Guilt by choice – specific issues

Article 429 of the Civil Code governs the issue of tortious liability of a party who is not the direct perpetrator of the damage but has entrusted the performance of an act to another person (party) who caused the damage. This is independent liability for one’s own act, separate from the liability of the direct perpetrator, who may be held liable for their own act on the basis of fault.

In other words, a person who has entrusted the performance of an activity to another person may be exempt from liability for damage caused by that person, provided that they prove – in accordance with Article 6 of the Civil Code – that they exercised due care in their selection, assessed in the light of the criteria set out in Article 355 of the Civil Code, or that they entrusted the choice to a professional.

This should be understood to mean that the qualifications of such a person, their education, licences, experience, etc., were thoroughly checked, or that the performance of the activity was entrusted to a professional who, within the scope of their professional activity, is engaged in performing such activities.

A literal interpretation of the provision suggests that, where the performance of an activity is entrusted to a professional, it is not necessary to demonstrate that due care was exercised in their selection; the mere fact of entrusting the performance of the activity to a professional leads to exculpation, as it gives rise to a factual presumption that due care was exercised in the selection by choosing a professional.

Case law further indicates that Article 429 of the Civil Code forms the basis for an entity’s liability for another person’s act in a situation where the person entrusted with the performance of the activity occupies an independent position vis-à-vis the entrusting party. The entrusting party’s liability is based on the existence of a causal link between the entrusting of the task and the damage caused by the perpetrator, as well as on fault in the selection, as the entrusting party is always liable for its own fault. For the entrusting party to be liable, there must therefore be an entrustment of the task, the authority of the person to whom the task was entrusted to act independently, and a functional link between the damage and the manner in which the task was performed (Supreme Court judgment of 15 July 2021, V CSKP 132/21, LEX No. 3269566).

It is also worth noting that the issue of a debtor using third parties to perform an obligation arising from a contract is governed by Article 474 of the Civil Code, not Article 429 of the Civil Code. However, in accordance with Article 474 of the Civil Code: the debtor is liable, as for his own acts or omissions, for the acts and omissions of persons with whose assistance he performs the obligation, as well as for those to whom he entrusts the performance of the obligation (Judgment of the Court of Appeal in Gdańsk of 15 October 2021, V AGa 14/21, LEX No. 3416882).

It should be noted, however, that the effective entrustment of activities to a third party, which under Article 429 of the Civil Code exempts the entrusting party from liability for damage caused by an undertaking professionally engaged in the performance of such activities, does not preclude the entrusting party’s liability for damage caused by their own unlawful and culpable negligence. The exclusion of liability on the grounds of fault in selection does not preclude the entrusting party’s liability where it is possible to attribute to them an act under Article 415 of the Civil Code. Thus, the application of Article 429 of the Civil Code is excluded only in situations where the causative conduct can be attributed to the principal themselves (Judgment of the Court of Appeal in Szczecin of 1 August 2019, I ACa 813/18, LEX No. 2719381).