Zakres roszczeń uprawnionego z umowy przedwstępnej w razie braku możliwości zawarcia umowy przyrzeczonej

In view of the arguments presented in judiciary and the doctrine, the view that it is permissible for the holder of a preliminary contract to claim under the general rules (Article 471 of the Polish Civil Code) in the situation where exercising the «stronger effect» by the holder is not possible for reasons for which the debtor is responsible should be regarded as accurate. This allows the holder to ultimately cla-im damages within the limits of the positive interest of the party, including the damage and lost benefits resulting from the failure to conclude the promised agreement. The appropriateness of such an approach is persuaded by the axiological argumentation that the legal system should not give preference to actions oriented towards breach of contract and deprive the holder of protection resulting from the general principles of contractual liability (Article 471 of the Civil Code). A situation in which, for reasons attri-butable to the obliged party under the preliminary contract, it becomes impossible to conclude the final agreement, does not fall within the literal notion of merely „evading” the conclusion of the final agree-ment from Article 390 of the Civil Code. In addition, in terms of argumentation, the regulation on lia-bility for consequent impossibility of performance for reasons for which the debtor (here the obligor under the preliminary contract) is responsible may be used. The development of case law indicated in the article may be of significant importance from the point of view of the instructions provided by no-taries to persons entering into a preliminary contract.