Standard consumer contracts

Massiness, seriality, typicality of production, services and trade are the main features of modern economic trade. In many areas of life, consumers are not able to negotiate contract terms. They can only choose to conclude or reject it in its entirety.

This applies in particular to contracts concluded with banks, media suppliers, insurance companies, offices, etc. The standardization of contracts is ubiquitous today.

The purpose of this work is to analyse contract patterns, their legal nature, the position of doctrine on this issue, as well as the presentation of coded requirements on the content and form of patterns.

Introduction – the concept of contract patterns, their function and their characters

A widely recognised definition of contract patterns provides that any contractual clauses that have been prepared in advance for future contracts should be considered by them. At the same time, they are unilaterally drawn up by entities that intend to conclude multiple contracts under the same contractual terms[1] .

An entrepreneur using contractual standards shall prepare the contract template for the goods or services he offers and conclude contracts with his counterparties only in accordance with the conditions set out in the template. The trader's counterparty has the choice to accept the conditions and conclude the contract or to resign.

In this model, there is no place to negotiate the content of the agreement between the parties. Proposal[2] does not intend to take into account any individual requirements or needs of the Adherent[3] .

The contractual templates shall specify the content of the majority or only the most important elements of the future contractual legal relationship. The scope and degree of detail of the standard provisions are different.

They can be both very detailed and detailed as well as contained in a fundamental way concerning the most important parts of the agreement chosen by the parties[4] . Detailed indication of the rights and obligations of the parties to the future agreement is the essence of the legal institutions concerned.

Patterns perform many positive functions. They lead to speeding up the conclusion of trade agreements, which is an extremely important and beneficial feature for the parties. The use of patterns in contract contracts is reduced to smaller related expenditures and, consequently, to higher incomes, especially for promoters.

In practice, they are used to conclude contracts both named and unnamed. A major role is played in the development of practice in cases of lack of regulatory regulation in the trading areas concerning certain types of contracts named, e.g. franchise or factoring[5] . As a result, the patterns thus strengthen legal certainty.

Another positive consequence of the use of benchmarks is the reduction of the risk of disputes arising, which is the result of the conclusion of multiple contracts according to the same pattern, assuming that the pattern was developed taking into account acquired experience in its application[6] .

Contract templates are usually presented in the form of a structured set of contractual provisions, which is contained in a document separate from the contract. They are most commonly referred to as rules or general terms of contract. Sometimes they are defined differently, e.g. as instructions or tariffs.

The Supreme Court confirmed in its judgment of 18 December 2002, that forms, tables, price lists or tariffs indicating the rates of charges also constitute contractual patterns[7] .

The provisions of the Act of 23 April 1964 Civil Code[8] ((c) regulate issues relating to general conditions, patterns and rules of procedure in a uniform manner, therefore such distinction is not of much legal importance[9] . Patterns can occur in different forms.

For the legal qualification of the template, its formal form is irrelevant[10]. It does not matter whether it is directly on the contract document or even takes the form of a document as it takes the form of an electronic template.

Legal nature of contract patterns

The legal nature of patterns raises great doubts. The doctrine cannot yet reach full agreement on the adoption of the only theory on this issue.

Patterns affect the behaviour of the parties to which they are addressed in a similar way to legal standards. However, such a view must be regarded as wrong in the legal context[11]. According to Zbigniew Radwański, this concept is incompatible with Article 87 Constitution of Poland[12].

This is supported by the fact that there is a closed catalogue of bodies with competence to legislate in that provision of the Constitution, which does not include civil law entities.

Since only they can issue contractual standards, it is appropriate to recognise the lack of the power of the existing patterns, which characterises the provisions of positive law. This demonstrates the non-normative legal nature of contract patterns.

second The important concept, developed by Czesława Żuławska, is based on the understanding.

According to it, the normative consensus reached by the parties during the conclusion of the contract using a standard should be understood to be the legal rule-based attribution of a specific meaning to the conduct of the consumer who received the serviceable standard of contract[13].

In this work, we focus most on third Proposal on the legal nature of standard contracts. Its author is Ewa Łętowska. This theory is the most universal one and raises the least of doubts, and many authors have joined it since it was formulated. It is also maintained in the light of current legislation[14].

According to this view, documentary patterns are independent of a particular contract. Abstract norms are included in them, the broadcasting of which is lawful. These standards, with the permission of legislators, shape the turnover after they are delivered to the consumer. In view of these assumptions, the author of this concept defined contractual patterns as qualified declarations of will, subject to a specific legal regime, shaping beyond consensus the content of the future legal relationship[15].

Ewa Łętowska notes that the models “shape the content of the legal relationship resulting from the contract in the same way as customs, principles of social coexistence and regulations, and thus are another factor in the legal consequences of the legal action, apart from the mentioned under Article 56 k.c.’.

The concept setting out patterns of contracts as qualified declarations of will has been of great interest for years. A large part of the doctrine is shared by Ewa Łętowska. It is therefore overwhelming in Polish literature.

A pass to create contractual standards

The issue of legitimacy to use contract patterns has provoked much controversy. Below will be the view that prevails strongly in the Polish doctrine and is at the same time consistent with the current European legal thought.

According to the theory adopted in Polish literature, the power to issue contractual standards should be sought in principle the freedom of contracts. It is this principle that enables tenderers to issue and offer patterns on the market, thus imposing contractual conditions[16].

In adopting the above view, account should be taken of the fact that the use by the proposers in creating patterns of freedom of contract directly affects the restriction of this principle on the part of consumers.

Consequently, the autonomy of the weaker party's will, or adherents, is violated, resulting in a breach of the principle of equality between the parties[17]. Dr. Maria Anna Zachariasiewicz is very good at addressing this problem.

It identifies in its publication the issue of patterns as an attempt to protect consumers from abuse of this principle by traders or the question of the limits of freedom of contract. At the same time, he calls this process a search for a "golden measure" between contractual freedom and the demand to protect legal certainty[18].

Universal legal regime of contractual patterns k.c.

Subject matter Article 384-3854 k.c., which contains regulations on contractual patterns, varies. Part of these provisions shall apply to each legal entity. Universal legal regime Article 384(1)(2) dd. 1 and section 4, Article 384¹ and Article 385(1)(2) dd. 1 k.c. These provisions apply to all types of patterns.

Contractual pattern binding

Article 384(1)(2)(4) and Article 384¹ k.c. establish formal conditions for attaching the adherent pattern. These provisions should be respected by the proponents, because these obligations are imposed on them, on which the performance of the standard is dependent on compliance second pages.

The conclusion of the contract using a model is therefore subject to the fulfilment of the conditions laid down in the above provisions. The requirements on the proposer were laid down by the legislator in order to increase the possibility of comfortable and easy consultation of the pattern[19].

In order to bind the parties to the contract with a standard, it is sufficient that the model is served by the proposed party second party on conclusion of the contract[20]. Article 384(1) k.c. includes the term ‘set’ by one of the parties. According to Prof.

Wojciech Popiołek, the hypothesis of the recipe includes even a situation in which the proposer uses a model developed by the person third[21].

The legislator probably had in mind the practice established in the course of trade, which consisted in the use of patterns previously developed by international organisations, business organisations or published in textbooks.

Underlined by the legislator in this provision, the "setting" of the standard leads to the use by the proposer, even if it was developed by him only to conclude one the only contract, or was "borrowed" from someone else, that is, from another source[22].

Another required condition to bind the adderent to the standard is to provide the standard to the counterparty. Service is about handing out second page of the document covering the whole template[23]. This document must cover the entire content of the template.

Antitrust court in judgment of 17 April 2002, stated that, where the content of the template refers to any other pattern, there must also be service of that other template[24]. Service is intended to provide a real opportunity for the other party to become acquainted with the full text of the pattern.

It is necessary to provide service with an easy learning not only about the existence but also about the content of the serviced pattern[25].

Under Article 384(1) k.c. a change has been made by clearly indicating that it has been established by one of the parties to the contract; the pattern shall bind the other party if it has been served before the conclusion of the contract and not so far on its conclusion.

The legislator shall not determine how long it must be between the performance of the standard and the conclusion of the contract. It should be considered that this should be a reasonable period during which the counterparty of the tenderer has a real opportunity to read the template.

Taking advantage of this possibility is not a necessary condition for binding a pattern[26].

In the case of relationships where the use of a standard is customary, service is not required unless the counterparty can easily learn about its content. To prove that the use of a standard is customary in a given relationship is a burden on the proposer[27].

The same entity must also demonstrate that the method used to make the template available has allowed it to be easily known. In the case of patterns in electronic form, according to Article 384(4) k.c.

the tenderer must make it available to the counterparty prior to the conclusion of the contract in such a way that it can store and reproduce this pattern in the usual course of operations.

The method of making available in this provision is intended to ensure service second a template page in the sense described above in the previous provision, i.e. Under section 1. It follows that the incorporation conditions of an electronic pattern are equivalent to the incorporation conditions required for patterns in writing[28].

Due to the specific characteristics of the information transmitted electronically, the requirement of ease of discovery will be met when the recipient is able to reproduce the pattern in the normal course of the operation, fix it in such a way as to store and reproduce it repeatedly[29].

The Civil Code allows the proposer to issue a model during a continuous contractual relationship through regulation Article 384¹ k.c. The new template issued in such circumstances will be able to bind the adderent after completion of the conditions for incorporation of the pattern indicated under Article 384 k.c. by the tenderer.

The wording of the said provision implies an additional requirement, i.e. that the counterparty does not terminate the contract within a short period of notice[30].

Principle of pre-model contract primacy

The principle of priority of the contract before the model is included under Article 385(1) k.c. It states that in the event of a conflict between the content of the contract and the contractual standard, the parties are not bound by the standard but by the contract. This principle has been fully adopted in the case law[31].

This contradiction between the contract and the model may occur after fulfilment two premises. First of all, a contract must be concluded using a pattern.

Otherwise, the relationship between the parties will be shaped by general rules, namely the content of the contract, legal provisions, the principles of social coexistence and customs according to Article 56 k.c.

Then, despite the above requirement, the parties must negotiate some of the issues standardised in the template, leading to a bilateral agreement between them in a manner different from the content of the model clauses.

Where the parties did not negotiate on the content of the agreement and the proposer used two patterns, Article 385(1) k.c. cannot be used.

In the event of a conflict between the terms of the model and the contract, the rights and obligations of the parties individually negotiated by the parties shall prevail.

It is they, rather than the provisions of the standard, which otherwise lay down these rights and obligations that will shape the content of the legal relationship between the parties to the extent agreed by them.

Therefore, benchmarks may only determine the content of the indicated ratio in the absence of any other definition of the issues in question, in principle standardised by consensus[32].

Where the parties have agreed on the issues in question in a less favourable way to the consumer than the standard provisions provided for, the above rule will also apply. The legislator thus clearly points out the need to respect the will of the parties, even if they are detrimental to their[33].

Another consequence of respect for the above autonomy is that the provisions agreed individually cannot be considered as abusive on the basis of Article 385¹ k.c.34. The contradiction between the content of the template and the content of the contract must not affect the assessment of the validity of the latter.

The agreement has legal effects expressed in its content and is still valid. Similarly, the pattern does not lose significance in a specific legal relationship, but only to the extent that the normal issues in it did not lead to a conflict with the content of individually agreed contractual arrangements[35].

This contradiction may arise both at the stage of the conclusion of the contract using the model and at the time of the change of pattern during the continuous contractual relationship, provided that certain provisions of the contract are negotiated.

Where the parties, following the conclusion of a contract using a model by mutual agreement, amend it, it will start to identify certain issues in a different way than the standard, resulting in a conflict between the model and the contract described under Article 385(1) k.c.

In summary, this article clearly shows the relevance of the thesis, according to which the pattern is external to the contract itself. The pattern doesn't become part of the deal. By Article 384 k.c.

the pattern by binding the adherent with the standard can influence and shape the content of the legal relationship linked by the conclusion of the contract, as the laws, principles of social coexistence and established customs do according to Article 56 k.c.

The recognition of contract models as elements of the contract would have the effect that there could not be a conflict of agreement with the model because they would not exist two separate legal entities, i.e. pattern and contracts. In such a situation, only the contrary to the contract could be recognised.

Code requirements for content and format of patterns

Since proponents obtain legitimacy to use and create patterns in trade on the principle of freedom of contract, the scope of model-making freedom is the same as in the case of the above-mentioned principle to shape the content of contractual relations[36].

As a result, it should be considered that patterns must not violate and be contrary to mandatory laws and the principles of social coexistence. However, the legislator additionally imposed other requirements on the promoters.

They are that the template of the contract must be formulated unambiguously and in a understandable manner, according to Article 385(2) dd. 1 k.c. In literature, this order was defined as the principle of transparency of the standard.

According to most representatives of Polish literature, the order to understand the pattern includes the content as well as the form, or external form of the pattern. Only the content of the template refers to the requirement of clarity[37].

According to Mr Lemkowski, clarity means that the provisions of the standard must not raise doubts as to their meaning. Their content is only meant to indicate one Interpretation[38]. It follows that language should be used in a way that does not lead to ambiguity of the text.

The understanding of the patterns should be understood to mean the ease of understanding of the content and its adoption. This must be achieved by organising the text of the standard provisions in a transparent manner, the way in which the text is edited or the language correct.[39].

The principle of transparency covers all contractual patterns. It is of a general nature as it concerns general terms and conditions of contracts, regulations and designs. It is applied in general, professional and consumer terms.

Interpretation of patterns

Interpretative rules applicable to declarations of intent and not to legal provisions should be applied to standard contracts. Polish literature believes that interpretation of patterns should be based on a specific rule under Article 65(1) k.c. The use of the established rule is definitely excluded under Article 65(2) k.c.

This rule refers to contracts and is intended for them[40]. The fact that patterns are not covered by the consensus of the parties is the main reason for the adoption of the rule placed under Article 65(1) k.c. for the mandatory and most appropriate[41].

The fact that the patterns are aimed at an indefinite audience makes them interpreted on the basis of an objective method, together with the determination of the meaning of the standard provisions from the point of view of the knowledge and cognitive capabilities of the typical target of the pattern. For this reason, linguistic interpretation rules are essential.

Under Article 385(2) dd. 2 k.c. the legislator placed the interpretative rule. According to that provision, the ambiguous provisions of the contractual standard must be translated in favour of the consumer. It is defined as an interpretation in dubio contra proferent.

The meaning of the quoted interpretation is based on the adoption of the most favourable meaning of the provision of the standard for the consumer in case of ambiguity. This interpretation is addressed only to consumers. The regulation limiting its application accepted the doctrine as incorrect.

Its representatives also advocated the possibility of using it in bilaterally professional and universal trade[42]. According to Article 385(2) dd. 3 k.c., the stated principle does not apply in cases where the standard contract is not permitted.

Rules of interpretation of contractual patterns are also created by the Supreme Court case law.

For example, the Supreme Court has made it clear that ‘the scope of the concept of “orders defining the main statements of the parties” used by the legislator under Article 3851(1) k.c., will largely mean statements belonging to the categories concerned relevant in the civil relationship"[43].

The Supreme Court also indicated that “on the background Article 65 k.c. a combined interpretation method shall be adopted which, in the case of declarations of will to another person, gives priority to the meaning of the declaration which the two parties actually gave to him at the time of his submission (...).

In the case of a declaration made in writing, the meaning of the declarations of will shall be determined on the basis of an interpretation of the text of the document. The basic role here is the linguistic norms of meaning, but also the context and meaning relationships of the individual provisions."[44].

Recognition of the clause as not permitted

Since the clauses are set unilaterally by the entrepreneur, it is possible that it will impose clauses that will be detrimental to consumers.

The Civil Code provides that provisions that have not been agreed individually do not bind the consumer if they shape his rights and obligations in a way contrary to good manners and grossly affecting his interests.

For example, clauses excluding the liability of the trader for failing to perform or failing to perform the obligation may be indicated. If the consumer assumes that the contract offered by the trader contains provisions which are not permitted, he should draw attention to this fact.

Where he does not agree to change the points of the contract in question, it is best to change the counterparty. If, on the other hand, the consumer has already signed a contract containing prohibited clauses, they do not bind the consumer by law, in accordance with the provisions of the C.C.

In such a case, the consumer should present his position to the trader, and if he does not come to him, he should ask the court (the district court or district court) to consider the provision in question to be non-binding. It is a so-called "accidental control" of the provisions of the standard contract.

At the same time, the consumer may notify the President of the Office for Competition and Consumer Protection (hereinafter: the President of the Office of Consumer Protection) of the suspicion of the use by the entrepreneur of an unauthorised provision of the standard contract.

On this basis, the President of the UOKiK initiates a procedure to consider the provisions of the standard contract not permitted. The procedure ends with an administrative decision in which the President of the POC decides whether the clause is not authorised.

The termination decision has effect on the trader who applied it and on all consumers who concluded an agreement with it on the basis of the clause indicated in the decision. This is called abstract control of the provisions of the standard contract.

In the decisions issued, the President of UOKiK may also specify measures to remove the ongoing effects of the unlawful practice of the entrepreneur and impose a penalty on the entrepreneur.

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1 M. Bednarek, Patterns of contracts in Polish law, Warsaw 2005, p. 1, as well as the judgment of the Constitutional Tribunal of 8 December 2003, reference no. K 3/02, OTK-A 2003, No 9.

2 Proferent – an entrepreneur using contractual patterns.

3 Adherent (or addressee) – a counterparty of a trader using contractual patterns.

4 W. Czachórski and Others, Commitments. Summary of the lecture, ed. 11, Warsaw 2009, p. 161.

5 W. Ash, Comment to Article 1-449(11) [w]: Civil Code. Commentary, K. Pietrzykowski (ed.), ed. 5, t. 1, Warsaw 2008, p. 1070.

6 M. Bednarek, Patterns of Contracts..., op. cit., p. 10.

7 reference no. IV CKN 1616/00, OSN 2004, No 4, item 54.

8 i.e. Journal of Laws of 2018, item 1025.

9 W. Ashes, Commentary..., op. cit., p. 1072.

10 M. Bednarek, Patterns of Contracts..., op. cit., p. 2.

11 Z. Radwański, A. Olejniczak, Commitments – General part, du. 9, Warsaw 2010, p. 154.

12 Constitution of the Republic of Poland from 2 April 1997, Journal of Laws of 1997, item 483.

13 Mr Żuławska, Commentary on Civil Code, t. 1, Edition 7, Warsaw 2006, p. 128.

14 E. Łętowska, Contractual Patterns, Ossolineum 1975, p. 199.

15 M. Bednarek, Patterns of Contracts..., op. cit., p. 74.

16 E. Łętowska, Consumer Contract Law, Warsaw 2002.

17 M. Pecina, Control of patterns outside consumer turnover, Kraków 2003, p. 31.

18 M.A. Zachariasiewicz, Some legal problems related to the use of non-normative contractual patterns, “Rejent” 1995, No 9, p. 119.

19 W. Pyzioł, Contract of bank account, Warsaw, 1997, p. 25-26.

20 W. Ashes, Commentary..., op. cit., p. 1077.

21 Ibid.

22 M. Rejdak, Definition of the term of the consumer contract template, "Legal, Economic and Social Movement", notebook Regulation (EU) 3/2005, p. 116.

23 Ibid. p. 118.

24 Judgment of the Antitrust Court of 17 April 2002, reference no. XVII Ama 81/01, LEX Polonica.

25 T. Turek, F. Weman, Consumer Protection Law in Change, Kraków 1998, p. 46.

26 M. Orlicki, J. Krzywniak, Insurance Contract. Comment on the amendment of the Civil Code, Oficina, Warsaw 2008.

27 E. Łętowska, Protection of certain consumer rights. Commentary, Warsaw 2001, p. 83.

28 W. Ashes, Commentary..., op. cit., p. 1081.

29 M. Olczyk, Comment to Article 384 k.c., LEX/El. 2010.

30 M. Bednarek, Patterns of Contracts..., op. cit., p. 90.

31 Cf. judgment of the Supreme Court of 19 March 2002, reference no. IV CKN 885/00, OSN 2003, No 3, item 35.

32 M. Pecina, Pattern Control, op. cit., p. 65.

33 M. Bednarek, Patterns of Contracts..., op. cit., p. 115.

34 M. Lemkowski, Material consumer protection, RPEiS 2002, No 3, p. 77.

35 Z. Radwański, A. Olejniczak, Commitments – General part, du. 9, Warsaw 2010, p. 154.

36 M. Bednarek, Patterns of Contracts..., op. cit., p. 98.

37 E. Evening, [in:] A. Brodeck-Chamera i. in., Business insurance law. Comment. Volume II. Law on contracts in insurance: comment on regulations and selected contract patterns, Wolters Kluwer, Warsaw 2010, p. 116.

38 M. Lemkowski, Material Security..., op. cit., p. 68.

39 M. Bednarek, Patterns of Contracts..., op. cit., p. 100.

40 Ibid. p. 109.

41 K. Grobelny [in:] Civil Code, Comment under ed. E. Anger, du. 3, Warsaw 2008, t. 1, p. 906.

42 M. Lemkowski, Material Security..., op. cit., p. 69 and 76.

43 Supreme Court Judgment - Civil Chamber of 1 March 2017, reference no. IV CSK 285/16 (legalis.pl, Judgment No 1618112).

44 Supreme Court Judgment - Civil Chamber of 24 March 2017, reference no. I CSK 443/16 legalis.pl, Judgment No 1612219).