Abstract

This commentary to the Supreme Court judgment of 16 November 2022, II CSKP 578/22, presents the issue of correct submission by a party to a civil lawsuit of an objection to moderation of a contractual penalty under Art. 484 § 2 of the Civil Code. In the jurisprudence of both common courts and the Supreme Court, there are two different approaches as regards the requirements to be met by this type of objection raised during the proceedings. In its ruling, the Supreme Court held that a contractual penalty may be reduced only if the debtor submits a request to moderate the penalty and only when it is indicated what reduction (to what amount) is requested by the debtor. This commentary discusses in detail the aspect of the objection against moderation of a contractual penalty and the consequences of filing such an objection incorrectly. The author of the gloss has also touched upon the issue of representation of the debtor by a professional attorney and the impact of such representation on the effectiveness of the objection against contractual penalty moderation. The issue of raising both the objection against a deduction and the ojection against moderation of the contractual penalty during the lawsuit has been also addressed. The impact of the commented judgment on the ongoing construction works disputes has been also analysed and the key elements that should be applied during the dispute and the submission by a party of an objection under Art. 484 § 2 of the Civil Code have been presented.