Abstract

In its resolution of 11 April 2019 (III CZP 100/18), the Supreme Court found that a constitutive entry of the right of perpetual usufruct into a land and mortgage register does not constitute an element of an act in law such as an agreement of establishment or transfer of this right, which means that such an agreement shall be concluded also before an entry into a land and mortgage register has been made. The author concurs with this opinion, though is critical of the position of the Supreme Court that the difference between a declaration of will and an act in law is that an act in law may comprise many declarations of will. In the same resolution, the Supreme Court assumed that the date of filing an application for entering perpetual usufruct into a land and mortgage register shall be decisive for determining good or bad faith of the party for whom perpetual usufruct has been established (transferred). This thesis in fact repeats the wording of Art. 6.3 of the Act on Land and Mortgage Registers and on Mortgage, so it is also accepted by the author, though she author argues, however, that the acquisition – under the principle of public credibility of land and mortgage registers – of a right which requires a constitutive entry into a land and mortgage register depends on whether such entry has been made.