Expert Guide on Force Majeure and Unforeseen Circumstances in the Context of Global Trade War in Poland

In business to business relations, parties may include their own force majeure clauses. Although Polish law recognises the concept of force majeure, it is not defined by statute. Instead, its interpretation has been shaped by case law and legal doctrine, which define it as an external and unforeseeable event, the consequences of which could not have been prevented.

Where the parties have regulated force majeure events in the contract, whether the imposition of import tariffs qualifies as such an event depends primarily on the wording of the contract. If import tariffs are not explicitly mentioned there and the list of events is provided as an exemplary catalogue, it must be assessed whether the imposition of tariffs corresponds to the listed examples and reflects the parties’ intent. On the other hand, if the parties have agreed to a closed list of events constituting force majeure, it may be significantly more difficult to determine whether tariffs fall within that scope.

If the contract does not contain a force majeure clause, the parties may still rely on the statutory concept and potentially be released from liability for non-performance. According to the case law, the issuance of an act by a public authority may constitute a force majeure event, but this still needs to be assessed on a case-by-case basis. 

A party may apply to the court based on a fundamental change in circumstances (rebus sic stantibus). Under the Polish Civil Code, if an extraordinary change in circumstances makes the performance of an obligation excessively burdensome or threatens one party with a significant loss, the court may adjust the manner of performance or the amount of consideration. In some cases, the court may even dissolve the contract.

For an extraordinary change in circumstances to apply, it must have been unforeseeable by the parties at the time the contract was concluded. Case law from the Supreme Court indicates that significant and unexpected changes in customs and tax rates may be considered an extraordinary change in circumstances.

To better manage the risk of sudden import tariffs and similar trade barriers, parties should consider including force majeure clauses, price adjustment clauses, termination clauses, risk allocation clauses or arbitration clauses in their contracts.

In addition, the parties may include a clause setting out the procedure for renegotiation or termination of the contract in the event of such significant and unforeseeable legal or regulatory changes. This clause should define the applicable timeframes and conditions under which the parties are obliged to enter into renegotiations.