A German manufacturer with a long-term supply contract in Poland discovers mid-performance that a sudden regulatory ban has made delivery legally impossible. The counterparty insists the contract remains binding. Polish civil procedure allows the manufacturer to contest this. but the outcome depends entirely on which legal doctrine applies, how courts in Poland have interpreted it, and whether the parties anticipated the risk in writing. Getting this wrong can mean years of litigation and full liability for non-performance.
Force majeure and hardship in Poland are governed by distinct doctrines under Polish civil legislation, each with different conditions, remedies, and procedural routes. Force majeure typically excuses performance where an extraordinary external event makes it impossible. hardship. addressed through the klauzula rebus sic stantibus (changed circumstances clause). allows a court to modify or terminate a contract where performance remains physically possible but has become excessively onerous. Both doctrines require active court intervention and carry strict applicability conditions.
This analysis covers the doctrinal foundations of both instruments, divergent court interpretations that have emerged in Polish practice, the practical gap between statutory text and courtroom outcomes. Cross-border implications for European clients. Additionally, the strategic decisions that determine whether a business survives a disruption or bears its full cost.
Doctrinal foundations: two separate instruments, one common purpose
Polish civil legislation distinguishes sharply between two situations that international clients often conflate. The first is genuine impossibility of performance – where an external event, beyond the control of either party, renders the contractual obligation objectively impossible to fulfil. Polish courts have consistently characterised this as the domain of force majeure. The consequence is the extinguishment of the obligation and, in principle, release from liability for non-performance.
The second situation is where performance remains physically possible but economic or regulatory circumstances have changed so dramatically since the contract was formed that holding a party to the original terms would produce a manifestly unjust result. This is the domain of the changed circumstances doctrine – klauzula rebus sic stantibus – which Polish civil legislation codifies as a ground for judicial intervention in contractual relationships.
The doctrinal boundary matters enormously in practice. A party that invokes force majeure where only hardship applies will fail before Polish courts, and vice versa. The choice of doctrine is not merely academic – it determines the remedy available, the burden of proof, the standard of judicial review, and whether the court may modify the contract or only terminate it.
Polish civil legislation places both instruments within the broader architecture of the law of obligations. Force majeure is not defined explicitly as a standalone concept in Polish statutory text. However. Courts have derived its content from provisions governing liability for non-performance and the general principle that a debtor is released from liability when non-performance results from circumstances beyond their control. The changed circumstances doctrine, by contrast, is codified expressly, setting out the conditions under which a court may intervene at the request of a party.
For international clients accustomed to common law force majeure clauses – where the parties define the triggering events exhaustively in the contract – the Polish civil law approach comes as a structural surprise. Under Polish law, whether or not the parties have included a force majeure clause, the statutory doctrines remain available and the courts apply them through their own interpretive lens. A contractual force majeure clause narrows or expands that lens, but it does not replace the statutory regime entirely.
Competing court interpretations and the gap between statute and practice
Polish courts have not applied either doctrine uniformly. The gap between the statutory text and courtroom outcomes is wide enough to drive meaningful commercial risk. Understanding where courts diverge is more useful for international clients than reciting the legislative baseline.
On force majeure, courts in Poland have generally required three cumulative conditions: the event must be external to the party invoking it. Extraordinary in the sense of being unforeseeable at the time of contracting. Additionally, irresistible in the sense that the party could not have avoided its consequences through reasonable precautions. The difficulty lies in the second and third conditions. Polish appellate courts have repeatedly held that an event which was foreseeable in general terms – even if its precise timing or scale was not – does not qualify. A global pandemic, for instance, was treated by some panels as foreseeable in principle given prior epidemic experience; other panels reached the opposite conclusion on materially similar facts. This divergence produced inconsistent first-instance outcomes during the early 2020s and has not been fully resolved at the level of the Sąd Najwyższy (Supreme Court of Poland).
On the changed circumstances doctrine, the statutory text requires that the change in circumstances be extraordinary, that it was not foreseen by the parties at the time of contract formation. Additionally. That performance under the original terms would involve an excessive burden or produce a grossly unjust outcome for one party. Courts have interpreted "extraordinary" restrictively. General market price movements – even severe ones – have typically been held insufficient. The disruption must be systemic and unpredictable, not merely a sharper version of normal commercial risk. Courts have also held that a party who contractually allocated the risk of the relevant event to itself cannot invoke the doctrine to escape that allocation.
A particularly contested area is whether a party in breach of an existing obligation can invoke either doctrine. Polish civil procedure does not bar such a party from filing a claim, but courts have applied the principle of exceptio non adimpleti contractus (the defence of non-performance) as a countervailing consideration. In practice, a party that is already in default when it seeks to invoke force majeure faces significantly higher evidentiary burdens.
The role of contractual force majeure clauses adds another layer of complexity. Polish courts treat such clauses as valid contractual allocations of risk – but they construe them against the party seeking to rely on them when the clause is drafted broadly. Courts have shown reluctance to extend a contractual force majeure clause to events that the parties could reasonably have addressed more specifically. For clients operating between civil law and common law systems. This creates a drafting challenge: a clause that would function as intended under English law may be construed more narrowly by a Polish court applying civil law principles of contract interpretation.
For matters involving corporate disputes in Poland that intersect with contractual disruption, the choice between force majeure and the changed circumstances doctrine often shapes the entire litigation strategy from the outset.
The procedural mechanics deserve attention. A party seeking to invoke the changed circumstances doctrine must file a pozew (statement of claim) before a Polish civil court. The court has three options: modify the contractual terms, increase or decrease consideration, or terminate the contract. Crucially, the court may choose any of these outcomes regardless of which remedy the claimant requested – giving judges wide discretion that introduces uncertainty into the outcome of any given case. Courts have used this discretion to impose price adjustment, extend payment terms, or apportion shared losses between the parties – outcomes that neither party necessarily anticipated when filing.
Interim relief is theoretically available under Polish civil procedure. A party may apply for an zabezpieczenie (interim injunction) to preserve the status quo while the main proceedings are pending. In practice, courts grant such applications selectively in contract disruption cases. The applicant must demonstrate a plausible claim and a risk that enforcing the existing contractual terms in the interim would cause irreversible harm. Where performance is ongoing – for instance, under a long-term supply or lease arrangement – interim relief can be commercially decisive. Preventing the counterparty from terminating the contract or drawing on performance bonds while the dispute is unresolved.
Strategic implications: when to invoke which doctrine, and how
The choice between force majeure and the changed circumstances doctrine is not purely academic. Each instrument implies a different litigation posture, a different negotiating position, and a different risk profile.
Force majeure is an all-or-nothing instrument. A successful invocation extinguishes the obligation entirely. A failed invocation leaves the party fully liable for non-performance, with no middle ground. This binary quality makes it suitable only where the facts clearly support genuine impossibility – where no alternative performance path was reasonably available and the event clearly satisfies the externality, foreseeability, and irresistibility conditions. Deploying force majeure as a first resort where hardship would be more accurate is a strategic mistake that practitioners in Poland observe regularly among international clients unfamiliar with the civil law distinction.
The changed circumstances doctrine is more flexible but more expensive in terms of litigation cost, time, and uncertainty. Court proceedings in Poland typically extend across multiple months at first instance and longer on appeal. The court's wide discretion means that even a strong claim may produce a remedy that neither party finds satisfactory. The process is also public – court filings are matters of record – which can affect commercial relationships, reputation, and parallel negotiations.
For many business disruption scenarios, negotiated restructuring of the contract is the more cost-effective path. Polish civil legislation does not require parties to litigate changed circumstances – they may agree a modification by mutual consent. A well-structured renegotiation, supported by legal advice, can achieve in weeks what litigation would take years to produce. The strategic function of invoking or threatening to invoke the changed circumstances doctrine is often not to obtain a court order but to create leverage for a negotiated outcome.
Practitioners in Poland also note the importance of timing. A party that continues performance without protest while conditions deteriorate risks being held to have waived any hardship claim. Courts have interpreted long periods of performance under adverse conditions as evidence that the burden was not, in fact, excessive. The appropriate response to a disruption event is prompt written notice to the counterparty. Suspension of further commitments where legally permissible. Additionally, early legal advice on which doctrine applies and what procedural steps must be taken.
For detailed guidance on litigation and arbitration tools available in this jurisdiction, the firm's coverage of litigation and arbitration in Poland addresses procedural options including arbitration clauses, enforcement mechanisms, and interim measures in depth.
To receive a tailored assessment of how force majeure or hardship arguments apply to your contract situation in Poland, contact us at info@ferrazwhitmore.com.
Cross-border implications for European clients
The majority of force majeure and hardship cases that reach Polish courts involve at least one foreign party. This cross-border dimension introduces several layers of complexity beyond the domestic doctrinal debate.
The first is choice of law. Where the contract contains a governing law clause selecting a non-Polish system. English law, German law. Alternatively. French law. the Polish court will in principle apply that system to the substantive merits of the force majeure or hardship claim. However, where Polish mandatory provisions of contract law apply regardless of the choice of law clause, a court may override the parties' selection in respect of those provisions. International clients must assess whether their governing law clause is effective against Polish mandatory rules before assuming that a non-Polish standard applies.
The second complication is enforcement. A judgment obtained from a Polish court is enforceable across EU member states under the Brussels I Regulation (recast). This provides a streamlined mechanism for uznanie i wykonanie orzeczenia (recognition and enforcement of a foreign judgment) in Poland and of Polish judgments abroad within the EU. However, where the contract involves a counterparty outside the EU. a UK entity post-Brexit, a Swiss party. Alternatively. A US corporation. enforcement requires reliance on bilateral treaties or domestic enforcement procedures in the relevant jurisdiction. This are slower and less predictable.
The third issue is arbitration. Many cross-border commercial contracts in Poland contain arbitration clauses providing for dispute resolution before the Sąd Arbitrazowy przy Krajowej Izbie Gospodarczej (Court of Arbitration at the Polish Chamber of Commerce) or before international bodies such as the ICC or LCIA. Arbitral tribunals seated in Poland apply Polish substantive law where designated, but they do so with less published precedent than state courts, which creates both flexibility and unpredictability. A tribunal may approach the changed circumstances doctrine more pragmatically than a state court – weighing commercial reasonableness against strict doctrinal conditions – but the outcome is harder to predict from prior awards.
For European clients whose operations span multiple jurisdictions, a contractual dispute in Poland rarely stays within Polish borders. Supply chain disruptions cascade: if a Polish supplier invokes force majeure successfully, the downstream buyer may face its own contractual liability to third parties. Legal advice must therefore address not only the Polish law position but the knock-on effects across the contractual chain – including parallel claims, back-to-back contractual protections, and insurance recovery.
Comparative perspective is useful here. Germany's civil law regime includes a similar changed circumstances doctrine derived from its civil code provisions on the disruption of the foundation of the transaction (Geschäftsgrundlage). French law addresses force majeure through its civil code and through the relatively recent hardship mechanism introduced in its 2016 contract law reform. The structural parallel between these systems and Polish law means that legal strategies effective in one civil law jurisdiction are often transferable. but the specific conditions. Remedies. Additionally, procedural rules differ enough to require local counsel input. A one-size-fits-all approach based on English law instincts consistently underperforms in Polish proceedings.
For a comparative analysis of how the changed circumstances doctrine operates in another civil law jurisdiction in this region. The firm's deep-dive on force majeure and hardship in Portugal provides a useful reference point for clients operating across both markets.
To explore legal options for managing contract disruption across European jurisdictions, schedule a consultation at info@ferrazwhitmore.com.
Outlook and what to monitor
The Polish legislative regime for force majeure and hardship has not been substantively reformed in recent years. However, the body of court practice continues to develop, and several trends are worth monitoring by international clients with ongoing exposure to Polish contractual risk.
The Sąd Najwyższy has signalled, in a series of recent resolutions, a more structured approach to the conditions under which the changed circumstances doctrine may be invoked in commercial contexts. There is a visible tendency to apply stricter standards to professionally sophisticated parties – the reasoning being that experienced commercial actors should price foreseeable disruption risk into their contracts. For international businesses, this means that a court is less likely to grant relief where the disruption event falls within a category that a reasonable commercial party in that sector should have anticipated and allocated by contract.
Legislative discussion has touched on whether Poland should adopt a more explicit statutory hardship regime comparable to the French 2016 reform. No draft legislation has advanced to the parliamentary stage at the time of writing. However. Practitioners in Poland observe that EU-level harmonisation efforts in contract law. which have gained renewed attention in the context of supply chain resilience and energy security. may eventually influence the domestic position.
Climate and energy disruption have become an increasingly common factual background for force majeure and changed circumstances claims. Polish courts are beginning to encounter cases where extreme weather events, grid instability, or regulatory changes to energy pricing form the basis of a disruption claim. The doctrinal tools are the same; the factual analysis is novel. Early court-level decisions suggest that Polish judges apply the existing framework without modification – but the weight given to environmental and regulatory unpredictability in assessing foreseeability remains unsettled.
Finally, the interplay between force majeure claims and egzekucja komornicza (enforcement by a bailiff) under Polish civil procedure deserves attention. A party that obtains a money judgment against a counterparty invoking force majeure may still proceed to judgment enforcement through Polish enforcement mechanisms during any appeal period, unless the court has stayed enforcement. The strategic use of enforcement proceedings – or the threat of them – is a regular feature of commercial litigation in Poland and can significantly affect the dynamics of any parallel renegotiation.
Self-assessment: when Polish force majeure and hardship arguments are viable
The changed circumstances doctrine is applicable in Poland if:
- The disruption event occurred after the contract was formed and was not foreseeable at that time by a reasonable party in the relevant sector
- Performance under the original terms would impose an excessive burden on one party or produce a result so unjust that it would shock the conscience of a court
- The affected party has not already allocated the relevant risk to itself, expressly or by implication, in the contract
- The party invoking the doctrine has acted promptly and has not continued performance without protest for an extended period after the disruption arose
Force majeure is viable in Poland if:
- Performance is genuinely and objectively impossible – not merely more difficult or more expensive
- The event causing impossibility is external, extraordinary, and irresistible in the sense that no reasonable precaution could have prevented its consequences
- The party invoking force majeure was not in breach of its own obligations when the event occurred
Before filing a statement of claim in Poland, verify:
- Which doctrine – force majeure or changed circumstances – correctly characterises the factual situation
- Whether the contract's governing law clause selects Polish law or another system, and whether Polish mandatory rules apply regardless
- Whether an arbitration clause requires the dispute to be referred to a specific tribunal before or instead of Polish state courts
- Whether interim injunction relief is needed to preserve the status quo pending the main proceedings
- Whether the disruption event triggers parallel exposure in other jurisdictions along the contractual chain
Frequently asked questions
Q: How long do force majeure or hardship proceedings typically take before Polish courts?
A: First-instance proceedings in commercial cases before Polish district or regional courts typically take between one and two years, depending on the complexity of the factual record and the volume of expert evidence required. Appeals before the relevant court of appeal add further time. Where an interim injunction is sought, that application may be decided within weeks of filing. Arbitration before the Court of Arbitration at the Polish Chamber of Commerce is generally faster than state court proceedings for straightforward commercial disputes.
Q: Can a party avoid all liability simply by including a force majeure clause in a Polish-law contract?
A: Not automatically. Polish courts construe contractual force majeure clauses against the party seeking to rely on them, particularly where the clause is drafted broadly or where the triggering event could have been addressed more specifically. A clause that satisfies the conditions derived from Polish civil legislation will generally be effective. However. Courts have refused to apply clauses to events that were reasonably foreseeable by a professional party in the relevant sector. Clause drafting must be calibrated to Polish civil law interpretive standards, not transplanted directly from common law templates.
Q: Does a successful hardship claim under Polish law entitle a party to terminate the contract?
A: Termination is one of three possible court remedies under the changed circumstances doctrine – the others being modification of the contract's terms and adjustment of the consideration. The court has discretion to choose any remedy, regardless of which outcome the claimant requested. In practice, courts often prefer modification over termination where the contract has already been partially performed, as termination creates complex restitution consequences. A party that wants termination as the primary outcome should frame its claim carefully and address the restitution implications from the outset.
About Ferraz & Whitmore
Ferraz & Whitmore is an international law firm based in Lisbon, advising business clients across 46 jurisdictions. In the area of commercial litigation and contract law, the firm advises international entrepreneurs, institutional investors. Additionally. In-house legal teams on force majeure disputes, hardship claims. Additionally, contract renegotiation across European civil law and common law systems. Our attorneys have worked on disruption-related contract disputes involving Polish, Portuguese, French, and German law, bringing both civil law depth and common law procedural discipline to cross-border commercial litigation. As a law firm in Poland and across Europe, Ferraz & Whitmore provides results-oriented counsel to clients who need a single team managing their legal exposure across multiple jurisdictions. Engaging a lawyer in Poland with cross-border experience at the outset of a disruption event – rather than after the other party has already filed – is consistently the more effective approach. To discuss your contract situation in Poland and the options available to you, contact us at info@ferrazwhitmore.com.
Disclaimer: This publication is provided for informational purposes only and does not constitute legal advice. The information herein should not be relied upon as a substitute for professional legal counsel tailored to your specific circumstances. Ferraz & Whitmore assumes no liability for actions taken or not taken based on the contents of this material. For advice regarding your particular situation, please contact info@ferrazwhitmore.com.