Reparation of damage consisting of the payment of a sum of money

When seeking an answer to this question, we instinctively turn to Article 363 of the Civil Code, which deals with the methods of redressing damage. And so, in accordance with the aforementioned provision:

• 1. Redress for damage shall be effected, at the choice of the injured party, either by restoring the previous state of affairs or by payment of an appropriate sum of money. However, if restoration of the previous state of affairs is impossible or would entail excessive difficulties or costs for the party liable, the injured party’s claim shall be limited to payment in money.
• 2. If compensation is to be paid in money, the amount of compensation shall be determined according to prices prevailing on the date the compensation is determined, unless special circumstances require that prices prevailing at another time be taken as the basis.

Further on, we have, for example, provisions governing tort and contractual liability regimes.

None of these provisions explicitly provide for a method of redress involving the payment of a sum of money corresponding to the anticipated costs of remedying the defect (damage) to the item.

Is such a possibility therefore non-existent?

No, the principle that damages may only be compensated for actual losses is subject to exceptions, and the evolving interpretation of the law seems to justify the conclusion that, over the years, such claims will be made more and more frequently. Such a possibility has been widely accepted in the context of claims for compensation for damage related to vehicle damage brought against an insurer under civil liability insurance (so-called monetary restitution – see, for example, the resolution of the seven-judge panel of the Supreme Court of 17 November 2011, III CZP 5/11, OSNC 2012, No. 3, item 28, and the resolution of the Supreme Court of 24 August 2017, III CZP 20/17, OSNC 2018, No. 6, item 56, and the judgments cited therein).

In recent years, this practice has also been observed in relation to defects in premises or buildings (cf. judgments of the Supreme Court of 6 February 2018, IV CSK 83/17, unpublished, of 14 December 2018, I CSK 695/17, OSNC-ZD 2020,

1. A, item 8, and of 8 March 2019, III CSK 106/17, unpublished).

Such claims are being brought with increasing frequency, yet it remains difficult to unequivocally classify this method of redress in light of civil law provisions which provide for the possibility of claiming reimbursement of foreseeable costs only in the case of substitute performance (cf. Article 480 § 1 of the Civil Code in conjunction with Article 1049 § 1, sentence 2 of the Code of Civil Procedure; cf. the resolution of the Supreme Court of 17 February 2016, III CZP 106/15, OSNC 2017, No. 2, item 13, and the judgment of the Supreme Court of 15 February 2018, IV CSK 286/17, unpublished).

However, it follows from certain judgments that the position justifying the formulation of claims for payment of a sum of money corresponding to the anticipated costs of the damage is based on difficulties in estimating the damage (cf. judgment of the Supreme Court of 8 March 2019, III CSK 106/17) understood in accordance with the differential method, as the difference between the value of a defect-free (undamaged) item and a defective (damaged) item, linked to the individual nature of the item and the defects (damage) themselves, and rendering the comparative method—often used in estimating damage—ineffective (useless).

It is pointed out that the recognition of the targeted and economically justified costs of remedying a defect or damage to an item (services and labour) as reliable for determining the amount of damage is, in fact, intended to satisfy the application of the differential method and should not give rise to doubt, especially in relation to new items, where there is no need to take into account their existing wear and tear. (Supreme Court ruling of 18 August 2020, I CSK 98/20, LEX No. 3047501).

It therefore falls to us, as legal representatives, to contribute to the development of this line of case law, which is favourable to our clients.