Inclusion of Ts&Cs
Polish law determines two ways to include Ts&Cs in a contract, depending on the form of the document.
- i. If a business entity uses an electronic format for Ts&Cs, Ts&Cs should be made available to the customer before the contract is concluded. The law requires that a customer is able to store and reproduce the Ts&Cs in the normal course of business (i.e. without excessive inconvenience). In practice it is possible to send Ts&Cs as an attachment to an e-mail. It is, however, essential that the document is available in a generally accessible format (e.g. PDF format). It is doubtful whether it would be sufficient to provide only a hyperlink to the Ts&Cs or simply inform the customer where the document may be found (e.g. on a specific website). Anyway, it is not required that customers confirm that they have received the Ts&Cs; it is sufficient that they had the possibility to become acquainted with them.
- ii. If a business entity uses Ts&Cs in written format, Ts&Cs should be delivered to the customer before the contract is concluded. To meet this requirement, the Ts&Cs should be printed out and delivered to the customer; e.g. personally, by courier or post. In practice, the Ts&Cs may be attached to the invitation to conclude a contract (offer presented by one party). In such case, it is also not required that the customer confirms receipt of the Ts&Cs.
From the perspective of Polish law, there is an unclear situation under the CISG. As the application of the CISG is usually ruled out, no court decisions are available.
Battle of Forms
Under Polish law, the following situation applies: Generally, if a contract is concluded between business entities applying different Ts&Cs, such contract does not include the provisions of the parties’ Ts&Cs which are contradictory.
A contract is not deemed to be concluded if the party which has received the offer promptly declares that it does not intend to enter into the contract on such conditions (i.e. that the contradictory provisions of the parties’ Ts&Cs will not apply), the contract will not be concluded.
From a Polish law perspective, under the CISG, there is an unclear situation. As the application of the CISG is usually ruled out, there are no court decisions available.
CMS Cameron McKenna Greszta i Sawicki sp.k.
Warsaw Financial Centre ul. Emilii Plater 53