Article 3871 on property transfer as a form of collateral security was added to the Civil Code by
virtue of the Act of 14 May 2020 Amending Certain Acts in Respect of Shield Measures in Connection
with the Outbreak of the SARS-CoV-2 Virus (promulgated in the official journal “Dziennik
Ustaw”, item 879). Under this provision, contracts on transfer of property as a collateral security,
where the property in question is a real property used for the purpose of satisfying housing needs,
which is transferred to secure claims under this or any other contract not directly related to business
operations or pursuit of the profession by a natural person, are invalid. The sanction of invalidity
provided for in Article 3871 of the Civil Code applies only to those contracts, where the value of
the real property is higher than the value of financial claims secured by transfer of property plus
the value of maximum interest for delay on this value for a period of 24 months, or if the value of
financial claims secured by the real property has not been not determined. Only such a contract
on transfer of property as a collateral security that was not preceded by an appraisal of the market
value of the real property by an expert appraiser, is invalid.
This solution is rightly criticised as unclear and excessively prescriptive. Furthermore, it may in practice
give rise to numerous problems of interpretation. It fails to solve numerous problems associated
with fiduciary transfer, including its general admissibility or its connection with the institution of
a registered pledge. It is reasonable to consider, as de lege ferenda postulate, the introduction of
a general prohibition of this type of fiduciary transfer or its normative regulation in the form of an
independent legal institution. In the latter case, legal solutions aimed at protecting both the debtor
and other persons, i.e. creditors, should be adopted, in particular with a view to eliminate the socalled
“excessive collateralisation” that happens in practice.