Abstract

In the statements of reasons for the Supreme Court judgment of of 7 March 2008, III CSK 317/07, the issue of circumventing the provisions on the statutory right of pre-emption was raised. This judgment was issued in a very interesting factual situation whereby the parties first concluded a loan agreement secured by a mortgage on the borrower's real estate, and after a very short time they concluded another contract under which the borrower transferred ownership of the estate to the lender. The commented judgment dealt with the latter agreement, which the Supreme Court assessed as a „special type of innominate contract” to which the provisions on pre-emption should be applied by analogy. The aim of the publication is to discuss the issue of legal classification of this contract in greater detail. In this context, the application of the provisions on datio in solutum (Art. 453 of the Civil Code) has been considered justified. It has been noted that the theoretical explanation of datio in solutum raises some controversies in the doctrine, which may, to some extent, affect the practical results in cases where Art. 453 is to be applied. In the abovementioned case they could translate into an assessment of the issue whether the contracting parties intended to circumvent the ban on unconditional sale of real estate or whether they directly violated this ban.