Delay in performance - what are the consequences?


The law has many consequences in the event of non-compliance with it, and the same is the case if there is a delay in performance, i.e. failure to meet obligations resulting from previously concluded contracts. The Civil Code defines the system of liability of persons as a result of non-performance or improper performance of an obligation and what the aggrieved person may demand in such a case.

Responsibility and delay in performance

The person obliged to perform the obligation is responsible for its non-performance or improper performance, unless the non-performance or improper performance arose as a result of an event for which the debtor is not responsible. Such a person is obliged to redress the damage as a result of non-performance or improper performance (Article 471 of the Civil Code).

Failure to perform an obligation, as the name suggests, is characterized by the lack of any action on the part of the debtor, which results in non-performance. In the event of improper performance of the obligation, the debtor takes steps to fulfill it, but they are not appropriate or sufficient and there is a lack of due diligence on his part.

Due diligence is characterized by devoting an appropriate amount of time to the performance of the service, the use of materials of appropriate quality and other properties and tools that aim to perform the service in accordance with the request of the other party.

Example 1.

Mr. Marian ordered 20 emerald thuja for his garden from the gardener. The gardener announced that their delivery could not take place until May 20, as the transport of plants from the Netherlands is due to arrive on May 17. Mr. Marian agreed to the term of the gardener and paid the amount due for the bushes and transport. Unfortunately, he did not receive the bushes until May 25, because the transport was stuck at the border, and the bushes were delayed by the gardener. In this case, the gardener is not responsible for the failure to fulfill the obligation on time because it was due to circumstances beyond his control.

The debtor is responsible not only for his own actions, but also for the actions and omissions of other persons whose help he uses or entrusts them with the performance of an obligation (Art. 474 of the Civil Code).

Example 2.

Mr. Janusz runs a confectionery and undertook to make two cakes - one with a strawberry flavor, the other with a lemon flavor. At the last minute, he took advantage of the Last Minute offer and went on vacation to Greece, and entrusted the cakes to his nephew, who is studying at a gastronomic school. When he came back, it turned out that his nephew had made only one cake, and a chocolate-flavored one in addition. In the case at hand, Mr. Janusz will be responsible for the failure to complete one of the tracks and the inappropriate performance of the other, as he entrusted this task to his nephew.

Premises of liability:

  1. pity,

  2. non-performance or improper performance of an obligation,

  3. adequate causal link between the damage and the non-performance or improper performance of the obligation.

Delay in performance and delay in performance

Delay and delay, although they have the same effect, differ in terms of liability.

A delay is characterized by the fact that the debtor is guilty of a delay in the performance of the service, while the delay is a failure to perform the activities on time, but the debtor's fault can be attributed here (Art. 476 of the Civil Code).

As part of the delay, the creditor may always demand compensation for the damage by the debtor, and also:

  1. purchase at the debtor's expense the same amount of items of the same type;

  2. payment of the value of things;

  3. authorization by the court to perform the activities at the debtor's expense;

  4. authorization by the court to remove, at the debtor's expense, everything that the debtor has done contrary to the obligation (Art. 480 of the Civil Code).

In emergencies, the creditor may, without the authorization of the court, perform activities at the debtor's expense or remove at his expense what he did against the obligation.

As part of cash benefits, the creditor has the right to charge interest in the event of delay, even if he has not suffered damage and the delay was not the result of the debtor's fault. However, if the debtor is in default, in addition to interest, the creditor may demand compensation for the damage (Art. 481 of the Civil Code).

Contractual and statutory penalty and delay in performance

Contractual penalty applies only to non-pecuniary benefits and is a form of compensation for damage resulting from non-performance or improper performance of an obligation, which must be stipulated in the contract. It is a definition of a specific amount - in the event of the resulting damage and regardless of the amount of the damage suffered, the debtor is obliged to pay a contractual penalty in the amount specified in the contract (Art. 483 of the Civil Code).

The exception is the performance of the obligation to a large extent, so the debtor may demand an appropriate reduction of the contractual penalty, this will also apply to situations where the contractual penalty specified in the contract is grossly excessive (Art. 484 of the Civil Code).

It should be remembered that in the case of determining a contractual penalty, the creditor may not seek compensation on general terms. The exception to this rule is the provision in the contract that despite the contractual penalty being specified, the party may claim appropriate compensation. However, such a contractual regulation will only be able to refer to the amount in which the damage exceeds the contractual penalty and it results from the concluded contract (Art. 485 of the Civil Code).

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Example 3.

Ms Maria runs a guesthouse and she has an agreement with a company that makes wooden stairs because the old stairs leading to the second floor were unsafe. At that time, it had to close the floor and receive a smaller number of guests. The contractor informed that the stairs will be made on March 25, so Ms Maria accepted the reservation for April for the rooms on the first floor. The contract stipulates a contractual penalty in the amount of PLN 1,000 and the possibility of compensation in the event of higher damage. The stairs were not made on time, and Ms Maria had to cancel the reservation and refund the clients' fees, which totaled PLN 2,000. In this situation, as the option of claiming compensation was included in the contract, Ms Maria may demand compensation in the amount of PLN 1000 (PLN 2000 damage - PLN 1000 contractual penalty).

Another issue is the institution of a statutory penalty, which will result from specific provisions. If, on the basis of special provisions, the creditor has the right to benefit from the statutory penalty, even without contractual reservation, he will be able to demand from the debtor payment of a specific amount of money from the resulting damage.

Is there a delay in the performance of the creditor?

In addition to the delay, the debtor may also delay the creditor. Such a situation will occur when the creditor will refuse to accept the benefit from the debtor or will refuse to perform an action without which the benefit cannot be fulfilled by the debtor. The creditor is also in default when he declares that he will not accept the benefit (Art. 486 of the Civil Code).

If there is a situation in which the creditor is in default, the debtor will be able to demand compensation for the damage and submit the subject of the benefit to the court deposit.

Legal basis

The Act of 23 April 1964 - Civil Code