Introduction
Polish law governing family foundations establishes a dual-track system for challenging organ resolutions. Where Article 83 of the Family Foundation Act addresses resolutions contravening statutory provisions through an invalidity action, Article 82 provides the complementary remedy of rescission for resolutions that transgress the foundation’s internal governance framework. This bifurcated approach, modeled upon analogous corporate law mechanisms, reflects a deliberate legislative choice to calibrate remedies according to the nature of the underlying defect. The rescission action assumes particular significance as the principal mechanism for vindicating the founder’s intentions as crystallized in the foundation’s constitutive instruments.
I. Distinguishing Rescission from Invalidity
The practical consequences flowing from proper characterization of a resolution’s defect extend well beyond doctrinal taxonomy. The rescission action under Article 82 and the invalidity action under Article 83 differ materially in their temporal constraints, with the former subject to substantially compressed limitation periods. Mischaracterization of the appropriate remedy may therefore prove fatal to a meritorious challenge.
The governing principle admits of straightforward articulation: where a resolution contravenes external legal norms—constitutional provisions, statutes, regulations, or directly applicable European Union law—the invalidity action provides the appropriate vehicle. Where, by contrast, the defect lies in departure from internal governance standards—the foundation’s charter or designated purposes—rescission constitutes the proper remedy.
II. Grounds Supporting Rescission
A. Charter Contravention
The first statutory ground encompasses resolutions inconsistent with the foundation’s charter (statut). This standard operates symmetrically with the corporate law basis for challenging shareholders’ resolutions that conflict with articles of association.
Charter violations manifest in two principal forms. Procedural defects arise from irregularities in the adoption process: convening meetings without requisite notice, conducting deliberations absent a quorum, or failing to achieve specified voting thresholds. Substantive defects involve conflicts between resolution content and charter provisions—appointment of officers by organs lacking such competence, establishment of terms exceeding charter-specified limits, or authorization of transactions beyond the scope of permitted activities.
A significant limitation qualifies the procedural category: formal irregularities warrant rescission only where they possessed the capacity to influence the resolution’s content or the fact of its adoption. This principle, deeply rooted in Polish jurisprudence concerning corporate resolutions, forecloses invalidation on purely technical grounds where the procedural departure could not plausibly have affected the outcome. The inquiry focuses on potential rather than actual influence—demonstration that the defect might have mattered suffices, without requiring proof that it did matter.
B. Contravention of Foundational Purposes
The second ground—contravention of the foundation’s purposes—presents interpretive questions regarding its relationship to other bases for challenge. The relevant purposes operate at dual registers: the general statutory purpose articulated in Article 2(1) of the Act, applicable to all family foundations, and the particularized purposes designated by the founder in the charter of the specific foundation.
One might reasonably question whether this ground possesses autonomous significance. Contravention of charter-specified purposes would appear simultaneously to constitute charter violation. Equally, contravention of the statutory purpose might seem to constitute statutory violation, properly remediable through the invalidity mechanism.
The sounder interpretation, however, recognizes legislative intent to channel all purpose-related challenges exclusively through the rescission mechanism, irrespective of whether the purpose at issue derives from statutory or charter sources. This reading preserves doctrinal coherence and provides practitioners with clear guidance regarding procedural selection. A resolution that frustrates the foundation’s asset-accumulation or beneficiary-service functions—even absent violation of any specific charter provision or statutory rule—remains susceptible to rescission on purpose-contravention grounds.
III. Temporal Constraints
A. The Compressed Limitation Framework
The right to seek rescission expires upon the earlier of two periods: one month from the date the claimant acquired knowledge of the resolution, or six months from the date of adoption. These intervals stand in marked contrast to those governing invalidity actions—six months from knowledge, with a two-year absolute bar—reflecting a legislative determination that internal governance disputes warrant expeditious resolution.
B. Commencement and Character
The one-month period runs from actual acquisition of knowledge concerning the resolution’s substance, not merely awareness that deliberations occurred or that some resolution emerged. Where the entitled party acts through an agent, the relevant inquiry concerns the principal’s knowledge; an agent’s participation in voting does not constructively impute awareness to the principal.
Both periods constitute preclusive terms of substantive law (terminy zawite). Expiration definitively extinguishes the right to challenge; courts recognize such expiration ex officio without requiring the defendant to plead it. Neither tolling nor equitable extension is available, though scholarly authority suggests that suspension may obtain during periods when force majeure renders the claimant unable to act.
C. Practical Implications
The compressed timeframe demands immediate attention upon learning of a potentially objectionable resolution. The luxury of extended deliberation available for invalidity challenges—where six months from knowledge provides meaningful opportunity for assessment—simply does not exist in the rescission context. Practitioners advising foundation stakeholders must emphasize the imperative of prompt evaluation and, where grounds exist, expeditious action.
IV. Standing
A. Enumerated Categories
Standing to seek rescission vests in three categories: founders, beneficiaries, and organ members. Notably, the statute imposes no procedural prerequisites—neither voting against the resolution nor lodging formal objection—as conditions for maintaining the action. This approach diverges from corporate law, where shareholder standing typically depends upon satisfaction of such requirements.
B. Founder Standing
Each founder possesses independent standing to challenge resolutions, notwithstanding the general statutory requirement of joint exercise of founder rights. The protective rationale underlying the rescission mechanism would be substantially undermined were unanimous founder action required—such a rule would enable some founders to obstruct others’ access to judicial review, potentially leaving individual founders remediless against resolutions adverse to their interests.
The founder’s entitlement terminates upon death and does not transmit to successors. Where a founder has delegated powers to another person pursuant to Article 13(2) of the Act, the delegate may institute proceedings within the delegation’s scope, though this derivative authority likewise extinguishes upon the founder’s death.
C. Beneficiary Standing
Every beneficiary—natural person or qualifying organization—possesses standing regardless of membership in the beneficiaries’ assembly or the quantum of beneficial interest. This expansive approach implements the statute’s protective orientation toward beneficiaries as structurally subordinate parties lacking direct influence over management decisions.
Former beneficiaries retain standing only with respect to resolutions affecting their personal or proprietary interests; they forfeit standing to challenge unrelated resolutions. Conversely, persons acquiring beneficiary status subsequent to adoption of the challenged resolution possess full standing, subject only to the applicable limitation periods.
D. Organ Member Standing
Individual members of the management board, supervisory board, or beneficiaries’ assembly may challenge resolutions of any foundation organ—not merely the organ in which they hold membership. This breadth proves essential to the mechanism’s protective function: limiting board members to challenging only board resolutions, or beneficiaries to challenging only assembly resolutions, would substantially impair oversight precisely where it matters most.
Former organ members forfeit standing upon mandate termination. Critically, standing must persist throughout litigation; loss of membership during pendency results in dismissal. Given typical judicial timelines, this requirement presents practical concerns—a claimant whose term expires before judgment may find the statutory protection effectively unavailable.
E. Extended Standing
Beyond expressly enumerated categories, standing may derive from collateral statutory sources. Liquidators possess standing pursuant to Article 95(1), which extends management board provisions to liquidators. The Public Prosecutor may act under Article 7 of the Code of Civil Procedure where protection of legality or public interest requires. Bankruptcy trustees may arguably act on behalf of bankrupt founders or beneficiaries, given their authority over property rights serving the debtor’s economic interests.
V. Procedural Dimensions
A. Proper Defendant and Representation
The action lies against the family foundation itself. Representation follows general principles—the management board represents the foundation—subject to an important exception: where a management board member initiates the challenge, the supervisory board assumes representational authority, or, absent such board, a special proxy appointed by the beneficiaries’ assembly. This arrangement obviates the manifest conflict inherent in board members controlling defense against their own challenge.
B. Jurisdiction and Procedure
Subject-matter jurisdiction vests in the regional court (sąd okręgowy) at the foundation’s registered seat. Proceedings follow general civil procedure rules; the specialized commercial procedure applicable to corporate disputes does not govern.
C. Provisional Relief
Claimants may seek provisional measures under general procedural rules, most significantly suspension of the challenged resolution’s execution. Such relief assumes particular importance where the resolution authorizes asset dispositions or other actions difficult to reverse upon ultimate success.
VI. Effects of a Rescission Judgment
A. Constitutive Character
A rescission judgment possesses constitutive rather than declaratory character. Until final judgment, the challenged resolution remains valid and fully operative—a consideration of substantial practical moment where the resolution authorizes ongoing conduct or continuing legal relationships.
B. Retroactive Operation
Upon finality, the judgment operates retroactively (ex tunc), treating the resolution as though never adopted. Only through such temporal reach can the mechanism provide meaningful protection; prospective-only effect would leave undisturbed whatever detriment the resolution occasioned prior to judgment. Consequently, transactions, appointments, or other actions predicated upon the rescinded resolution may require unwinding.
C. Third-Party Effects: A Notable Gap
The Family Foundation Act contains no analogue to the corporate law provisions insulating good-faith third parties from rescission judgments. Under the Commercial Companies Code, where transaction validity depends upon a subsequently rescinded resolution, rescission does not affect third parties who acted in good faith.
The absence of equivalent protection in the family foundation context creates meaningful transactional risk. Counterparties dealing with foundations cannot rely upon good-faith defenses should authorizing resolutions later fall to rescission challenges. This gap counsels heightened diligence in verifying the procedural regularity of foundation actions and may warrant contractual protections—representations, warranties, or indemnification—addressing resolution-validity risk.
VII. Negative Resolutions
A distinctive feature of the Polish regime concerns so-called negative resolutions—circumstances where a proposed resolution fails to achieve requisite support and accordingly is not adopted. Where the charter or foundational purposes imposed an obligation to adopt a resolution of specified content, the failure to do so may itself be challenged through the rescission mechanism.
A judgment sustaining such a challenge both declares the obligation to adopt the resolution and, pursuant to Article 64 of the Civil Code and Article 1047 of the Code of Civil Procedure, substitutes for the resolution itself. This doctrine provides recourse where organ obstruction or deadlock prevents adoption of required measures—for instance, a management board’s refusal to place a qualifying beneficiary on the beneficiary register or to authorize distributions to which the beneficiary holds charter-based entitlement.
Conclusion
The rescission action under Article 82 of the Polish Family Foundation Act furnishes an essential instrument for enforcing compliance with foundational governance norms. Its compressed limitation periods demand vigilance and prompt action from aggrieved stakeholders. The absence of third-party protections available in corporate contexts introduces transactional considerations warranting attention from counterparties and their counsel. As jurisprudence develops in this relatively nascent field, the contours of permissible charter deviation and purpose contravention will undoubtedly receive elaboration. For the present, practitioners are well advised to approach limitation periods with appropriate urgency and to structure transactions with awareness of the distinctive risks attending foundation resolutions.
