Abstract

The text deals with the specific regulation of the Polish Act on the terms of payment in commercial transactions of 8 March 2013 (implementing the 2011/7/EU Late Payment Directive) – the right of a creditor to obtain lump sum reimbursement of debt recovery costs. The instrument in question is a severe and far-reaching tool, whose aim is to motivate the debtor to observe the terms prescribed for payment and – if the default occurs – to provide the creditor with an easily available method of recovering additional expenses arising in this respect. This specific regulation entailed a question whether the creditor is entitled to lump-sum reimbursement solely in the event of the debtor’s default or is there a need to prove that any specific actions aimed at collecting the debt have been undertaken. In the resolution of 11 December 2015 (III CZP 94/15) the Supreme Court ascertained that the lump sum can be claimed automatically upon default, regardless of any real attempts to recover a debt. Understood in this way, the instrument in question may lead, however, in certain circumstances to disproportionate results, unjustifiable in terms of the aims of the late payment regulation, as well as contradictory to the sense of fairness. In these instances it is possible (as indicated also by the Supreme Court itself) to moderate the operation of this instrument through the abuse of rights construction (Art. 5 of the Civil Code).