Abstract
In February 2022, new threats to the performance of contracts emerged, due to Russia’s attack on Ukraine and the resulting war, with its significant repercussions on the European and global economies. This has made it necessary to find solutions to intervene as regards contract performance. However, the Polish legislator decided not to create special rules for modifying contractual relations dealing with the consequences of the war. Therefore, the existing mechanisms in the legal system must be used when attempting to amend the content of a contract. At the same time, the basis for modifying a contractual relationship can be the provisions of the law, the will of the parties, as well as a court decision.
Amending the contract by the parties themselves is limited by the provisions of the Public Procurement Law (Articles 454 and 455 of the PPL), since the general rule is that a material change to a concluded contract requires a new procurement procedure. Still, the law does permit the modification of contracts in certain specific cases.
It is also possible to use the valorisation of monetary benefits – contractual and judicial – although a business entity cannot request judicial valorisation.
The classic instrument for modifying a contractual obligation in the face of an extraordinary change in circumstances is the rebus sic stantibus clause, which stipulates that it is possible to apply for a court judgement that takes into account an extraordinary change in relations. The prerequisites set forth in Article 3571 of the Civil Code must then be met, namely the civil law nature of the obligation, the contractual source of the obligation, the extraordinary change in relations, the breach of contractual balance (an unanticipated difficulty in fulfilling the obligation or the threat of gross loss) and the unpredictability of the impact of the change in relations on the obligation. In jurisprudence, the generally accepted position is that changes in the legal status can be considered as an extraordinary change in relations. This would obviously include also changes in the legal status introduced due to a war situation, in particular in relation to any introduced sanctions and their effects, which would be considered an extraordinary change in relations within the meaning of Article 3571 of the Civil Code.
In view of the war in Ukraine, one can also consider a return to the concept of the ‘economic impossibility of performance’, whereby situations in which the performance of the contract is impossible is treated in the same way as situations in which performance is still theoretically possible, but – due to the need to overcome special difficulties – has become economically irrational and unviable.
Wartime conditions may also affect a unilateral withdrawal from the contract by the ordering party in the event of a material change of circumstances due to which the performance of the contract is no longer in the public interest, where this could not have been foreseen at the time the contract was concluded, or when the further performance of the contract may jeopardise the essential interest of state security or public safety (Article 456 paragraph 1 item 1 of the PPL).
Summing up: the current legal order provides for means to appropriately modify a legal relationship arising from contracts in public procurement matters, and past experience does not indicate the need for more far-reaching solutions, although the future is unpredictable in this regard.