When purchasing real estate, as a general rule, we are not liable for the debts of the seller of the real estate. There are, however, exceptions to the rule, and the liability of the purchaser of real estate constituting an enterprise or a separated part of this enterprise will be referred to.

In this case, we are dealing with the transfer of the real estate to the purchaser, which enables the purchaser to continue to carry out business activities using the real estate, without having to incur additional resources or actions. It is important that the purchaser himself demonstrates his willingness to continue this activity. However, it should be borne in mind that real estate in itself does not form a whole capable of conducting independent economic activity (judgment of the Voivodship Administrative Court in Szczecin of 13.2.2019, I SA/Sz 894/18). The seller must transfer to the buyer the further necessary components constituting the essence of the operation of that enterprise, without which the buyer is unable to exercise the rights and obligations associated with it. Thus, for example, a seller of real estate constituting, for example, a classic office building, transfers to the buyer the rights and obligations under the contract for the administration of the building, the rights and obligations under the contracts for the supply of utilities to the building, or the rights and obligations, if any, under the loan agreements relating to that real estate. And all of these are necessary components for the continued operation of the business. In other words, it can be inferred that by purchasing a property that constitutes an organised business, we are dealing with that seller’s business, its activities.

An enterprise should be treated as a basic, independent economic unit (economic entity), conducting production, service or commercial activity on its own account, separated in economic, legal and organisational terms (J. Żurek (ed.), Przedsiębiorstwo – zasady działania, funkcjonowanie, rozwój, Fundacja Rozwoju Uniwersytetu Gdańskiego, Gdańsk 2007, p. 15.). Article 551 of the Civil Code lists, inter alia, the components of an enterprise.

When discussing Article 554 on the liability of the purchaser for liabilities, first of all it should be pointed out that the sole and exclusive basis for the liability is the fact of acquisition of the enterprise, and the liability of the purchaser differs from that of the seller only in that it is limited in nature, as the purchaser is liable for debts related to the operation of the enterprise only according to its condition at the time of acquisition, and the prices at the time of satisfaction of the creditor. The purchaser of an enterprise or farm is jointly and severally liable with the vendor for the latter’s debts relating to the running of the enterprise or farm. The solidarity of debtors consists in the fact that each of them, i.e. in this case the vendor and the purchaser, is obliged to fulfil the entire performance, while the creditor, at his own discretion, may demand fulfilment of all or part of the performance from all debtors jointly or from one of them. If, on the other hand, one of the debtors has already performed, the creditor does not have the right to demand full or partial performance.

There is a dispute in the judicature as to whether the same liability rules apply to the acquisition of an organised part of an enterprise. Although dissenting opinions are also expressed, the position is that the purchaser of an organised part of an enterprise bears the liability referred to in Article 554 of the Civil Code up to the value of the organised part of the enterprise (e.g. judgments of the Supreme Court: of 25.11.2005, V CK 381/05, of 9.2.2011, V CSK 213/10 and of 15.3.2018, III CSK 378/16).

When, together with the real estate, other components forming part of the enterprise or an organised part of the enterprise are also transferred to the purchaser, it will be possible to speak of the liability of the seller for obligations relating to the running of the enterprise (Judgment of the SA in Katowice, 7.6.2017, I ACa 1131/16). unless the seller manages to free himself from it by undertaking certain acts of diligence.

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