COMMERCIAL CONTRACTS

1. COMMERCIAL CONTRACTS INTRODUCTION CONCLUSION OF A CONTRACT

2. Concept of a commercialcontract • A contractis a legalact, undertaken by atleasttwoparties, whichisconcluded upon makingunanimousdeclarations of intent by allparties. • A commercialcontractis a contract to whichatleast one party isanentrepreneur and whichrelates to his business activity.

3. Anentrepreneur • Art. 431An entrepreneur is a natural person, a legal person or an organizational unit referred to in article 331 § 1 conducting business or professional activity on its own behalf. • Art. 551 An enterprise is an organized set of tangible and intangible elements intended for conducting business activity.

4. A consumer • Art. 221. A consumer is any natural person performing with an entrepreneur a legal act which is not directly related to his business or professional activity.

5. Types of commercialcontracts • Sale contract • Construction workscontract • Tenancycontract, leasecontract • Leasing contract • Agencycontract • Carriagecontract • Insurancecontract • Bank accountcontract • Creditcontract

6. Freedom of contracts • Art. 3531. Parties concluding a contract may arrange their legal relationship at their discretion so long as the content or purpose of the contract is not contrary to the nature of the relationship, the law or the principles of community life.

7. Conclusion of a contract • Manners of concluding a contract: • by offer and acceptancethereof, • by negotiations, • by tender / auction.

8. Anoffer • Art. 66 § 1. A declaration made to another party of the intent to execute a contract is deemed an offer if it lays down the key provisions of the contract. • Keyprovisionsaresocalledessentialianegotiiof a contract. • A contractisconcludedwhen the offerorreceives a declaration of the other party thatitacceptsanoffer.

9. Anoffer • Art. 71. Announcements, advertisements, price lists and other information addressed to the public or to individual persons, in case of doubt, shall not be deemed an offer but an invitation to conclude a contract.

10. Anoffer • A.B. sent to B.A. a writing in which he statedthat he isinterested in buyingB.A.’s car for no morethan PLN10000. Afterreceivingthiswriting, B.A. called A.B. and saidthat he acceptssuchterms. • Did the partiesconclude the contract?

11. Anoffer • Art. 61§ 1. A declaration of intent which is to be made to another person is deemed made at the time it reaches that person in such a manner that he could have read its content. The withdrawal of a declaration of intent is effective if it arrives together with the declaration, or earlier. • Art. 662§ 1. In relations between entrepreneurs, an offer may be withdrawn before a contract is executed if a declaration of withdrawal is submitted to the other party before this other party sends a declaration accepting the offer.

12. Anoffer • A.B. sent to B.A. a writing in which he statedthat he isinterested in buyingB.A.’s car for PLN10000. Afterreceivingthiswriting, B.A. called A.B. and saidthat he acceptssuchterms. A.B. respondedthat a contractis not concluded, because he withdraws the offerwhichthereforeis no longervalid. • Is the contractconcluded?

13. Anoffer • Art. 68 An offer accepted with a stipulation of changes or supplements to its content shall be deemed a new offer. • Art. 681§ 1. In relations between entrepreneurs, a reply to an offer with a stipulation of changes or supplements which do not materially alter the content of the offer shall be deemed acceptance of the offer. In this case, the parties shall be bound by the contract as worded in the offer, takingintoaccountthe stipulations contained in the reply thereto.

14. Anoffer • A.B. sent to B.A. a writing in which he statedthat he wants to buyB.A.’s car for PLN10000. B.A. sendback the writing in which he agreed to a sell the car but statedthat the priceis PLN10200. Both partiesareentrepreneurs. • Was the contractconcluded?

15. Anoffer • Art. 19 (3) of CISG: Additionalordifferenttermsrelating, amongotherthings, to the price, payment, quality and quantity of the goods, place and time of delivery, extent of one party’sliablity to the otheror the settlement of disputesareconsidered to alter the terms of the offermaterially.

16. Anoffer • Art. 682If an entrepreneur receives from a person with whom he has permanent business relations an offer to conclude a contract as part of his business activity, the lack of immediate reply shall be deemed acceptance of the offer. • Art. 69If, according to the practiceestablished in given relations or according to the wording of the offeritis not requiredthat the offeror receive a declaration of acceptance from the other party, in particular if the offeror demands immediate performance of the contract, the contract shall be concludedif the other party starts to perform it in due time; otherwise the offer ceases to be binding.

17. Anoffer • A.B. limitedliabilitycompanyhas a carriageenterprise. It owns a fleet of trucks. B.A. isanentrepreneurwhosellssomefoodstuff to retailmarkets. He ownshisownfleet of cars but whichis not sufficient to hisneeds. Therefore B.A. from time to timeiscompelled to usecarriage services of third parties. In September 2018, A.B. threetimescarried the goods of B.A. • On October 8th, B.A. sentan e-mail to somecontact person on the part of A.B. in which he statedthat he wanted to order a carriage of hisfoodstuff from venue A to venue B. He stipulatedthathisfoodstuffhad to be takenover on October 10th at 5 a.m. and be delivered to the adresseeat 10 a.m. of the same day. A truck of A.B. has not shownup and therefore the goodswere not delivered on time. B.A. was charged with a contractualpenalty by hiscontractor. Now he demands a compensation from A.B., claimingthatit was obliged to carry out a carriage. B.A. defendsitselfallegingthat a contracthas not beenconcluded. • Was the contractconcluded?

18. Anauction and a tender • Art. 701§ 1. A contract may be executed through an auction or tender. • § 2. The announcement of an auction or a tender should specify the time, place, subject and terms and conditions of the auction or tender or specify how these terms and conditions are made available • § 3. The announcement and the terms and conditions of an auction or tender may be changed or cancelled only if their wording so provides. • § 4. The organizer, from the time the terms and conditions are made available, and the bidder, from the time the bid is made in accordance with the auction or tender announcement, are obliged to proceed in accordance with the announcement and the terms and conditions of the auction or tender.

19. Anauction and a tender • Art. 702§ 1. A bid made during an auction ceases to be binding if another auction participant (bidder) makes a more favorable bid unless the terms and conditions of the auction provide otherwise. • § 2. A contract is executed in an auction at the time a bid is knocked down. • § 3.If the validity of a contract depends on the fulfillment of specific requirements provided for in the law, both the auction organizer and the participant whose bid has been accepted may demand that the contract be executed. • Art. 703§ 1. A bid made during a tender ceases to be binding if another bid is chosen or if the tender is closed without a bid being chosen unless the terms and conditions of the tender provide otherwise. • § 3. The time at which the contract is executed by way of a tender is determined according to the regulations on accepting bids unless the tender terms and conditions provide otherwise. The provision of Article 702 § 3 applies accordingly.

20. Negotiations • Art. 72. § 1. If the parties hold negotiations in order to execute a specific contract, the contract is executed when the parties reach an agreement on all the provisions which were the subject of the negotiations. • § 2. A party which enters into or conducts negotiations in breach of good custom, in particular without intending to execute a contract, is obliged to remedy any damage which the other party suffers by the fact that it was counting on the contract being executed.

21. Distance and off-premisescontracts • DIRECTIVE 2011/83/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCILof 25 October 2011on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council • In Poland, thisdirective was implemented by the law of 30 May 2014 on consumer’sright.

22. A distancecontract • Art. 2 (7) of the directive: • ‘distance contract’ means any contract concluded between the trader and the consumer under an organised distance sales or service-provision schemewithout the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded;

23. An off-premisescontract • Art. 2 (8) of the directive: • off-premises contract’ means any contract between the trader and the consumer: • (a) concluded in the simultaneous physical presence of the trader and the consumer, in a place which is not the business premises of the trader; • (b) for which an offer was made by the consumer in the same circumstances as referred to in point (a); • (c) concluded on the business premises of the trader or through any means of distance communication immediately after the consumer was personally and individually addressed in a place which is not the business premises of the trader in the simultaneous physical presence of the trader and the consumer; or • (d) concluded during an excursion organised by the trader with the aim or effect of promoting and selling goods or services to the consumer;

24. An off-premisescontract • Art. 2 (9) of the directive: • ‘business premises’ means: • (a) any immovable retail premises where the trader carries out his activity on a permanent basis; or • (b) any movable retail premises where the trader carries out his activity on a usual basis;

25. Distancecontracts and off-premisescontracts • Art. 6 (1) of the directivelays down informationthatanentrepreneur (trader) has to provide a consumer with before a contractisconcluded, amongothers: • the main characteristics of the goods or services, the identity of the trader, the geographical address at which the trader is established and the trader’s telephone number, fax number and e-mail address, the total price of the goods or services inclusive of taxes, where a right of withdrawal exists, the conditions, time limit and procedures for exercising that right.

26. Distancecontracts • Art. 8 (6) of the directive: Where a distance contract is to be concluded by telephone, Member States may provide that the trader has to confirm the offer to the consumer who is bound only once he has signed the offer or has sent his written consent. Member States may also provide that such confirmations have to be made on a durable medium. • Art. 20 (2) of the Polish law on consumer’srights: Ifanentrepreneuroffers to a consumerconclusion of a contract by telephone, itshallconfirm a content of a proposedcontract in writingor on otherdurable medium. A consumer’sdeclaration of conclusion of a contractiseffectiveonlyifit was fixed in writingor on otherdurable medium afterreceipt of a confirmation from anentrepreneur.

27. Distancecontracts and off-premisescontracts • Art. 9 of the directive: • the consumer shall have a period of 14 days to withdraw from a distance or off-premises contract, without giving any reason • the withdrawal period shall expire after 14 days from: • (a) in the case of service contracts, the day of the conclusion of the contract; • (b) in the case of sales contracts, the day on which the consumer or a third party other than the carrier and indicated by the consumer acquires physical possession of the goods • (c) in the case of contracts for the supply of water, gas or electricity, where they are not put up for sale in a limited volume or set quantity, of district heating or of digital content which is not supplied on a tangible medium, the day of the conclusion of the contract.