Above all, remember the purpose of the GTC
The GTC include additional contractual provisions ( outside the scope of the core contract document ), which the entity applying them formulates and places in a separate document, taking into account the principles of cooperation that are crucial for the business relationship. The GTC supplement the core contract with general provisions applicable to many types of similar contracts. GTC are typically contained in annexes attached to the original contract. The name of these provisions also varies. They are usually referred to as “general terms and conditions” ( GTC ). However, terms such as “general terms and conditions of business,” “general conditions of sale,” “general terms and conditions of delivery,” etc. are also found in the market. In cross-border transactions, they are generally referred to as “general terms [conditions] of contracts.” A typical example of GTC is the terms and conditions of an online store, which must be developed by every entrepreneur providing services in this manner.
Controlling the content of GTC
Polish law does not provide for any specific, rigid rules for controlling the content of general terms and conditions in business-to-business transactions. The situation is different for consumers, where it is possible to compare the provisions of the general terms and conditions with the list of prohibited ( so-called abusive ) clauses found in the Civil Code. However, the only limitations on the flexible formulation of general terms and conditions in business-to-business transactions are mandatory statutory provisions and the so-called principles of social coexistence. The solutions adopted in Polish law allow parties to depart significantly from the general regulations established in the Civil Code. In the area of contract law, the provisions of the Civil Code are generally dispositive in nature, meaning the parties can generally exclude or modify them quite freely.
Ensure delivery of the GTC before concluding the contract
The fundamental principle of binding the GTC is their delivery to the other party before concluding the contract. This means the actual physical delivery of a complete and legible document to the other party. Providing a link to the website where the GTC are published, or delivering an incomplete or illegible document, should not be considered delivery to the other party. Therefore, the often-encountered statement by a party that it received the GTC before concluding the contract will be ineffective if the document was not physically delivered. However, such a statement may change the burden of proof in a dispute. Therefore, if the GTC are in paper form, they must be physically delivered to the other party in person or by post
( courier ), and this must be confirmed in writing. However, if you use the GTC in electronic form, the most reliable way to make them available is to send them in PDF format as an email attachment or via instant messaging, also before concluding the contract. However, remember that the law provides for certain exceptions, which should be considered in individual situations.
Conflict between the GTC and the core contract
The provisions contained in the GTC are excluded when the parties have included individually negotiated provisions in the core contract that differ from the GTC. The provisions of the contract take precedence over the GTC. If each professional partner applies the GTC, they apply to the extent that they are compatible. In the event of a conflict between the provisions of both partners, mutually exclusive clauses are deemed non-binding. Therefore, it is also important that, when business partners use their own GTC, they assess the effectiveness of each GTC in a given relationship. Businesses entering into a contract are often unaware of the contradictions in the content of the GTC they use, as these generally remain “in the background” of the core, detailed content of the contract.
Summary
GTC are important for professional business because they facilitate contract execution and are mandatory in some cases. Using standard provisions saves on contract negotiation costs.
This, in turn, contributes to lower business costs ( one set of GTC can be used multiple
times ). This standardized approach makes contracts more predictable.
Cooperation / Contact
If you use GTC / are considering them, or are wondering whether you should have them and have doubts about the current or established practice of using them, or if your client or business partner uses GTC but is unsure whether or to what extent they are binding on you, we encourage you to contact us to discuss your concerns. The protection of your broadly understood interests is at stake.
