GTC – admissible provisions and modifications during contract lifetime

The Polish Civil Code (CC) provisions on contract templates (Articles 384-385) contain no restrictions on the topics they may cover. This means that any modifications of the rules set out in the Civil Code by means of the GTC must be assessed on a case-by-case basis from the perspective of the modified provisions. In other words, if the general rules governing a certain instrument allow modifications by the parties, this may well be done by introducing a contract template's provision to the contract.

As regards the modifiability of liability for performance of an obligation, the general rule is that a debtor is liable for damage arising from non-performance or improper performance of an obligation unless the non-performance or improper performance is due to circumstances for which the debtor is not responsible (Article 471 CC), and is obliged to exercise due care in performing the obligations (Article 472 CC). 

However, Article 473 CC lets the parties regulate this issue differently in a contract. It is possible to extend the list of situations for which the debtor is liable (sub-section 1) as well as to limit the debtor’s liability (sub-section 2). As regards the extension of liability, there is no limit and the debtor made be made liable even for force majeure. As regards the limitation, liability cannot be excluded for wilful misconduct. 

Popular clauses in practice exclude liability up to damage caused intentionally or by gross negligence, which frees the debtor from liability for damage caused by ordinary negligence. To be on the safe side, parties often list in their contract the circumstances for which they will not be liable, for instance force majeure or incapacity to perform as a result of a final court ruling or government orders. The rules of liability for third parties (Article 474 CC) are often modified too, e.g. to make the debtor liable only if his employees cause damage wilfully. 

When it comes to statutory warranty, Article 558 CC lets the seller limit or even exclude his liability for defects in professional dealings between two businesses. Therefore, liability under statutory warranty may be excluded completely by referencing a contract to respective provisions to the contract template. Nevertheless, such a provision will be ineffective if the seller has concealed the defect from the buyer.

Article 119 CC absolutely prohibits cutting or extending statute of limitations by any legal instruments, including by contract templates. However, it is possible to modify the claim due date, which directly affects the statute of limitations. It is also possible (though heavily debated among legal scholars) to introduce fixed deadlines into contracts which, if missed, void claims. For instance, a deadline for the other party to raise its claim for an additional fee (Supreme Court judgment V CSK 449/16). Nevertheless, remember that such deadlines are checked for compliance of their substance and objective with the criteria that limit the freedom of contract principles listed in Article 3531 Civil Code.

Can you modify the GTC incorporated upon contract conclusion while the contract lasts? Yes, Article 3841 CC permits this. However, this may be done only in continuous contractual relationships. 

Moreover, legal scholars are of the opinion that for such a modification to be effective the original contract should include a modification clause that allows modifications to the contract template and stipulates when such modifications are allowed. Importantly, the clause should not be blank, that is, it cannot allow the party to modify its contract template at any time. The amended contract template must be delivered to the other party, which may then terminate the contract with the earliest notice period. According to the prevailing opinion, the amended template is binding from the date of its delivery. ​​