Effective defence against claims for payment of compensation for recovery costs

Effective defence against claims for payment of compensation for recovery costs

We have been successful in an increasing number of cases involving claims for payment of compensation for recovery costs (Article 10(1) of the Act of 8 March 2013 on the Prevention of Excessive Delays in Commercial Transactions) brought against hospitals.

The Courts agree with the Law Firm’s position that due to the occurrence of payment delays on the part of the hospitals, it is justified to charge them with a one-off amount of EUR 40 in relation to each of the concluded supply contracts, and not for each of the individual invoices issued on the basis of a given contract. The above also means that the Courts consider the specific contract within which the deliveries are made, and not the individual invoices issued in connection with its performance, to be a commercial transaction.

The concept developed under the supervision of Magdalena Cieślińska-Dopierała, attorney-at- law, also finds approval. According to it the circumstances usually relied upon to prove that the entitlement under Article 10(1) of the Act does not arisen are actual failure to undertake debt collection activities with respect to the principal receivables and consequently failure to incur costs to be compensated, are raised, also on the basis of Article 5 of the Civil Code and this together with other circumstances proving abuse of the right, such as mutually beneficial continuation of cooperation, failures in performing the contract also by the creditor, disproportion between the amount of compensation and the overall value of trade between the parties, or lack of influence of delays on the creditor’s financial liquidity. Indeed, compensation often becomes a profit-making instrument for creditors, which contradicts the ratio legis of Article 10(1).

The courts, on the other hand, following the arguments put forward by the Law Firm, emphasise that the compensation for debt recovery costs was intended to compensate creditors for losses suffered as a result of late payment and not to constitute a source of additional earnings for the creditor in connection with the commercial transactions concluded, as such conduct violates the rules of social coexistence.

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