“We are together, but each of us separately.” Friendship as a close legal relationship

Abstract

Friendship is undoubtedly perceived by individuals as a close relationship—based on a special bond and commitment. However, it is a relationship that is very limitedly regulated by the law and is not explicitly labeled as close by legislators. In this study, three research goals were set. The first goal is to determine how friendship is characterized in legal acts, legal literature, and judicial decisions. Marriage, parenthood, or even romantic relationships are to some extent protected by the law, each to varying degrees. Friendship, on the other hand, differs as it does not appear in legal acts in the context of interpersonal relations. Nevertheless, friendship is not absent from legal discourse. This is because, at times, the object of protection in Polish law is not so much marriage, parenthood, etc., but broadly defined "closeness." For this reason, it was determined if and when friendship is considered a "close relationship" (goal 2). Third, with reference to the results obtained earlier, the costs and benefits of the residual coverage of friendship under the law were considered (goal 3). The primary context for these considerations was Polish legislation with incidental references to other legal systems.

1 Introduction

Jan applied for a nursing¹ care benefit in connection with caring for an unrelated person² – his friend Marek, who is certified as severely and permanently disabled. Marek has no contact with his biological family and Jan has taken Marek under his roof and is looking after him – cooking, cleaning and staying with him, as Marek cannot stay home alone. Jan left his previous job due to the constant need to take care of Marek. He applied for nursing care benefit³ that would at least slightly improve their financial situation as Marek does not have enough funds for his daily needs and treatment [71].

The benefit was denied on the grounds that Jan is not related to Marek. The case ended up in court, but the ruling upheld the view that, under the Act on Family Benefits, nursing care benefit is granted to individuals with alimony obligations.⁴ The court assumed that “the applicant is a stranger to the patient. They are united by friendship, not blood ties” [71]. However, blood ties alone (or even the legal ties based on them) do not create a “duty of closeness.” There are no legal instruments that can force related or otherwise legally connected persons (spouse or in-laws) to take care of and be concerned about each other. At most, these individuals can be compelled to provide regular alimony, but not to provide personal care and concern. Marek could not count on help from his biological family, but received it from a “stranger” – Jan [29].⁵ The court emphasised the “strangeness” of those in friendship, thus contrasting their relationship with family relations. However, the court did not do this to appreciate Jan’s attitude, but to indicate that it was merely an act of altruism indifferent to the law. Although the rationale for granting the nursing care benefit is precisely to surround the person in need with care and support, the court ignored this circumstance, focusing on the form of the relationship between the individuals.⁶

This case study is certainly unusual – judicial decisions do not abound in stories involving friends providing essential care. However, this is not worrying in itself – perhaps friends can settle disputes and fulfil each other’s needs without involving the law. Friendship is given little space in legal discourse, despite it often being the most important relationship in our lives.

This study has three research goals. First – to determine how friendship is characterised in legal acts, legal literature, and judicial decisions (goal 1). Marriage, parenthood or even romantic relationships are to some extent protected by law. Friendship is different – it does not appear in legal acts in the context of interpersonal relations, though it is not absent from legal discourse because the object of protection in Polish law is sometimes not so much marriage, parenthood, etc., but a broadly defined “closeness”. Therefore, the study will also determine whether and when friendship can be considered a “close relationship” (goal 2). Third, the results obtained from exploring the first two goals will be used to consider the costs and benefits of the residual coverage of friendship under the law (goal 3). The basic context for the considerations will be Polish legislation, but the study also makes incidental references to other legal systems.

Part II of the discussion takes a psychological look at friendship, which will be useful for further considerations. The subsequent parts – III and IV – present the results of the analysis of friendship in the context of two understandings of closeness – formal and substantive. Part V outline the costs and benefits of the residual coverage of friendship under the law. Part VI sets out final conclusions.

2 II. Friendship in psychological terms: overview

Legal considerations of friendship have tended to use a philosophical perspective,⁷ whereas the psychological perspective has been used to a very limited extent [3, 22]. As a result, it will be useful to at least give a general overview of the perspective that deals with the empirical study of friendship.

There are many different definitions of friendship in the psychological literature [2]. Its constitutive features include voluntariness (free choice), liking (affection; relationship is unique and special for participants), reciprocity (mutuality), permanence and fragility [25]: 125].⁸ Among the various close interpersonal relationships, it is only friends and partners that we can choose with complete freedom. At the same time, it can be difficult to indicate when friendship begins and when it ends – friendships develop gradually and differently at different stages of an individual’s life [25]: 124]. “There are no formal or legal rules for establishing or maintaining friendship in our culture, as there are for marriage, and for parents and children.” [4]: 213].

Friendship is a relationship without a well-defined goal around which friends’ lives would be organised. The main “goal” is to maintain the relationship for its own sake, for the pleasure of being together in a relationship. Nowadays, this statement suffers significant limitations today, when friendship actually becomes a family relationship.

Having friends is one of the important factors affecting the happiness of an individual [4]: 213]. Building friendships is an emotional investment and requires a great deal of of effort from individuals: “It is not possible to have friends without first making friends” [19]: 1278]. The emergence of friendship is fostered by the frequency of interaction, similarity (similar views, interests, background), physical attractiveness, reciprocated affection, sharing an emotional state, the need for affiliation and the desire o reveal oneself to the other person [17, 30].

The first stage of forming relationships is increasing the frequency of interactions, e.g. in connection with living, working or studying. These frequent and uniqe interactions result in liking the person, and this leads to even more interaction, as spending time with the person is enjoyable. However, the frequency of interaction and physical closeness alone are not sufficient for the formation of a friendship, what matters is the quality of the time spent together [19]: 1282].

In the second stage of friendship development, there is a perception of similarity between individuals (e.g. similarity of attitudes, beliefs and values, as well as of background). At the next stage, skills are developed to meet the needs of the other person, especially the emotional skills: “so that they feel accepted, protected and can count on being helped, getting support, comforted in difficult situations” [30, 39]. Later, the relationship evolves in the following areas:

• 1. increasing emotional closeness and attachment (deepening the relationship). As the friendship develops, the friends reveal themselves more fully, disclosing more and more information about themselves;

• 2. increasing the dependence on and diversity of interactions, that is, expanding the range of issues discussed and analysed by the friends;

• 3. increasing interdependence, which means that the friends’ individual goals and behaviours become more synchronised;

• 4. developing a specialised communication code, which can even result in a language understood only by the friends and only used by them;

• 5. increasing confidence and the predictability of responses (reduction of cognitive uncertainty);

• 6. including a friend in one’s social network [1]: 376–383].

Thus, it can be said that between friends there develops: “a process in which one person expresses important self-relevant feelings and information to another, and as a result of the other’s response comes to feel known, validated (i.e. obtains confirmation of their world view and personal worth), and cared for” [14]: 628]. Clark and Reis thus emphasise the importance of self-disclosure in a close relationship. As Brendt and Hanna write: “it is a type of behaviour, typically verbal, in which a person tells another person about him or herself; the information disclosed may be highly intimate, the kind normally revealed only to a close friend, this need not be the case” [9, 59].

Friends are the people we can count on in difficult life situations. As individuals become close to each other, they simultaneously become sensitive to each other’s needs. Responsiveness means the ability to respond to the needs of the other person and take part in achieving them. This ability develops over the course of the relationship, by which it can be assumed that the longer the relationship lasts, the easier it is for individuals to recognise each other’s needs [33]: 400].

The special nature of the bond formed in friendship, based on naturalness and closeness, lowers (or even precludes) formalism in the relationship. Precisely because of the high degree of trust we have in our friends, formalising mutual expectations and actual actions is undesirable and could create a perception of mistrust in the other person [41]: 192–193]. Which is not to say that such expectations do not exist. As Jaquline P. Wiseman points out, an unwritten contract is formed between friends, i.e. a series of unspoken, unnegotiable expectations that people have about how others should behave toward them. Thus, a certain idea of the rights and obligations we have to our friends (and that they have to us) is formed, though these expectations are not disclosed and voiced, and thus may give rise to certain complications in the relationship itself [41]: 203].

To sum up, friendship is one of the key close relationships in the lives of individuals. The only and primary “interest” of that relationship is the special bond formed between individuals, developed voluntarily and by virtue of the mutual commitment of friends. The fate of the friendship thus depends on the friends themselves, and there are no formal ways to hold them together. On the other hand, one cannot assume that relationships are simply “concluded” – that would be like believing that you can drive a car to a certain destination if you just turn the ignition key and let the car move ahead itself without driving it. In friendship, the destination of the journey does not need to be set, but it is necessary to work together to make the journey itself a good experience and memory for both. There are no formal rules to determine the correctness of behaviour towards each other, meaning that friends operate on informal principles (common language, loyalty and unwritten expectations of the other person’s behaviour).

3 III. How is friendship understood in law?

3.1 Friendship in Polish legal acts

The term “friendship” does not appear in either the Polish Civil Code or the Family and Guardianship Code. Based on an analysis of the legal acts, two ways of using the word “friendship” can be distinguished, either as a justification for the exercise of certain rights (e.g. exemption from the import tax on goods sent as gifts as a token of friendship,⁹ the use of Schengen or national visas to visit friends¹⁰) or as a value that applies in certain situations (e.g. in relations between countries in the education process¹¹).

Importantly, however, at the level of legal acts, friendship is not included as an interpersonal relationship; it is not listed among family relationships or other legally relevant close relationships. As Laura A. Rosenbury writes: “Friendship is generally viewed as utterly distinct from domesticity and hence from family” [34]: 202]. A certain exception to this is the US legislation, where one can see incidental legal definitions of “close personal friend”¹² formulated in medical law. They emphasise such characteristics of friendship as permanence and the fulfilment of needs (presence, concern, care). No such definitions are readily found in European legislation.

3.2 Friendship in Polish legal literature

In Polish legal literature, friendship is most often mentioned in the context of the construction of a legal relationship. It is an example of a “social relationship” that “does not produce legal effects and the formation of which does not require the occurrence of legally regulated prerequisites,” [6, 9, 10] “because there are no provisions that would link legal effects to the existence of these specific ties (…) the characteristic feature of a legal relationship remains the determination of the elements of such a relationship by legal norms, and not merely socially approved moral norms” [21]. What is significant and noteworthy, an analysis of the Polish family law literature did not reveal any significant statements on friendship. It is not even included in the parts of the studies that mention various “ties of closeness”, which are not standardised in the law (cohabitation, civil union).

3.2.1 Friendship in Polish judicial decisions

In judicial decisions, friendship appears in various contexts as an element of the factual circumstances reconstructed by the courts. There are no obvious definitions of friendship formulated by the courts, but from their various statements, it is possible to derive certain characteristics of friendship, such as: longevity, reciprocity [51] and trust [58]. The courts emphasise the factual, informal (extra-legal) nature of this relationship. In one of its rulings, the Supreme Court indicated that friendship constitutes “a quasi-familial relationship having the character of a permanent but legally unsanctioned bond.” [50]. However, this is an incidental statement that has not found been reflected further in judicial decisions.

Courts most often only resort to merely stating that certain individuals are friends. This circumstance is raised by the courts when they want to point out that a situation is unique, for example when they evaluate with some caution the testimony given by a friend of the defendant [46], or when a court considers why individuals did not behave in the manner expected of a prudent legal entity when performing a certain legal act:

“In making these arrangements and concluding <the loan agreement>, the parties were not fully represented by professional attorneys - which conclusion follows from the fact that the agreement was not concluded in writing (they were undisputedly friends, by the way, which further justifies the informality of the initial acts) and that the sums given to Mr and Mrs T were mistakenly called a loan.” [70]

“(...) they knew each other until many years ago and it was a close acquaintance. The relationship they describe can even be assessed as friendship. (...) For only such familiarity would explain the belief of the defendant and W. P. in the positive assessment of the credibility of the claims that the defendant would lend large sums of money for several years, without an agreement, without surety or another collateral, often despite the repayment of previous loans - to a person in debt or facing major financial problems. The close relationship and willingness to assist W. P. can be used to justify A. G.’s intention to enter into a sham contract.” [59]

The issue of friendship also comes up frequently in the context of a judge’s exclusion. In Polish procedural laws, friendship with a party or attorney is not explicitly recognised by the legislator as a circumstance giving rise to doubts about a judge’s impartiality, but in judicial decisions it is treated as one of the circumstances “of such a kind that it could raise a reasonable doubt about their impartiality in a given case.”¹³ As is often pointed out in judicial decisions, the cited provision refers to “relations of an emotional nature (e.g., friendship, affection, dislike, hatred), manifested in the course of the proceedings through favourable attitude towards one party and an unfavourable attitude towards the other party” [55]. It is emphasised that friendship is a personal relationship “of an emotional nature,”¹⁴ permanently binding individuals [52, 72].

What is particularly interesting is the recent statement of the Supreme Court that, in the context of the exclusion of a judge, not only a relationship based on reciprocity is important, but even a one-sided relationship can be considered friendship (without reciprocation from the other side):

“if a particular relationship is built on emotion, the other party to it may or may not reciprocate that emotion. Indeed, the judge’s impartiality may be affected by their emotional state related to participation in the proceedings of a certain subject, even if the latter not only does not have similar emotions, but is not even aware that the judge has such emotions.” [51]

To sum up, friendship is seen in judicial decisions as a close factual relationship based on a special emotional bond, characterised by permanence, intimacy and trust. These qualities of friendship result in the deformalisation of behaviour between friends. The courts thus emphasise that friendship justifies certain behaviours of individuals, such as failing to maintain due form of acts in law or giving testimony that is favourable to a friend. The existence of friendship between individuals (and sometimes even a one-sided, intimate attitude of one person towards another) is also one of the circumstances that undermines confidence in the impartiality of the authority applying the law. Impartiality, on the other hand, requires the authority to treat “everyone as one person among many.” [7]: 837]. The statements of the courts presented, however, primarily emphasise the extra-legal nature of friendship – a relationship that is governed by its own laws. As Peter Goodrich rightly points out: “The order of law is predicated upon a refusal to deal with friendship and so it institutes a non-recognition of the friend, the absence that structures the maxim, < Oh my friends, there is no friend > .” [18]: 203].

4 IV. How is closeness recognised between friends?

Based on previous analyses of Polish legislation, it appears that the models of close relationships in law are marriage and parenthood. It is these relationships that are called close by the legislator, but it is also the behaviour of individuals in these relationships that is regulated most comprehensively. These relationships are organised by law around the achieving specific goals that are relevant from the perspective of the legislator. The legislator regulates the behaviours in marriage and parenthood taking into account the ‘main tasks’ of these relationships, while believing that the regulation of these behaviours, if only in a symbolic way, will positively affect its implementation (e.g. fidelity, procreation, proper upbringing of offspring and their well-being).

Polish literature and judicial decisions emphasise the clear boundary between friendship and marriage, pointing out that if the essence of marriage was the actual relationship between the spouses and the emotions and feelings existing between them, then “marriage – like friendship or engagement – could constitute a mere social relationship, outside the sphere of interest of the law.” [40]: 439, 43.

Of course, although marriage and parenthood constitute key relationships, they do not exhaust the legal definition of closeness. The legislator also refers generally to closeness, not only in relation to marriage and parenthood. However, closeness is not defined universally on the basis of legal acts, nor is it defined by specifying its characteristics. However, different designations of closeness are found in the texts of legislation. The legislator deals with the vagueness of closeness by adopting two, different understandings of it. It can either introduce a legal definition, in which it lists close persons, e.g. spouse, ascendant, descendant, and so on (the formal understanding of closeness or formal closeness)¹⁵ or it can choose not to define closeness, leaving the specification of its scope to those applying the law (the substantive understanding of closeness or substantive closeness). Thus, the answer to the question of what conditions must be met in order to be considered a close person by Polish law is that it depends on whether a formal or substantive understanding of closeness is adopted in a given provision. Formally close individuals do not have to be substantively close persons, and vice versa, although of course, in one’s life many formally close persons will at the same time be substantively close persons. In view of this, the following sections of the study will explore how friendship is captured on the basis of these two understandings of closeness.

4.1 Friendship on the basis of a formal understanding of closeness

The formal understanding of closeness (formal closeness) is a type of legal closeness, where people in a legally formalised relationship (marriage, parenthood, kinship, affinity, adoption, etc.) are considered close. This type of intimacy focuses on the legal form of the relationship (marriage, kinship, affinity) rather than its content, which is why the approach is called “formal”. Formal closeness is expressed through legal definitions: only the individuals indicated in the definition are considered close, regardless of the actual degree of familiarity, intimacy between individuals.

The various legal definitions of closeness found in the Polish legal system are not diametrically different from each other, which may suggest that the legislator thus indicates the group of individuals falling within the scope of the concept of family. Therefore, the fact it is indicated explicitly in the text of the law that a certain person is a close one, may have more significance.

4.1.1 Friendship in legal definitions of closeness

On the basis of a formal understanding of closeness, i.e. in the legal definitions, nowhere in Polish legislation is a friend currently called a close person. A historical exception to this is the definition of “close” from the 1932 Polish Criminal Code:

“A close person is one who, by virtue of kinship, affinity, friendship [emphasis by the author] or duty of gratitude, has the right to count on the special consideration by a particular individual.”¹⁶

In his commentary, Waclaw Makowski noted:

“[i]n today’s arrangement of social life, the family relationship cannot exclusively determine the closeness [emphasis by the author] of a relationship between people. One can imagine a number of other nodes, also producing a clear relationship of closeness, which become the basis of emotional factors that can influence human behaviour.” [23]: 254]

On the basis of various legal definitions of closeness, the legislator identifies close persons as primarily those connected by permanent legal ties of a familial nature.¹⁷ Individuals either cannot dissolve a particular relationship at all (kinship; affinity), or they must use a special legal procedure for this purpose, in which the existence of grounds justifying the dissolution of the relationship (marriage, adoption) is judicially confirmed. The voluntary nature of the relationship is thus significantly limited here. Even though a spouse or partner can be freely chosen, there are some procedural costs to getting out of the relationship. Voluntariness, on the other hand, is a key feature of friendship. Simply put, no one can be forced to be a friend. Moreover, since the act of ending a friendship is also entirely voluntary, unconstrained by any procedure, it can be seriously difficult to determine exactly when the relationship ends. Formal closeness, on the other hand, requires the definiteness and permanence of the relationships it encompasses, due to the subjects of the cases to which it applies (criminal law, administrative law, civil law in the scope of ownership). In turn, such a guarantee is created through legal relationships understood independently of the actual content of the relationship between individuals.

4.1.2 Friendship versus “cohabitation”

An exception to the legal definitions of closeness is the vague term “person in cohabitation.” Unlike the other relationships indicated in these definitions, here the entity applying the law must determine whether certain specific factual ties exist between individuals. The prevailing understanding in judicial decisions is that cohabitation is a relationship similar to marriage, in which an emotional bond, an economic bond and a physical bond (understood as sexual intercourse) co-occur:

“Even the very intense psychological bond between descendants, and the shared household management, do not justify calling this relationship ≤cohabitation≥. These relationships usually take the form of care, custody or friendship. They cannot be qualified as cohabitation, as the lack of physical bond precludes such qualification.” [44]

“An example of a relationship referred to in Article 115 § 11 of the Criminal Code is not long-term friendship, intimacy, sexual relations – even if long-lasting, or even being engaged, if the fiancées are not in cohabitation within the meaning of the Family and Guardianship Code.” [67]

“in order for someone to be considered a person in cohabitation, it is required to establish a special bond between that person and the witness, corresponding to one that occurs in marriage, even though the marriage was not concluded.” [53]

As the above examples show, the courts unanimously recognise that remaining in a friendship cannot be considered to constitute “cohabitation” [49]. This is because living together refers only to relationships of a romantic nature. Such a relationship, in the opinion of the courts, must be characterised by the co-existence of emotional, economic and physical ties between individuals [27].¹⁸ It is not difficult to imagine a friendship in which these three ties will co-occur – this is the case, for example, in a friends-with-benefits relationship [8, 10,11,12,13,14,15,16,17,18,19,20,21,22,23,24,25], and still the individuals in such a relationship will not be considered close in the formal sense. In fact, some objections can be raised to understanding the physical bond only as contacts of a sexual nature; after all, the existence of such a bond can be associated with other forms of manifestation of intimacy (hugging, touching, holding hands), which is an essential component of friendship.

It seems that legal definitions of intimacy in other legal systems include vague terms that also cover relationships of a romantic nature. For example, the Swiss Criminal Code distinguishes between “close relatives” (Article 110(1)), who are considered to be only those bound by a legal bond, and “family members,” i.e. “persons who live in the same household” (Article 110(2)),meaning that it is factual ties, not necessarily of a romantic nature, that are important in the latter case.¹⁹ The Czech Criminal Code [Zákon trestní, 2009] defines the term “close person” in its § 125 – the first part of the definition identifies as close only the individuals bound by legal ties (spouses and relatives), while the second part states that “other persons in a family or similar relationship are only considered as close persons when the harm suffered by one of them is justifiably felt by the other as his own harm.”²⁰ The examples cited use vague terms with a potentially broader scope of understanding, allowing both actual romantic relationships and friendships to be included in their scope.

To sum up, formal closeness refers to relationships that are permanent, based in principle on a legal bond – namely relationships whose verification is relatively simple. Some exceptions to this can be found under the vague terms that appear in the legal definitions, such as “cohabitation”, though its well-established interpretation in judicial decisions makes it virtually impossible to include platonic relationships.

As can be noted, on the grounds of formal closeness, it is not denied that a friendship constitutes a close relationship, but rather it is pointed out that it is not considered close in a legal sense, which may be related, for example, to the accepted concept of a legal relationship as based on a legal bond. If the various legal definitions of intimacy are treated as possible examples of the understanding of the concept of family, then friendship is not captured as a family relationship.

4.2 Friendship on the ground of a substantive understanding of closeness

Based on a substantive understanding of closeness, close persons are connected by certain factual ties, relevant from the perspective of the purposes of a particular legal provision. The legislator does not indicate in this case who is considered close in advance – this circumstance is determined ad casum, individually for the needs of a particular case. It is also possible to find cases in which the legislator does not use a reference to closeness, but vague expressions whose scope is broad enough to consider that friends fall within it, though these are very rare cases.²¹

An analysis of Polish judicial decisions shows that friendship in the context of substantive closeness is treated in two ways: (1) as a factual relationship between individuals who are unrelated and not legally connected (i.e. a friend as a substantively close person); (2) as a feature of a legal relationship between individuals who are related or connected by another legal bond (and thus friendship as a component of another relationship in which individuals are substantively close to each other).

4.2.1 Friendship as a factual relationship

Even if substantive closeness creates the possibility of granting legal protection to relationships that are not recognised as formally close in legal definitions, friendship is recognised as a close relationship in the substantive sense relatively rarely – most often when it is a matter of protecting third parties rather than the friends themselves. This may be dictated by two factors. First, the acceptable understanding of family in Polish legal discourse (a community based on the bonds of marriage and common descent). Second, the fact that friends rarely make claims to protect their relationship or break the existing bond between them.

The judicial decisions on compensation for the death of an immediate family member are interesting in this context. What is protected here is the emotional bond that linked the individual to the deceased person. One court, for example, considered whether the daughter-in-law could be considered a close person of her mother-in-law who died in a car accident, stating:

“The court was mindful of the described (...) unusual bond built with the injured party, however, it considered that this bond does not differ significantly from the bond between, for example, friends, to whom the legislator certainly did not grant the right to seek compensation after the death of a friend, despite the undoubted ties and significant loss they may have felt.” [69]

Although the legislator does not list all the relationships that fall within the scope of the term “immediate family member,” the courts recognise that “there is no claim for compensation for the harm associated with the death of friends.” [54]. Adopting this course of action can stem from two reasons. First, the legislator generally does not treat friendship as a close legal relationship (it does not indicate it in the legal definitions of closeness, nor in other places in legal acts where it mentions interpersonal relationships). Second, friends are not persons that judges would consider family.

What is interesting in this context is one of the older decisions of the Polish Supreme Court concerning the protection of personal interests [45]. The case was based on a press publication that criticised statements made by John Paul II. The claimant in the case was a priest of the Catholic Church and belonged to the pope’s closest circle; he claimed that religious feelings had been violated, harming “the highest living moral authority” with whom he had a special bond. The courts of the lower instances found that there was no violation of personal interests, but the Supreme Court took a different course in considering the case. First, the court pointed out that the basic criterion of closeness between individuals is family ties. However, it further stated that, “(…) it is impossible to limit the personal interest only to family ties and deny its existence between a person having a long-standing friendship with the deceased. In such a case, the person is entitled to the protection of his or her personal interests.” The court emphasised the uniqueness of the relationship between the claimant and the Pope: “however, it is impossible not to see that in the case of a violation of religious feelings, which are an intrinsically subjective category, the role of objective criterion can also be played by the relationship of closeness of the person concerned, i.e. a Catholic clergyman, to Pope John Paul II as the Shepherd of the entire Catholic Church” [45]. The cited ruling is surprising for two reasons – it is impossible to find other examples of the recognition of the bond that exists between friends as a personal interest, while the reasons for recognising the closeness itself are not clear and are probably due to the specific factual circumstances.

Judicial decisions develop differently when it is no longer a question of protecting the individual in a close relationship, but of protecting third parties – a creditor’s interests. In these situations, friendship is considered a close relationship. The provision of Article 527 § 3 of the Civil Code establishes a legal presumption that the close relationship of the debtor with a third party proves that the third party knew that the debtor acted while being aware of harming the creditor.²² In this situation, the creditor only needs to prove the existence of a close relationship between the debtor and the third party, but does not need to prove that the third party knew that the debtor acted with the intent to harm the creditor. It is therefore presumed that individuals close to the debtor are aware of the debtor’s actions and their motivations. The following statement appears in many decisions:

“A relationship of closeness generally results from family ties, i.e. kinship, marriage or affinity. A relationship of closeness can also arise from engagement, cohabitation, friendship or gratitude, as well as when there is a commonality of personal or financial interests. Thus, the scope of the closeness relationship includes various types of relationships characterised by a higher degree of intimacy than the average acquaintance” [56].

In this context, the courts point out that friendship is a long-term relationship based on intimacy and trust, sharing information about the circumstances of personal life and financial situation [68, 73]. This is well illustrated by the court’s statement, in which it disqualifies the relationship in question as a friendship: “[t]he relationship between these two was amicable in nature, they had known each other for 20 years, but superficially—they were not connected by friendship, gratitude, common interests, or regular business contacts. The degree of mutual connections (…) in no way allows us to assume that they were close to each other” [61]. As mentioned earlier, legal acts between friends are characterised by deformalisation related to mutual trust, so the courts recognise that in this type of relationship there may be transfers of assets aimed at hiding them from the creditor [57].

To sum up, friendship as a factual relationship between two unrelated people is recognised as a close relationship on the basis of the substantive understanding of closeness, but in different ways and depending on the purpose of the legal regulation. When it comes to the severance of ties between friends as a result of sudden death caused by a tort – the courts are reluctant to recognise that this is a close relationship. However, as in the case of formal closeness – the closeness itself, the specific nature of the relationship, is not denied, but its legal relevancy is. A notable exception here is the cited judicial decision on the protection of personal interests. However, when it comes to protecting third parties (creditors), friendship is indicated as an undeniable example of closeness between individuals.

4.2.2 Friendship as a feature of close legal and factual relationships

In judicial decisions, friendship appears more often as a feature of a relationship between spouses or relatives. It can be said that friendship is a criterion for the closeness of certain legal relationships. As John Eekelaar writes, exploring the differences and similarities between friendship and family, it is “sometimes as if friendship added something more to a family relationship (‘[My mother and I] are best of friends’) [16]: 95]. In many decisions on compensation for the death of an immediate family member, one can find statements characterising the relationship this was:

• 1. “he was not only a husband, but also a friend” (in the context of marital relations) [63, 64, 66] or

• 2. “as a result, her late father was also a friend and companion to her” (in the context of parental relationships) [60, 62, 65].²³

The identification of a given legal relationship (marriage, kinship or affinity) as friendship is related to its duration, the existence of a special emotional bond between the parties (intimacy, trust, love), the characteristic way in which they spend time together (birthdays, holidays, support in difficult times).

To sum up, when it comes to protecting the legal relationship and establishing its characteristics (i.e. the closeness that exists between individuals), the courts recognise that one of the key characteristics that determines the particular nature of the relationship between spouses, or parents and children, is friendship. Moreover, this is consistent with how individuals experience marriage or other romantic relationships – precisely as friendship [8]: 632–633, 31: 407–408]. The courts, when referring to friendship (which is, after all, described quite obliquely in court justifications), wish to emphasise that the award of an appropriate amount of compensation is not for a “dead”, fictional relationship but for a factual relationship – one that is real and special to the individuals.

5 V. Costs and benefits of residual regulatory coverage of friendship

In this part of the discussion, I would like to consider the costs and benefits of the scant regulation of friendship in the law. Richard Stith asks pertinent questions here, considering the issue of full regulation the legal status of friendship:

“Do we really want a State Friendship Registry? Even if the government used mainly positive incentives, rather than penalties, to support its scheme, would there not be too great an intrusion into private life? Would we not have lost too much freedom and flexibility in our personal relationships? Would we not have created an excessive bureaucracy?” [36]: 271].

5.1 Costs

As for the costs of the scant regulation of friendship as a close relationship in law, there are three main ones.

First, individuals derive many benefits from remaining in friendships in terms of well-being, feelings of happiness and finding a need to belong. The intimacy that arises between friends can result in merging of the selves that causes a sense of oneness in the individuals in the relationship (Inclusion of Other in Self) [5]: 596–612]. Situations in which a friend:

• a. will not be able to refuse to testify about their friend;

• b. will be liable as an accomplice;

• c. will not be able to obtain information on the health of their unconscious friend;

may significantly cause an individual’s sense of discomfort (since friends are part of our identity), but also significantly disrupt the development of the relationship itself. The lack of formal rules relating to the legally relevant behaviour of friends may therefore influence the belief that in friendship there is a greater area of permission for inappropriate behaviour, while engaging in the right behaviours is unprofitable because it is not rewarded or protected by law in any way. Moreover, in the public perception of the law, this can lead to a devaluation of friendship, as a non-family, legally unrecognised relationship.

Second, the fluidity in the forms of family life is often emphasised today. In friendship, choice is key. In turn, choice is nowadays seen as a fundamental feature of close relationships – both romantic and familial [37]: 37]. Friends can form families, replacing the family of origin in fulfilling needs – both individual and social [35]: 136].²⁴ The people who make up such communities are neither considered “family” in the legal sense, nor can they exercise the rights provided by law when needed. Examples include, among other things, the inability to take leave to care for a sick family member, to join the tenancy of a deceased friend who was the tenant or, as mentioned in the case study at the beginning, an entitlement to nursing care benefits related to the care of a disabled friend.

As Sue Westwood points out, “LGB people construct personal relationships of choice, which may not include biological family, but almost always include friends” [39]: 348]. This is also particularly relevant in that elderly LGB people seek social support precisely in friendship (e.g. care, living with a friend) [39]: 348]. In Joanna Mizielińska’s research on families formed by non-heteronormative people, 64% of respondents considered friends to be family [24]: 177]. However, as the researcher cautioned, the respondents’ answers were not conclusive. The qualitative part of the research showed that respondents had a problem with recognising friends as family members, which was related to the image, fixed in culture and law, of the family as “separate from friends” (this belief may also be influenced by formal rules that normalise family relationships) [24]: 177]. Those who considered friends to be family attributed greater significance in relationships to emotional ties, caring practices and a sense of attachment, rather than to blood ties [24]: 179]. The factors determining the perception of friends as family were, for example, lack of acceptance from the family of origin or lack of family of origin [24]: 179–180]. In these situations, friends were likely to perform those functions that should, in the “traditional” sense, be performed by the family. For some respondents, the line between “being a friend” and “being a family member” was not fixed, and was difficult to specify [24]: 181].

Third, just as friendship is a source of happiness and well-being, it can also be a source of conflict and unhappiness in an individual’s life, associated with a “failure of emotional investment.” Thus, it is not difficult to imagine situations in which the relationship ceases to function properly, a breakdown occurs and conflict develops. This is, of course, a risk associated with almost every close relationship. Involvement in a close relationship creates a specific tension between the individuals’ sense of identity and autonomy and the responsibility for the person who becomes close [28, 32]. Close relationships increase an individual’s emotional vulnerability to hurt and expose them to emotions such as grief, jealousy or hatred [10,11,12, 17, 38]: 169–170]. The essence of vulnerability is also that “we are in danger of not meeting our obligations; we are at risk of others not meeting theirs to us. Our trust might be misplaced. The opening up of our natures creates a risk we will be taken advantage of; a risk that private information will be used to harm us; and the risk of grief and loss” [20, 41]. The influence of the law on this kind of situation is limited, but the absence of any rules – even of a symbolic nature related to care – can create the impression that the scope of permissible violations in a relationship is greater than in a legally recognised relationship. In the latter, if the legal relationship breaks down, there may be a review of the premises for the breakdown of the relationship (divorce, dissolution of adoption), or it may be granted protection. Thus, by “losing” a friend, the individual does not gain official acknowledgment of leaving the relationship or any, even partial, recognition of the harm and losses incurred in the relationship.

Fourth, being sure of each other [12]. Staying in real closeness with the other allows the individual to develop their social skills, including the need to belong (and therefore a strong desire to connect with the other) [11, 27,28,29,30,31,32,33,34,35,36,37,38,39,40,41,42,43,44,45,46,47,48]. As already highlighted, the law can support individuals in achieving this need. The law has the power to ‘reassure’: to recognise and acknowledge the important relationships of individuals so that it can reinforce their social perception and its position. By failing to recognise certain expressions of closeness, the law can exacerbate feelings of loneliness, even when the individual is surrounded by people close to them – in legal terms, they will be seen as a ‘lonely person’ and those close to him or her as ‘strangers’. In doing so, a lack of recognition can be a significant factor in exacerbating an individual’s loneliness. As John Cacioppo rightly points out, that loneliness is a matter of perception of reality [13], and the law, after all, has powerful tools in shaping and receiving it.

Benefits

As for the benefits of the scant regulation of friendship as a close relationship in law, there are at least two main ones.

First, keeping the private sphere private. Some relationships, by their nature, should remain outside legal regulation. Friendship arises independently of the law: the law has no influence on whether people make friends, it does not grant any rights or impose any obligations as a result of starting a friendship. This area has not been regulated by law and has developed so far without interference from the legislator (there have also been no calls for the regulation of friendship) – the development of friendship benefits from such a state of affairs. The legislator does not have to regulate every important social relationship. This does not mean that it does not protect it (one can claim protection for ties in friendship in certain cases: substantive closeness). By not regulating friendship comprehensively like, for example, kinship or marriage, the law actually promotes the development of friendships, including of the moral development of individuals. Friendship is a matter of intuitive law. As Leon Petrażycki wrote:

“numerous areas and elements of our conduct towards others, especially towards those closest to us in family life (...), in the area of relationships based on love, friendship (...) - remain completely outside the sphere of positive legal regulation, and whenever they are regulated legal psychic experiences, by way of realizing what is due to other people from us and to us from other people, then only intuitive law operates. But also in those numerous areas of life in which given issues of conduct are predetermined and resolved in one way or another by positive law, in fact people are usually guided not by those provisions which, in this respect, are prescribed by laws ... but by their own intuitive law, by the indications of their own legal intuitive conscience” [32]: 373-374].

Although there are situations in which the informal rules of friendship are not sufficient to resolve difficult and conflict situations between friends, these tend to be exceptional cases – most often the conflict in the relationship, or its breakdown, takes place on the basis of intuitive law.

Second, a key feature of friendship is its voluntary nature, while a legal regulation could challenge this feature. This is because practical problems of identification would arise: individuals may have trouble clearly identifying who their friends are, and the relationship itself may also change over time (e.g., from friendship to dating). As Czeslaw Znamierowski rightly pointed out:

(...) even if we were to give a complete list of those emotions that can result in friendship, it would probably be impossible to point out the ones that are always indispensable to the formation of friendship, for friendship grows in different ways under different circumstances” [42]: 183-184].

For a legal recognition of friendship, which would most likely occur in a way similar to marriage or parenthood, it is therefore necessary for two people to be permanently and mutually identified as friends, and for criteria to be established for the establishment and termination of the relationship. In turn, this in itself can counteract the development of friendships. Establishing these criteria, based on existing benchmarks in the law (marriage, kinship or affinity) – could also lead to the establishment of legally recognised and unrecognised friendships.²⁵

VI. Final Conclusions

This study set out three research goals. The first was to determine how friendship is characterised in legal acts, legal literature and judicial decisions (goal 1, 6.1). The second was whether and when friendship is treated as a close relationship on the grounds of the practice of law application (goal 2, 6.2.). Finally, the third goal was to consider the costs and benefits of the residual coverage of friendship under the law (goal 3, 6.3).

6.1. Friendship is characterised as an extra-legal, factual relationship based on an emotional bond. The bond is characterised by permanence, trust and intimacy between individuals. It is a relationship that is also not covered by a legal regulation – its beginning is difficult to define, as is its end. It is treated as a “relationship for its own sake” rather than one of familiar relationships that perform certain functions. Its unique importance in the life of an individual is recognised, but as a factual relationship that can only occasionally cause the emergence of legal consequences.

6.2. In the case of both marriage and parenthood, the legislator establishes specific criteria for when the relationship is established. In these relationships, however, the closeness between individuals itself is not important – it is, admittedly, a desirable feature of them, for the purposes these relationships are intended to fulfil. In turn, the basis of friendship is a special bond that gives rise to closeness, including intimacy between individuals.

The legislator does not explicitly indicate that friendship is a close relationship. Nor do the courts do so when they interpret ‘cohabitation’, which is included in the legal definitions of closeness. Recognising closeness directly under the law would, on the one hand, facilitate the process of applying the law – the courts would have no doubts about the legal closeness of the relationship, but it would also represent a recognition that friends fall within the legal understanding of family. However, there is no indication that legal definitions of closeness are about to change in this direction.

In the case of substantive closeness, which offers greater interpretive possibilities, friendship is admittedly recognised as a close relationship, but to a very limited degree. Courts recognise the characteristics of friendship and its importance in the lives of individuals, but treat it as a factual closeness that does not aspire to, and is not, legal closeness. It can be said that “the role of law is to regulate relations rather than to ward them off. Law’s job is to ensure that they run smoothly and that they neither oppress nor harm us” [26]: 123]. This is precisely the case with friendship – occasionally it is protected as a relationship per se, but often it is a reason for granting protection to people other than the friends themselves. However, when it comes to analysing specific legal relationships ad casum (marriage or parenthood), the friendship that exists between these individuals indicates the genuineness and permanence of the relationship, not just its legal nature.

6.3. “Friendships are often paradoxical: they can be fragile and potent, liberating and restrictive, stable and fickle, hopeful and discouraging, fulfilling and neglectful, enjoyable and frustrating” [7, 15]. Friendship itself, like any other close relationship, comes with certain costs and benefits. Paradoxically, it is all the more difficult because there is no “higher” authority (which might even be the law) to delay the breakup or modify the course of the relationship – it is in the hands of the friends themselves. The rules of intimacy in friendship are the result of the confluence of two visions of intuitive law and the development of a joint one – relational, inherent in a particular relationship. The intensity of the relationship and the degree of involvement of individuals in the relationship, as well as the randomness of life’s accidents, can make their mutual rules of closeness insufficient, especially when it comes to emergencies, conflicts or situations that threaten the individual. While the amendment of legal definitions of closeness itself is the task of the legislator, the interpretation of vague terms is the task of the courts, which can update the understanding of these terms.

This picture becomes significantly more complicated when one sees that today’s friends perform many of the functions that were previously assigned to family. It is because of this belief (that the family performs these functions) that family members are treated as close individuals under the law. What is more, being recognised as close under the law is most often associated not with duties, but with rights justified by a special bond between individuals.

So, returning to the title of this paper, we can say about friends: “We are together, but in the face of the law – each of us separately.”