How to prepare for a court case with another entrepreneur - after the amendment of the Civil Procedure Code in the field of economic matters


Learn about the obligations of entrepreneurs in the field of court cases with another entrepreneur in the era of new legal regulations. How to prepare for the case? What should be considered during the procedure? The article answers the most important questions of entrepreneurs in this area.

The aim of the new commercial litigation is for such cases to be heard as quickly as possible. Therefore, the claimant was obliged to quote all the statements and evidence in the statement of claim, and on the defendant in response to the statement of claim. There will be an exception to this rule only when a party proves that their appointment was not possible or that the need to appoint them arose later. The deadline for doing so is 2 weeks from when it became possible or when such a need arose.

The new obligation of the plaintiff in a business case is also to indicate an e-mail address in the statement of claim or to submit a declaration that one does not have such an address. The defendant must also comply with this obligation in the first pleadings he addresses to the court.

How to prepare for a case - what is the most important evidence?

It should be borne in mind that documentary evidence will prevail over others in the proceedings. The activity of the page should be indicated by a document, and this term is understood as an information carrier that allows to read its content. We are talking about documents prepared in traditional form (on paper), as well as electronic documents.

Example 1

Two entrepreneurs negotiated the terms of the contract. After the meeting, e-mails were sent outlining the course of the meeting and the basic terms agreed at it. A formal contract was never signed. When it came to settlements between the parties, one reduced the remuneration, referring to the failure to return the subject of the contract on time, for which a contractual penalty was charged. The other party did not agree to such settlements, claiming that, on its part, it had complied with the deadline and, moreover, the parties never agreed on contractual penalties, let alone their amount. The entrepreneur therefore called for the payment of the missing amount from the other entrepreneur. Due to the lack of payment, the entrepreneur decided that in these circumstances the only possibility of recovering the money would be suing his contractor. Due to the lack of a formal written contract, will the entrepreneur be able to prove the performance of the work and the delivery of the contract on time? What evidence should the entrepreneur request?

If the legal action is not reserved in the form of a written contract, otherwise null and void, the party has a chance in the process. However, it should verify the entire evidence process, the lack of a contract is not an obstacle, because, as indicated above, the parties summarized the entire process of cooperation arrangements in e-mails. Therefore, if the deadline for handing over the subject of the contract has been agreed, the parties should comply with it, if, in turn, a contractual penalty is reserved, the other party may charge it, provided that the conditions for charging it are met. However, if the deadline for returning the item has been stipulated, but no contractual penalty has been stipulated, the other party may demand compensation for the damage on general terms, if it has been incurred and shows a cause-and-effect relationship. In this case, evidence from witnesses, e.g. those who are also present at the negotiations, may be admitted by the court if it finds that, after the exhaustion of other means of evidence or in the absence of any other evidence, there are still unexplained facts relevant to the resolution of the case. Therefore, the party should already request such witnesses in the statement of claim, even though the court may issue the decision later in the case.

What is the economic matter according to the new regulations?

These are cases: from civil relations between entrepreneurs in the scope of their business activity, even when the parties have ceased to conduct business activity, from the relationship of the company and regarding claims referred to in art. 291-300 and art. 479-490 of the Code of Commercial Companies, against entrepreneurs for ceasing to infringe the environment and restoring it to its previous state or for compensation for the related damage and for prohibition or limitation of activities that threaten the environment, from construction works contracts and contracts related to the construction process for the performance of construction works , from leasing agreements, between the bodies of a state-owned enterprise, between a state-owned enterprise or its authorities and its founding body or supervisory body in the field of bankruptcy and restructuring law, for granting an enforcement clause to an enforceable title, which is a judgment of a commercial court that is legally valid or subject to immediate execution, or a settlement concluded before that court, for the deprivation of enforceability of an enforceable title based on a final or immediately enforceable judgment of a commercial court or a settlement concluded before that court.

Can you opt out of the procedure?

Yes, it is possible, but it does not apply to everyone. Such a request may be submitted by a party who is not an entrepreneur or is an entrepreneur who is a natural person. The court will then consider the case disregarding the provisions in the field of economic proceedings. It is worth adding that the application to hear the case, disregarding the provisions on economic proceedings, is binding for the court and the opposing party. The deadline for submitting such an application is important, as it varies between people who are represented by professionals and act independently. Well, if a party is replaced by an attorney, legal advisor, patent attorney or the General Prosecutor's Office of the Republic of Poland, it may submit an application effectively only in the first pleading, and in the case of the plaintiff - already in the statement of claim.

On the other hand, the party who is not replaced by a professional representative is instructed on the right to submit an application for examination of the case, disregarding the provisions on economic proceedings. Such an instruction must be delivered to the party, and the party may submit the relevant request within one week of delivery.

Evidence contract

An important change for entrepreneurs - the so-called evidence agreement. Pursuant to the new regulation in the Code of Civil Procedure, the parties may agree to exclude specific evidence, e.g. from specific documents, from specific testimonies, i.e. witnesses mentioned by name and surname, in the case of a specific legal relationship arising from the contract. Such a contract shall be concluded in writing, otherwise null and void, or orally before a court. In case of doubt, the later agreement is deemed to maintain in force those provisions of the earlier agreement that are compatible with it. The evidence agreement has the effect that the court will not ex officio admit evidence excluded by the evidence agreement.

Example 2

[excerpt from the contract] § 2 The parties agree that in the event of a possible court dispute that could arise between XX sp. z oo and Jan Kowalski running a business under the name YY Jan Kowalski, in connection with the implementation of the cooperation agreement specified in § 1 above of this contract, exclude from this court proceedings evidence in the form of:

  • electronic correspondence between the parties regarding the course of negotiations preceding the conclusion of the cooperation agreement,

  • testimony of the parties on the fact of the course of negotiations preceding the conclusion of the cooperation agreement and the reasons for which the agreement was concluded.

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Can new claims be submitted during the proceedings?

In the course of the proceedings, it is not possible to submit new claims instead of or in addition to the existing ones. However, in the event of a change in circumstances, the claimant may request, instead of the original subject of the dispute, its equivalent or another subject, and in cases of repeated benefits, it may also extend the claim with benefits for subsequent periods.


A counterclaim is a type of action where the defendant's claim is related to the claimant's claim or is eligible for set-off. Unfortunately, according to the Civil Procedure Code in commercial matters, such an action will not be admissible.

Change in the subject of evidence from witnesses' testimonies

Evidence from the testimony of witnesses will be possible only if, after exhausting other evidence or in the absence of other evidence, there are still unexplained facts relevant to the decision of the case. This means that it will be the last and only auxiliary evidence that the court will take.

Legal basis:

  • art. 4581 - 45813 of the Act of November 17, 1964, Code of Civil Procedure (Journal of Laws 2019.1460, i.e.).

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