Abstract
This study deals with the concept of performance, which is of fundamental significance for the institution of undue performance regulated in Art. 410 et seq. of the Civil Code. The paper indicates what characteristics each performance should meet in order to distinguish it from among other human behaviours. The considerations in this respect are carried out initially basing on Art. 353 of the Civil Code, and the result of the analysis is then transposed onto the concept of performance under Art. 410 of the Civil Code. This provides an introduction to an attempt to clarify how the term „performance” should be understood in the context of the provisions on undue performance. Special attention has been paid to such issues as: the purpose of a performance, the relationship between the terms „performance” and „benefit”, the legal basis of performance or the prerequisites of undue performance. This has made it possible to tackle one of the most important problems that arise under the provisions on undue performance, namely: how to define a performance if it may be fulfilled despite the absence of an obligation, or even when the provider is aware of its absence? In order to resolve the problem, the most important statements of the doctrine on the subject of undue performance (unjust enrichment) as well as selected judgments of the Supreme Court and appellate courts have been quoted. Eventually, an attempt has been made to formulate the author’s own definition of the term „performance” referred to in the provisions regulating the institution of undue performance.