As of March 1, 2019, there were changes to Art. 39 CC has changed:
Before the amendment, it had the following wording:
Art. 39
§ 1.
Whoever, as a body of a legal person, has concluded a contract on its behalf without being its body or exceeding the scope of authority of such a body, is obliged to return what he received from the other party in the performance of the contract and to repair the damage that the other party suffered as a result of concluding the contract. contract without knowing about the lack of authorization.
§ 2.
The above provision shall apply accordingly if the contract was concluded on behalf of a legal person that does not exist.
However, after the amendment, it was significantly expanded
Art. 39
§ 1.
If the person concluding the contract as a body of a legal person has no authority or exceeds its scope, the validity of the contract depends on its confirmation by the legal person on whose behalf the contract was concluded.
§ 2.
The other party may set an appropriate deadline for the legal person on whose behalf the contract was concluded to confirm the contract; becomes vacant after the ineffective expiry of the specified period.
§ 3.
In the absence of confirmation, the person who concluded the contract as a body of a legal person is obliged to return what he or she received from the other party in the performance of the contract and to repair the damage that the other party suffered as a result of concluding the contract without knowing about the lack of authorization or exceeding its scope.
§ 4.
A unilateral legal act performed by a legal person acting as a body without authorization or exceeding its scope is invalid. However, if the person to whom a declaration of will was made on behalf of a legal person agreed to act without authorization, the provisions on concluding a contract without authorization shall apply accordingly.
§ 5.
The provision of § 3 shall apply accordingly if the legal act was performed on behalf of a legal person that does not exist.
The changes introduced were aimed at improving trading security. They enable the confirmation of contracts concluded by the body of a legal person exceeding the scope of authorization („false” body). „In the opinion of the draftsman, the proposed solution will remove the legal loophole that the courts must correct by applying Art. 103 CC per analogiam, and will contribute to improving the security of legal transactions, including: by removing interpretation doubts, which will avoid many court disputes and improve the entrepreneur’s efficiency, shortening the decision-making process within the unit (Justification of the government project…). The currently applicable autonomy of the will of the parties to the contract in terms of the possibility of maintaining the validity of the contract concluded by the falsus procurator is a more flexible construction than absolute invalidity, which was applicable before the amendment of Art. 39.” Ciszewski Jerzy (ed.), Nazaruk Piotr (ed.), Civil Code. Updated commentary Ciszewski Jerzy (ed.), Nazaruk Piotr (ed.), Civil Code. Updated comment published: LEX/el. 2023