Until recently, the Supreme Court rulings concenring contractual penalty clause for the withdrawal from an agreement which in return was due to non-payment of the other party was not uniform. Part of rulings denied the legality of such clause whereas the other part acknowledged it. The whole issue of possibility to stipulate the contractual penalty could be reduced to conclusion whether withdrawal from an agreement can be allowed due to lack of payment by the counterparty of the agreement.
In accordance with Art. 483 § 1 of the Civil Code, contractual penalty can be stipulated in the event of non-performance or improper performance of an non-cash commitment. In the judgments of 7.02.2007 (III CSK 288/06) and of 17.12.2008 (I CSK 240/08), the Supreme Court finds that the contractual penalty for withdrawal from an agreement is invalid if the cause of non-performance or improper performance of an commitment is lack of agreed-upon payments, which is contrary to art. 483 § 1 of Civil Code and is not under legal protection. However, in the judgments of 15.05.2015 (IV CSK 508/13) and of 21.05.2015 (II CSK 539/13) the Supreme Court presents the opposite position by distinguishing between withdrawal from an agreement and non-performance or improper performance of an non-cash commitment. In accordance with the interpretation of legal regulations made in the judgments referred above to, withdrawal from an agreement is a formative legal transaction and as such causes the obligation to pay contractual penalty and not the non-performance of an non-cash commitment.
In the grounds to the judgment of 15.05.2014, the Supreme Court indicated that „the contractual penalty can be effectivly stipulated in case of withdrawal from an agreement by either party due to circumstances attributable to the other party”. This provision will be effective even if the specific cause will be delay in timely payments (just like the Supreme Court in its judgment of 28.05.2014, file no I CSK 345/13).
Given the above mentioned we must agree with the most recent judical decisions according to which stipulating contractual penalty for withdrawal from an agreement is in principle acceptable. It should be noted that according to the mentioned judical decisions, one cannot interfer in the cause of the withdrawal from an agreement regardless of whether one of it is non-performance or improper performance of financial obligations. The contrary conclusion would contradict the principle of freedom of contracts and the reason to limit contractual penalties to non-cash benefits.
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