Jagna Kowalczyk-Fudali

Rechtsanwältin (Polen)
Senior Associate
Phone: +48 12 378 66 33

In business dealings, the concept of a third-party performance (Article 391 of the Polish Civil Code – PCC) is used very frequently as a kind of guarantee of a certain behaviour of a person not being a party to the contract (for example, spouses or children of the person who make a declaration of intent). In this concept the promisor declares (most often in a separate agreement or in a contractual clause) that a third party will make a performance to the creditor. The third-party performance agreement itself establishes an obligation only between the promisor and the creditor, and none towards the third party. It corresponds to a Latin principle of alteri stipulari nemo potest, which means that "nobody can promise anything for somebody else". The above does not exclude a separate obligation relationship (the so-called "basic relationship") existing between the creditor and the third party. The Supreme Court has formulated a new interpretation of the latter issue and the function of an obligation under Article 391 PCC. 

In its judgement of 9 October 2014 (file no. IV CSK 29/14) the Supreme Court stated that: the wording "shall make the performance" found in Article 391 PCC assumed the existence of an obligation relationship encompassing that performance between the creditor (beneficiary of the stipulation) and a third party (Article 353 PCC). The interpretation presented in the quoted judgement is not widely approved in the doctrine. The prevailing approach to the function of Article 391 PCC is that once a guarantee agreement is signed, the promisor becomes liable towards the creditor for risk, and the question whether or not there is an obligation relationship between the creditor and the third party does not affect the most important thing which is the promisor's liability towards the creditor. The Supreme Court had already issued judgements on that subject before. The judgement which deserves our attention here is the one of 12 February 2010 (file no. I CSK 311/09). In that judgement the Court stated that the wording "shall make the performance", used in Article 391 PCC, indeed assumed that there was an obligation relationship between the third party and the creditor, however: it would be possible to conclude a general guarantee agreement in which the promisor could promise to the creditor that a specified third party would behave in a certain way. (…) If such an undertaking of the guarantor does not fit (…) the two types of the third-party performance agreements mentioned in Article 391 PCC, then the agreement may be formulated in this way under Article 3531 PCC. In other words, invoking the freedom of contract the Court permitted assuming an effective and valid guarantee obligation whereby a third party would behave in a certain way (e. g. assume an obligation) despite the lack of an obligation relationship between that third party and the creditor. Nonetheless, the discussed newer judgement of the Supreme Court of 9 October 2014 challenged the approach of the Supreme Court of 12 February 2010 indicating that every obligation should be based on rationalism and usefulness, whereas undertaking to cause something that is beyond the control of a person (which, in the Supreme Court's opinion, would be the case if there was no basic relationship with the third person) was irrational. The above interpretation of a third-party performance agreement may trigger a risk that the contractual provisions containing the guarantee-like obligation may be challenged whenever the third-party performance is not based on another obligation relationship involving that third party. 

Our attorneys-in-law also offer legal advice in Poland on other issues. They are at your disposal in Rödl & Partner offices in: Gdansk, Gliwice, Cracow, Poznan, Warsaw, Wroclaw.

20.07.2016 r.