 of this Article and the tourist disagrees with the alternative package travel offered by the tour organiser, the tour organiser must reimburse all the money paid by the tourist or paid on his behalf without undue delay, but not later than within fourteen days from the date of termination of the package travel contract. Provisions concerning the limitation period for filing claims established in paragraph 1 of Article 6.252, points 1 and 2 of paragraph 1 and paragraph 2 of Article 6.7541, paragraphs 1 and 2 of Article 6.755 of this Code, paragraph 1 of Article 11 of the Law on Treaties and the Law on Tourism shall apply mutatis mutandis to the parties to the package travel contract.
6. The tour organiser shall, without undue delay, provide the tourist with the information on a durable medium in a clear and comprehensible manner on:
1) the proposed changes to the package travel contract referred to in paragraph 2 of this Article and their influence on the price of the package travel in the cases referred to in paragraph 5 of this Article;
2) the reasonable time limit within which the tourist must inform the tour organiser of his decision pursuant to paragraph 2 of this Article;
3) the consequences if the tourist fails to reply within the time limit specified in point 2 of this paragraph;
Article 6.7521. Change in the price of the package travel contract
1. The tour organiser shall have the right to increase the price of a package travel after the conclusion of the package travel contract only if all of the following conditions are met:
1) the package travel contract provides that the tour organiser may increase the price of the package travel;
2) the travel package contract clearly specifies the right of the tourist to a price reduction in the event of a reduction in the costs referred to in paragraph 2 of this Article and indicates how the revised price is to be calculated;
2. The increase in the price of a package travel referred to in paragraph 1 of this Article shall be possible only when it is directly determined by:
2) a change in the fees or charges levied by third persons not directly involved in the operation of the package travel on services which are included in the package travel contract;
3. The tourist shall have the right to demand a reduction in the price in the following cases:
2) due to improper performance of the package travel contract, unless the tour organiser proves that the package travel contract is performed improperly through the fault of the tourist;
3) where proposed alternative services result in lower quality of the package travel than indicated in the package travel contract;
4) where the tour organiser cannot, for justified reasons, offer alternative services to the tourist or the tourist refuses them in accordance with paragraph 5 of Article 6.754 of this Code;
4. Having reduced the price of a package travel, the tour organiser shall have the right to deduct the actual administrative costs from the amount to be returned to the tourist, providing, at the request of the tourist, justification for such administrative costs.
5. Where the price increase referred to in paragraph 1 of this Article exceeds eight per cent of the final price of the package travel, the tourist shall have the right to terminate the package travel contract or choose an alternative package travel offered by the tour organiser in accordance with Article 6.752 of this Code.
Article 6.753. Change of the parties to the package travel contract
1. The tourist shall have the right to transfer his right to a package travel to another person who will acquire all the rights and obligations of the tourist under the package travel contract, provided that the tourist gives a reasonable notice to the tour organiser before the commencement of the package travel. The tourist’s notice shall in all cases be considered reasonable if it is submitted at least seven days before the commencement of the package travel.
2. The tourist who transfers the right to a package travel and the other person shall bear solidary liability to the tour organiser for the payment of the price of the travel and costs related to the transfer of the right to the package travel.
3. The tour organiser shall inform the tourist who transfers his right to a package travel to another person about the actual costs of the transfer of the right to the package travel and shall provide the supporting evidence thereof. The costs must be reasonable and not exceed the actual costs incurred by the tour organiser for the transfer of the package travel contract.
Article 6.754. Liability of the tour organiser for improper performance of the package travel contract
1. The tour organiser must perform the package travel contract taking into account the legitimate expectations of the tourist, which, according to the nature of the package travel contract and the services provided, the tourist may have held, regardless of whether those services are to be provided by the tour organiser or by other providers of tourist services.
2. Where the services specified in the package travel contract are provided in violation of the terms of the package travel contract, the tour organiser must, within a reasonable time limit set by the tourist, eliminate the shortcomings indicated by the tourist, with the exception of the cases specified in paragraph 3 of this Article.
3. The tour organiser may refrain from eliminating the shortcomings referred to in paragraph 2 of this Article where this is not possible or it would lead to disproportionate costs taking into account the extent of the shortcomings and the value of improperly provided services referred to in the package travel contract. Where the tour organiser fails to eliminate the shortcomings for the reasons set out in this paragraph, the provisions of Article 6.7541 relating to the compensation for damage shall apply.
4. Where the tour organiser fails to eliminate the shortcomings for the reasons other than those referred to in paragraph 3 of this Article within a reasonable time limit designated by the tourist, the tourist may do it himself and demand reimbursement of the necessary costs. Where the shortcomings are to be eliminated immediately, the tourist shall not be required to indicate the time limit.
5. Where the tour organiser is unable to provide a substantial part of services under the package travel contract, he shall offer to the tourist, without additional costs, appropriate alternative services, the quality of which, if possible, is equivalent to or higher than the quality specified in the package travel contract, in order to continue the package travel, as well as in cases where the service of return of the tourist to the point of departure is not provided as agreed. The tourist may refuse the proposed alternatives if they are not comparable to those agreed in the package travel contract or if the price reduction granted is inadequate.
6. Where a package travel covers a passenger transport service, the tour organiser must ensure, in the cases referred to in paragraph 5 of this Article, that the tourist is returned, at no additional cost, to the initial point of departure or transported to another place agreed by the tourist, and must reimburse the tourist for the services which have not been provided.
7. Where the tour organiser is unable to ensure the return of the tourist under the package travel contract due to force majeure, the tour organiser must cover the costs of the necessary accommodation, the category of which is, where possible, equivalent to the one specified in the contract for the period of duration of the force majeure, but not exceeding three nights for each tourist, unless longer periods are provided for in other laws or legal acts of the European Union.
8. The limitation of costs referred to in paragraph 7 of this Article shall not apply to persons with reduced mobility as defined in Article 2(a) of Regulation (EC) No 1107/2006 of the European Parliament and of the Council of 5 July 2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air (OJ 2006 L 204, p. 1) and to accompanying persons, pregnant women and unaccompanied minors, as well as persons who require special medical assistance, provided that the tourist informs the tour organiser of his special needs at least forty-eight hours before the commencement of the package travel. In the cases provided for in this paragraph, the tour organiser may not limit its liability on the basis of force majeure if a respective transport service provider cannot rely on such circumstances in accordance with the legal acts of the European Union.
Article 6.7541. Compensation for damage
1. The tourist shall have the right to claim, without undue delay, compensation for pecuniary and non-pecuniary damage in the following cases:
1) where, due to the shortcomings indicated by the tourist, the package travel contract may no longer be performed and the tour organiser fails to eliminate the shortcomings within a reasonable time limit set by the tourist;
2) where the tour organiser is unable, for justified reasons, to offer alternative services to the tourist or the tourist refuses them in accordance with paragraph 5 of Article 6.754;
2. The tour organiser shall not be liable for improper performance of the package travel contract if the tour organiser proves that the package travel contract has been performed improperly:
2) through the fault of the third party not related to the provision of services under the package travel contract and as a consequence it has not been possible to anticipate or avoid the fault.
Article 6.755. Right of the tourist to compensation for damage
1. If damage, other than damage arising from the death or health impairment of the tourist, as well as intentional damage or damage caused by gross negligence, is done to the tourist in the course of provision of a service provided for in the package travel contract, but the service is not provided by the tour organiser itself, the liability of the tour organiser for such damage may be limited to a triple price of the package travel.
2. The right of the tourist to receive compensation for damage or a reduction of the price shall not affect the rights of passengers under Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OL 2004 L 046, p. 1); Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations (OL 2007 L 315, p. 14); Regulation (EC) No 392/2009 of the European Parliament and of the Council of 23 April 2009 on the liability of carriers of passengers by sea in the event of accidents (OL 2009 L 131, p. 24); Regulation (EU) No 1177/2010 of the European Parliament and of the Council of 24 November 2010 concerning the rights of passengers when travelling by sea and inland waterway and amending Regulation (EC) No 2006/2004 (OL 2010 L 334, p. 1); Regulation (EU) No 181/2011 of the European Parliament and of the Council of 16 February 2011 concerning the rights of passengers in bus and coach transport and amending Regulation (EC) No 2006/2004 (OL 2011 L 55, p. 1); and international conventions.
3. Compensation for damage paid by the tour organiser in accordance with Article 6.7541 of this Code or a reduction of the price granted by the tour organiser to the tourist in accordance with Article 6.7521 of this Code, or compensation paid or a price reduction granted in accordance with the legal acts of the European Union and international conventions referred to in paragraph 2 of this Article shall be deducted from each other in order to avoid double compensation.
Article 6.756. Concept of a contract of mandate
1. Under a contract of mandate, one party (the mandatary) shall undertake to perform, in the name of and at the expense of another party (the mandator) certain legal actions in respect of third persons.
Article 6.757. Subject matter of a contract of mandate
1. Under a contract of mandate, the mandator may authorise the mandatary to perform legal actions related with the defence of the mandator, execute administration of the mandator’s property in total or a part thereof, perform procedural actions on behalf of the mandator in the court and other institutions, as well to as effectuate any other legal actions.
Article 6.758. Remuneration of the mandatary
2. A contract of mandate entered into by natural persons shall be presumed to be by gratuitous title, except in cases where the legal action performed by the mandatary on behalf of another person constitutes professional or business activity of the mandatary. In the instances where one or both parties to a contract of mandate are entrepreneurs, the contract shall be presumed to be by onerous title.
3. In the instances where the contract is onerous, the amount of the mandatary’s remuneration shall be determined by the contract of mandate or by laws. In the event where neither the contract nor laws determine the amount of the remuneration, the payment shall be determined taking into consideration usages, market prices, the character and duration of the services rendered, recommendations of the professional association of the persons engaged in rendering relevant services, and other circumstances.
Article 6.759. Fulfilment of mandate in accordance with the instructions of the mandator
1. The mandatary must fulfil the mandate given to him in accordance with the instructions of the mandator. he instructions of the mandator must be lawful, practical and definite.
2. The mandatary shall have the right to deviate from the instructions of the mandator if, in the light of the particular circumstances, this is necessary in the interests of the mandator and the mandatary has not been able to enquire of the mandator in advance, or has not received any reply to his enquiry within a reasonable period. In this event, the mandatary must inform the mandator about the deviations as soon as it becomes possible.
3. In the instances where the mandatary operates as a commercial representative, the mandator may, in his own interest, grant the mandatary the right to deviate from the mandate without a preliminary enquiry. In this event, the commercial representative must, within a reasonable period, inform the mandator about the deviations unless otherwise provided for by the contract.
Article 6.760. Duties of the mandatary
1. The mandatary must fulfil the mandate in good faith and with prudence and diligence in the best interests of the mandator, and avoid any conflict between his personal interests and those of the mandator.
2. The mandatary must fulfil the mandate personally, except in cases where the contract provides for exceptions, as well as where the law permits a substitution of mandatary.
3. When fulfilling the mandate, the mandatary must furnish the mandator, upon the latter’s request or, where the concrete circumstances warrant it, without any request, with all the information concerning the course of fulfilment of the mandate.
4. Having fulfilled the mandate, the mandatary must, without delay, inform the mandator accordingly, submit a report with documents of justification appended, and return the power of attorney unless otherwise provided for by the contract.
5. The mandatary must transfer to the mandator, without delay, everything received in the course of fulfilment of the mandate.
6. Where in the instances provided for by the contract, the law or usages, the mandatary takes assistance of third persons for the fulfilment of the mandate, he shall be liable towards the mandator for the actions of those persons, and shall be bound to compensate for any damage caused to the mandator by the actions thereof.
7. In the instances where a mandate is fulfilled by several mandataries, they shall be solidarily liable towards the mandator unless otherwise provided for by the contract.
8. The mandatary shall have no right to use, in his own interests, the information or property obtained in fulfilling the mandate, except in cases provided for by the law or the contract, likewise when the mandator gives his consent to such use. Where the mandatary fails to perform this duty, he must compensate the mandator for the damage incurred by him as a result, likewise return everything that is considered to be his unjust enrichment; and in the cases where he has unlawfully used a thing or money, he must pay accordingly the lease or the interest on the sums used.
Article 6.761. Duties of the mandator
1. The mandator must cooperate with the mandatary to facilitate the fulfilment of the mandate by the latter.
2. The mandator must, without delay, accept from the mandatary everything fulfilled by him in accordance with the contract of mandate.
3. Unless otherwise provided for by the contract, the mandator must provide to the mandatary the means necessary for the fulfilment of the mandate, compensate the mandatary for any expenses which were necessary for due fulfilment of the mandate and, in case of necessity, issue advance payment needed to cover the expenses related with the fulfilment of the mandate.
4. Upon the due fulfilment of the mandate by the mandatary, the mandator must pay remuneration to the former if the contract is onerous.
Article 6.762. Substitution
The mandatary shall have the right to appoint another person in the fulfilment of the mandate (substitution) exclusively in the cases and under the procedure established in Article 2.145 of this Code.
Article 6.763. Termination of a contract of mandate
1. In addition to the grounds common to the extinction of obligations, a contract of mandate shall be terminated as a consequence of:
2. In the instances where the mandator appoints a new mandatary for the performance of the same actions, the contract of mandate shall be considered terminated from the moment when the first mandatary is notified about the appointment of a new mandatary.
3. In the instances where the mandator due to his health or other serious reasons is unable to revoke the power of attorney on his own, any interested person or a public prosecutor shall have the right to apply to the court for the revocation of the power of attorney where it is necessary in the interest of the mandator, or the public interest.
Article 6.764. Legal effects of the termination of a contract of mandate
1. If a contract of mandate is terminated by the mandator before the mandate is fulfilled in full, he must compensate all the expenses incurred by the mandatary in the fulfilment of the mandate and also pay remuneration commensurate to the work performed, except in cases where the contract was terminated due to serious reasons, or the mandatary continued to fulfil the mandate after he learned or should have learned about the termination of the contract.
2. The mandatary shall be liable for the damage incurred by the mandator as a result of renunciation of the contract by the mandatary submitted without serious reasons or at an inopportune time.
3. In the instances of commercial representation, the special rules provided for in Articles 2.152 to 2.168 of this Code shall apply.
Article 6.765. Duties of the heirs of the mandatary and of the liquidator
1. In the event of death of the mandatary, his heirs must notify the mandator about the termination of the contract and take the measures necessary in order to protect the property or documents of the mandator with subsequent transference of such property and documents to the mandator.
2. The same duties as indicated in paragraph 1 of this Article shall rest upon the liquidator of a legal person in liquidation that is a mandatary.
3. The provisions established in paragraphs 1 and 2 of this Article shall also apply in respect of the guardian of the mandatary declared legally incapable in this area, in respect of the mandatary declared to be of limited legal capacity in this area and his curator, or in respect of the administrator of the mandatary against whom bankruptcy proceedings have been opened.
Article 6.766. Concept of a franchise contract
1. Under a franchise contract, one party (the franchiser) shall undertake to grant to the other party (the franchisee), for remuneration, for a certain period or for an indefinite period, the right to use, in the franchisee’s business activities, a complex of exclusive rights which belong to the franchiser (right to the trade name, right to the trade or service mark, right to protected commercial/industrial information, etc.), while the other party shall undertake to pay for that the remuneration determined in the contract.
2. A franchise contract shall provide for the use of a complex of exclusive rights, business reputation and commercial experience of the franchiser to a determined extent (by establishing the minimum and maximum amount of use, or any other form). A franchise contract may also determine the territory of use applicable to such exclusive rights, business reputation or commercial experience, or the field of business for the use thereof (sale of goods, rendering of services, etc.).
Article 6.767. Form of a franchise contract
1. A franchise contract must be concluded in writing. Failure to comply with the requirement of the written form shall render a franchise contract null and void.
2. A franchise contract may be invoked against third persons only if the fact of conclusion of the franchise contract is registered, in accordance with the procedure established by laws, in the Register of Legal Entities in which the franchiser is registered. If the franchiser is registered in a foreign state, the fact of conclusion of the franchise contract must be registered in the Register of Legal Entities in which the franchisee is registered.
3. Where the subject matter of a franchise contract is an object protected in accordance with the industrial property law, the fact of conclusion of the franchise contract must also be registered in accordance with the procedure established by laws in the relevant institution effectuating registration of objects of industrial property law and the rights thereto.
Article 6.768. Sub-franchise contract
1. A franchise contract may provide for the right of the franchisee to permit other persons to use the complex of exclusive rights granted to him, or a part of this complex on the terms of sub-franchise. The terms of a sub-franchise contract must be stipulated in advance in the franchise contract or agreed upon later with the franchiser. A franchise contract may also establish a duty of the franchisee, after the contract has been concluded, to grant other persons the right to use, within a determined period, the said rights on the terms of sub-franchise.
3. If a franchise contract is null and void, a contract of sub-franchise concluded on the basis thereof shall also be null and void.
4. In the event of the dissolution of a fixed-term franchise contract before its expiry, the rights and duties of the sub-franchisee under the sub-franchise contract shall pass to the franchiser if he agrees to accept the rights and duties under the sub-franchise contract, except in cases when it is otherwise provided for by the franchise contract. The same rules shall also apply in the event of the dissolution of an open-ended franchise contract.
5. Unless otherwise provided for by the franchise contract, the franchisee shall bear subsidiary liability towards the franchiser for the actions committed by the sub-franchisees.
Article 6.769. Remuneration under a franchise contract
Article 6.770. Duties of the franchiser
1. The franchiser must:
1) transfer to the franchisee technical and commercial documentation and submit other information necessary to the franchisee in order to exercise the rights granted to him under the franchise contract, likewise train the franchisee and his employees with regard to all the issues related with the exercise of the transferred rights;
2. Unless otherwise provided for by the franchise contract, the franchiser must:
2) render to the franchisee ongoing technical and consultative support and assistance in training of the franchisee’s employees;
Article 6.771. Duties of the franchisee
Taking into account the character and peculiarities of the activity performed, as well as the terms of the franchise contract, the franchisee must:
1) use in his activities, in the manner specified in the franchise contract, the trade name, and the trade and service mark of the franchiser;
2) ensure the quality of the goods produced, work performed or services rendered under the franchise contract;
3) comply with the directions and instructions of the franchiser in respect of the use of the rights, external and internal design of the business premises of the franchisee, as well as any other terms of activity specified in the franchise contract;
4) render to buyers/clients any additional services which they could reasonably expect in acquiring/ordering goods, work or services directly from the franchiser;
5) not divulge to other persons any commercial/industrial secrets or any other confidential information received from the franchiser;
Article 6.772. Limitation of the rights of the parties
1. The parties to a franchise contract may provide for only such conditions for limiting competition which are not prohibited by the competition law.
2. In the event where the requirement set forth in paragraph 1 of this Article is satisfied, the franchise contract may establish the following limitations of the rights of the parties:
1) obligation of the franchiser not to grant to other persons analogous complexes of exclusive rights for the use thereof on the territory consolidated for the franchisee, or refrain from own analogous activity in the same territory;
2) obligation of the franchisee not to compete with the franchiser in the territory specified in the contract in the business activity carried out by the franchisee with the use of the exclusive rights granted to him;
3) prohibition for the franchisee to receive, under a franchise contract, analogous exclusive rights from competitors/potential competitors of the franchiser;
3. The terms of a franchise contract limiting the rights of the parties thereto may be declared null and void upon the grounds and in accordance with the procedure established by the law regulating competition if these terms limit competition.
4. The terms of a franchise contract prohibited by the competition law shall be invalid, in particular such terms by virtue of which:
1) the franchiser is entitled to determine the prices, or their lower limit, of the goods produced or work performed, or services rendered by the franchisee;
Article 6.773. Liability of the franchiser in relation to claims brought against the franchisee
1. The franchiser shall be subsidiary liable for claims brought against the franchisee concerning the quality of the goods, work or services sold or rendered by the franchisee under the franchise contract.
Article 6.774. Right of the franchisee to conclude a franchise contract for a new term
1. The franchisee who has duly performed his duties under a franchise contract shall have the right, upon the expiry of the term of the franchise contract, to conclude a new contract for a new term on the same conditions.
2. The franchiser shall have the right to refuse to conclude a franchise contract for a new term provided that he undertakes not to conclude, within three years from the date of expiry of the term of the contract, with any other persons, an analogous franchise contract which would extend over the same territory on which the terminated contract operated. If, before the expiry of the three-year time limit, the franchiser wishes to grant the same exclusive rights to other persons, he must propose conclusion of a new contract to the franchisee or compensate the damages incurred by him. When concluding a new contract, the conditions thereof may not be more onerous for the franchisee than the conditions of the previous contract.
Article 6.775. Change of the conditions of a franchise contract
A franchise contract may be modified by agreement between the parties upon general grounds. The fact of modification of the contract may be invoked against third persons only if this fact has been registered in accordance with the procedure established in paragraph 2 of Article 6.767 of this Code.
Article 6.776. Termination of a franchise contract
1. Each party to a franchise contract concluded for an indefinite period shall have the right to repudiate the contract having notified the other party thereof six months in advance unless a more extended period has been established in the contract.
2. The dissolution (termination) of a franchise contract shall be subject to registration in accordance with the procedure established in paragraph 2 of Article 6.767 of this Code.
3. In the event where the franchiser loses the right to the trade name or a trade/service mark without a replacement thereof by a new analogous right, the franchise contract shall terminate.
Article 6.777. Substitution of the parties
1. If one or more of the exclusive rights which constitute the subject matter of the franchise contract pass to another person, the franchise contract shall remain valid. The new franchisee shall become a party to the franchise contract in that part of the rights and duties which is related to the exclusive rights transferred thereto.
2. In the event of the death of the franchiser or the franchisee, their rights and duties under the franchise contract shall pass to the heir on condition that he is an entrepreneur and continues the business or starts a business within six months from the date of opening of the inheritance. Otherwise, the franchise contract shall terminate. The effectuation of the rights and performance of the duties of the deceased under the franchise contract, before the acceptance of these rights and duties by the heir, shall be executed by the property administrator appointed by the court.
Article 6.778. Effects of change of the trade name and trade/service mark of the franchiser
In the event of a change of the trade name or trade/service mark of the franchiser which constitute the subject matter of the franchise contract, the franchise contract shall be valid in respect of the new trade name or trade/service mark unless the franchisee demands termination of the contract and compensation of damages. In the event of the continuation of the validity of the contract, the franchisee shall have the right to request commensurate reduction of the franchiser’s remuneration unless otherwise provided for by the contract.
Article 6.779. Effects of termination of exclusive rights
1. In the event of the expiry of an exclusive right which constitutes the subject matter of a franchise contract or where this right terminates upon any other grounds, the franchise contract shall continue to be valid, except for the terms and conditions relating to the terminated right, while the franchisee shall have the right, unless otherwise provided for in the contract, to require commensurate reduction of the remuneration due to the franchiser.
Article 6.780. Concept of a commission contract
1. Under a commission contract, one party (the commission agent) shall undertake to conduct, upon the mandate of the other party (the committent), for remuneration, one or several transactions in his own name but at the expense of the committent.
2. The commission agent shall acquire the rights and duties in respect of the transaction concluded by the commission agent with a third person, even though the committent was also named to the third person or entered into direct relations with the third person in regard to the performance of the transaction.
4. A contract of commission may be concluded with or without specifying the territory of the performance thereof, likewise with or without a duty of the committent not to grant to third persons the right to conclude a contract in his interests and at his expense, the conclusion of which has been entrusted to the commission agent.
5. A commission contract may or may not specify the things that are the subject matter of the contract.
Article 6.781. Remuneration for commission
1. The committent must pay remuneration to the commission agent. In the event where the commission agent acted as surety for the performance of the transaction by a third person, the committent must also pay additional remuneration to the commission agent in the amount established in the contract. If the amount of the remuneration for commission or the additional remuneration is not established in the contract, it shall be determined in accordance with the provisions of Article 6.198 of this Code.
Article 6.782. Performance of commission
1. The commission agent must perform the assumed commission mandate on the conditions most advantageous to the committent and in accordance with the instructions of the committent or, in the absence of such instructions, in accordance with the usual business customs and the requirements of business practice.
Article 6.783. Liability for failure to perform the transaction
1. The commission agent shall not be liable towards the committent for the failure of a third person to perform the transaction concluded with him at the expense of the committent, except in cases when the commission agent acted as surety for the performance of the transaction by the third person, or failed to display the necessary caution in the selection of the third person as a party to the transaction.
2. In the event of the failure of a third person to perform the transaction concluded with the commission agent, the latter must immediately inform the committent thereof, collect the necessary evidence, and, at the demand of the committent, assign the right of claim to him in respect of that transaction.
3. In the instances provided for in paragraph 2 of this Article, the commission agent may assign the right of claim to the committent irrespective of any prohibition or limitation of such assignment in the transaction between the commission agent and the third person. Nevertheless, assignment of the right of claim in such cases shall not relieve the commission agent from liability against the third person for the violation of the agreement prohibiting or limiting the assignment of the right of claim.
Article 6.784. Sub-commission
1. Unless otherwise provided for by the commission contract, the commission agent shall have the right, for the purpose of performing the commission contract, to conclude a contract of sub-commission with another person. Nevertheless, even in such instances, the commission agent shall remain liable towards the committent for the actions of the sub-commission agent.
2. Under a contract of sub-commission, the commission agent shall acquire the rights and duties of the committent with respect to the sub-commission agent.
Article 6.785. Deviation from the instructions of the committent
1. The commission agent shall have the right to deviate from the instructions of the committent in the circumstances where this is necessary for the interests of the committent, and where the commission agent could not obtain in advance the approval of the committent, or did not receive any reply within a reasonable time after his enquiry was sent. In this event, the commission agent must inform the committent about the deviations as soon as it becomes possible.
2. In the instances where the commission agent operates as an enterprise/entrepreneur, the committent may grant the commission agent the right to deviate from his instructions without prior permission. In this event, the commission agent must inform the committent about the deviations within a reasonable period unless otherwise provided for by the contract.
3. The commission agent who has sold a thing at a price lower than agreed with the committent must compensate to the latter for the difference in prices unless he proves that he had no possibility to sell the thing at the agreed price and the sale at a lower price enabled the committent to avoid even greater losses. In the instances where the commission agent was obliged to acquire the committent’s permission in advance to sell a thing at a lower price, he must also prove that he had no possibility to obtain such permission in advance.
4. If the commission agent has purchased a thing at a higher price than agreed with the committent, the latter, not wishing to accept such purchase, must notify the commission agent thereof within a reasonable time upon receipt of the notice from the commission agent about the conclusion of a transaction with a third person. Otherwise, it shall be deemed that the committent has accepted the performance of the obligation. If the commission agent informs that he accepts the difference in prices at his own expense, the committent shall have no right to repudiate the concluded contract.
Article 6.786. Right of ownership of the committent
1. Things received by the commission agent from the committent or acquired at the expense of the latter shall be in the ownership of the committent from the moment of the transfer.
2. The commission agent shall have the right to retain the things in his possession which are subject to transfer to the committent or to the person indicated by the latter if the committent fails to perform his obligations in respect of the commission agent.
3. In the event where the committent is declared insolvent (bankruptcy proceedings have been initiated against him), the commission agent shall lose the right of retention and acquire the right of pledge in respect of the thing concerned, while his claims for the amount of the thing retained shall be satisfied together with the claims secured by the pledge.
Article 6.787. Satisfaction of claims of the commission agent from the amounts due to the committent
The commission agent shall have the right, in accordance with the contract of commission, to deduct the amounts due to him from all the amounts received by him on the account of the committent. Nevertheless, the creditors of the committent who enjoy preference with respect to priority of satisfaction of their claims to the commission agent shall not lose the right to satisfy their claims from the amounts deducted by the commission agent.
Article 6.788. Liability of the commission agent for the loss, shortage or damage of the committent’s thing
1. The commission agent shall be liable towards the committent for the loss, shortage or damage of the committent’s thing situated with the commission agent unless he proves that this happened not through his fault.
2. If the commission agent, in accepting a thing transferred by the committent or received by the commission agent for the committent, notices damage or shortage thereof which is evident from external inspection, likewise if damage has been caused by somebody to the committent’s thing situated with the commission agent, the commission agent must take measures to protect the rights of the committent, gather the necessary evidence and immediately notify the committent thereof.
3. The commission agent who has not insured the committent’s thing situated with the commission agent shall be liable towards the committent exclusively in the cases where the latter has obligated him to insure the property at the expense of the committent, or if the commission agent was obliged to insure the thing pursuant to the commission contract or the law.
Article 6.789. Report of the commission agent
1. Upon the performance of the commission, the commission agent must submit a report to the committent and transfer to him everything he has received under the commission, likewise transfer, upon the demand of the committent, all the rights acquired by the committent in respect of a third person arising from the transaction concluded by the commission agent.
Article 6.790. Duty of the committent to accept performance of commission
The committent must:
2) inspect the thing acquired for him by the commission agent and notify the latter without delay about any defects discovered in the thing;
Article 6.791. Compensation for expenses incurred in the performance of the commission
1. The committent must, in addition to the commission payment and, in relevant instances, also additional payment for the suretyship assumed (del credere), compensate the commission agent for the necessary expenses incurred by him in the performance of the commission unless otherwise agreed between the parties.
Article 6.792. Termination of a commission contract
1. A commission contract shall terminate as a consequence of:
2) refusal by the commission agent to perform the commission contract in the cases provided for by the law or contract;
Article 6.793. Revocation of commission
1. The committent shall have the right, at any time, to withdraw from the commission contract by revoking the commission given to the commission agent. In this event, the commission agent shall have the right to demand compensation for the expenses caused by the revocation of the commission.
2. In the instances where the commission contract was concluded for an indeterminate term, the committent must inform the commission agent about the revocation of the commission not later than thirty days in advance unless the commission contract provides for a more extended period. In such cases, the committent must remunerate the commission agent for the transactions concluded by him before the revocation of the commission and compensate the commission agent for the damages suffered.
3. Having revoked the commission, the committent must, within the period established in the contract, or immediately if such period has not been established, instruct the commission agent of how to dispose of the committent’s thing situated with him. Where the committent fails to perform this duty, the commission agent shall have the right to hand over the thing for deposit at the expense of the committent or sell it at a most advantageous price for the committent.
Article 6.794. Refusal by the commission agent to perform commission
1. Unless otherwise provided for by the contract, the commission agent shall have no right to refuse performance of the commission assumed, except in cases where the refusal is caused by the impossibility to perform the commission or the committent has violated the commission contract.
2. In the instances where the commission agent has the right to refuse commission, he must inform the committent in writing about his refusal. The commission contract shall continue to be valid for two weeks from the date when the committent receives the notification from the commission agent about the refusal of the commission.
3. In the instances where the commission agent refuses performance of the commission assumed on the grounds that the committent has violated the commission contract, he shall be entitled to both compensation of the expenses incurred and the remuneration for the commission.
Article 6.795. Instructions in respect of property in the event of refusal by the commission agent to perform commission or upon revocation of the commission by the committent
1. The committent, having received the notification of the commission agent about the latter’s refusal to perform commission, must, within one month from the date of receipt of the notification, issue instructions concerning his property situated with the commission agent.
2. If the committent fails to issue instructions in regard of his thing situated with the commission agent within the established period, the commission agent shall have the right to hand over the thing for deposit at the expense of the committent or, with the purpose of satisfying his claims related with the committent, to sell the thing at the most advantageous price for the committent.
Article 6.796. Concept of a distribution contract
1. Under a distribution contract, one party (the distributor) shall undertake, within a fixed period or with no term being determined, to purchase in his name and at his expense from the other party (the producer/supplier) goods/services and sell them to the final consumer or to other distributors, as well as to perform other work related to the resale of goods/services, while the producer/supplier shall undertake to sell goods/services to the distributor, as well as to perform other work related to the distribution of goods/services.
Article 6.797. Duration of a distribution contract
A distribution contract may be fixed-term or open-ended.
Article 6.798. Form of a distribution contract
A distribution contract must be concluded in writing. Failure to comply with this requirement shall render the contract null and void.
Article 6.799. Distributor
The distributor shall be an independent enterprise/entrepreneur which purchases in its/his name and at its/his expense goods from the producer or other distributor and resells them to the final consumer or other distributors.
Article 6.800. Types of distribution contracts
2. Under an exclusive distribution contract, the producer/supplier shall undertake to sell goods indicated in the contract as intended for resale only to one distributor in a concrete territory exclusively attributed to the distributor or to a concrete group of consumers exclusively attributed to the distributor.
Article 6.801. Limitation of rights of the parties
1. The parties to a distribution contract may provide for only such conditions for limiting competition which are not prohibited by the competition law. Supervision of such conditions shall be executed by a relevant authority pursuant to the procedure established by laws. The competition law may establish additional requirements for the validity of such conditions (registration, etc.).
2. Where all the requirements established in paragraph 1 of this Article are complied with, the parties may determine the following clauses in an exclusive distribution contract:
1) preventing the distributor from producing or distributing goods that compete with the goods indicated in the contract;
2) obligating the distributor to purchase the goods indicated in the contract only from the producer/supplier;
Article 6.802. Rights and duties of the distributor
1. The parties may establish in the contract that the distributor who duly performs the contract shall be entitled to additional remuneration for the additional services supplied or the work performed in the interests of the producer/supplier.
2. The parties may also establish the maximum level of the distributor’s profit derived from the resale of the goods unless otherwise provided for by the competition law.
3. Unless otherwise provided for by the contract and the competition law, the distributor must:
5) ensure adequate storage and warehousing of the goods and continuous replenishing of the stock, establish and maintain a network of trade warehouses;
6) sell the goods under the trademark of the producer/supplier or in the special packaging or with other labelling of the producer/supplier;
7) avoid establishing branches and representative offices in any other territory than determined in the contract;
8) purchase the goods in certain batches or a certain minimum amount within the period established in the contract;
10) provide technical service to the goods after their sale or provide the buyers of those goods with any other guarantee or servicing;
11) furnish the producer/supplier with information about the market conditions, its changes and conduct market research;
13) avoid revealing commercial secrets or any other confidential information of the producer/supplier;
Article 6.803. Rights and duties of the producer/supplier
1. The producer/supplier shall have the right to control the warehouses and any other premises of the distributor where the goods purchased from the producer/supplier are stored or sold, as well as control the compliance with other conditions of the contract.
2. Unless otherwise provided for by the contract, the producer/supplier must:
1) sell the goods of adequate quality and guarantee their quality, sell the goods within the time periods and to the extent established in the contract;
2) sell the goods agreed upon only to the distributor and avoid selling goods directly to the consumer;
Article 6.804. Dissolution of a distribution contract
1. Each party to an open-ended contract shall have the right, at any time, to terminate it having notified in writing the other party thereof not later than three months in advance before the intended dissolution of the contract, unless a more extended period for notice is established in the contract.
2. Upon the dissolution of a fixed-term contract before its expiry, the distributor shall have the right to demand compensation for the income loss for the remaining period of the validity of the contract where the contract is dissolved due to the fault of the producer/supplier. Where the contract is dissolved due to the fault of the producer/supplier, the distributor shall also have the right to demand remuneration for additional services, unless otherwise provided for by the contract.
Article 6.805. Renewal of a contract
In the instances where after the expiry of a fixed-term distribution contract the parties continue the performance thereof, the contract shall be deemed renewed under the same conditions for the same period of operation.
Article 6.806. Liability of the parties to a distribution contract towards third persons
1. For the damage caused to third persons, the distributor and producer/supplier shall be liable on general grounds.
2. For the damage caused to the consumer by goods or services of inadequate quality, liability of the distributor and producer/supplier shall arise in accordance with the rules established in Articles 6.292 to 6.300 of this Code.
Article 6.807. General provisions of carriage
Article 6.808. Contract for the carriage of goods
1. Under the contract for the carriage of goods, the carrier shall undertake to carry the goods handed over to him by the consignor to the point of destination and to deliver them to the person entitled to receive such goods (the consignee), while the consignor/consignee shall undertake to pay a specified charge for the carriage of the goods.
Article 6.809. Contract for the carriage of passengers
1. Under the contract for the carriage of passengers, the carrier shall undertake to carry passengers to the point of destination and, where the passengers hand over their luggage to him, to carry the luggage to the point of destination and deliver it to the person entitled to receive such luggage, while the passengers shall undertake to pay a specified charge for the carriage and, where appropriate, for the carriage of their luggage.
Article 6.810. Charter-party
1. Under a charter-party (charter), one party (the owner) shall undertake to provide to the other party (the charterer), in return for consideration, a means of transport or some part thereof for the carriage of goods, passengers or luggage.
Article 6.811. Direct combined transport
1. Relationships between transport undertakings in relation to the carriage of goods, passengers or luggage by different modes of transport under a single document of carriage (direct combined transport) as well as organisation of such transport operations shall be regulated by agreements concluded between appropriate transport organisations.
Article 6.812. Public transport services
1. A legal person (entrepreneur) engaged in the provision of transport services shall be deemed to be providing public transport services if, subject to a law or an authorisation (a licence), he is obliged to provide regular scheduled freight or passenger services at the request of any person.
3. Public transport undertakings must provide transport services to any individual, with the exception of cases provided for by law when they are entitled to refuse to enter into contracts of carriage.
Article 6.813. Carriage charges
1. The carriage of goods, passengers and luggage shall be subject to a charge to be determined by mutual agreement of the parties, unless otherwise provided for by the law.
2. The charge for the carriage of goods, passengers and luggage by public transport shall be established on the basis of tariffs adopted in accordance with the procedure laid down by laws.
3. Any operations or services provided for by the carrier at the request of the consignor of goods shall be remunerated by mutual agreement of the parties, unless such operations and services are subject to established tariffs.
4. The carrier shall be entitled to retain goods and luggage entrusted to him until carriage charges and other amounts due to him have been paid, unless otherwise provided for by law or the contract of carriage.
Article 6.814. Provision of means of transport
1. Means of transport to be provided by the carrier to the consignor must be in a proper condition and provided within the time limits stipulated in the consignor’s order, the contract of carriage or the contract for the organisation of carriage.
Article 6.815. Loading/unloading of goods
1. Loading/unloading operations shall be undertaken by the carrier or the consignor/consignee subject to the procedure provided for by the contract of carriage and in accordance with the rules established in the codes of appropriate modes of transport or other legal acts.
Article 6.816. Time limits for the delivery of goods, passengers and luggage
The carrier must deliver goods, passengers or luggage to the point of destination within the time limits prescribed by the contract, law or other legal acts or, where such time limits are not prescribed, within a reasonable period.
Article 6.817. Liability for the breach of the contract of carriage
1. The parties shall be liable for the failure to perform or improper performance of the contract of carriage on the grounds and in accordance with the procedure laid down in the contract of carriage, this Code, as well as the codes of individual modes of transport and other laws.
Article 6.818. Liability for the failure to provide or to use the means of transport
1. The carrier shall be liable for the failure to provide the means of transport and the consignor shall be liable for the failure to supply the goods or the failure to use the means of transport provided to him on the grounds and in accordance with the procedure laid down by the contract of carriage or laws.
2. The carrier and the consignor shall be exempt from liability for the failure to provide the means of transport or the failure to use them if this is due to:
2) termination or restriction of the carriage of goods on certain routes subject to procedures laid down by transport legislation;
Article 6.819. Carrier’s liability for delay of the means of transport
1. Where a means of transport used for the carriage of passengers fails to commence its journey at the specified time or where it fails to reach the point of destination at the specified time (with the exception of means of transport engaged in urban and suburban services), the carrier shall pay to the passenger a penalty laid down by transport legislation, unless the carrier proves that this was due to force majeure, elimination of a breakdown of the means of transport which posed a risk to the health or life of passengers, or due to other circumstances beyond the carrier’s control.
Article 6.820. Carrier’s liability for the failure to preserve the goods or luggage
1. The carrier shall be liable for the failure to preserve (loss, shortage, damage of) the goods or luggage from the time he accepts the goods or luggage until the delivery thereof to the consignee or any other authorised person, unless the carrier proves that the full or partial loss or damage of the goods or luggage was due to circumstances that the carrier could not have avoided and the elimination of which was beyond the carrier’s control.
2. The extent of the carrier’s liability for the damage caused due to the loss, shortage or damage of the goods or luggage shall be laid down by the contract of carriage or the law.
3. In addition, where the carrier fails to preserve the goods or luggage and where the carriage charges are not included into the value of the goods or luggage, the carrier must reimburse the consignor/consignee for the carriage charges paid by the latter for the carriage of goods or luggage.
4. Documents drafted unilaterally by the carrier with regard to the reasons for the failure to preserve the goods or luggage or the damage thereof may be litigated in the court of law and must be assessed by the court together with other evidence in the case validating the grounds for the carrier’s liability.
Article 6.821. Presentation of claims to the carrier
The codes of individual modes of transport or other laws may lay down obligatory presentation of claims to the carrier before addressing the court of law.
Article 6.822. Contracts for the organisation of carriage
1. Where goods are carried continuously and there is a need for setting time limits and procedures for the provision of means of transport and goods, the carrier and the consignor shall enter into a long-term contract for the organisation of carriage.
2. Under the contract for the organisation of carriage, the carrier shall undertake to accept at the time specified in the contract and the consignor shall undertake to supply for carriage the goods in the amount specified in the contract. The contract for the organisation of carriage shall lay down the scope of means of transport and the goods, time limits, payment procedures and other conditions.
Article 6.823. Carrier’s liability for the death or injury of the passenger
The carrier’s liability for the death or injury of the passenger shall be determined pursuant to the rules set out in Section Three (Articles 6.263 to 6.291) of Chapter XXII of this Code, unless the law or the contract of carriage provide for a broader extent of the carrier’s civil liability.
Article 6.824. Concept of freight forwarding and a contract of freight forwarding
1. Freight forwarding shall mean the organisation of the carriage of goods and operations related thereto provided for in the contract of freight forwarding.
2. The freight forwarder shall mean a legal person (entrepreneur) who has concluded a contract of freight forwarding with the customer whereby he has undertaken to transport, at the expense of the customer/customer’s client and on the customer’s or his own behalf, the customer’s goods as well as to perform any other operations related thereto.
3. Under a contract of freight forwarding, one party (the freight forwarder) shall undertake, for remuneration and at the expense of the other party, i.e. the customer/customer’s client, to provide or organise services provided for in the contract and related to the carriage of goods.
4. A contract of freight forwarding shall be deemed concluded from the moment when the freight forwarder acknowledges the receipt of an order.
5. The contract of freight forwarding may provide for the freight forwarder’s duty to organise the carriage of goods by the means of transport and the route of the freight forwarder’s or the client’s choice, the freight forwarder’s duty to conclude contracts of carriage or any other contracts on his own or the client’s behalf, to ensure the dispatch, loading or unloading of goods, as well as for any other duties related to the carriage of goods.
6. The contract of freight forwarding may provide for such additional services to be provided by the freight forwarder as obtaining from appropriate bodies documents necessary for the export or import of goods, carrying out customs or other formalities, inspecting the quantity and condition of goods, loading or unloading of goods, paying fees, charges and other amounts to be paid by the customer/the customer’s client, keeping and storing of goods, as well as providing other services.
7. The rules of this Chapter shall also apply in cases where, under the contract, the freight forwarder’s duties are performed by the carrier.
Article 6.825. Form of a contract of freight forwarding
1. The contract of freight forwarding shall be concluded in writing or by way of placing an order by any appropriate means of communication.
2. A bill of lading may also constitute a contract of freight forwarding when completed by the freight forwarder and signed by the customer/customer’s client.
Article 6.826. Freight forwarder’s liability
1. The freight forwarder shall be liable for the failure to perform or improper performance of the contract of freight forwarding in accordance with the procedure laid down in the contract.
2. Where the freight forwarder proves that the breach of the contract of freight forwarding was due to the failure to perform or improper performance of the contract of carriage, the freight forwarder’s liability towards the customer/customer’s client shall be established pursuant to the same rules as are applied to the appropriate carrier’s liability towards the freight forwarder.
Article 6.827. Documents and information to be furnished to the freight forwarder
1. The customer/the customer’s client must furnish the freight forwarder with documents and other information on the properties of goods, carriage conditions as well as any other details necessary to enable the freight forwarder to duly fulfil his obligations.
2. The freight forwarder must notify the customer/customer’s client of any omissions in the information furnished to him and, in the case where not all information has been received, he must demand that the client furnish all the necessary information.
3. Where the customer/customer’s client fails to furnish the necessary information, the freight forwarder shall have the right to suspend the performance of the contract until such time as the information is supplied.
Article 6.828. Invoking a third party for the performance of an obligation
1. The freight forwarder shall have the right to invoke third parties for the performance of his obligations, unless the contract provides for the freight forwarder’s obligation to perform the contract personally.
2. Full or partial transfer of the obligation to perform the contract to third parties shall not release the freight forwarder from his obligation towards the customer/customer’s client with respect to the performance of the contract.
Article 6.829. Unilateral termination of the contract
1. Each party shall have the right to unilaterally terminate an open-ended contract of freight forwarding by one month’s notice to the other party, unless a more extended period of notice is provided for in the contract.
Article 6.830. Concept of a contract of deposit
1. Under a contract of deposit, one party (the depositary) shall undertake to keep in his possession a movable thing delivered to him by the other party (the depositor) and to restore it safely preserved to the depositor, whereas the depositor shall undertake to pay remuneration, if this is established by the contract.
3. Where the depositary is a legal person (entrepreneur) for whom safekeeping constitutes one of the activities he engages in (professional depositary), the contract of deposit or the documents of incorporation of the legal person may provide for the depositary’s obligation to accept into possession from the depositor a thing within the period specified in the contract.
4. A contract of deposit shall be deemed concluded from the moment of delivery of the thing to the depositary.
Article 6.831. Form of a contract of deposit
1. The custody contract concluded by natural persons must be in writing if the value of the thing/things exceeds one thousand five hundred euros.
2. If the contract of deposit provides for the depositary’s obligation to accept the thing into possession for safekeeping in future, the contract must be in writing in all cases.
3. A contract of deposit shall be recognised as having been concluded in writing if the delivery of a thing to the depositary is certified by:
Article 6.832. Obligations and rights of the depositary
1. The depositary must use all available means to ensure the preservation of the thing put in his possession.
2. Unless the contract establishes otherwise, the depositary shall have no right, without the depositor’s permission, to make use of the thing deposited with him or to permit the use thereof by other persons.
3. The depositary shall not have the right to require the depositor or the person to whom the thing is to be restored to prove that they are the owners of, or otherwise entitled to, the thing delivered for safekeeping.
4. The depositary must restore the thing to the depositor on demand, even before the expiry of the period of deposit.
Article 6.833. Performance of the obligation to deliver a thing for safekeeping
1. Having undertaken to accept a thing for safekeeping, the depositary shall have no right to require the delivery of the thing to him for safekeeping. However, the depositor, who fails to deliver the thing for safekeeping within the time period set in the contract, must indemnify the depositary for any loss incurred by the depositary due to the failure to deliver the thing, unless otherwise established in the contract. The depositor shall be released from the liability if he notifies the depositary of his refusal to deliver the thing within a reasonable time.
Article 6.834. Period of deposit
2. Where the period of deposit is not set in the contract and cannot be set under the conditions of the contract, the depositary must preserve the thing until the restoration thereof is demanded by the depositor or any other person entitled to withdraw the thing.
3. Where it is stipulated that the period of deposit expires from the moment the restoration of the thing is demanded, the depositary shall be entitled, upon the expiration of the time period of deposit customary under the conditions, to demand that the depositor withdraw the thing within a reasonable time from the receipt of such a notice. In case of failure by the depositor to withdraw the thing, the rules set in Article 6.843 of this Code shall apply.
Article 6.835. Mixing of things
In the cases specified in the contract of deposit, things delivered for safekeeping may be mixed with other things of the same type and quality delivered for deposit by other persons. In such cases, the depositor shall be restored the quantity of the things of the same type and quality which is provided for in the contract.
Article 6.836. Conditions of safekeeping of a thing
1. The depositary must preserve the thing in accordance with the conditions of safekeeping set in the contract. Where the conditions of safekeeping are not set in the contract or not all conditions are set, the depositary must preserve the thing under such conditions which would ensure maximum protection of the thing.
2. In all cases, the depositary must ensure that he complies with the requirements for implementation of safety measures (fire-prevention, sanitary, etc.), laid down in laws and other legal acts.
Article 6.837. Change of the conditions of safekeeping
1. If a change of the conditions of safekeeping is necessary, the depositary must forthwith notify the depositor thereof and receive his instructions. Where an immediate change of the conditions of safekeeping is necessary in order to avoid the perishing or damage of the thing, the depositary shall have the right to change the manner, place and other conditions of safekeeping without the depositor’s instructions.
2. If a thing is in danger of perishing or if a thing is delivered for safekeeping in a damaged condition, also if there are other circumstances which preclude guaranteeing safety of the thing, whereas the depositor may not be expected to take urgent measures, the depositary shall be entitled to sell the thing or a part thereof at the market price of the locality of deposit. If the specified circumstances occur for reasons for which the depositary is not liable, he shall have the right to claim reimbursement of the costs relating to the sale of the thing.
Article 6.838. Safekeeping of hazardous things
1. Flammable, explosive or other hazardous things may be at any time rendered harmless or destroyed by the depositary. The depositor shall not be indemnified for the losses incurred by reason thereof, if the depositor did not notify the depositary of the hazardous qualities of the things when delivering the hazardous things for safekeeping. In such cases, the depositor shall be liable for the losses caused to the depositary and third persons due to the safekeeping of such things.
2. Where hazardous things are delivered for safekeeping to a professional depositary, the rules of paragraph 1 of this Article shall apply only in the cases where the things were delivered for safekeeping under an incorrect name and at the moment of acceptance thereof the depositary could not determine the hazardous qualities of the things from their external examination.
3. Where deposit is for remuneration, the payment made to the depositary in the cases provided for in paragraphs 1 and 2 of this Article shall not be refunded, and where no payment was made, the depositary shall be entitled to recover the full amount thereof from the depositor.
4. If the depositary accepts the hazardous things specified in paragraph 1 of this Article for safekeeping knowing of the hazardous qualities thereof, the depositary shall be entitled to render the things harmless or destroy them without indemnifying the depositor for the losses if danger arises to the life or property of the depositary or third persons and the depositor fails to meet the depositary’s demand for immediate withdrawal of the things. In such cases, the depositor shall not be liable to the depositary and third persons for the losses incurred by them due to the safekeeping of such things.
Article 6.839. Transfer of things for safekeeping to a third person
1. Unless the contract of deposit establishes otherwise, the depositary shall have no right to transfer the things for safekeeping to a third person without the depositor’s consent, except in cases where the interests of the depositor have to be safeguarded due to the circumstances that have arisen and the depositary has no possibilities to obtain the depositor’s consent.
2. Having transferred the things for safekeeping to a third person, the depositary must forthwith notify the depositor thereof.
Article 6.840. Remuneration for deposit
1. Where the contract of deposit is onerous, the depositor must pay the depositary a remuneration upon the termination of safekeeping. The parties may agree that payment of the remuneration will be made in instalments upon the expiration of the time period set in the contract.
2. Where payment of the remuneration in instalments has been agreed upon, the depositor’s failure to effect payment for more than one period shall entitle the depositary to terminate the contract and demand from the depositor immediate withdrawal of the thing.
3. If the contract of deposit expires before the date set in the contract due to the circumstances for which the depositary is not responsible, he shall be entitled to the portion of remuneration corresponding to the duration of safekeeping and, in cases provided for in paragraph 1 of Article 6.838 of this Code, to the full amount of the remuneration. Where the contract of deposit expires due to the circumstances for which the depositary is responsible, he shall have no right to demand payment of remuneration and must refund the depositor the amounts paid.
4. In case of failure by the depositor to withdraw the thing upon the expiration of the period of deposit, he must pay an appropriate remuneration for further safekeeping of the thing. The above rule shall also apply where the depositor must withdraw the thing prior to the expiry of the period of the contract of deposit.
5. The depositary shall have the right to retain the thing delivered to him for safekeeping until he is paid the full amount of the remuneration by the depositor.
Article 6.841. Reimbursement of expenses related to safekeeping
1. Unless the contract of deposit establishes otherwise, the depositary’s expenses related to the safekeeping of the thing shall be entered in the remuneration for deposit.
Article 6.842. Extraordinary expenses of deposit
1. The depositary shall be reimbursed for the expenses of deposit which are in excess of the regular expenses of such type of deposit and which could not have been foreseen by the parties at the moment of conclusion of the contract of deposit (extraordinary expenses), provided that the depositor gave his consent to incurring such expenses or subsequently approved such expenses, as well as in other cases provided for in the contract of deposit.
2. Where it is necessary to incur extraordinary expenses, the depositary must notify the depositor thereof and obtain his consent. In case of failure by the depositor to give his response to the depositary within a reasonable time, consent to incur extraordinary expenses shall be deemed to have been granted.
3. If the depositary incurs extraordinary expenses without the depositor’s consent where such consent could have been obtained and the depositor has not approved the expenses, the depositary shall have the right to demand reimbursement for the extraordinary expenses only taking into account the amount of the damage that could have been caused to the thing preserved if the extraordinary expenses had not been incurred.
Article 6.843. Depositor’s obligation to withdraw the thing
1. Upon the expiry of the period of the contract of deposit as well as of the period fixed by the depositary for withdrawing the thing, the depositor must forthwith withdraw the thing delivered for safekeeping.
2. In case of failure by the depositor to withdraw the thing, the depositary shall have the right, upon giving the depositor a written notice to that effect, at his own discretion sell the thing in his custody for the market price of the locality of safekeeping. If the value of the thing in custody exceeds six hundred euros, the depositary shall have the right to sell it only by auction.
Article 6.844. Depositary’s obligation to restore the thing
1. The depositary must restore to the depositor or any other person authorised by him the identical thing that was delivered to the depositary for safekeeping, save for the exceptions provided for in Article 6.835 of this Code.
2. The thing must be restored in the same condition in which it was handed over for safekeeping, having regard to its normal wear and tear, amortisation or change due to its natural qualities.
3. Unless otherwise established by the contract of deposit, the depositary must restore to the depositor, together with the thing, the fruits and revenues received therefrom in the course of its safekeeping.
4. The thing must be restored at the place where it was handed over for safekeeping, unless the contract establishes otherwise. Where the contract of deposit is gratuitous, the cost of restoration of the thing shall be borne by the depositor. Where the contract of deposit is onerous, the cost of restoration of the thing shall be borne by the depositary.
Article 6.845. Grounds for the depositary’s liability
2. Where the contract of deposit is onerous, the depositary shall be in all cases liable for the loss, shortage or damage of the things delivered to him, unless it was caused by force majeure. Where the contract of deposit is gratuitous, the depositary shall be liable only if he is at fault.
3. A professional depositary shall be liable in all cases, except where the thing was lost or damaged due to or by force majeure.
4. The depositary shall be liable for the loss, shortage or damage of the thing after the arising of the depositor’s obligation to withdraw the thing only where there has been the depositary’s malice or gross negligence.
5. Where the depositary’s heir or other legal representative sells the thing delivered for safekeeping without knowing or ought to have known that the thing is not in the depositary’s ownership, the heir or other legal representative must return only the price he has received or assign to the depositor his claim against the buyer in good faith if the price has not been paid.
Article 6.846. Amount of the depositary’s liability
1. The depositary must compensate the depositor for any damage connected with the loss, shortage or damage of the thing.
2. Where the contract of deposit is gratuitous, the depositary shall be liable for:
1) the loss or shortage of the thing in the amount of the value of the thing or of the missing part thereof;
3. Where, due to the damage of the thing for which the depositary is liable, the value thereof has been reduced to the extent that it may no longer be used for its previous purpose, the depositor shall have the right to refuse withdrawing the thing and to demand that the depositary compensate for the value of the thing and for all losses, unless otherwise established by the contract.
Article 6.847. Compensation for damage inflicted on the depositary
The depositor must compensate for the damage inflicted on the depositary due to the qualities of the thing kept in custody if the depositary was not aware and could not have been aware of those qualities when accepting the thing for safekeeping, whereas the depositor was aware or ought to have been aware thereof.
Article 6.848. Termination of the contract of deposit on the depositor’s demand
The depositor shall have the right to demand, at any time, restoration of the thing, whereas the depositary must restore it even before the expiry of the period of the contract of deposit.
Article 6.849. Necessary deposit
1. Necessary deposit shall take place where a person is compelled, by an unforeseen and unavoidable urgent necessity (accident, natural disaster, etc.) to entrust the custody of his property to another person.
2. In case of a necessary deposit, the depositary may not refuse to accept the thing for safekeeping without a serious reason.
3. In case of a necessary deposit, the depositary shall be liable in the same manner as a depositary under the contract of gratuitous deposit.
Article 6.850. Deposit under law
The rules of this Section shall also apply with respect to deposit obligations which arise under law, unless the law establishes otherwise.
Article 6.851. Concept of a warehouse contract
1. Under a warehouse contract, the warehouse (the warehouse-keeper) shall undertake to safeguard for consideration the goods deposited with it/him by the owner/depositor of the goods and to restore them to the specified person after safekeeping.
2. For the purposes of this Section, the warehouse shall be considered to be a legal person (entrepreneur) whose principal type of activity is safekeeping of goods and provision of other services connected with the safekeeping of goods.
Article 6.852. Warehouse of common use
1. Only a warehouse which is bound, under law or documents relating to its activities, to accept goods for safekeeping from any owner of the goods shall be recognised as a warehouse of common use.
Article 6.853. Inspection of goods
1. Unless otherwise provided for in the warehouse contract, the warehouse must inspect, at its own expense, the goods when accepting them for safekeeping and determine the amount of the goods (number, volume, weight, etc.) as well as assess the outward appearance thereof.
Article 6.854. Changing the conditions of safekeeping of goods
1. If the conditions of safekeeping of goods set in the warehouse contract require changing in order to ensure safety of the goods, the warehouse shall be entitled to apply the necessary measures at its discretion. Where this necessitates material changes in the conditions of safekeeping laid down in the warehouse contract, the warehouse must notify the owner of the goods accordingly.
Article 6.855. Inspection of the released goods
1. The person to whom the goods are released and the warehouse shall have the right to demand to examine the goods being released and to inspect their quantity. Expenses related to the inspection shall be defrayed by the party demanding to examine or inspect the goods.
2. Where the released goods have not been examined and inspected in the presence of both parties, a written statement regarding the shortage or damage of the goods must be submitted at the time of release of the goods or within three days from the release thereof, provided the shortage or damage could not have been detected by normal examination of the goods. In such case, the burden of proof of the shortage or damage of the goods shall fall on the person to whom the goods are released.
Article 6.856. Warehousing documents
1. Having received the goods for safekeeping, the warehouse shall issue one of the following documents confirming the warehouse contract:
2. A double warehouse certificate shall consist of two parts, i.e. a warehouse certificate and a pledge certificate (Article 6.857 of this Code), which shall be separable.
3. A double warehouse certificate, each one of its two parts, and an ordinary warehouse certificate shall be securities.
Article 6.857. Double warehouse certificate and its content
1. The following must be indicated in each part of the double warehouse certificate:
4) the name and quantity of the goods (units, weight, volume, etc.) and, in case the goods have been an object of pledge, the amount of the pledge;
5) the time period of safekeeping of the goods or instruction for their safekeeping until the demand for their release;
6) the amount of remuneration for the deposit or the tariffs on the basis of which it is to be calculated and the procedure of payment for deposit;
2. A document shall not be deemed to be a double warehouse certificate if at least one of the requisite items listed in paragraph 1 of this Article is missing.
Article 6.858. Rights of the holder of warehouse and pledge certificates
1. The holder of a warehouse and pledge certificate shall be entitled to dispose of the goods in storage in the warehouse.
2. The holder of a warehouse certificate which has been separated from the pledge certificate shall be entitled to dispose of the goods, however he shall have no right to reclaim the goods from the warehouse until the repayment of the credit granted against the pledge certificate.
Article 6.859. Transfer of warehouse and pledge certificates
Warehouse and pledge certificates may be transferred to another person either together or separately by way of inscriptions of transfer (on the basis of endorsement).
Article 6.860. Release of goods under the double warehouse certificate
1. The warehouse shall release the goods to the holder of the warehouse and pledge certificate (double warehouse certificate) only in exchange for both of these certificates together.
2. The holder of the warehouse certificate who does not have a pledge certificate but has paid the amount of debt on it, shall be released the goods by the warehouse in exchange for the warehouse certificate and a receipt evidencing payment of the full amount of the debt.
3. If the warehouse releases the goods in violation of the rules laid down in this Article, it must pay to the holder of the pledge certificate the entire amount secured by the pledge.