The Disappearance of a Natural Person Who Is a Sole Proprietor (Self-Employed) - Considerations under the Polish and Slovak Law

• Author: Alexandra Löwy, Karin Raková, Paweł Lewandowski
• Position: Comenius University Bratislava/Comenius University Bratislava/University of Warmia and Mazury in Olsztyn
• Pages: 9-25

BRATISLAVA

LAW

REVIEW

PUBLISHED BY

THE FACULTY OF LAW,

COMENIUS UNIVERSITY

BRATISLAVA

ISSN (print): 2585-7088

ISSN (electronic): 2644-6359

THE DISAPPEARANCE OF A NATURAL PERSON

WHO IS A SOLE PROPRIETOR (SELF-EMPLOYED) –

CONSIDERATIONS UNDER THE POLISH AND SLOVAK

LAW / Alexandra Löwy, Karin Raková, Paweł Lewandowski

prof. JUDr. Alexandra Löwy, PhD.

Comenius University Bratislava

Faculty of Law

Department of Civil Law

Šafárikovo nám. 6,

810 00 Bratislava; Slovakia

alexandra.lowy@flaw.uniba.sk

ORCID: 0009-0003-3403-4794

JUDr. Ing. Karin Raková, PhD., MBA.

Comenius University Bratislava

Faculty of Law

Department of Civil Law

Šafárikovo nám. 6,

810 00 Bratislava; Slovakia

karin.rakova@flaw.uniba.sk

ORCID: 0000-0001-9227-7864

Paweł Lewandowski, PhD.

University of Warmia and Mazury

in Olsztyn

Faculty of Law and Administration

Department of Economic Public Law

and Commercial Law

ul. Dybowskiego 13,

10-723, Olsztyn; Poland

pawel.lewandowski@uwm.edu.pl

ORCID: 0000-0002-8979-928X

Abstract:

The disappearance of a natural person, especially when

he or she is also a sole proprietor of a business, causes legal

problems. Such situations are not directly regulated by legal acts,

i.e., the legislators do not refer to the impact and consequences

of the disappearance on the performed business activity.

Meanwhile, the fact that a sole proprietor goes missing may have

a negative impact on his or her situation, including the content of

the obligations binding on him or her. This paper discusses how

the relatives, in particular the spouse of the missing person, may

behave in such circumstances. The considerations carried out

concern Polish law and Slovak law, as there is no specific

regulation of the declaration of missing person who is a sole

proprietor introduced on the model of foreign regulations, the

article places emphasis on the comparison of both selected

regulations. The conclusion indicated that until the missing

person is recognised as dead, family members or other relatives

do not have any competence to take any action on behalf of the

missing sole proprietorship circumstances, other entities may

operate, i.e., attorney-in-fact, proxy, according to Polish law

custodian established pursuant to Art. 184 of the Family Code,

the custodian established pursuant to Art. 144 of the Code of

Contentious Civil Procedure, or prosecutor. Similarly, under the

Slovak law, until the missing person is declared dead, a guardian,

or a representative appointed by the court pursuant to Section 68

of the Civil Procedure Code, acts for such person.

Submitted:

24 February 2024

Accepted:

17 June 2024

Published:

07 July 2024

Key words: Commercial Law; Business Activity; Missing Person;

Responsibility for Obligations

Suggested citation:

Löwy, A., Raková, K., Lewandowski, P. (2024). The Disappearance

of a Natural Person Who Is a Sole Proprietor (Self-Employed) –

Considerations under the Polish and Slovak Law. Bratislava Law

Review, 8(1), 9-26. https://doi.org/10.46282/blr.2024.8.1.830

1. INTRODUCTION

Usually, the legal regulations are limited to the issue of the declaration of death

(Burch, 2017), such as the provisions in force in Poland (Articles 29-32 of the Polish Civil

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A. LÖWY, K. RAKOVÁ & P. LEWANDOWSKI

BRATISLAVA LAW REVIEW

Vol. 8 No 1 (2024)

Code).1 This is because a disappearance is a factual, not legal, event, and therefore the

law does not regulate the particular and specific consequences of the disappearance,

such as what about the rights and obligations of the missing person during his or her

absence, whether and who can protect them/fulfil them, etc.,2 From a legal point of view,

a disappearance is not the same institution as death. What distinguishes them is a kind

of uncertainty as to the fate of the person (the missing person may still be alive, for

example). From the legal point of view, a missing person is, until a document declaring

him or her dead is issued,3 a living person who can participate in established civil relations,

including economic ones. Above all, the disappearance of a person does not constitute a

reason for ceasing to treat such a person as an entrepreneur (Sailasri, 2020), with all the

consequences. From the legal point of view, the disappearance of a person ("owner" of

the enterprise) does not affect the existence of b usiness activity, for example a

suspension or termination of business activity does not occur ipso iure. The norms of law

generally applicable in do not regulate the impact of the disappearance of a natural

person on the conducted business activity registered in the Central Register and

Information on Business (CEIDG) (sole proprietorship).4

It should be noted that the regulation of the declaration of missing person was

introduced on the model of foreign regulations. Among other, there is for example

appropriate regulations in Czech civil law, id est §§ 66 - §§ 69 of the Act of Civil Code of

the Czech Republic.5 The indicated regulations apply to a missing person, not specifically

to an entrepreneur, although in the case of a sole proprietor it should be assumed that it

will be appropriate. The declaration of missing person, according to Czech law, is not

strictly to protect the rights of the absent person, but rather to facilitate legal action in

situations where the absent person would be required to consent to, consent to, vote for,

or otherwise take legal action (Čuhelová and Pondikasová, 2022). What is worth to note

the declaration of missing person is reserved only for a specific group of disappeared

persons (those who have full legal capacity, and those who can be considered missing

within the meaning of §§ 66 Act of Civil Code of the Czech Republic) and persons who

have specific legal relations with them. However, what is most important in view of these

considerations - the effects of a declaration of disappearance do not apply to the actual

legal actions of the missing person in private law relations (Čuhelová and Pondikasová,

2022). That makes this institution rather exceptional and causes that the appointment of

a guardian is a general solution (Čuhelová and Pondikasová, 2022).

Similarly, under the Slovak legislation, the reasons for declaring a natural person

dead are regulated by the provisions of Art. 7 of the Civil Code, if, taking into account all

the circumstances, it can be assumed that he/she is dead (proof of death) or in the case

of a missing person, and also on the condition that it can be assumed that this natural

1 More about declaration of death: Bartoszewicz (2007, p.11 et seq.); Bartoszewicz (2017, p. 147 et seq).

2 As Schoeman-Malan points out: „Rarely do authorities consider ‘missing’ to be a legal status. This lack of

recognition affects families’ rights to property, inheritance, guardianship of children, even remarriage. Family

members are seldom entitled to the same social benefits as those whose relatives are confirmed as

deceased. They might not have access to bank accounts or savings.” (Schoeman-Malan, 2018, p. 219)

3 The legal effects of declaring a missing person dead are the same as those of a natural pers on’s death

(Kalus, 2018).

4 Natural persons conducting business activity in Poland should ob tain an entry in CEIDG (that requires their

legality). At the same time, the lack of an entry does not deprive a person of the attribute of an entrepreneur,

CEIDG is regulated in The Act of March 6, 2018 on the Central Register and Information on Business Activity

and the Information Point for Entrepreneurs, Journal of Law 2022, item 541; more about Central Registration

and Information on Business Activity: Lewandowski (2013), generally about business activity registers: Breges

and Jakupak (2017).

5 Act. No. 82/2012 Call. Civil Code.