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The time of intensive building works in cemeteries is now over. The weather was good for finalising contracts for raising tombstones. That's it: agreements. Public procurement in Poland is a field of law which to a great extent limits the freedom of contracting and choosing contractors, but in the field of consumer rights we are facing a completely new situation.  

Public procurement in Poland does not allow for free performance of acts by the ordering party. Only entities which fulfil criteria specified in the Public Procurement Act are allowed to provide the services in question. Article 24 in the Public Procurement Act specifies criteria which are taken into account when excluding contractors. The above act also specifies criteria which must be fulfilled by bidding entities.   

mediacjeInterestingly, the term bid is not uniformly understood by public procurement law. What is more, public procurement law introduces its own rules and may regulate some issues in a different way than other laws. A conclusion? In spite of frequent use of the term “bid” in Polish law, there is no legal definition of this term. Competences as regards proper understanding of “bid” term are in the hands of the National Chamber of Appeals and common courts. For example, Civil Code provisions may be applied only when public procurement law does not include its own regulations or when they are incomplete.  

All that was mentioned above is just a short summary of the publication for legal advisors (Radca Prawny, Zeszyty Naukowe nr 2/2015). What do we mean by the bid? Is it just the declaration of the contractor about his obligations? Or perhaps additional documents are also a part of a bid – besides the bid form – if they refer directly to contractor's obligations? So, if a contractor is obliged to submit a complete bid which includes all declarations and documents, perhaps the name of the bid should also mean objective and financial schedule required by the ordering party if the schedule also shows that the contractor is obliged to perform particular parts of the order in specified periods of time. Consequently, does it mean that also expected deadlines for the payments of invoices issued by the contractor should also be treated as a part of the bid? The authors of the publication mentioned above are sure that the term “bid” is not uniformly understood.


Public orders mean public money which must be spent rationally and guarantee best possible effects. Because of this the principle of freedom of contract is limited. However, the current legal status in this field is not perfect.  

In the last issue we discussed a problem of disputes arising on the ground of completing orders (also public ones) highlighting the opportunity to reach consensus by mediation. Now it is time to have a closer look at relations between buyers and sellers, which means, in case of contracts for specific work and construction works contracts – also relations between investors and contractors. Most of us are, I think, aware of the fact that a very important (for construction and stone branches) amendment to the Civil Code was introduced last year.  

The amendment introduced by means of the consumer rights act as of 30 May 2014 (Journal of Laws 2014, point 827) transposes into Polish law the European Parliament and Council directive (no. 2011/83/EU as of 25 October 2011) on consumer rights. According to the law, the statutory warranty makes the seller responsible for physical defects of a property if this defect is noticed five years before the property was handed over to the buyer. Expiration period of the rights under statutory warranty (in case of properties' defects) has been extended by two years.  

- It is an important change, in my opinion. Stone goods are often exposed to harmful weather factors since they are installed (for example sculptures or tombstones) or laid (paving stones) outdoor and must be resistant to freeze/thaw cycles. Longer statutory warranty period will make the responsibility bigger – says Grzegorz Skórka, the head of the Inspection Department of the Silesian Provincial Office.

- The above mentioned changes in civil law show that consumer rights are bigger and bigger. It is worth stressing that although we are now in a transitional period it refers only to contracts and related warranties which were concluded before 24 December 2014. New law refers to contracts concluded from 25 December 2014 (article 51 of this act says that agreements concluded before the date of entry into force of this act shall be subject to the legislation hitherto in force).  

mediacje 2Developers who had commenced their investment before the law changed, used to make construction work agreements with general contractors in which statutory warranty and/or warranty for defects was 3 years long. The statutory warranty time will depend on the fact if the sales agreement had been made before the amendments of the civil code entered into force.  


The most important changes in the law touch upon sales warranties making the seller's responsibility and the buyer's rights bigger. These rules are also applied in contracts for a specific work and construction works contracts. The amendment makes the definition of the term „physical defects” of things broader.   
- Broadening the definition of „physical defect” is, as for me, significant for distributors of stone goods. Now they must know if a product they offer on sale is suitable for the customer's needs. It is easy to imagine effects of the situation when a customer wants paving stones for paving a car park for trucks and the seller or his employee sells them paving stones designed only for making pavements for pedestrians” adds Grzegorz Skórka.

According to the definition, a physical defect means that a sold or built product is not as it is described in the sales agreement. It means that we also speak about a defect in a situation when a thing does not fit for the purpose about which the buyer informed the seller when signing an agreement (and the seller did not object to that use). We can also speak about a physical defect when the thing was badly installed, even if it was done by the buyer (unless he did not follow the manual).

In order to keep the statutory warranty we do not need to bring lawsuits before the statutory warranty expires. It is enough for a buyer to submit (before the statutory warranty expires) a declaration that a given thing has defects. After submitting the declaration about defects there is a year-long deadline for making claims to repair defects or change the thing. We must have in mind, however, that according to article 563 of the Civil Code, in case of sales contracts between entrepreneurs, the statutory warranty expires unless the buyer checks the thing within a time and in a way accepted for the things concerned and informs promptly the seller about the defect; or unless he informs the seller about the defect promptly after it is revealed (if the defect is revealed later).

Another important law for professionals says that in relations between entrepreneurs the seller may refuse to change the thing for a defect-free one or remove the defect if the costs are bigger than the value of the product sold. If a faulty thing has been installed, the investor will be allowed to demand to dismantle the thing and install it again after changing the thing into the fault-free one or after removing the fault. In case the contractor does not do it, the investor will be able to do it at the contractor's expense. It is worth mentioning that till now the entitlement of the investor to the so-called substitute performance was valid only during the performance of works (article 636 of the Civil Code) and not under statutory warranty. This change is potentially unfavourable to the contractor who should take care of a proper reduction of this risk in a contract.

Next, in place of the former entitlement to claim a lower price from the seller, the amendment grants the buyer (in case there are defects in the product) an entitlement to submit a one-page declaration about lowering the price or pay. It means that the buyer may indicate the amount to which the price should be reduced. We need to remember, however, that if the legal proceedings start, the buyer will have to prove that this amount is justified. This is another reason to recall the advantages of mediation – hearing of evidence is not so important then for  consensus-seeking.

mediacje 3What do new regulations offer to contractors? It is more and more often so that the stone in the wholesale is chosen by investors or ordering parties (for example to raise a monument). What if our customer purchases the material and asks us to do the work and the material turns out to be incorrectly selected? This situation may result in defects of the final work. From 25 December 2014 the law says directly that the contractor is not responsible for defects if they are result of a cause that is present in the material provided by the orderer. But watch out! We should inform the ordering party promptly about it (this fact should be written down in the agreement), because only then the contractor is not responsible (under statutory warranty) for defects of the work. If we do not do this, we may be liable to damages under the general provisions.

- We must take into consideration a specific character of stone goods, both those classified as construction goods (for example paving stones, stone bowls for making retaining walls) as well as sculptures, tombstones because their defects are often revealed after installation, especially after first winter. It would be absurd to tell the buyer to test frostresistance of each part of goods. I think it is acceptable to test the thing after first winter – says G. Skórka.

We should treat all we have said above as an opportunity for building a competitive advantage on the market if we aspire to be experts in our field.


So far we have analysed changes which are important for professionals who perform bigger works. Now we need to ask the following question: what is the difference between construction works contracts and contracts for a specific work? The latter one is usually applied when we deal with small architecture like tombstones. Unfortunately, in practice, defining a small architecture object is not so easy. The construction law says directly that small architecture object is „a small object, especially of religious worship such as chapels, roadside crosses, figures, statues, water effects and other garden architecture objects, recreation objects such as swings, sandpits, ladders, but also litter baskets”. Construction works contract cannot be applied here because the main criterion that differentiates this type of contract from contract for a specific work is assessment of the investment according to construction law requirements. In case of raising tombstones mandate contracts cannot be applied (article 734 of the Civil Code) because they are duty-of-care contracts. The parties should make a contract for a specific work because it is not about performing a work but achieving a result, so, in our case, not only raising a tombstone but also installing it.

Interestingly, in order to conclude contracts for a specific work we must apply rules concerning consensus contracts. In the Civil Law Code there are no special provisions concerning concluding contracts for a specific work. What is more, this type of contract does not need to have a special form. The contract can be also concluded verbally or it can be even implicitly assumed.  

Once we said that in our branch it is recommended to conclude agreements in a written form. It is important to specify a detailed scope of works or what the tombstone is supposed to look like (we need at least an outline). It is not recommended to speak about technical details with the orderer. Instead of a monument's technical drawing (where all dimensions are very precise), it is better to familiarise the orderer with estimated dimensions (length, width) and just an approximate thickness of a slab. Why? Many stonemasons lost their cases in courts because they installed covers which were half a centimetre thinner than declared in the drawing. Professionals know that thickness of slabs may vary by half a centimetre or even more.  For similar reasons, setting a precise completion date for building small funeral architecture objects is not a good idea, either. It is better to indicate a maximum deadline than a precise completion date. This way we can protect ourselves against weather conditions which can make installation of tombstone on that very day impossible.

Let us go back to discussing the differences between contracts for a specific work and construction works contracts. The main difference between these two types of contracts lies in the assessment of investment according to construction law requirements. It is important to see that contract for raising a tomb should be called a “contract for a specific work” and not a “mandate contract”. Why a “contract for a specific work”? Here, “work” means creating something new or changing one thing into another that does not exist now. It is important  when we apply Civil Code provisions to this type of contract as well as in assessment of will and obligations of the parties involved in a dispute. The contractor, being a party of a construction works contract, is obliged to build a thing in conformity with the project planning documents, technical knowledge and current technical and construction standards and then commission the building – depending on the provisions in the contract. Creating a “work” means achieving a specified result, for example creating a new thing, repairing, renovating or maintaining already existing things, etc. Contracts for a specific work shall be subject to the Civil Code provisions. These contracts are not subject to the Labour Code so they give the parties involved more freedom in setting rights and obligations (for example as regards the performance of the contract).   

A true stonemason should be also interested in the final effect, that is proper installation of a tombstone in the cemetery. It happens that installation is not performed well enough and it is a badly prepared ground that is the main reason for customer's complaint. It is sad to see leaning tombstones in cemeteries, but that is another story.  

Rafał Dobrowolski


Time is money, but the average waiting time to get an instrument permitting enforcement in Poland was as long as 584 days last year. When conflicting parties used mediator's services, they reached a consensus on financial receivables within 30 days. Moreover, the mediation fee was only 25% of the court fee and these are not all savings.

mediations 1.jpgManaging conflicts, moderating discussions, softening emotions – more and more people are learning mediation craft. Fairness and impartiality, confidentiality, humility and the knowledge of communication techniques are features and skills of a mediator. Mediator's duty is always the same: to bring a lasting resolution to the conflict and reach an agreement which is good for all the parties involved.  

Making mediation common among business people as well as taking some of the strain off the judicial system are also main objectives of a draft law on supporting conciliation methods of solving conflicts prepared by the Ministry of Economy in cooperation with the Ministry of Justice. The document as of 24 July 2015 was accepted by the Polish Parliament. In early August, the Senate supported novelisation of the Civil Procedure Code and some other bills which aim, among others, at reducing costs of litigations and encouraging involved parties to mediation. The changes relating to supporting conciliation methods of settling disputes concern, most of all, provisions of the Civil Procedure Code.    

Proposals for amendments prepared by the Ministry of Economy and the Ministry of Justice aim to contribute to more common and more frequent use of mediation and arbitration, but also to shorten and improve court proceedings and reduce litigation costs, both for citizens and the state. The solutions proposed in the bill are complementary to each other and constitute a set of legal tools which supports taking advantage of conciliation methods of settling disputes in Poland. This document was set up in close cooperation with business people, academic community, judges and mediators. Mediation is by its nature a very flexible method. It creates perfect possibilities for managing conflicts. At the same time, however, it lets us keep control over the conflict situation. It helps to keep proper relations between parties of the conflict, which is particularly important in business relations. Consequently, mediation also creates a big space for lawyers to get involved in these activities, which is vital for their professional experience.  

- Mediation is the simplest way of alternative settling of disputes. I'm deeply convinced that branch of subcontractors also needs specialist knowledge on settling disputes – proves Małgorzata Miszkin-Wojciechowska, a legal advisor, mediator and a head of the Centre for Arbitration and Mediation affiliated to Konfederacja Lewiatan (Polish business organisation representing employers' interests in Poland and the EU).

- It is enough to have a look at the latest statistics. In 2013 courts of law received in total about 15 million of business applications including about 9 million of civil cases, 1.5 million of business cases, 1.4 million of family court cases and 120,000 cases relating to the labour law. Mediation is more and more common, but as statistics show, the proportions are not as they should be, though successful mediations are highly probable.

Between 1 January and 31 March the district court in Warsaw received 227 cases which were sent to mediation and in which the parties agreed to mediation. Agreements were reached in 55% of them, which means that mediations were successful. This proves that when the parties decide to try mediation, a compromise is achieved in over a half of the cases.

mediations 2.jpgWhich branches of economy is business mediation most successful in? The mediation statistics show that business mediation is the most effective in conflicts where long-term relations are important for involved parties. Branches in which business mediation is successful are services, construction, real estate. It also appears that mediation is more and more popular among stone industry entrepreneurs. Why?

- I had a situation that I had to sue a company which fell behind on its payment for stone works. The court proposed mediation and referred us to the mediation office where two parties met in a nice atmosphere and discussed various ways of settling the conflict – says Michał Firlej from Stone Consulting who experienced a situation like this a few months ago.
- Just one, a few hour long meeting was enough to reach a compromise. We didn't have to pay for much of the court fees, either. A conclusion? I really recommend such a way of settling disputes to my stone industry mates. It is not a secret that in our world there are many contracts which are not written down. It is not a surprise because stone industry originates from craft not from industry as such, and, in my opinion, this is the reason why everything is based on personal relations and why we discuss all the matters when the work is already in progress. Another thing is that we are sometimes scapegoats of low business culture in Poland. Many representatives of our stone industry community are still crediting big projects and big players on the construction market are our debtors. But this is another reason why we should appreciate mediation. Taking of evidence – characteristic for all court proceedings – is not so important here. It is easier to show your opinion and hope for empathy of the other party of the dispute in a nice atmosphere when there are no lawyers and experts sitting next to you.
I think that everybody knows that payment delays are more and more common in our branch. The latest report presented by the National Registry of Debts and the Conference of Financial Companies in Poland says that 84% of companies suffered (to a lesser or bigger extent) from payment delays in the second quarter of this year. Payment delays make small companies suffer the most. The debt towards them rose by 7 percent during the year to over 860 million PLN (ca. 215 million euros). Polish companies wait for settling payments on average 4 months with construction and transport companies waiting the longest. What is the situation of stone market for debtors and creditors?   

- Unfortunately, in our branch even before concluding the transaction, one of the parties already knows that he is going to pull the supplier's or subcontractor's leg. You can see this especially at tenders when the bid with the lowest price (often calculated below the costs) wins – says Rafał Zahorski from Magemar Polska company which specialises in marine transport of stone.
- So far mediation in stone industry is just legitimisation of pathologies and giving ground to a customer who knew from the very beginning he was going to cheat us. Our business development level is not high enough and the state does not protect companies against this glaring unfairness. I am a fan of mediation, but it is possible only when two parties of the conflict want it.  

The criteria of reliability and stability of companies are financial liquidity, level of indebtedness and level of registered overdue payments. In November 2014 over 5,200 construction companies owed their counterparties over 292 million zlotys (more than 75 million euros) in total. Compared to the same period in 2013, the debt increased by nearly 25%. Well, in Poland just 30% of invoices are paid on time. Nearly 11% of invoices are more than 90 days overdue including those which are more than 121 days overdue. Estimated, average value of overdue payments per company is nearly 70,000 zlotys (ca. 17,000 euros), whereas more than a half of SMEs (54%) have overdue payments worth more than 50,000 zlotys (12,000 euros).

After five years of recession construction branch is recovering, but moods are still moderate. We should not be surprised because most companies which have problems with enforcing payments say that, according to them, their counterparties should pay on time because they have enough money (61% of companies think so).  

- The worst thing is that even public procurements do not guarantee that money will be paid on time. I remember talking to councillors from Legnica two and a half years ago. We were talking about stone works which we valued at 400,000 zlotys (ca. 100,000 euros). They agreed. There was only one condition in the agreement. We had to start our work immediately. I quit this, but I know that other subcontractors swallowed this bait. They are still getting their money in instalments – says Mateusz Ciemny, a stonemason from Głogów.

- Since that time I've been avoiding big projects. It is much easier to get along with a private investor. Stone is a natural product so I can't guarantee its repeatability (and I can't demand it, either). I can't just go to a wholesale and say: “A green stone, please”. We should learn how to value costs of our work. This is a craft and the fact that we can use CNC machines these days doesn't matter. We need to value ourselves highly and ignore the temptation to lower the price because it spoils the market, demotivates stonemasons and lowers the value of our craft.  

mediations 3.jpgAre agreements with stonemasons the worst possible for construction companies? One thing is certain: you need to have a sharp eye for business. Those who suffered from bankruptcies of contractor companies during Euro 2012 know about it very well. What is worse,  bankruptcy risk of construction companies is still at a very high level – in spite of their recovery and higher profitability in the last quarters, the number of bankruptcies is still very high. We need to add that nearly 60% of developers' debts are liabilities towards construction companies.     

- I'm really annoyed that when I do big contracts I need to issue a delivery note and sign an agreement in which the ordering party has a right to do everything and I have just duties and penalties (in order not to be associated with dictatorship, they are called contractual penalties). A medieval scribe seems a good person to analyse such tricky provisions – says Jacek Kiszkiel, a stonemason from Strzegom.  

- Once I had to return my trucks with stone for building express roads to my company. The ordering party always paid on time, but one day my employee told me that this company had just gone bankrupt. I had to do my best not to lose 300,000 zlotys (ca. 75,000 euros).

What is worse, nobody draws any conclusions from the failure of road and railway program. Agreements are still favourable only to ordering parties. The market is dominated by ordering parties who impose prices and conditions, set up rules which contribute to the market imbalance. The relation between ordering party and contractor is not based on cooperation and understanding but on supervision and stringent agreements controlled by lawyers hired by big companies.

- I learnt a lesson and now I'm doing business only with the companies run by presidents I know in person  (or at least I know a member of the board of this company). I'm not interested in other enquiries – reveals Wiesław A. Kisielewski, a stonemason from Białystok.

- I can see the following dependance. The shorter the time for getting familiar with agreement provisions, the bigger the risk that we met a cheat (there are more and more of them!). If a trusted (so far) customer moves his company nearer the capital city, there is a bigger chance that he will be tempted to cheat someone. We may hope that mediations will change the low business culture in Poland. So far subcontractors are treated like workers who should be happy that they found a work to do. What about payments? Issue the invoice, we'll see what we can do… - the same old song and dance given by big players.

Luckily, according to the National Registry of Debts, there are more and more Polish companies which have no problem with getting their money back from foreign counterparties. The study showed that in Poland not only big companies are focused on export. According to the survey carried out on 7,000 micro and small entrepreneurs by Pekao Bank, 33% of small companies engage in export whilst in 2013 it was 24%. An increase was also recorded among micro companies (the number of exporters rose in 2014 to 12 per cent, compared to 7 per cent in the previous year).  

And now a curiosity. Mediation appears to be successful when used by parties that have completely nothing in common: starting from different country they come from through different skin colour, religion and finally business culture...

- In the RSA, for example, where our family stone pits operate, a mediator is treated like a silent partner. There, possibly because of mixture of various cultures, business is much more open to new things. Polish stone industry is rather closed and does not seem good for mediators. Well, 90% of all stonemasons in Poland are people in their 50s who are not keen on any changes. Mistrust prevails, I'm afraid – concludes Jacek Kiszkiel.   

Rafał Dobrowolski


delfinThis unusual finding took place during archaeological excavations near Kibbutz Magen in the west part of the Negev Desert (in the south of Israel). This area is situated in Israel's south district and borders the Gaza Strip.

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sarpIn mid July the Zamoyski Palace hosted the ceremony during which the results of the competition for the best architectural project sponsored by public funds were announced.

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rudaThe open day organised by the Sales Department of Ruda Trading International Sp. z o.o. will take place on 22 September 2015 in the Production and Overhaul plant in Polkowice (8 Strefowa street).

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