As of May 30, 2020, the provision of Art. 3871, under which a contract in which a natural person undertakes to transfer ownership of real estate used to meet his housing needs in order to secure claims arising from this or another contract not directly related to the business or professional activity of this person is invalid, if:
- the value of the property is higher than the value of the monetary claims secured by the property plus the maximum interest for delay on this value for a period of 24 months or
- the value of the monetary claims secured by this property is not specified, or
- the conclusion of this agreement was not preceded by an assessment of the market value of the property by an expert appraiser.
There have been voices in the civil law doctrine that this provision is too casuistic, and „the aim of this provision is the prevention of abuses leading to significant socio-economic consequences, which can also be achieved by existing, more universal civil law instruments, such as the use of the concept of abuse of subjective rights ( Article 5 of the Civil Code), invalidity of a legal act due to violation of the principles of social coexistence (Article 58 § 2 of the Civil Code), defects in the declaration of will (Articles 82-87 of the Civil Code), exploitation (Article 388 of the Civil Code) or protection of a property debtor against over-collateralization (Article 68(2) of the Penal Code).” (Bartłomiej Gliniecki Civil Code commentary updated under the editorship of Małgorzata Balwicka Szczyrba (2023).
For example, in the judgment of February 25, 2022 (II CSKP 87/22), the Supreme Court stated that „the transfer as security of ownership of real estate, the a priori value of which is grossly disproportionate to the amount of the secured receivable and the risk incurred by the creditor when granting loan or credit, may lead to the invalidity of the contract due to the contradiction with the nature of the contract of transfer of ownership as security (Article 58 § 1 in connection with Article 3531 of the Civil Code) and the principles of social coexistence (Article 58 § 2 of the Civil Code).” without referring to the newly introduced Article 3871