On 7 August 2025, the Supreme Court, in case no. III CZP 2/25, adopted a resolution concerning the legal form of documents constituting the basis for entries in the land and mortgage registers.
According to the wording of this resolution:
“The form with a notarised signature, referred to in Article 31(1) of the Act of 6 July 1982 on Land and Mortgage Registers and on Mortgage, is reserved for the document constituting the basis for an entry in the land and mortgage register, and not for the legal act embodied in the content of that document.” At the same time, the Supreme Court additionally held that “The confirmation before a notary that a signature affixed is one’s own, as provided for in the second sentence of Article 88 of the Act of 14 February 1991 – Law on Notaries, may also be made where the person in question no longer holds the office in connection with which the signature was affixed.”
The resolution was adopted in connection with the following question:
“Does Article 31(1) of the Act on Land and Mortgage Registers and on Mortgage have a substantive-law character, supplementing the general provisions on the form of legal acts and introducing a form whose observance is a condition for the occurrence of certain effects in substantive civil law (forma ad eventum within the meaning of Article 73 § 2 sentence 2 of the Civil Code); and, consequently, is it necessary, for an entry in the land and mortgage register of the lease right to real property, that the person who signed the contract was authorised to represent the obligor, the owner of the real property – a limited liability company – also at the moment when he or she confirms before a notary that the signature is his or her own (Article 88 of the Law on Notaries)?”
A problem framed in this way has so far not been the direct subject of analysis either in the legal literature or in case-law. The case-law had merely indicated that certain official documents (such as administrative decisions) may constitute the basis for an entry if they are submitted in a copy certified by a notary; this, however, is a completely different issue. The literature also pointed out that the forma ad intabulationem arising from Article 31(1) of the Act on Land and Mortgage Registers and on Mortgage is “a special case of the forma ad eventum” – that is, that a legal act performed without complying with such a form is valid, and only its effects are limited by the impossibility of registration (intabulation). This, however, was and is obvious.
Here, however, a completely new problem was raised. The Supreme Court was asked whether, for compliance with the forma ad intabulationem resulting from Article 31(1) of the Act on Land and Mortgage Registers and on Mortgage, it is necessary that the declaration of intent itself be made in that form, or whether it is sufficient – in particular at a later time – to confer that form on the document containing that declaration. This issue is connected with a special mechanism allowing a person who has signed a document to state before a notary, at a time later than the moment of signing – in the factual situation underlying the resolution, after losing the authority to represent the entity on whose behalf the declaration was made – that the signature is his or her own.
The Supreme Court opted – correctly – for the latter solution, thereby removing a potential, overly formalistic obstacle to legal transactions.
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Uchwała składu 7 sędziów SN dotycząca kar umownych