Contract of evidence in disputes between traders

On November 7, 2019, as part of an extensive amendment to the Code of Civil Procedure, a new provision of Article 1(2) of the c.p.c entered into force. Article 458⁹ c.p.c., which established a previously unknown institution of evidence contract in the Polish legal system.

It should be emphasised that the conclusion of a contract of inquiry is only admissible in commercial proceedings, the catalogue of which is Article 4(1)(b) of the Treaty. 458² c.p.c. In particular, these are matters relating to the civil relationship between entrepreneurs in the scope of their business activities, the relationship of the company and the claims referred to in Article 2(1)(a) and (b). 291-300 and Article 479-490 Code of Commercial Companies, but also from construction or leasing contracts.

The object of a contract of evidence is to exclude, by virtue of the consent of the parties, certain evidence in the proceedings in the case from a specific legal relationship arising from the contract.

The evidence agreement shall be concluded in writing under pain of invalidity or orally before a court, pursuant to 458⁹ § 2 of the c.c.p. It may therefore be concluded even before a dispute arises, including for example may be concluded in parallel with or even form part of the main contract, or may be concluded later, after a dispute has arisen, even after a claim has been filed, in the course of legal proceedings. Such an agreement may be concluded by the party’s proxy if it is within the scope of the authorisation.

It should be borne in mind that, pursuant to Article 458² § 3 of the c.c. a contract of evidence concluded on condition or subject to a time limit is null and void.

The effect of a contract of evidence is momentous for the parties to the dispute, but the court will not be able to take evidence excluded by the contract, either at the request of any of the parties or ex officio. The court’s judgment will be based on the remaining evidence as the excluded evidence cannot be taken into account.

For these reasons, special care should be taken when concluding contracts of inquiry or commercial contracts which contain provisions which constitute a contract of inquiry. In particular, account should be taken of the possible and dangerous practice of certain undertakings to introduce provisions of the evidence contract into their general terms and conditions.