As indicated inter alia in the resolution of 7 judges of the Supreme Court of 16 December 2015 (file reference number: III CZP 77/15), the claim referred to in art. 140 of the Family and Guardianship Code is not maintenance but regressive. The Court of Appeal in Gdańsk also reached the same conclusions in its judgment of 20 June 2018 (file reference number I ACa 828/17). However, in that judgment, the General Court noted that this claim could not be completely „detached” from maintenance matters. The amount of the recourse claim is determined by the amount of the obligation to pay maintenance, as well as the amount of benefits fulfilled by the claimant. This means that to claim reimbursement from someone for providing subsistence or upbringing, you must first determine whether that person was required to provide maintenance at all, and to what extent that obligation would be met by them. Only by referring to the directives contained in art. 135 of the Family and Guardianship Code, we can determine how much a person would be obliged to pay for an entitled person and, as a consequence, what amount of refund we can expect.
Therefore, if the older, sick father, having two children, was looked after only by his daughter, does she have a claim under Art. 140 of the Family and Guardianship Code towards his brother and what sum should he pay her? In order to answer this question, it is necessary first to determine whether the brother was obliged to pay maintenance to his father based on the provisions regarding maintenance obligations (Article 129 – Article 134 of the Family and Guardianship Code). If we consider that the maintenance obligation was on both the brother and the sister, then it is necessary to determine what the amount was. Here comes the help of art. 135 of the Family and Guardianship Code. A regressive claim will be entitled to a sister only in the amount in which the expenses incurred by her (including independent work, the value of which must be „translated” into money) exceed her own maintenance obligation and only to the amount that under the maintenance provisions would be obliged to pay her brother.
Finally, it should be noted that mere claims about expenses, costs or the work involved are not enough – every claim must be properly proven, in principle and in terms of amount.