The Game Shooting District Lease Contract. Selected Issues

SUMMARY The game shooting district lease contract is one of the instruments for environmental protection. As part of leased hunting districts, hunting clubs are obliged to conduct hunting economy. The structure of the provisions regulating the institution of the lease of hunting districts causes that doctrine and jurisprudence still have not developed a uniform concept regarding its legal nature.

It is difficult to read from the passage quoted above a clear striving to protect the animal population, since the wording of the "provision" clearly indicates that the main idea of the ancient lawmaker was to make a norm to protect landowners from the depletion in the resources in their own land by third parties. Even though the validity of such norms led to the actual protection of animals and the environment, this condition appeared only as a reflection of actions aimed at safeguarding the individual interests of certain parties.
Only at the end of the 19 th century, together with the formation of social organisations dealing with hunting matters, there are noticeable attempts to depart from the old understanding of hunting and to begin to promote the principles of rational hunting and point to their importance. R. Paczuski mentioned the following associations as the first organisations to promote the idea of hunting as environmental protection activities: the Municipal Hunting Society of Lwów (Miejskie Towarzystwo Myśliwskie z Lwowa; 1838), the Saint Hubert Hunting Society (Towarzystwo Myśliwskie im. Św. Huberta; 1876), the Society for Correct Hunting in Warsaw (Towarzystwo Prawidłowego Myślistwa w Warszawie) 8 . A special role in this respect used to be attributed to the Hunters' Society of Lesser Poland (Małopolskie Towarzystwo Łowieckie), founded in 1878 by the enthusiast of fauna of the region of Lesser Poland, Count Włodzimierz Dzieduszycki, who was recorded in the history of Polish hunting as the first social organisation aimed at implementing real protection of local game and strengthening the compliance with hunting laws by hunters 9 . Unlike other hunting societies, the Hunters' Society of Lesser Poland did not organise hunting and lease hunting grounds, but its main objective was to "improve hunting practices and the condition of the game" 10 through increasing public awareness.
The activity of the 19 th -century organisations contributed to the popularisation of the idea of correct hunting. As early as at the beginning of the 20 th century, similar hunting societies, associations and clubs 11 focused on running a rational 7 Volumina Legum, t. 8, Petersburg 1960, p. 184. 8 R. Paczuski,op. cit.,p. 253. 9 S. Krogólski, Pół wieku. Zarys działalności Małopolskiego Towarzystwa Łowieckiego 1876-1926, Lwów 1929 10 "Łowiectwo Polskie: organ Towarzystwa w Poznaniu i Polskiego Związku Myśliwych na wszystkie byłe zabory" 1921, nr 3, p. 38. 11 The Polish hunting organisations included in 1921 the following associations: Polski Związek Myśliwych w Poznaniu, Towarzystwo Łowieckie w Poznaniu, Polskie Towarzystwo Łowieckie w Warszawie (Nowy Świat), Małopolskie Towarzystwo Łowieckie we Lwowie, Klub Myśliwski w Bydgoszczy, Towarzystwo myśliwskie w Płońsku, Towarzystwo prawidłowego myślistwa w Ka-Pobrane z czasopisma Studia Iuridica Lublinensia http://studiaiuridica.umcs.pl Data: 21/08/2020 09:54:06 U M C S hunting resource management operated in most Polish cities. Despite the broad activity of hunting associations, at the beginning of the 20 th century in Poland the approach to hunting as an integral element of environmental protection was still not sufficiently established, which clearly illustrates the A. Wysocki's thought: "[…] the condition of hunting in our country is critical as there is no awareness among the broad public that it is necessary first of all to protect, breed and then hunt for animals […]" 12 . Importantly, the assumptions made by hunting societies and circles were not explicitly articulated in the first hunting regulation issued in reborn Poland, i.e. the regulation of the President of the Republic of Poland of 3 December 1927 on hunting law 13 . Despite the lack of an explicit reference to pro-environmental values, E. Ejsmond, who was directly involved in the work on the draft regulation, assured that the new provisions were constructed with respect for environmental protection postulates 14 . The lack of proper highlighting of the environmental protection aspect in the said regulation was to be one of the reasons for the change in the system existing since the end of 1927 and the development of new hunting regulations by authorities of the Polish People's Republic 15 . Article 1 (1) of the decree of 29 October 1952 on hunting law 16 provided for that hunting meant planned management of game in accordance with the needs of the national economy and nature protection. However, the provisions of the decree of 1952 proved to be insufficient, which led to the adoption of the Act of 17 June 1959 on breeding, protection of game animals and hunting law 17 , which partly duplicated the solutions known from the decree previously in force 18 . Although the new draft, like the previous one, was to represent certain values, including "ensuring proper organisation of game breeding and protection" 19 , the community of hunters still considered hunting as an "exclusively sporting activity", which gives the hunter "a number of direct intangible benefits in the form of spending leisure time, contact with nature, sports training" 20 .
The social perception is that hunting is still only a kind of hobby. However, the legislature has no doubts that it constitutes an important element of environmental protection, as expressed in the provision of Article 1 of the Act of 13 October 1995 -Hunting Law 21 . Hunting, as an element of protection of the natural environment, means protection of game (wildlife) and managing its resources in accordance with the principles of environment protection and rational economy. Further provisions specify that the main objective of hunting is the protection, preservation of diversity and management of game populations 22 . As regards the very construction of the Act, it should be noted that the aforementioned regulations have been placed by the legislature in Article 1 and Article 3 respectively, i.e. in the first text units of the normative act, which, in the light of the directive of argumentum a rubrica, may suggest a deliberate granting priority to the protective function and establishing it as the superior function in the Polish hunting law. Thus, the legislature revalued hunting and abandoned the tendency to bring the economic context of hunting to the fore, which was particularly emphasized in the People's Republic of Poland 23 and in the social context, which has been known since the Middle Ages.
Under further provisions of the hunting law, the implementation of the basic objective of hunting is made possible due to proper hunting resource management, which consists of the protection, breeding and acquisition of game in hunting regions by its leaseholders or managers. Therefore, undertaking executive activities in the field of hunting resource management, and thus the fulfilment of the protective function requires obtaining appropriate powers, which takes place through the conclusion of a contract of lease of a game shooting district. It should be stressed here that the hunting resource management in the Polish legal system has the form of a public model, because it is based on the assumption that it essentially is the responsibility of the state, and only its execution has been entrusted to the Polish Hunting Association (Polski Związek Łowiecki), which is obliged to cooperate on a permanent basis with, i.a., the central government and local government admin-istration 24 . The above allows concluding that the State Treasury leases out game shooting districts to hunting clubs primarily for the purpose of performing specific public functions aimed at performing environmental protection tasks, and not only socio-cultural functions for their members.

PROCEDURE FOR CONCLUDING THE GAME SHOOTING DISTRICT LEASE CONTRACT
Pursuant to Article 29 of the Hunting Law, parties to a game shooting district lease contract, depending on the nature of the game shooting district, include: Director of the Regional Directorate of the State Forests National Forest Holding (Państwowe Gospodarstwo Leśne Lasy Państwowe) or the Starost (poviat governor) (performing the task of central administration) and hunting clubs (or possibly the Polish Hunting Association) 25 . Therefore, the parties to the legal relationship include, on the one hand, a public administration body 26 acting on behalf of the State Treasury 27 and, on the other hand, a specific organisational unit, namely a hunting club. The introduction by the legislature of the norm referring, in matters not regulated in the Hunting Law, to the provisions of the Civil Code governing the lease 24 Judgement of the Constitutional Tribunal of 10 July 2014, P 19/13, LEX No. 1483911. 25 Where no hunting club is interested in leasing the game shooting district, until a hunting club submits an offer. 26 In the literature on the subject, the concept of "public administration" is defined variously. According to R. Michalska-Badziak, the public administration is defined in the modern literature as an organisational unit of the entity concerned (state, local government), the classification of which takes into account certain elements such as: organisational separation, manner of action, authorisation to use sovereign measures, acting in the public interest, acting within the limits of powers granted by law (see R. Michalska-Badziak, Pojęcie, cechy i rodzaje organów administracji publicznej, władza i urząd, [in:] Prawo administracyjne. Pojęcia, instytucje, zasady w teorii i orzecznictwie, red. M. Stahl, Warszawa 2016). M. Dąbrowski points out that the primary element for the recognition of a particular entity as a public administration body is its organisational and functional separation in the structure of public authority. According to the author, the organisational separation takes place where the provision of systemic law clearly prejudges that the entity concerned is an administrative body. Functional separation is carried out on the basis of norms of the substantive and procedural law by entrusting it with certain tasks and independent powers and the measures and tools necessary for their implementation. Based on the foregoing criterion, he assumed that, under certain circumstances, the starost (poviat governor) meets the doctrinal conditions for it to be regarded as a public administration Pobrane z czasopisma Studia Iuridica Lublinensia http://studiaiuridica.umcs.pl Data: 21/08/2020 09:54:06 The Game Shooting District Lease Contract. Selected Issues 51 agreement 28 implies the need to consider the lease of a game shooting district in the context of fundamental provisions of private law with taking into account the specific subject-matter and status of the parties to the legal relationship.
In Section II of the Act of 23 April 1964 -Civil Code 29 , in the provisions of Articles 66 to 72 1 , the legislature has regulated four methods to conclude an agreement. According to the legislature's intention, the lease agreement can, therefore, be concluded by an offer, negotiation, auction or tender procedures. In addition to typical procedures, mixed types are also present in practice: offer-and-negotiation, negotiation-and-offer and auction-and-tender procedures 30 .
In the offer procedure, the central concept is an offer to be understood as a declaration of intent which is a firm proposal for the conclusion of a contract containing the relevant elements of the content of the legal act (essentialia negotii). The contract is concluded when the counterparty accepts the offer as proposed by the offerer. The literature on the subject excludes the possibility of effectively concluding an agreement where the offerer merely expresses interest in concluding the contract without making a firm declaration in that regard. A similar situation occurs when an incomplete offer is proposed, i.e. not containing all the elements necessary for the creation of a legal relationship 31 . Negotiations are based on the mutual interaction between the parties, as a result of which they jointly agree on the content of the agreement to be concluded, in particular the shape of its necessary elements 32 . As regards the auction and tendering, these are multi-party procedures of an elimination nature. The essence of auction and tender procedures is, therefore, in the selection of the most favourable offer of all those submitted by interested parties, by gradual elimination of the least attractive offers. Guided by this somewhat simplified characteristics of the types of procedures for the conclusion of the contract, one should state that it is not possible to clearly assess in what procedure the game shooting district lease contract is concluded and whether it is possible to carry out its correct classification under civil law.
The provisions of hunting law are fairly concise as regards regulation on the procedure for the conclusion of a game shooting district lease contract, boiling down merely to establishing the requirement for the submission of an appropriate application by the Polish Hunting Association to the authority authorised to sign the game shooting district lease contract and the obligation to consult the commune head (mayor, city president) and the competent agricultural chamber before leasing out the game shooting district. Some doubts may arise due to the fact that the Polish Hunting Association is exclusively entitled to submit this application on behalf of and for the hunting club even though the hunting club has legal personality, so it should be capable of acting independently in applying for the lease of a game shooting district.
By the Act of 14 December 2017 on the amendment of certain acts to facilitate the control of infectious animal diseases 33 , the pre-emptive right to conclude a game shooting district lease contract with the previous tenant was abolished 34 , which also affected the shape of the process of concluding the game shooting district lease contract 35 .
In the current wording of the Act, to conclude a game shooting district lease contract, the Polish Hunting Association, as an exclusively authorised entity, shall submit to the competent public administration body an application for the conclusion of the game shooting district lease contract. The application shall be submitted for and on behalf of a specific hunting club 36 and is a prerequisite for the validity of the contract being concluded 37 . In practice, however, this is done by the District Management Board, acting as the local body of the Main Board of the Polish Hunting Association 38 . In turn, the activities of the district management board are initiated by the hunting club submitting an application to lease out a given game shooting district to it. Then, in accordance with § 100 of the Statutes of the Polish Hunting Association, the application is consulted by a committee of at least three people on giving opinions on applications for the lease of game shooting districts, which is appointed by the district congress of delegates from among delegates to the national congress of delegates. Each member of the committee is the chief district 33 Journal of Laws 2018, item 50. 34 Postulates to remove the so-called priority rule from the hunting law were included in the government's draft Act amending the Act -Hunting Law and the Act on the amendment of the Act -Hunting Law of 15 November 2016 (Sejm Papers No. 1042.2019]). The explanatory note to the draft indicates that the elimination of the pre-emptive right to conclude a game shooting district lease contract by the existing tenant will ensure the proper conduct of the hunting resource management. In the opinion of the draft proponent, the implementation of the pre-emptive right deprived the landlord of the possibility of effective enforcement of the obligations incumbent on tenants. The above argumentation was reproduced in the explanatory note to the government's draft Act of 14 hunter of a given district. Designated representatives of the regional directorate of the State Forests National Forest Holding, the competent chamber of agriculture and commune heads (mayors, city presidents) may also participate as members in the work of the committee. The opinion of the committee is to be prepared in writing, and the conclusions contained therein are forwarded to the clubs, which may request their amendment by raising objections to them. Issuing a negative opinion by the committee closes the way for the hunting club to conclude a game shooting district lease contract, since the final opinion of the committee may not be appealed against 39 . On the other hand, the positive opinion of the committee is forwarded to the appropriate administrative body together with the hunting club's request to lease a specific game shooting district. Having received the necessary documentation, the body applies to the commune head (mayor, city president) for an opinion about the tenant, and these opinions are not binding on the landlord 40 . However, the hunting law quite precisely regulates the scope of the content of the game shooting district lease contract, stipulating that it should include in particular: the number and area of the game shooting district, the area of forest and agricultural land belonging to the game shooting district, the category of the game shooting district, the amount of rent for the district lease and the due date for its payment, the obligations of the contract parties, the rules for the use of alternative cull, the manner and time limits for settlements between the parties to the contract in the event of its termination. In addition, the Act precisely regulates the cases in which the agreement is terminated (also without notice period), the minimum game shooting district lease period and the general rules for determining the amount of lease rent, which have been further developed in the provisions of the regulation of the Minister of the Environment of 26 October 2018 41 .
It is clear from the above considerations that the parties to a game shooting district lease contract have limited possibilities to independently shape the content of the legal relationship that arises as a result of their concluding the shooting district lease contract. The hunting club can only specify the game shooting district it wants to lease, but the other components of the contract, such as the amount of the rent, contract termination or the minimum term of the contract, have been imposed by the legislature. Therefore, the hunting club can only approve the conditions set out in the law and proceed to the conclusion of the contract. The general determination by the lawmaker of the content of the game shooting district lease agreement results in an almost complete exclusion of the freedom of contract. It is, therefore, 39 §100 (6)  Pobrane z czasopisma Studia Iuridica Lublinensia http://studiaiuridica.umcs.pl Data: 21/08/2020 09:54:06 U M C S difficult to assume that it could have been concluded by auction, tendering or negotiation, if only because all potentially competing "offers" (bids, tenders) would have the same content, which would have objectively prevented the selection of the single most advantageous offer. Therefore, only the conclusion of a game shooting district lease contract in the form of an offer procedure can be considered. At this point, however, it should be noted that the game shooting district lease contract seems to be an adhesion agreement 42 , which is not uniformly interpreted by Polish scholars. The literature on the subject formulates various, sometimes contradictory concepts 43 , which undoubtedly makes it impossible to formulate a single, categorical thesis on the type of procedure of concluding a game shooting district lease contract. However, apart from the views characterising the nature and procedure of concluding an adhesion agreement, it should be noted that it is always treated as a contract of obligation, which is effected by the parties by submitting an offer and concluding an agreement. The State Treasury makes an offer to a limited circle: hunting clubs. Hunting clubs, on the other hand, decide by exercising their contractual freedom to accept the conditions proposed by the legislature and enter into a legal relationship created in this way. The element of voluntariness occurs only in relation to the will to establish a legal relationship, which leads to automatic classification of the game shooting district lease contracts as adhesion agreements within the meaning of civil law.
However, it seems that the analysis of the game shooting district lease contract should not be made in total detachment from the very rationale of hunting regulations. In this case, it should be considered insufficient any argumentation supporting the thesis that the game shooting district lease contract is a typical civil-law contract, especially when based only on wording of Article 29a (3) of the Hunting Law. The formulation of the above conclusion is a consequence of the firm view in the established scholarly opinion and case-law that despite containing certain public-law elements, the game shooting district lease contract is a civil-law contract. There is no doubt among scholars in the field as to the possibility of public administration bodies concluding civil-law contracts with entities which are not public administration. It should be noted, however, that it is generally accepted that in such cases public administration bodies exercise powers related to the disposal of specific assets (State Treasury's or local government's) 44 . However, hunting resource management covers all activities in the field of protection and breeding of animals. Therefore, the concept of hunting resource management cannot be limited only to the issue of game acquisition. Thus, the contractual authorisation of hunting clubs to pursue hunting resource management is demonstrated by that fact of assigning a kind of dominium to the hunting clubs by the State Treasury as a disposer of the nation-wide good, i.e wildlife, but also the imposition of certain obligations that are an emanation of the statutory and constitutional obligations of caring for game well-being. Therefore, the game shooting district lease contracts, on the one hand, touch the sphere of disposal of interests held the State Treasury, but on the other, it obliges hunting clubs to perform public tasks in the field of environmental protection 45 , which would suggest treating them rather as administrative law (public law) contracts 46 .
The analysis of the issues of the game shooting district lease contract, including in particular its content and the manner of conclusion, is reminiscent of the construction of a normative model contract known to the science of civil law. A normative model contract should be understood as a model contract that has been included in a normative act which is the source of law mentioned in the Constitution of the Republic of Poland 47 . The arbitrary determination of the contractual content by the legislature made the Constitutional Tribunal to express doubts as to the civil-law nature of such contracts 48 . However, as already mentioned before, hunting resource management combines elements of the sphere of state property management (dominium) and the sphere of performing public tasks. In this situation, the view that in the Polish legal system "some contracts still have a character that is difficult to define, because in fact, when performing public tasks, they have at the same time a clear civil-law dimension and have effects that can be considered in civil-law Pobrane z czasopisma Studia Iuridica Lublinensia http://studiaiuridica.umcs.pl Data: 21/08/2020 09:54:06 U M C S categories" 49 is becoming more and more valid. The multitude and diversity of views on the nature of contracts entered into by public administration bodies with entities remaining outside this structure, as well as unclear and heterogeneous criteria for their classification, undoubtedly make it difficult to determine the legal nature of the game shooting district lease contract.

SUBJECT MATTER OF THE GAME SHOOTING DISTRICT LEASE CONTRACT
The specific approach to the hunting economy determines the difficulty in defining the subject matter of the game shooting district lease contract. The literal wording of hunting law imposes the assumption that the subject matter of the game shooting district lease contract is regarded as an area of land of a consistent area enclosed within its borders, of not less than three thousand hectares, in which there are conditions for hunting 50 . Game shooting districts are created within a voivodeship (province) by resolution adopted by the provincial assemblies, taking into account the principles of: optimal satisfaction of the needs for the protection, preservation and development of preferred animal species, avoidance of division of reservoirs, determination of the course of borders using natural landmarks or clear markings in the area. The hunting law distinguishes forest and field game shooting districts 51 . It can, therefore, be concluded that the game shooting district must be understood as an administratively separate area of the country intended for the exercise of hunting, without areas excluded by a statute 52 or decision of the minister competent U M C S The Game Shooting District Lease Contract. Selected Issues 57 for the environment 53 . According to the analysis of the rules of hunting law, game shooting districts cover also private property and, consequently, hunting clubs can operate in their areas in terms of hunting resource management as a result of the lease of a game shooting district.
The issue of the admissibility of establishing game shooting districts and the change of their borders, without the participation of the owners of the properties covered by these, was the subject of considerations of the Constitutional Tribunal 54 . By the judgement of 10 July 2014, the Constitutional Tribunal ruled on the inconsistency of the provision of Article 27 (1) and Article 26 of the Hunting Law with the provisions of Article 64 (1) in conjunction with Article 64 (3) and Article 31 (3) of the Constitution of the Republic of Poland and the loss of force of the existing unconstitutional provisions within 18 months of the date of publication of the judgement. In its grounds for the judgement, the Constitutional Tribunal stated that the inclusion of private property in the game shooting district entails numerous restrictions on the owner's full use of the object of ownership. According to the Constitutional Tribunal, those restrictions concerned all the basic owner's rights and are of a public nature resulting from a special administrative-law regime which was granted to game shooting districts. Although the provisions questioned by the Constitutional Tribunal have expired on 22 January 2016, it was not until the Act of 22 March 2018 55 when the legislature adapted the provisions of hunting law to the content of that decision. However, the revision did not lead to the exclusion of private property from the coverage of game shooting districts. The legislature introduced certain safeguards for the interests of land owners and perpetual usufruct holders in terms of granting the possibility of making remarks on the resolution of the provincial assembly on the division into game shooting districts and the possibility of seeking compensation for damage suffered by the owner or perpetual usufruct holder of the property due to covering their property within the boundaries of the game shooting district. In view of such legislation, it is difficult to assume that physically separated land could be the subject matter of the game shooting district lease contract, as this would be contradictory to the fundamental principle of private law as expressed in the legal maxim: nemo plus iuris in alium transferre potest quam ipse habet. The State Treasury could not let to hunting clubs the land to which is does not have the ownership right. The concept of including private property in the shooting district lease should, therefore, not be read literally, but as commercial, storage, transport and other business purposes and facilities of a historic and special nature within the limits of their fences. 53 Article 28 (2)  Pobrane z czasopisma Studia Iuridica Lublinensia http://studiaiuridica.umcs.pl Data: 21/08/2020 09:54:06 U M C S a specific mental shortcut specifying that the property concerned has been covered by the right of hunting in this area 56 .
A concept is also put forward in the literature on the subject that the subject matter of the game shooting district contract is not a game shooting district considered as an area of land, but in fact the right to hunt or the right to exercise hunting resource management 57 . Unfortunately, a unified position on this matter has not yet been reached 58 . It should be noted here that hunting resource management is an activity in the field of game conservation, breeding and acquiring. Assuming, therefore, that the subject matter of a game shooting district lease contract is the right to hunt seems to shallow and limit the concept of hunting resource management only to the aspect of game acquisition from areas covered by the district.

LEGAL CHARACTER OF THE GAME SHOOTING DISTRICT LEASE CONTRACT IN THE LIGHT OF CASE-LAW
The analysis of the case-law of recent years allows us to conclude that in judicature, just like in literature, a coherent and uniform position has been developed in the field of legal qualification of the game shooting district lease contract, although the regulations governing this matter have not undergone any major change since the Act of 1959 was in force.
Under the Act of 1959, the Supreme Administrative Court in Warsaw of 14 September 1983 59 ruled that the game shooting district lease contract is a civil-law insti- The views of the Voivodeship Administrative Court in Lublin had changed and in the decision of 6 May 2013 66 the court again stated that the game shooting district lease contract is clearly a civil-law contract, which was to be evidenced by the fact that the activity of the Polish Hunting Association is financed from their own funds, an entry fee, inheritance and donations as well as income from business activities, and thus does not dispose of public property. As assessed by the court, since the provisions of the hunting law provide for that the game shooting district lease contract should specify the rights and obligations of the parties, as well as the amount of rent for lease of the game shooting district, then the game shooting district lease contract is a civil-law contract regulated by the provisions of Articles 693 to 709 of the Civil Code.
The Constitutional Tribunal ruled quite differently 67 , denying the civil-law nature of the game shooting district lease contract and assuming, following the R. Stec's view 68 , that the game shooting district lease contract was of an administrative-law nature. This belief was based on the fact that, although the legal relationship under consideration can only be established by concluding an appropriate contract, the content of the game shooting district lease contract does not conform to the content of the contractual relationship arising from entering into a lease contract. According to the Constitutional Tribunal, both the rights and obligations of the parties to the relationship are in the form of public-law rights and obligations, which boil down to the right and obligation to carry out hunting resource management.
Although it would seem that the Constitutional Tribunal's detailed position should result in harmonisation of the established case-law, in fact the judicature continues to formulate positions expressing the conviction of civil-law nature of the game shooting district lease contract 69 .
It seems that the prevailing opinion in the case-law is that the game shooting district lease contract is a civil-law contract. But it is still characteristic, however, that the correctness of that view is being proved in the judicature quite tersely. It is noticeable that there is no substantive argument which unequivocally confirms the reasons behind that assumption, and the resorting by courts only to the laconic and unconvincing argument of "well-established thesis in the case-law" seems still to be insufficient.