It's hard to find a person who hasn't dealt with a contract at all in their life. We already commonly conclude contracts such as: employment contracts, loan contracts, contracts for the purchase of a house/apartment or a car, apartment or house rental contracts, contracts for the provision of telecommunications services, construction works, contracts for specific work or commission. Therefore, it seems that the concept of a contract has already become firmly established in our consciousness. However, one may wonder whether there is an equal awareness of the consequences arising from such an agreement. Unfortunately, still few people know how to influence its content (even before its conclusion) and protect their own interests as effectively as possible.
Equally problematic for some may be how to terminate the contract when, for example, due to a change in circumstances, it is no longer beneficial or necessary for us at all. Therefore, while the issue of formalities related to concluding a contract seems to be somehow "tamed", the issue of using the institution of terminating the contract very often poses various difficulties.
Generally speaking, in order to avoid possible unpleasant surprises related to the conclusion of a specific contract and the subsequent application of its provisions, appropriate steps should be taken before signing it. Depending on the level of our involvement (especially financial), it is worth consulting its content with a professional in the field of concluding and terminating contracts - e.g. a legal advisor.
The signature on a contract is not only a graphic sign, but is usually associated with an obligation. This means that by signing the contract, we enter into certain rights and obligations arising from it. Therefore, on the basis of the contract, the other party may expect or require (and often demand) specific behavior from us - under pain of entering into legal enforcement of this behavior (or compensation), as well as being held liable for its lack. In fact, signed contracts are worth (and even necessary) read and read carefully (which is still not so obvious to everyone), regardless of how trivial the issues they concern. As we know, sometimes contract templates are imposed on us in some way - such as most contracts for the supply of utilities (e.g. contracts for the supply of electricity, water, etc.). These are not always rigid frames that cannot be modified, and if so, e.g. commercial premises lease agreement contains provisions that we do not like - you should absolutely refuse to sign such a contract.
These types of contracts usually contain errors that may even make them illegal in their entirety or only in some of their provisions. Templates are often prepared in some companies/institutions and put into use for a longer period of time and are not regularly adapted to dynamic changes introduced by the legislator in the applicable legal provisions. It is true that in the event of non-compliance of a contract with the provisions of the Act, as a rule, the provisions of the Act usually prevail (although this is not a clear issue, as we have relatively applicable provisions - i.e. those that can be modified in contracts and mandatory, non-modifiable provisions, as well as those in between - semi-imperative), all the more so in order to avoid unnecessary disputes later, it is worth "catching" such questionable provisions already at this initial stage of the transaction.
Let's also remember that from a legal point of view, there are no (or at least should not be) random words in the contract. And not being a specialist in a given area, we may not be aware of the consequences of a given decision. Therefore, it is worth reading contracts before signing them, also to ask questions and clarify doubts about the meaning of individual phrases that are incomprehensible (sometimes due to the use of specialized language). Of course, negotiating some contracts can be difficult. Especially if we really want or even (for some reason) have to conclude it, and the other party is not willing to take our comments into account. Nevertheless, our right as a party - especially one in a (weaker) position as a consumer - is the right to receive the expected explanations as to the scope and subject of the contract and the obligations that will arise from it.
As a rule, when it comes to shaping the content of concluded contracts, the so-called the principle of freedom of contract. According to this principle, the parties concluding a contract may arrange the legal relationship at their discretion, provided that its content or purpose does not contradict:
- properties (nature) of the relationship,
- neither act
- principles of social coexistence.
Taking into account the above, it might seem that there are no obstacles to shaping the content of the concluded contract in any way. However, it should be remembered that by concluding a contract, the parties signing it enter into a relationship, and the act of concluding a contract produces not only the effects expressed in it, but also those resulting from the act, the principles of social coexistence and established customs.
Therefore, regardless of the way in which a given issue is expressed in the concluded contract, its consequences may actually be much broader.
For example: Jan Kowalski, who lives in a single-family house in the countryside, rents his empty and unused apartment to Piotr Nowicki (his neighbor's son) - for the period of his studies. The apartment is quite large, so Piotr Nowicki (with Jan Kowalski's consent) sublets the apartment to two of his friends. Kowalski signed a contract with Nowicki, but it is only a simple, short contract that does not take into account many aspects specific to this type of legal transactions. At the same time, it included the value of the rent paid by Piotr Nowicki - which was not modified (e.g. in the form of an annex) after the above-mentioned property was added to the apartment. two roommates. Jan did not sign any agreement with Piotr's colleagues, he only agreed verbally with them to pay certain amounts, the entire amount of which was transferred through Piotr. The amount he actually received is therefore higher than the rent specified in the written agreement concluded with Piotr Nowicki. After several months of harmoniously sharing the apartment and bearing the agreed obligations, on the weekend, when Piotr Nowicki was staying in his family house in the countryside, his fellow roommates organized a student party, the size of which surprised them themselves, they stopped "controlling" the company that came, as a result of which the apartment was destroyed. serious damage. After Piotr Nowicki's return, his colleagues - fearing that they would be burdened with high costs of restoring the premises to its previous condition - announced that they did not intend to take responsibility. In arguing their position, they pointed to the fact that they had not signed a contract that would indicate who was responsible for the losses. Additionally, they arrogantly decided that the lack of a contract resulted in their inability to prove their actual use of the premises.
With reference to the above-mentioned legal consequences arising from the contract, the above story can be traced to the occurrence of at least several important broader legal aspects (even though they are not mentioned in the written contract).
One of them (independent of the fact of destruction of the apartment) concerns the statutory obligation to settle the income obtained by the landlord (Jan Kowalski) from renting the apartment with the tax office. And in fact (in fact), the income should refer not only to the amount of rent specified in the contract signed with Piotr Nowicki, but also to the amounts received by Jan Kowalski (through Nowicki) from his roommates. The above obligation, of course, was not specified in the contract (it did not have to be), but the very fact of receiving this type of income involves the need to settle accounts with the tax office. This results directly from tax laws.
The second aspect (relating directly to claims for damage to rented property) are:
failure to sign an agreement with Piotr Nowicki's roommates, as well as − failure to include in the agreement (both in the written agreement concluded by Jan Kowalski with Piotr Nowicki, as well as in the oral agreements "concluded" by Piotr Nowicki with his colleagues) appropriate provisions regarding the right to claims for possible destruction,
does not in any way determine the impossibility of holding the perpetrators of these destructions liable. In addition to the applicable regulations, the principles of social coexistence and established customs (mentioned above) can be of obvious help here. After all, the above-mentioned colleagues used the residential premises in question for several months - paying the agreed rent and actually living in it (which could be proven, for example, through the testimony of witnesses, e.g. neighbors) - which should be treated as (not written down, but still) an expression of the will to pay use of this premises - and, on the other hand, an expression of the will to make the premises available for a fee - to sum up: it was concluded premises lease agreement. However, in the matter of serious losses caused in the apartment, it should be noted that even despite the lack of appropriate provisions in the contract (concerning liability for possible losses), the use of the premises in accordance with established customs and principles of social coexistence is within certain established frameworks. And this certainly does not include the devastation that can occur as a result of alcohol-fueled student parties.
Of course, the above example belongs to the category of more complicated ones and, therefore, may require direct intervention of an experienced professional (e.g. a legal advisor). Nevertheless, the simplest moral that follows from this example is the fact that it is worth concluding contracts in writing and remember to at least consider taking into account various types of "unusual" situations that (even purely hypothetically) may occur regardless of the relations between the parties. The author of this article once rented an apartment (also to a legal family!) and the next day after a house-warming party, a dozen or so shrubs were found in the apartment... 🙂 This applies to both provisions regarding possible liability for improper performance of obligations arising from the contract, as well as the possibility of terminating the contract before the date for which it was concluded (e.g. in the event of a justified loss of trust and fear of further losses).
Taking into account the right to terminate the contract is an important aspect in the category of concluding contracts (regardless of their type). Of course, in many cases, the law itself also regulates the issue of termination of the contract. Then, regardless of the fact whether the relevant clauses were included in the content of the contract or not, the parties (or a party) are entitled to this right under the Act. Typically, however, failure to include appropriate provisions in the contract may result in various types of restrictions and problems. As a rule, termination provisions should be included in absolutely every contract concluded. This knowledge - as well as the ability to formulate such a simple decision - should be part of teaching already in primary school. Regardless of who we conclude a contract with and how much we trust that person or even have an obligation to trust that person. If only because if we do not clearly define these rules in the contract, we expose ourselves to unnecessary conflict with our closest family, friends or acquaintances. Paradoxically, it is the written contract that protects us against such a conflict.
In reference to the above, it should be remembered that, unfortunately, the provisions regarding termination cannot always be made in a completely arbitrary and discretionary manner. Depending on the type of contract concluded, the deadlines and rules for applying the institution of notice specified in the contract should correspond to the principles resulting from the applicable legal provisions in this area. Of course, the use of others is possible - but requires the consent of both parties both at the stage of concluding and terminating the contract.
For example: provision of art. 27 of the Balloon Law Act stipulates that the contract regarding the storage of balloons should have a minimum notice period of one week. Stefan concluded a contract with Panfucy for the storage of the balloons, which included a 3-day notice period. Stefan terminated the contract with Panfucy three days before the date he wanted to collect the balloons, after three days he came to Panfucy, who gave him the balloons, shook hands and wished him a nice party.
In the example described, nothing bad happened - the contract was concluded consensually (i.e. in accordance) and performed in the same way. This is how 95% contracts concluded in society look like. The problem arises only when misunderstandings occur between the parties - and these lead not only to courts, but also to ordinary, unnecessary conflicts between people.
When concluding contracts, however, it is better to take into account various types of justified restrictions in this respect, resulting from various circumstances, e.g. the nature of a given legal transaction. If in doubt, it is better to consult a specialist in the field of concluding and terminating contracts - e.g. a legal advisor.
The institution of terminating a contract is an extremely important tool for the parties to the contract, but it should be used as a last resort. Beforehand, however, it is worth calling on the other party in a form that can later be proven (in writing, via several text messages or e-mails) to properly perform this contract before we terminate it, or try to negotiate better - more favorable terms for us.
At the same time, to make it easier to use this tool, it is worth including in the contract the circumstances in which it can be used. In its simplest form, the provisions of the contract regarding termination may read as follows: "The parties have the right to terminate the contract with one month's notice. Termination of the lease agreement for a limited period requires maintaining a documentary form. This provision means that if one of the parties wants to terminate the concluded contract, it will have the right to do so by giving the other party a notice (in writing), which will be effective after one month. As a rule, only in employment contracts, the date from which the notice period begins is the first calendar day of the month following the month in which the notice was given. Of course, you can also stipulate in the contract that the notice period will be counted at the end of the next calendar month.
For example: Jan Nowak terminated the contract concluded with a bread supplier, which provided for a one-month notice period. The notice of termination was delivered to the above-mentioned to the operator on November 15, 2020. Therefore, the contract will be terminated on December 15, 2020.
In the case of more complex contracts, especially those requiring the involvement of significant financial resources or involving high-value items, it is worth extending the provisions regarding termination accordingly (while protecting one's own interests as effectively as possible). In the case of, for example, renting an apartment equipped with valuable equipment and furniture, the contract should include provisions regarding liability for their destruction (of course, excluding "damage" resulting from their proper use) - while taking into account the right to terminate the contract immediately in in the event of gross violations in this respect.
As far as the form of termination of the contract is concerned, it should generally be in writing. This is due to evidentiary reasons - it would be difficult to prove (e.g. in court) the fact of "submitting" the notice of termination verbally.
However, the content of the notice itself should include elements such as:
- designation of the city and date (although, of course, the most important will be the date of delivery);
- data of the person submitting the notice of termination and data of the other party to the contract ("recipient" of the notice of termination);
- heading (e.g. "termination" or "termination of the contract");
- information identifying the contract to which the termination relates (e.g. contract number or date of its conclusion);
- information regarding the notice period (i.e. when, in accordance with the intention of the person terminating it, the contract will cease to be valid);
- salutation and handwritten signature.
Termination is, in fact, a simple letter, but its content should clearly (to avoid unnecessary doubts) indicate the contract it concerns and the party (person/entity) who submits it - and (of course) include its signature. It should also be remembered that in order for the notice to be effective, it must be delivered. Therefore, if it is not possible to submit a written notice of termination in person to the other party (with acknowledgment on a copy of the letter!), you can use the post, but choose a form of shipment that will allow us to obtain confirmation of both the fact of delivery and its date. i.e. sending it by registered mail.In accordance with the Civil Code that keeps up with the times (unless otherwise stipulated in the contract) – termination of a contract drawn up in writing requires a documentary form - it can also be done by e-mail.
Piotr Kłodziński – Legal Advisor Warsaw