Non-payment, payment and transfer of a deposit or an advance of money on a preliminary contract

adwokat-radca-prawny.pl 2 years ago

The author of the entry is Advocate

In its judgement of 30 January 2004, I CK 129/03 the ultimate Court explained that, according to Article 394 of the CCC, if, on the conclusion of a peculiar contract, 1 organization gave the another a certain monetary amount (possibly movable goods - which, in practice, is improbable to happen) and it cannot be clearly established, by applying the general rules for the explanation of declarations of will, the importance of the parties being bound by the provision of that sum, must be regarded as valid in specified a way that, in the event of a failure by 1 of the parties to a contract, the another organization may, without any appointment of an additional period from the contract, hold the amount received and, erstwhile it itself has given it, may request a sum twice as a consequence of the circumstances for which neither organization is liable or for which both parties are liable.

Article 394 KC so states that the premium is an additional contractual reservation, which comes into effect erstwhile the another organization is given a certain monetary sum, which may be included, in principle, in any contract, on its conclusion.

At the same time, this provision defines as a contribution the monetary amount in question to the another organization erstwhile the contract is concluded. Taking into account the current reality of money trading, the donation of a monetary sum in the light of this provision should be understood as not only payment by way of a cash-free payment.

Recognising as a contribution within the meaning of Article 394 KC only specified an additional contractual reservation, which takes effect erstwhile giving the another organization the monetary sum at the conclusion of the contract (cf. the judgement of the ultimate Court of 7 October 1999, I CKN 262/98, OSNC 2000, No 4, item 71), explains - as the ultimate Court indicated in the judgement in question - the interpretative function of that provision: the establishment of a peculiar regulation of interpretation, which applies erstwhile the general rules for the explanation of declarations of will do not let for a clear determination of the meaning of statements made in connection with the provision of a certain monetary sum by 1 party. The inadequacy of the general rules for the explanation of declarations of will contained in Article 65 of the CCC and the request to usage a circumstantial interpretative regulation shall only be disclosed if 1 organization has provided the another with a monetary sum at the conclusion of the contract.

They can compete with each another on the different meanings of the declarations of will made in connection with the provision of this sum, and the choice of 1 of these meanings by applying only the rules resulting from Article 65 of the CCC may be hard to overcome. The meaning attributed to declarations of will in specified a situation by Article 394 of the CCC shall be deemed to correspond to the typical expectations of the parties. As examples of the provision of a monetary sum for the conclusion of a toll contract within the meaning of Article 394 of the CCC, 1 organization may give a certain amount of cash together with the signing of the contract and the payment by 1 organization of a certain amount to the bank account shortly after the contract has been signed in connection with the agreement of specified payment in the signed text of the contract.

In its judgement of 8 February 2008 I CSK 328/07 (OSNC 2009, No 4, item 60), the ultimate Court concluded - indicating that, in accordance with Article 394 § 1 of the CCC, the deposit should be made erstwhile the contract was concluded - that it was clear from the wording of Article 394 § 1 of the CCC that the provision was of a dispositive nature, It is so not excluded, as is pointed out in the doctrine, that the parties agree in the agreement that the amount to be paid will be transferred to the counterparty within the agreed period after the conclusion of the contract, so that it will be paid into its account. The exclusion of specified a possibility, peculiarly with a deposit of considerable value, would exposure the parties to additional difficulties in the safety of specified a transaction. specified a explanation of Article 394 § 1 of the KC would lead to conclusions clearly contrary to the order for payment by bank account resulting from Article 22 of the Act of 2 July 2004 on Freedom of Business (Journal of Laws of 2007 No 155, item 1095 as amended). For example, the fact that in the preliminary agreement of the organization determined that the amount of the deposit would be paid within 3 days of the conclusion of the contract by transfer to the account does not infringe Article 394(1) KC.

In view of the above, it should be assumed that, if the parties want to effectively reserve the payment to be presented later than the conclusion of the contract, they should include in the contract an appropriate provision setting out the time limit for the payment. This means that a contribution which was not made at the conclusion of the contract and the parties did not indicate in the contract its subsequent transportation should be regarded as ineffectively reserved. The same effect will besides happen if - which is besides accepted in literature - the page does not give a deposit within the specified time limit.

The general rules for the explanation of declarations of will (contracts) contain Article 65 KC. The ultimate Court in its resolution of the composition of 7 judges of 29 June 1995, III CZP 66/405 (OSNC 1995, No 5, item 168) adopted a alleged combined explanation method against the background of this provision. This position is besides expressed in subsequent judgments, e.g. the ultimate Court judgement of 21 November 1997, I CKN 825/97, OSNC 1998, No 5, item 85 and of 20 May 2004, II CK 354/03).

This method of explanation gives precedence - in the case of declarations of will to another individual - to the meaning of a declaration of will which actually gave it both parties at the time of its submission (subjective explanation pattern). This precedence is based on the order for examination contained in Article 65(2), which was consistent with the intent of the parties to the contract, alternatively than relying on the literal wording of the contract.

How the parties, by making a declaration of will, understood them can be demonstrated by both evidence from the proceeding of the parties and another means of evidence. In order to find how the parties actually understood the declaration of will at the time of its submission, their proceedings may besides be applicable after the submission of the declaration, e.g. the way the contract was executed (cf. ultimate Court judgement of 17 February 1998, I PKN 532/97, OSNAPiUS 1999, No. 3, item 81). All evidence to find how the parties actually understood the written declaration of will does not preclude Article 247 of the NPC. The evidence presented in this case is not directed against the warp or over the warp of the document, but simply serves to establish it by explanation (cf. ultimate Court ruling of 18 September 1951, C 112/51, OSN 1952, No 3, item 70 and of 4 July 1975, III CRN 160/75 OSPIKA 1977, No 1, item 6).

At times, the view that the legal importance of a declaration of will cannot be recognised by the parties themselves erstwhile it deviates from the clear sense of a declaration of will resulting from language rules refers to a non-supported concept in Article 65 of the KC, anachronistic concept expressed in the clara non sunt explanation paremia. The latest thorough statements of the discipline of civilian law rejected this concept. It was besides broken by the ultimate Court in respective judgments issued in fresh years (cf. judgments of 21 November 1997, I CKN 825/97, OSNC 1998, No 5, item 81, of 8 June 1999, II CKN 379/98, OSNC 2000, No 1, item 10, of 7 December 2000, II CKN 351/00, OSNC 2001, No 6, item 95, of 30 January 2004, I CK 129/03, of 25 March 2004, II CK 116/03, and of 8 October 2004, V CK 670/03, OSNC 2005, No 9, item 162).

Strengthening the explanation only to the "unclear" provisions of the contract - as the ultimate Court explained in its judgement of 25 March 2004, II CK 116/03 - would have been based in Article 65 KC if it considered only the crucial meaning of the contract resulting from the language rules. However, in accordance with Article 65(2) of the KC, the agreements should examine what was the consistent intention of the parties and the intent of the agreement alternatively than being based on its literal wording. This provision so allows for a situation in which the appropriate meaning of the contract determined in application of the directives referred to therein will disagree from its "clear" meaning in the light of language rules. The process of interpreting contracts can so end due to its "clear" sense only if the content of the contract is "clear" after the application of subsequent explanation rules.

If it turns out that the parties had a different knowing of the content of the declaration of will, then it is legally binding - according to the combined method of explanation - that is, the meaning of the declaration of will determined according to the nonsubjective pattern should be considered. At this phase of interpretation, the request to defend the addressee of the declaration of will makes it clear that this is the meaning of the statement, which is available to the addressee under the presumption - as defined in the doctrine and judicature (cf. the ultimate Court resolution of 29 June 1995, III CZP 66/95) - of careful explanation procedures on his part. Only specified trust in the addressee deserves protection for the meaning of the declaration of will, which is the consequence of his careful explanation procedures. This is confirmed by the order contained in Article 65(1) of the CCC that the declarations of will should be interpreted as required by the circumstances in which they were lodged, the principles of social coexistence and established customs.

When determining the above meaning of a declaration of will, it is essential to start with the sense resulting from language rules, but first of all to take into account the principles, phrases and language customs utilized in the environment to which the parties belong and then the general rules of language. However, we must bear in head not only the explanation of the phrase but besides its context. Therefore, the meaning of the phrase interpreted cannot be accepted, which would conflict with the another components of the statement. This would argue with the presumption that the parties to the legal trade would act rationally.

When interpreting a declaration of will, it is besides essential to take into account, outside the linguistic context, the circumstances of making a declaration of will, i.e. the alleged situational context (Article 65 §1 KC). It includes in peculiar the course of negotiations (cf. the ultimate Court judgement of 3 September 1998, I CKN 815/97, OSNC 1999, No 2, item 38), the existing experience of the parties (cf. the ultimate Court judgement of 4 July 1975, III CRN 160/75, TSO 1977, No 1, item 6), their position (expressing, for example, the conduct of business activity).

Notwithstanding this, Article 65(2) of the KC requires that the intent of the contract be followed erstwhile interpreting it. It is not essential for this to be an nonsubjective agreed by the parties, it is adequate - by analogy with Articles 491(2), 492 and 493 of the CCC - to be an nonsubjective intended by 1 party, which is known to the other. It should be divided into the view that besides under Polish law, and not only in relation to relations with the participation of consumers (Article 385 §2 KC), doubts should be explained to the detriment of the organization who edited the agreement. The hazard of uncertainty arising from unclear provisions of the agreement, which cannot be removed by interpretation, should be borne by the organization who has edited the contract.

The assessment besides requires the question of the contractual amount of the deposit of the parties, since its analysis is applicable for determining the admissibility of the reservation of the deposit of a certain amount. The amount of the deposit has not been specifically regulated, meaning that it is subject to Article 353¹ KC the rule of contractual freedom (cf. ultimate Court judgement of 30 January 2004, I CK 129/03). However, it is believed that the sum given as a deposit is simply a fraction - usually tiny - of the benefits that 1 of the parties is expected to execute for the another party. In its judgement of 15 May 2003, I CKN 340/01, the ultimate Court stated that Article 394 §2 of the CCC, which states that, in the event of the performance of the contract of the deposit, it is clear that the amount of the deposit should stay equivalent to the value of the contract. judgement of the ultimate Court - civilian Chamber of 16 November 2017 V CSK 79/17

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