Gloss to the judgment of the Supreme Court of 13 November 2020, IV CSK 537/19

Abstract

The Supreme Court's judgment proves that in Polish contractual practice  appear some new standard contractual clauses. Those clauses are mostly issued by banks and insurers (pursuant to Article 384 of the Civil Code) in order to protect the debtor (e.g. constructions work contractor) in case the creditor (investor) unjustifiaby uses the so-called  a guarantee “on first demand”. One of such clauses is a clause that provides for creditor’s contractual liability towards the debtor (as part of the so-called basic relationship, e.g. construction contracts). The author analyzes the nature and purpose of such clauses. The judgemet of the Supreme Court inspires the author to indicate other clauses that result from the loyal cooperation of the guarantor and the debtor and appear in the contract of mandate (Article 734 of the Civil Code). However, the author does not agree with the court’s statement, that guarantee may fall within the meaning of remmitance (regulated in Article 921 (1) of the Civil Code), for solution as such is contrary to the the existing rules of entering into contract and  contractual relationship.