Immediately and without undue delay - how to count the days?

Service

Many contractual deadlines are set in days, e.g. a 7-day payment period, a 14-day delivery period. The consequences of failing to meet the deadline can be serious, so it is worth knowing the rules for calculating them. It also happens that instead of a specific date, a given activity should be performed immediately or without undue delay. What does it mean?

Check the contract first

The parties have quite a lot of freedom in their contracts in determining both the length of time limits and the methods of calculating them. Before starting to count the period, it is worth checking in the contract whether any special methods of calculating it have been entered into it, e.g. whether only "working days" from Monday to Friday are taken into account, whether the first day of the deadline is entered, whether the deadline does not expire by specific time, etc.

This is important because the rules for calculating contract deadlines set out in the Civil Code apply when other rules are not specified in the contract. The rules in the contract therefore take precedence.

In practice, contracts do not change the rules for calculating deadlines under the Civil Code, but it is always worth checking this, and sometimes making sure that such provisions are introduced (e.g. enter what time the deadline expires on the last day).

When does the deadline start?

Often, the time limit in days is to be counted from a specific event (e.g. issuing or delivering an invoice, receiving a summons). In such a case, the rule is that the day on which the event occurs is not taken into account when calculating the date. So it is not the first day of the term.

Example 1.

Payment is to be made within 7 days of receipt of the goods. The goods were received on March 1. This day (March 1) is not the first day of the deadline - it is not included in the calculation. The first day will be March 2 and the last seventh day will be March 8.

When does the deadline end?

Time periods in days are counted "from midnight to midnight". The period marked in days ends on the last day (Art. 111 § 1 of the Civil Code). This sounds simple enough, but can be confusing. Therefore, it is sometimes worth specifying in the contract, for example, the hours in which a given activity can be performed. There are also no obstacles to make an appointment that the deadline expires at a specific time.

Example 2.

It has been agreed that the supplier will deliver the goods to the seat of the ordering party within 7 days from the conclusion of the contract. The contract does not introduce any restrictions on hours, it does not indicate that the buyer's warehouse is open only until 18.00. There is a high contractual penalty for late delivery. The supplier's car arrived at the warehouse at 11.30 p.m. on the last day of the term. As the warehouse was already closed, no unloading took place. The deliveries were made on time - because it expired at midnight. In this situation, the supplier cannot be charged a contractual penalty. The supplier may, however, demand compensation resulting from the transport costs incurred, because we are dealing here with failure to collect the goods on time, at the buyer's fault.

Example 3.

The terms of the tender state that the deadline for submitting bids is March 8 at 15.00. The contractor's offer was delivered to the office on the last day of the term (March 8), but at 4 p.m. The offer should be considered as submitted after the deadline.

There are also misunderstandings in connection with the payment of the contract due on the last day of the term. Unlike the payment of taxes, payment to contractors is governed by the principle that the payment is made when the money reaches the contractor's bank account. Therefore, it is not the moment of submitting the transfer order, but the moment when the money will appear on the recipient's account.

Example 4.

The payment for the goods was to be made by bank transfer within 7 days from the delivery of the goods. The goods were delivered on March 1, the payment deadline was March 8. This means that the money should reach the seller's account by March 8 at the latest. The buyer ordered the transfer at 20.00 on the last day of the appointment (8 March). As the seller had a bank account with another bank, the money was deposited in his account the next day (March 9). The payment was made late.

What about holidays and days off?

How to count the deadline from the contract when the end of the deadline for the performance of activities (e.g. performance of a work) falls on or on Saturday? Unless agreed otherwise, the time limit expires on the next day, which is not a statutory holiday or a Saturday (Art. 15 of the Civil Code).

Example 5.

On March 27, 2018 (Tuesday), a specific work contract was concluded, according to which it should be performed within 5 days from the conclusion of the contract. The first day of the deadline is March 27 (Wednesday). The fifth day was on Sunday (March 28). As it was a statutory holiday, the deadline should be postponed to the next day which is not a statutory holiday (or Saturday). On Monday (March 29) there was a public holiday (the second day of Easter). Therefore, the deadline is only on Tuesday, March 30, 2018. On that date, the work should be handed over at the latest.

Public holidays are:

All Sundays,

January 1 - New Year's Day,

January 6 - Epiphany,

The first day of Easter,

The second day of Easter,

May 1 - Public Holiday,

· May 3 - National Day of the Third May,

The first day of Pentecost,

Corpus Christi day,

August 15 - Assumption of the Blessed Virgin Mary,

November 1 - All Saints,

November 11 - National Independence Day,

December 25 - the first day of Christmas,

· December 26 - the second day of Christmas.

Saturdays and holidays in the middle of the term

What if Saturday or public holiday falls in the middle of the term? If the contract states that the contractor has 14 days to perform the work, does this mean 14 working days?

There are no obstacles to enter in the contract that the term of the contract only includes "working days" from Monday to Friday, which are not statutory holidays. However, if this has not been done, there is no reason to ignore Saturdays, Sundays and public holidays falling in the middle of the deadline when calculating the deadline.

Example 6.

The contract stipulates that the work is to be performed within 10 days from the conclusion of the contract. No provisions were introduced into the contract on how to count the deadlines, so the rules of the Civil Code apply. The contract was concluded on Thursday, March 8. The last, tenth day of the deadline was on Sunday, March 18 - so the deadline was postponed to Monday, March 19. It did not matter that in the "middle of the deadline" there were two Saturdays (March 10 and 17) and Sunday (March 11) and that in practice the contractor did not have 10 working days to perform the work. He should hand over the work by March 19 at the latest. If he wanted to guarantee himself 10 full working days for the performance of the work, he should provide for it in the contract, introducing a provision in it that only working days from Monday to Friday are included in the deadline.

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Immediately, i.e. without undue delay

It also happens that the term is defined as "immediately" or "without undue delay". As a rule, these phrases are taken to mean the same. You can meet them both in legal regulations and in the content of contracts. How to calculate the deadline in this case? How much time is there to fulfill the obligation?

Unfortunately, there is no simple, one-size-fits-all answer to this question. It all depends on the specific circumstances and what action is to be taken "immediately" or "without undue delay". It will be different in the case of the obligation to make a transfer immediately, and different - when it is necessary, for example, to make a repair.

An example where legislation requires "immediate" action is Art. 455 of the Civil Code. It applies to situations where the deadline was not specified in the contract or resulted from the nature of the obligation. The debtor is then called to perform the payment (e.g. to repay the amount unduly received). The debtor is then obliged to perform the payment immediately after the summons.

The position of the courts is that "immediately" does not mean "immediately". It also does not automatically mean a 14-day period. It should be a realistic deadline, as soon as possible.

The time of this "promptness" cannot be equated with, for example, a fourteen-day period, but should be determined each time, depending on the circumstances of the case. It is about the time necessary to perform the payment, assuming that the debtor would act, taking into account all the circumstances affecting the performance of the obligation, without undue delay (Court of Appeal in Białystok in the judgment of November 3, 2017, file reference number I ACa 409/17).

Immediate notification of defects in the sold item

An important provision for entrepreneurs, which requires action to be taken "immediately", concerns the complaint procedure between companies (Article 563 § 2 of the Civil Code). It shows that in the case of sale between entrepreneurs, the buyer loses the rights under the warranty if he did not inspect the goods in time and in the manner adopted for such things and did not immediately notify the seller of the defect, and if the defect came to light only later - if he did not notify sellers immediately after its discovery.

The Supreme Court, in its judgment of February 7, 2008 (file ref. No. V CSK 410/07), stated that using in Art. 563 § 2 of the Civil Code of the undefined phrase "immediately", the legislator left the adjudicating body the freedom to assess whether, in the circumstances of a specific case, the seller was notified of a defect in the item without undue delay. It is impossible to assume that a specific period is valid here. Admittedly, the jurisprudence usually indicates that the term "immediately" should be understood as a maximum period of fourteen days. However, this deadline cannot be treated as an exception, because in the circumstances of a specific case, "immediate" notification of a defect may mean a slightly longer or shorter period.