Law and regulation of force majeure in Poland

1. Is there legislation on force majeure in your law system?

Polish law recognises the concept of force majeure, however, the term does not have a statutory definition. A definition of force majeure has instead been established in case law. 

2. If so, what is the text of the force majeure clause in your civil code?

The definition of force majeure, as established by case law and legal doctrine, is as follows: force majeure is an external and unforeseeable occurrence, the effects of which cannot be avoided. Whether a particular occurrence satisfies these requirements is determined on a case-by-case basis.   

A party is discharged from liability for non-performance or improper performance of a contract where this is caused by force majeure. However, unless otherwise provided for under the contract, force majeure does not discharge a party from performing its obligations once the event of force majeure has passed.

3. Is this mandatory or are parties free to regulate force majeure clauses?

As a general rule, parties are free to regulate force majeure clauses. 

4. If it is regulatory, to what extent are parties free to regulate such clauses (e.g. do parties have to take principles of reasonableness and fairness into account) and if so, in what way?

Parties are free to regulate such clauses, except in cases concerning intentional fault, as defined below. 

Under Polish law, liability is based on the concept of fault. As a general rule, if a party is not at fault, it is not liable for the non-performance or improper performance of a contract. Consequently, force majeure is, in essence, a set of circumstances for which a party cannot be at fault.  At the same time, parties are free to regulate their liability under contract, except for liability for intentional acts (i.e. “intentional fault”). 

Parties are free to provide for full liability for force majeure events in their contracts. They are also free to limit that liability, i.e. by listing force majeure events. However, parties cannot contractually change the established definition of force majeure. If a particular clause does not satisfy the abovementioned definition of force majeure (i.e. it includes events that are not external and unforeseeable, the effects of which cannot be avoided), it will be interpreted as an effective agreement of the parties as to circumstances for which they cannot be held liable. 

5. If a contract just says you can terminate for “force majeure” is there any guidance/case law as to what this means (in the absence of it being defined in the relevant contract)?

Yes, the definition of force majeure has been established in case law. Please see the second point above. 

6. Is there a difference in all of this in B2B transactions versus B2C transactions?

As a general rule, no. However, if a contractual definition of force majeure is too broad, and in effect limits the liability of the business, it might be considered ineffective against a consumer.

7. Is there a difference in judgement when the force majeure clause is laid down in a contract or in T&C’s?

No, there is no difference so long as the general requirements for T&Cs to be applicable to a given contract have been met. 

With respect to consumers, the principles of social justice apply and a clause may be deemed abusive if it flagrantly breaches the consumer’s interests. 

8. Do you have examples of force majeure clauses which you think (would) work well in practice?

In contracts subject to Polish law, the specific wording of a force majeure clause should be tailored to specific business needs, on a case-by-case basis. 

9. Do you (already) have an example of a force majeure clause which is “corona future proof” or “virus proof” and you willing to share that with us?

No. 

10. Are there any alternative remedies that a party could consider based on being unable to perform a contract due to the corona virus?

A party can apply to a court on the basis of a fundamental change in circumstances (rebus sic stantibus), if the Coronavirus outbreak happened after the contract was entered into. 

According to the Polish Civil Code, if owing to an extraordinary change in circumstances, the performance of an obligation would be excessively onerous or would threaten one of the parties with a material loss, a court may determine the manner of the performance of the obligations and the amount of the consideration. The court might rule to dissolve the contract. An extraordinary change in circumstances must have been unforeseeable to the parties at the time the contract was entered into.

However, a party is not entitled to suspend the performance of its obligations due to rebus sic stantibus prior to obtaining a ruling or injunctive relief from the court. 

Photo of Iain Batty
Iain Batty
Partner
Warsaw
Julia Dyras
Julia Dyras
Senior Associate
Warsaw