Agata Jóźwiak | In Principle

Many contracts provide for a contractual penalty for reputation of the contract due to the other party’s fault and a contractual penalty for delay in performing the contract. But in such cases can both of these penalties be pursued simultaneously?

The amendment of Poland’s Civil Procedure Code which entered into force on 7 November 2019 changed certain provisions on the formal requirements for pleadings and the consequences of failure to meet these requirements. Harsh rules, uncertainty on the proper method of curing formal defects, and varying practices of the courts may result in final rejection of a pleading and loss of the case for seemingly trivial reasons. Professional attorneys must exercise particular caution.

It is permissible to agree on a contractual penalty for non-payment or late payment of fees due to subcontractors, the Supreme Court of Poland held in its resolution of 30 June 2020 (case no. III CZP 67/19).

The Supreme Court has held that in exceptional cases, the creditor’s conduct in enforcement proceedings will constitute an abuse of law justifying denial of the creditor’s right to execute an order. Therefore, the creditor’s inappropriate attitude may make it impossible to enforce a claim awarded by a final court decision.

The investor is the host of a construction project and, in practice, it is the investor who decides on the wording of the agreement with the general contractor, including the contractor’s activity in execution of the project. It is the investor who decides how the construction process is organised. But investors have different preferences: they do not always want to precisely track the course of works, and that may not be feasible. Therefore, the agreement with the contractor should be tailored to the adopted model of cooperation and take into account the possible level of control by the investor of the general contractor’s activities.

The parliament has granted subcontractors a high level of protection. The provisions on joint and several liability are strict for the investor and often in practice mean a risk of double payment for the same thing: the first time to the general contractor and the second time to the subcontractor. Therefore, the investor should be able to recover from the general contractor the sums paid directly to subcontractors.

Increasing electricity prices may not please customers, but despite appearances they cause energy suppliers a lot of problems too. It is obvious that firms selling energy try to pass on increases in market prices to customers, even if they are bound by long-term energy sale agreements that guarantee a fixed price for the duration of the agreement. If this happens, customers need to seek the appropriate legal remedy to prevent costs going up, and in extreme cases prevent the electricity supply from being cut off.

The Supreme Court recently examined the question of courts being bound by final judgments issued in other cases. This issue relates to the binding nature of a judgment from a substantive point of view, i.e. that the same claim cannot be heard again once adjudicated upon. This is an issue of considerable practical relevance because it determines how the outcome of one case can affect how comparable cases are adjudicated. It also defines the boundaries with respect to a court’s freedom to ascertain facts and make legal evaluations by itself.

Jak ocenić, czy postępowanie sądowe jest przewlekłe, i jak dochodzić odszkodowania, jeśli przewlekłość postępowania spowodowała szkodę.

A simplified procedure for notification of subcontractors, clarification of the rule on the investor’s objection to entrusting part of the work to a subcontractor, and limitation in the amount of the investor’s joint and several liability—all these changes are to go into effect on 1 June 2017.