Abstract

Contracts for the creation and implementation of IT systems, commonly known as implementation agreements, have been widely functioning in commercial transactions for many years. Nonetheless, they have not been regulated as named contracts either in the Civil Code or the Act 4 February 1994 on Copyrights and Neighbouring Rights (the Act), due to which a number of doubts arise as to the statutory norms applicable to the obligational relationship between the parties to such contracts. These problems are particularly clearly visible as regards disputes concerning defects revealed upon acceptance of the system which is implemented. The article presents reflections on legal qualification of implementation contracts and whether it is justifiable to apply thereto the provisions of Art. 54 and 55 of the Act It also outlines how Art. 54 and 55 of the Act affect the rights of the contracting parties in case of the occurrence of defects in the implemented system. Basing on a review of judgments of common courts and views presented so far in literature, the authors present their own position as to whether implementation contracts should be assessed taking into account Art. 54 and 55 of the Act or basing on the code provisions concerning contract for specific work (umowa o dzieło). Further on, problems of differentiating material and immaterial defects of an IT system as well as the rights of the orderer and the service provider in case defects are found at the stage of acceptance of the implementation are discussed. The authors also make an attempt to answer the question whether under Polish law it is admissible and effective to make a reservation that the implementation will be accepted only in case no software defects whatsoever are detected.