Acts regulating Polish civil court proceedings are subject of frequent amendments that are hard to understand for a non-lawyer. One of the amendments reinstated special court proceedings for B2B cases (these proceedings once where introduced, then deleted, then reinstated and now again – they are considered to be useless and some “wise man” want to delete them again. Isn’t it a bit, just a bit, ridiculous ?). However one of the changes is quite significant for day-to-day business activities and their legal security, because the form of conclusion of the agreement has crucial relation to further efficiency of the claim resulting from its improper execution.

The role of documentary evidence and documentary form plays a special role. This is because the legislator has made the assumption that entrepreneurs should demonstrate greater diligence in the conduct of their business. The professionalism of businessman is to be manifested in the appropriate safeguarding of its interests in the content of agreements between the parties. The entrepreneur should bear in mind that his contract with his counterparty may be subject of the court proceedings.

Such an attitude is required of the trader due to the content of Article 458¹¹ of the Civil Code. According to the disposition of this article: ‘An action of a party, in particular a declaration of will or knowledge, with which the law links the acquisition, loss or change of a party’s entitlement in the scope of a given legal relationship, may be demonstrated only by a document referred to in Article 77³ of the Civil Code, unless the party demonstrates that it cannot present the document for reasons beyond its control’. By the term action of a party the legislator means any action involving the making of a declaration of intent.

Importantly, the Code definition of a document is fortunately broader than the colloquial one. A document is ‘a carrier of information making it possible to become acquainted with its content’, and not only a written statement bearing a signature. We wrote more extensively about this back in 2016, but now the role of a statement in documentary form defined in this way is more momentous, as its failure to do so can give rise to serious complications in potential litigation. One of these is the sanction of ad probationem. The effect of this is that a document cannot be relied upon to prove a claim or allegation. In practice, this means that the court will disregard a document with such a defect and declare it non-existent.

In view of the above-mentioned change of regulations, the content of the substantive legal norm of Article 74 § 4 of the Civil Code raises doubts. This is because it excludes the effects of failing to observe the appropriate form of a declaration of intent for evidentiary purposes in relations between entrepreneurs.

Assessing both regulations, it should be concluded that the content of Article 458¹¹ of the Civil Code does not impose an obligation to maintain a specific form for legal transactions between entrepreneurs. On the other hand, it should be noted that the documentary form makes it significantly easier to prove one’s case. In order not to expose oneself to complications related to the lack of the possibility to present one’s claims in a documentary form, it is worth to secure one’s future potential claims at the pre-court stage as efficiently as possible, so that they can be proven more easily later on, when it becomes necessary to resolve the dispute in court.

According to the sentence that the more sweat at the pre-litigation stage, the less ‘blood’ in court, the conclusion is obvious – it pays off to take care of carefully drafting the content of our legal relationship with the other party. A proper contract should clearly define the scope of the parties’ obligations, liability for non-performance, all deadlines and the amount of remuneration. It is advisable to analyse its individual provisions, so that in the future we can be sure that we have secured our interests well and that we will be able to effectively pursue our claims in court. It should also always be borne in mind whether our legal relationship or a particular legal transaction requires a special form under the law, such as a notarial deed or signature certification. Failure to observe a specific form is sometimes sanctioned not only by the aforementioned sanction ad probationem, but also ad solemnitatem, which may result in the invalidity of the entire act. To avoid similar unpleasantness, it is advisable to consult a person with professional knowledge of the law before taking action.

Do you have any doubts about making declarations in your company ? Contact us !

tel. (+48) 536 34 34 32

sekretariat@blumski.pl

Our law firm is experienced in providing services to companies, including participation in complex transactions, and this experience stems, among other things, from holding managerial positions in companies in the Bank Zachodni WBK S.A. group (currently Santander Bank Polska S.A.).