Supply agreement in Poland: key clauses for foreign companies

What form must a supply agreement take under Polish law?

Agreements in Poland may generally be concluded orally, in writing, electronically, in documentary form, as a notarial deed or with officially certified signatures. Article 606 of the Polish Civil Code provides, however, that a supply agreement should be concluded in writing for evidentiary purposes (ad probationem). By contrast, a standard sales agreement is not generally subject to this written-form requirement.

If a supply agreement is concluded without written form, for example orally, the agreement will generally remain valid and binding. The consequences may arise during court proceedings between the supplier and the customer in Poland. Subject to statutory exceptions, evidence from witnesses or examination of the parties concerning the conclusion of the agreement may then be restricted. This can cause serious evidentiary difficulties.

Supply agreements are usually complex contracts containing numerous obligations on both sides. A written document also makes it easier to establish the agreed commercial and operational terms.

Practical tip: conclude every supply agreement in writing. This improves transaction security, preserves evidence and reduces the risk of conflicting interpretations.

Supply agreement vs sales agreement in Poland – what is the difference?

Unlike a sales agreement, a supply agreement under Polish law requires the supplier to manufacture goods identified by type and deliver them in instalments or periodically. The agreement therefore normally concerns future goods, which are yet to be manufactured and delivered, rather than existing goods.

The customer should require the manufactured goods to comply with all applicable Polish and EU legal, technical and regulatory standards.

Practical tip: where construction products are supplied in Poland, the agreement should expressly require compliance with the Polish Construction Products Act and applicable EU legislation governing the marketing of construction products.

The technical specifications of the goods should be described precisely in the agreement or its schedules, which should form an integral part of the contract. Depending on the product, the parties may also define recipes, production methods and permitted tolerances, or leave specified manufacturing decisions to the supplier.

Polish law does not generally determine which party must provide the raw materials needed for production. The parties sometimes agree that the customer or a third party will supply them. If the agreement is silent, this obligation will normally rest with the supplier.

A supply agreement may grant the customer rights to inspect the manufacturing process, particularly where the goods must be made from materials of a specified type or origin. The agreement may provide that:

• the supplier must notify the customer when raw materials are ready and allow their quality to be inspected,

• the goods must be manufactured in an agreed manner.

Practical tip: define the inspection procedure, notice periods, access rules, confidentiality safeguards, costs and consequences of objections. Otherwise disputes may arise over whether an inspection was necessary, delayed production or sought commercially sensitive information.

What should a supplier agreement in Poland include?

A statutory supply agreement involves deliveries made “in instalments or periodically”. A single delivery may instead constitute a sales agreement, even if the document is entitled “supply agreement”. Under Polish case law, the legal classification depends on the contract’s actual content, purpose and the parties’ common intention, not merely its title (Supreme Court judgments of 25 November 2010, I CSK 703/09, and 16 May 2019, II PK 27/18).

Practical tip: the parties should clearly regulate the delivery process, including:

• delivery batch sizes, forecasts and periodic purchase orders;
• the delivery location and permitted delivery hours;
• delivery notification and booking procedures;
• an obligation to promptly report circumstances affecting delivery dates;
• unloading, packaging, pallet and parcel requirements;
• the required content of Polish WZ delivery notes or equivalent documents;
• acceptance and quality-control procedures, including grounds for refusing a delivery;
• procedures for damaged bulk packaging, shortages and incorrect quantities.

A well-drafted supply contract in Poland should also set out the price calculation method, invoicing and payment dates, liability rules, contractual penalties, warranties, complaint procedures and the consequences of delay or non-performance.

What schedules should be attached to a supply agreement?

The Polish Civil Code does not provide a closed statutory list of schedules. Their scope depends on the goods and the parties’ operating model. The most important schedules usually cover:

• product specifications – names, codes, technical parameters, materials, dimensions, tolerances, packaging and labelling;
• price list – net prices, currency, VAT, discounts, minimum order value or quantity and price-adjustment mechanism;
• delivery schedule – frequency, batch sizes, dates, delivery locations and minimum lead times;
• ordering, acceptance and complaint procedures – order forms, authorised email addresses or IT systems, confirmation deadlines and the effect of no response.

Without these schedules, an agreement may remain legally binding but become difficult or even impossible to perform in practice. Proving a breach may also be considerably harder.

Other useful schedules may include:

• logistics terms – transport organisation and costs, transfer of risk, pallet and packaging requirements, and the appropriate Incoterms® rule for international deliveries;
• goods acceptance and quality-control procedures – inspection deadlines, documentation of defects and shortages, permitted deviations, and acceptance or complaint report templates;
• quality standards and product documentation – standards, certificates, approvals, declarations of conformity, manuals, technical data sheets and safety data sheets;
• compliance requirements – supplier code of conduct, anti-corruption rules, sanctions compliance, ESG requirements and raw-material traceability;
• data processing agreement – where the supplier processes personal data on the customer’s behalf under the GDPR;
• contact list – persons responsible for orders, logistics, complaints and settlements.

Can a customer withdraw from a supply agreement under Polish law?

Withdrawal rights often require careful analysis. From the customer’s perspective, timely commencement of production and delivery may be crucial, particularly where the customer operates at scale or depends on the goods for further production.

Under Article 610 of the Polish Civil Code, the customer may withdraw from a supply agreement without first setting an additional deadline and even before the agreed delivery date if:

• the supplier is late in commencing manufacture of all or part of the goods; or
• it is unlikely that the goods will be delivered on time.

This rule materially modifies the general Polish rules on timely performance. It permits early withdrawal without granting the supplier an additional cure period and is generally understood as serving a disciplinary and protective function.

Delay in commencing manufacture may itself be sufficient; the customer does not generally need to prove the supplier’s fault. Whether Article 610 applies after manufacturing has actually begun may be disputable and will depend on the facts and other contractual or statutory grounds.

Following effective withdrawal, the parties must return what they received. The customer may also claim compensation for damage caused by non-performance, provided the relevant requirements under Polish law are met.

Liability for defective goods under a Polish supply agreement

The customer may receive goods that are defective or otherwise non-compliant with the supplier’s contractual obligations.

Under Article 612 of the Polish Civil Code, the provisions on sales apply accordingly to matters not specifically regulated by the supply-agreement provisions. Depending on the circumstances, the customer may rely on contractual damages under Article 471 of the Civil Code and on the statutory warranty regime for defects.

Under Article 609, the supplier may also be liable for physical defects where the goods were manufactured according to the customer’s instructions or technical documentation. An exception may apply if, despite due care, the supplier could not identify the defective production method or documentation, or if the customer insisted on it after receiving a proper warning from the supplier.

This broader allocation of risk reflects the supplier’s professional expertise, but liability is not absolute. To protect both parties, warnings, technical objections and the customer’s decision to proceed should be documented in writing.

Limitation period for claims arising from a supply agreement in Poland

Claims arising from a Polish supply agreement may be subject to the two-year limitation period referred to in Article 554 of the Polish Civil Code, applied through the rules governing supply agreements. This provision concerns, among other matters, claims arising from sales made within the seller’s business activity.

The Polish Supreme Court confirmed, for example in its judgment of 9 February 2005 (II CK 423/04), that a claim based on a supply agreement may become time-barred after two years.

In practice, this period is particularly relevant to claims for payment of the price. The exact limitation period and its commencement should nevertheless be assessed for each claim separately.

Under Article 120 of the Polish Civil Code, the limitation period generally begins when the claim becomes due. If maturity depends on an act by the entitled party, the period begins when the claim would have become due had that act been taken at the earliest possible time.

Practical tip: because the period can be short, a creditor should promptly take steps that legally interrupt or suspend limitation. A demand for payment alone will generally not interrupt the limitation period under Polish law. If payment is not made, court proceedings, mediation or another legally effective measure may be required.