Good news for entrepreneurs. From 2020, it will be easier to claim payments from unreliable contractors
Entrepreneurs wishing to secure their claims in the course of civil proceedings must substantiate the cumulative fulfillment of two conditions:
- existence of the claim being sought,
- and having a legal interest in providing it.
While the first of these is not a big problem, the second matter being a probability of having a legal interest in providing security may prove very difficult or impossible if, for example, the other party has not taken clear steps to hide or dispose of assets (such as donating valuable components to members’ families). The entrepreneur then needs to wait for the final judgment to be issued and count on the fact that he will be able to recover the amount awarded. Dismissing the application for security thus reduces the chances of real recovery even if you win the case.
As part of the fight against payment gridlocks, among others, the Code of Civil Procedure, introduce a great simplification for entities requesting security for an action. From January 1, 2020, there will be a probability of having a legal interest in providing security if the following conditions are met:
- the security is requested by the plaintiff,
- payment will be claimed for commercial transactions within the meaning of the Act of 8 March 2013 on preventing excessive delays in commercial transactions,
- the claim concerns a commercial transaction with a value of no more than PLN 75,000 (note! This is about the amount of the transaction and not the value of the subject of the dispute, which may in practice be larger or smaller),
- the claimed debt remains unpaid for more than 3 months from the due date.
As a reminder, commercial transactions are contracts whose subject is the paid delivery of goods or the provision of services for consideration if they are concluded in connection with the activities carried out by entrepreneurs, branches and representative offices of foreign entrepreneurs and other entities indicated in art. 2 of the Act of 8 March 2013 on preventing excessive delays in commercial transactions.
In the draft law, the legislator emphasizes that this is a compromise solution, which, due to the introduced transaction height limit, protects the plaintiff’s interest, but also protects the defendant against excessive nuisance of the security.
In addition, in order to accelerate the settlement of security in cases heard in the writ proceedings, the right to issue decisions on security in cases for security of monetary claims not exceeding seventy-five thousand zlotys was obtained by court referendaries.
Current security provisions shall apply to security proceedings initiated before 1 January 2020, in which no security was granted before that date.
An impulse to introduce legislative changes aimed at improving payment gridlocks is the widespread practice of delaying the regulation of commercial transactions, especially towards smaller contractors. In the justification of the amendment, it was pointed out that 24% of micro-entrepreneurs receive delayed payment, which on average lasts up to 3 months and 12 days.