Our comments

Determining which General Terms and Conditions of Sale or Supply (T&Cs) apply to the seller or buyer, or both can be tricky. The traditional way of contracting isn’t difficult, but problems may arise when the T&Cs  is placed on the website of each partner.

According to Polish civil law, delivering the General Terms and Conditions of Insurance (g T&Cs ) is important before finalizing the contract. The General Terms and Conditions of Use/T&Cs  are enforceable if the other party can easily access their content, but this generally doesn’t apply to consumer contracts.

Suppose a seller places their general terms and conditions on an invoice delivered to a buyer. In that case, it may not be relevant as it’s usually delivered after the non-monetary benefit has been provided. However, this can vary.

For contracts concluded by placing the T&Cs  on a website, the subordinate partner should make it available to the other trading partner in a way that allows them to store and reproduce it. The same applies if each party has their contract templates.

In cross-border sales or deliveries, especially within the EU, it’s important to determine which court and country should resolve controversies between the parties to the contract before deciding whether to apply the T&Cs .

According to Article 25, Section 1 of Regulation (EU) No 1215/2012, parties can agree to determine which international court will have the authority to rule in case of a dispute. This agreement must be mutual, clear, and distinct. The CJEU’s judgment of March 8, 2018, in Case C-64/17, Saey Home & Garden NV/SA v. Lusavouga-Máquinas e Acessórios Industriais SA, Elektr. Orz. 2018:173, emphasizes the importance of mutual and clear consent. ^[1].

Incorporating contractual templates on one side of the legal relationship to reserve jurisdiction is ineffective if doubts exist regarding access to the incorporation document containing the jurisdiction clause. ^[2].

For any court to resolve a dispute between parties, it must first make clear findings that the parties have expressed their will, each of them clearly and expressly permission to refer a specific case to the court they have designated in a contractual clause. Claims contrary to this will not be accepted without evidence or consideration of the parties’ relationship at the time of the contract’s conclusion or in customs.

Moreover, the very doubts as to whether the clause carrier/website is accessible militate against considering that an effective incorporation of a contractual provision has occurred. Indeed, it is accepted that the ineffective reservation of a choice-of-court clause – a jurisdiction clause – through the incorporation of the contractual templates of one party to the legal relationship, if doubts remain as to the availability of the document incorporating the jurisdiction clause, will not have the effect of incorporating such provisions into the content of the parties’ contract.

Any contract relating to the production line or its components must state that the general terms and conditions are binding on the parties. It is also necessary to include a clause in the general conditions stating the court of jurisdiction chosen by the parties, as well as a jurisdiction clause based on commercial practice.

Suppose the General Terms and Conditions of each party have been posted on the website of the buyer/supplier or recipient. In that case, it is necessary to prove that the general conditions contractual agreements posted on the website were available during the transaction’s conclusion and performance negotiation. It must also be confirmed that each interested party has accepted the obligation to seek information regarding the content of the other party’s general contractual terms and conditions, in a language understandable to the partner, in the language published on the partner’s website.

In a dispute between a Polish seller and an Italian buyer, the Court of Appeal in Łódź found that the buyer’s assumption that they did not know or were not bound by the General Terms and Conditions was unfounded. This was because in each order made by the buyer and accepted by them with a signature or at least the company’s seal, there was information in Italian about the parties’ binding by the provisions of the General Terms and Conditions and their availability on the website. This information was also repeated on each of the invoices issued by the seller. Therefore, the buyer agreed to the content of the order and confirmed by signing the invoice that they accepted the seller’s general terms and conditions if they were met.

The court found that the seller’s website was accessible to the buyer, based on the contents of the documents presented. This was despite expert opinions suggesting otherwise. This highlights the importance of ensuring the proper inclusion of terms and conditions in contracts to avoid procedural risks. Suppose a party to a contract claims that a clause was not effectively included due to its unavailability in a language they can understand. In that case, there is a chance that it was not effectively incorporated. This could lead to uncertainty over the contract’s content and the court in which the dispute can be resolved. As a result, there is a risk of incurring high costs or even losing the claim.

In contrast to the Polish civil procedure, where filing a lawsuit is more relaxed, filing a lawsuit in other countries does not necessarily mean that the court will reject the case due to lack of jurisdiction. Instead, the proceedings may be transferred by the court to the other court which is competent to hear the case in the relevant country. However, if the wrong person is sued, the claimant may lose the right to pursue further claims.

In other words, it can mean the loss of the right to renew or further assert a claim referred to the wrong court and the loss of rights which arise from the sales or delivery contract!

This is, for example, the case in the Austrian court procedure, if the court on its own or at the request of a party refrains from referring the case to the competent court!

However, the judge may refuse to refer the case (see § 230a in conjunction with § 261 (6) ZPO) if he has doubts about the claim!

Therefore, there is no point in taking risks, and the contract must be secured – both in its preparation and in its performance.

For over 30 years, we have been providing protection and legal assistance to sellers and buyers, from the stage preceding the conclusion of the contract, through transport, to the stage of its execution, complaints, withdrawal from the contract, or the stage of pursuing compensation claims in domestic and cross-border cases, also outside the European Union.

^[1] _{J. Gołaczyński’s commentary on Article 25 of the Regulation, published in Warsaw in 2015, is referenced, along with a note numbered 9. Additionally, A. Torbus’s commentary on the interpretation of jurisdiction agreements concluded under Article 25 of the Regulation is cited, specifically in relation to a decision by the Supreme Court of October 5, 2018. This commentary was published in the journal „Problems of Private International Law” in 2019, volume 25, on pages 126-127.}

^[2] _{A. Torbus, page range of 127-128.}