How to serve GTC effectively? Relevance of GTC in court proceedings

Judicial practice shows that GTC are often served incorrectly or signed by unauthorised persons so that the dispute has to be resolved on general rules stipulating such jurisdiction and substantive law (private international law, EU regulations, Code of Civil Procedure) that may turn out to be less favourable to the party that wanted the GTC to be in force. 

Find out how to serve GTC effectively.

The law makers have not introduced any specific requirements for the service of contract templates, so in this respect it is necessary to refer to the general rules of declaration of intent. Based on Article 61 of the Polish Civil Code, it should be concluded that a contract template may be considered to have been served if it has been communicated to the other party in a way enabling it to get familiar with its content before signing the contract.

The requirement to serve the contract template before concluding the contract should be understood to mean that the business partner must already be in possession of the contract template before declaring its intent to accept the offer or sign the contract. Therefore, if the contract is to be based on an offer, the contract template must be served on the counterparty along with the official offer at the latest so that, when deciding whether to accept or reject it, the business partner has all the provisions that will be binding on him. If the parties first negotiate the contract, the contract template should be sent no later than along with the final draft contract ready to be signed. It will certainly be too late to hand over the contract template to the business partner after signing the contract.

A contract template can only be considered to have been served effectively if the business partner was able to understand its content. This means that a contract template served in a language the business partner does not understand cannot be deemed served because he simply does not know what he is to agree to. 

To ensure the effective serving of the contract template, it is also necessary to provide the business partner with the entire contract template plus other documents to which it refers. Thus, it is not sufficient if you tell your business partner about the applicable contract template or provide him with an extract containing its key provisions. 

The contract template can also be served by letter or e-mail with enclosed contractual documents.

There is no obligation to serve the contract template before concluding a contract if the use of templates is customary in business relations of a given type. However, this does not apply to B2C contracts unless it is a common contract for minor day-to-day matters. Then, it is sufficient that the counterparty can easily learn about its content. For example, it will be enough to display the contract template on a board in the office where such contracts are signed. Very often, templates of low-value contracts (e.g. a transport contract or car park service contract) are displayed e.g. inside the means of public transport or next to the car park barrier.

Where a party uses an electronic contract template, he must make it available to the other party before concluding the contract, in such a way that it can be stored and reproduced. 

It is not sufficient to provide the business partner with a link to the website on which the template is published in the text form, because, first, the business partner cannot store it in this format on his device, and, second, the template user can unilaterally modify it. 

On the other hand, it is considered sufficient if the business partner receives an e-mail message with the attached contract template in pdf format or a link which, if clicked, downloads the file on his computer. In such a case, the business partner has the template version applicable at the time of concluding the contract, and if the GTC are later modified, the business partner can prove which version of the GTC he agreed to upon contract signing.

A very common practice used to avoid the business partner's allegations that no contract template whatsoever has been served on him, is to let the business partner put his signature or initials under the contract template copy, with a note confirming that he has received the contract template. Similar notes are also often included in the contract itself, although caution is recommended here, because courts are increasingly finding (especially in consumer cases) that such a clause is insufficient to consider that the contract template has been served correctly.  Therefore, the safest solution is to obtain the business partner's signature under the contract template. In turn, where documents are sent by letter or e-mail, the sufficient proof of service will be the return receipt.

If your business partner does not agree to including the contract template in the contract, the contract is not concluded because of the lack of two corresponding declarations of intent. In such a case, the business partner must either reject the offer made to him or end the negotiations. If the contract alone (without the contract template) includes all required elements, it can be concluded disregarding the contract template. To this end, the business partner should submit a counter-offer for signing the contract alone. 

According to Article3854 of the Civil Code, whenever both contractual parties are businesses and use their own contract templates and both contract templates have been effectively served, two situations may arise:

At the same time, if any provisions of the contract templates turn out to be in conflict, each party has the right to immediately inform the other party that he refuses to conclude the contract on such terms and no contract is effected as a result.​