Abstract

The distinction between default and mandatory rules in contract law is not binary, but as a matter of fact encompasses a continuum of rules, which includes various degrees of „optionality” and „rigidity”. Chosing between these forms is always a question of interpretation and, in particular, of identifying the underlying values and aims of the particular rules. An illustrative example of the interpretive task of this sort is provided by Art. 709¹⁵ KC of the Polish Civil Code. It prescribes that after termination of a leasing agreement (for the reasons of which the lessee is responsible), the lessee has to repay the outstanding leasing charges, having deducted the profits that the lessor gained due to premature termination of the agreement. The text attempts to delve more deeply into the arguments for various possible readings of this provision. In particular, it seeks to distinguish between the arguments for understanding this provision as being „entirely” default or mandatory and for considering it as an „intermediary” form between the two. The author concludes that the most convincing reading of Art. 709¹⁵ is to treat it as semi-dispositive. From this point of view, the provision sets forth only a minimal threshold of lessee’s entitlements and does not preclude more preferential contractual terms.