On 20 November 2019 was taken in the Supreme Court of the Resolution 7 Judges, of signature III CZP 3/19. In accordance with that resolution, ‘it is not permissible to reserve a contractual penalty in the event of withdrawal from the contract due to default of a monetary obligation’.
This resolution was taken in response to the legal question put before the Supreme Court by the appeal court, which raised doubts about this issue at the stage of recognition of the appeal.
Therefore, the Supreme Court was referred to the legal question: ‘Is it permissible to reserve a contractual penalty in the event of withdrawal due to a failure to comply with the contract by one of its parties, a money-based liability?’.
In the statement of reasons, the Court of Appeal drew attention to the two, differing interpretations concerning the reservation of a contractual penalty in the event of withdrawal.
In order to justify the order of the Supreme Court to refer the matter to the composition 7 the judges, the Supreme Court indicated that effective withdrawal from the contract creates a new state of the law in the relations of the parties, and Article 494 k.c. provides the basis for the settlement of the parties after withdrawal from the contract, which is separated from its provisions
first The judicial direction combines the exercise of the right of withdrawal with the type of benefit for which the non-execution/inadequacy was the reason for the declaration on this subject.
If, therefore, the exercise of the right of withdrawal was due to the debtor's failure or inadequate execution of the monetary obligation, then the content Article 483 k.c. the effectiveness of contractual clauses requiring the debtor to pay a contractual penalty should be refused.
An example of this ruling is, for example, the thesis contained in the judgment of the Court of Appeal in Warsaw dated 24 April 2018, VII AGa 249/18: „There are no grounds for demanding a contractual penalty reserved in the event of withdrawal from the contract if the basis for withdrawal from the contract was a non-execution of a monetary obligation.’
The Court of Appeal also indicated second the current case law, also approved in the case law of the ordinary courts, which shows that the reservation of a contractual penalty in the event of withdrawal from the contract is admissible regardless of the monetary or non-monetary nature of the parties' obligations.
As soon as the contract is withdrawn, an obligation is created between the parties which it provides Article 494 k.c. However, it is not a monetary undertaking and therefore the nature of the original liability of the parties is not material.
In order to justify the order of the Supreme Court to refer the matter to the composition 7 the judges, the Supreme Court indicated that effective withdrawal from the contract creates a new state of the law in the relations of the parties, and Article 494 k.c.
forms the basis for the settlement of the parties after withdrawal from the contract, which is separated from its provisions.
In order to establish a claim for reimbursement of mutually fulfilled benefits and a claim for compensation of damage resulting from default, only effective withdrawal from the mutual agreement is relevant, not the legal nature and the provisions of the contract from which one She quit.
Since this ex tunc effect of withdrawing from the contract in the form of a waiver of the obligation causes not only the rights and obligations resulting from it to expire, but the fiction that the contract was not concluded cannot be sought for the legal basis of the claims envisaged. Under Article 494 k.c.
in the provisions of a contract which in a legal sense no longer exists. Thus, the legal basis for the compensation claim is in such circumstances Article 494 k.c. (related to Article 471 k.c.), and the factual basis - damage to the creditor's assets resulting from the default of that obligation which expired retroactively.
Such damage, including the full negative consequences of the creditor’s property situation resulting from the debtor’s obligation to withdraw from the contract, is of a material but not monetary nature. Recovery of the loss resulting from default (Article 494 k.c.
in fine), within the limits of the positive interest of the contract, and not only the damage resulting from the delay, may be caused by payment, arranged in the event of withdrawal from the contract, of a contractual penalty.
The compensation claim for payment of such a contractual penalty is therefore not a contractual claim, but a legal claim.
The position that a contractual penalty is effective in the event of withdrawal of the contract, irrespective of the nature of the benefits that the parties to the contract to which the contract was waived and irrespective of the nature of the unexecuted/inadequate benefit resulting in the withdrawal from the contract, was stated by the Supreme Court in judgments, inter alia dated 13 June 2008 I CSK 13/08 and dated 21 May 2014 III CSK 529/13 (not publ.).
It should be pointed out that the assessment of the effectiveness of the contractual penalty reservation in the event of withdrawal from the contract cannot be detached from the assessment of the non-execution or improper performance of the contract.
Whenever a contractual penalty has been reserved in the contract in the event of withdrawal from the contract, it is necessary to determine whether the obligation: monetary or non-monetary withdrawal has occurred in connection with the failure to comply with the contract.
At this point, refer to the wording Article 483 k.c., according to which the possibility to claim in the contract that compensation for damage resulting from default or breach of the obligation will be made by the payment of a certain sum relates only to non-monetary liabilities.
Therefore, a request for payment of a contractual penalty may be considered valid only if it was a non-monetary breach of a non-monetary obligation, and if a breach of a monetary obligation is an obstacle to taking into account an action for payment of such a contractual penalty is an absolute obligation Article 483 k.c.
Therefore, the Supreme Court has rightly held that the reservation of a contractual penalty in the event of withdrawal from the contract due to a default of a monetary obligation is not admissible. Another view would conflict with the mandatory wording Article 483 k.c.
Author: Michał Wasilenko
Lawyer, Senior Associate in the Legal Department, member of the Bar Association in Lublin, graduate of the Faculty of Law and Administration at Maria Curie-Skłodowska University in Lublin. He specializes in commercial and civil law law.