Abstract

As the fourth part of a planned series this article continues the discussion on interest for delay in commercial transactions. The main topic is the extent of autonomy of will of the parties with respect to interest in professional relationships. The authors note that limitations of contractual freedom may have two sources, i.e. imperative and semi-imperative provisions of the Act on payment terms in commercial transactions and the provisions of the Civil Code on maxim interest. Of fundamental importance is an answer to the question whether it is permissible to contractually stipulate the rate of interest for default in commercial transactions. It requires consideration being given to the status of the debtor. If the debtor is not a public entity stipulation by the parties of above statutory interest is possible providing the rate of maximum interest (which also arouses doubts) is not exceeded. However, in case of a public debtor the authors are of the opinion that it is not possible to depart from the statutory rate of interest for delay in commercial transactions.

Further on, the ban on contractual exclusion or limitation of rights of the creditor with respect to interest due introduced by the legislator is discussed. The authors try to explain what is the practical meaning of the statements that the parties must not worsen the creditor’s situation as compared with the statutory approach. Also selected procedural aspects are discussed separately. In particular, the author defend the view that the imperative character of the regulation on interest for delay in commercial transactions does not invalidate the prohibition for the court to adjudicate above the claim.