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are undoubtedly the most effective method for mobilizing the contractor to
complete a project on time. On the other hand, there is no easier way for the
investor to claim compensation from an unreliable contractor than to impose a
penalty and deduct it from the contractor’s remuneration.
penalties are now an inherent part of construction contracts, and together with performance bonds (e.g.
in the form of amounts retained or bank guarantees) they mobilize contractors
to duly fulfil their contractual obligations and increase the investor’s chances to cover any losses incurred as a
result of undue performance of the contract by the contractor.
A contractual penalty
may be stipulated in respect of all types of obligations (save for financial
obligations, where as a rule compensation for late payment takes the form of
interest). The indisputable advantage for the investor here is the fact that he
is able to impose a contractual penalty without
having to demonstrate what the actual value of the loss is or to prove that
it has been incurred at all.
A contractual penalty
is as a rule payable for defaulted performance. However, more and more often,
investors wishing to secure to a maximum extent the timely implementation of
the project would stipulate a contractual penalty for a delay in performance of
the contract or a specific stage thereof. This frequently results in problems
in respect of interpretation of the contract, in particular where the terms "defaulted
performance” and "delay in performance” are used within the contract on an interchangeable
What is then the difference between defaulted performance and a delay in
performance in Polish civil law?Defaulted performance means exceeding the time limit as a result of circumstances for which the
contractor remains liable. If the contractor is a professional entity, then
it is liable for a failure to exercise due care. Thus, if due to the
professional nature of his activities it was possible to require from the
contractor to complete the project within the agreed time limit, he remains
liable for a delay in performance.
It is worth knowing
that the extent of the contractor’s
liability can be modified within the contract. This way, the contractor can
take over the liability for circumstances resulting in exceeding the agreed
time limit for performance of the contract for which he would normally not be
What can thus be done
in order to effectively stipulate a contractual penalty for a delay in
performance and not defaulted performance? To achieve this, the contract has to
contain a clear and unambiguous
provision setting out the extent to which the statutory liability of the
contractor is extended. For example, the parties can agree that the
contractor accepts the risk of occurrence of circumstances not attributable to
the parties, e.g. the effects of discovering a previously undetected
underground cable, even if the risk could not have been predicted at the moment
of conclusion of the contract. When it is not clearly stated which specific
additional risks are accepted by the contractor, it will be difficult for the
investor to demonstrate in the event of a court dispute that a contractual
penalty for a delay in performance is payable to him.
When stipulating a
contractual penalty, it is also worth remembering that the freedom of the parties
in structuring the contract is limited to a certain degree. It is not possible,
for example, to stipulate a contractual penalty for a delay in performance
attributable exclusively to the investor.