An invoice in an order for payment procedure as the basis for issuing an order for payment

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Unreliable contractors are the bane of entrepreneurs. In order to recover his debts, the entrepreneur is afraid that the court proceedings will be long and its costs will be high. Meanwhile, the legislator provided for a method of faster recovery in the form of a payment order issued in the order for payment. Therefore, can an invoice in an order for payment procedure be a basis for issuing an order for payment?

Advantages of the writ of payment proceedings

First of all, injunction proceedings are cheaper than civil proceedings conducted under the ordinary procedure. Pursuant to Art. 19 paragraph 2 of the Act on court costs in civil cases, only the fourth part of the fee (ie ¼) is collected from a claim in a writ of payment. This is of great importance in the case of high amounts of receivables and when there is a high risk that the bailiff's enforcement of the reimbursement may turn out to be ineffective.

Another advantage of dealing with a case under the injunction procedure is that it is short, as it takes place in closed session. The court issues an order for payment on the basis of the documents attached to the statement of claim, without holding a hearing.

It should be emphasized that the order for payment constitutes a security title upon its issue, enforceable without giving it an enforcement clause. This means that on the basis of a non-final payment order, without an additional court decision, it is possible to demand securing the claim, e.g. by seizing movable property, remuneration for work or encumbering the real estate with a compulsory mortgage.

Due to the above advantages of the writ of payment proceedings, it is worth submitting an application for consideration of the case in this mode in the statement of claim.

Premises for considering the case under the injunction

Pursuant to Art. 485 § 1 of the Act of November 17, 1964 of the Code of Civil Procedure (Journal of Laws No. 43, item 296, as amended, hereinafter: the Code of Civil Procedure), the court issues an order for payment if the plaintiff pursues a monetary claim or provision of other replacement items, and the circumstances justifying the claim pursued are proven to be attached to the statement of claim:

  1. an official document,
  2. the account accepted by the debtor,
  3. debtor's request for payment and the debtor's written declaration on the recognition of the debt,
  4. the payment request accepted by the debtor, returned by the bank and unpaid due to lack of funds in the bank account.

An invoice in an order for payment procedure - can it be the basis for issuing an order for payment?

When considering the title issue, it is first necessary to establish whether the VAT invoice signed by the debtor is an "bill accepted by the debtor". There are no legal definitions of both terms, therefore a literal interpretation of the provision in question should be applied. The literal wording of the cited provision seems to confirm the above thesis. According to the Dictionary of Polish Language, edited by W. Doroszewski, the word "bill" means a summarized list of receivables for goods or services. This is also how the content of the VAT invoice should be defined. In addition, in the colloquial language, the words bill and invoice are sometimes used interchangeably. The above arguments support the recognition that an invoice in the payment order proceedings may constitute the basis for issuing an order for payment, provided that it has been accepted by the debtor. It also seems obvious that the signing of the invoice by the debtor constitutes its acceptance.

Moreover, the Supreme Court in its judgment of October 5, 2005, II CK 102/05, expressed the view that a private document entitles to demand a payment order, in which the claimant demonstrates the existence of an obligation and its acceptance by the debtor. Considering that the VAT invoice is a private document in which the VAT payer confirms the performance of a taxable activity, indicating in it a description of the subject of sale, i.e. the delivery of goods for consideration or the provision of services for consideration, the unit price, tax rate and amount, and the amount due, it is not way to deny that it is a specific type of account showing the existence of the debtor's obligation. When the debtor or the person authorized to represent him accepts the content of the invoice with his signature, the creditor obtains a basis for demanding an order for payment in the writ of payment proceedings.

Can an invoice not signed by the debtor in the writ proceedings constitute the basis for issuing an order for payment?

The judicature decided whether it was possible to recognize an unsigned invoice as an account accepted by the debtor, and, as a result, whether it was possible to issue an order for payment in the writ proceedings. The Court of Appeal in Poznań, in its judgment of October 29, 2010, I ACa 683/08, indicated that the very provision of the contract, in which the parties mutually authorize each other to issue and send VAT invoices without the signature of the other party, does not justify the conclusion that the debtor accepts the unsigned bill. However, it was pointed out that it would be possible to consider an unsigned invoice as "an account accepted by the debtor", provided that both parties to the contract had the status of trader and had a permanent business relationship.

Who can sign a VAT invoice on behalf of the debtor?

In practice, VAT invoices are often signed by employees. In this situation, is it possible to recognize the signed VAT invoice as the account accepted by the debtor? In order to be effective in accepting the bill, the person signing the invoice on behalf of the employer should be authorized to represent him or have a power of attorney to perform such activities. It cannot be concluded that pursuant to Art. 97 of the Civil Code, a person active in the business premises who undertakes customary activities consisting in day-to-day service will be entitled to accept the account. The authorization to issue and receive VAT invoices will also be insufficient. Therefore, when asking the contractor to accept the invoice, it is worth paying attention to whether the person signing it is authorized to accept bills on behalf of the debtor.

Should the original documents be attached to the statement of claim?

The Supreme Court in the judgment of June 25, 1998, case no. III CZP 16/98, indicated that attaching to the statement of claim copies of private documents certified as true to the original by a professional attorney (legal advisor or attorney) does not justify issuing a payment order pursuant to Art. 485 § 1 of the Code of Civil Procedure. Failure to attach the original documents shall result in the examination of the case in an ordinary procedure.

An appeal against an order for payment issued in an order for payment

Charges may be brought against an order for payment issued in an order for payment on the basis of a signed invoice within two weeks from the date of service of the order. Pursuant to Art. 493 § 1 of the Code of Civil Procedure, the letter containing the charges is brought to the court that issued the order for payment. In the letter, the defendant should indicate whether he is appealing the order in whole or in part, present the allegations that, under pain of losing them, should be reported before entering into a dispute on the merits of the case, as well as the facts and evidence. The court ignores late statements and evidence, unless the party substantiates that it did not report them in the allegations through no fault of its own, or that the consideration of late statements and evidence will not delay the examination of the case or that there are other exceptional circumstances. Pursuant to § 2 of the aforementioned provision, if the statement of claim was filed on the official form, the filing of charges also requires that this form be maintained.

What could be the grounds for the charges?

Objections against the order for payment in the order for payment order proceedings may be brought by an entrepreneur whose employee has accepted the VAT invoice without being authorized to do so. On the other hand, if the entrepreneur questions the performance of the obligation described in the invoice, despite having previously accepted its content, in order to combat the order for payment issued on this basis in the writ proceedings, it should raise objections aimed at rebutting the factual presumption that the fact of signing the invoice allows for proven fact of performing the activities described in the invoice. Such a presumption may be the basis for establishing the facts of the case, as pursuant to Art. 231 of the Code of Civil Procedure, the court may consider established facts essential for the resolution of the case, if such a conclusion can be derived from other established facts. As a result, the burden of proof is shifted onto the defendant, and therefore the defendant will be under the burden of proving the contrary facts, which prove that the claimant has not performed the service.

In the case of an order for payment issued on the basis of a VAT invoice signed by the debtor, is it permissible to raise the charge of a set-off?

Pursuant to Art. 493 § 3 to be set off may be presented only claims proven by the documents referred to in article 1. 485 of the Code of Civil Procedure, i.e .:

  1. an official document;
  2. the account accepted by the debtor;
  3. debtor's payment request and debtor's written declaration of recognition of the debt;
  4. the payment request accepted by the debtor, returned by the bank and unpaid due to lack of funds in the bank account.

The Supreme Court reaffirms the possibility of recognizing the VAT invoice as the account accepted by the debtor. In the judgment of August 9, 2016, II CZ 83/16, it indicates that: "as the invoice is a private document, pursuant to Art. 245 of the Code of Civil Procedure it proves that the person who signed it made the declaration contained therein. Although its acceptance may be considered an account within the meaning of Art. 485 § 1 point 2 of the Code of Civil Procedure and be the basis for reporting the claim covered by the set-off pursuant to art. 493 § 3 of the Code of Civil Procedure, this is only a procedural condition for making such an objection in a case in which an order for payment was issued, and does not mean that when examining the legitimacy of a claim presented for set-off, it is not possible to examine it by any means of evidence.”(Judgment of the Supreme Court of 9 August 2016, II CZ 83/16).

Taking into account the above, if the entrepreneur has an invoice signed by the debtor, he should not resign from the possibility of pursuing his claim before the court under the injunction procedure.