If you are an entrepreneur, but you make purchases not related to business activity, i.e. you do not take a bill or invoice for company data, you act as a consumer and you are entitled to all his rights. The difference is important, because consumers in Polish law are covered by a higher degree of legal protection, as a "weaker" entity in business transactions. Therefore, they deserve special rights, such as the right to withdraw from the contract within 14 days. On the other hand, an entrepreneur, as a professional party, does not have the possibility to use all the legal protection tools provided for consumers. Remember this when making purchasing decisions.
Polish law protects consumers more than entrepreneurs with respect to contracts concluded. Contracts concluded with consumers (B2C) may not contain provisions which blatantly infringe the interests of consumers or are inconsistent with good practice. If such provisions are included in the contract, they do not bind the consumer. The Civil Code contains a list of "prohibited" provisions of a general nature, which must be applied when constructing contracts with consumers, and UOKiK maintains a register of prohibited clauses. This means that if a consumer buys a service, e.g. of a mobile network operator, but realizes after concluding that one of the provisions of the agreement is unfair (listed in the Office for Competition and Consumer Protection), he has the right to treat it as non-binding. He may also apply to the Court of Competition and Consumer Protection (Regional Court in Warsaw) for recognising any contractual clause as non-binding.
The situation is different in the case of contracts concluded with entrepreneurs (B2B), because the legislator considered that companies are equal, so if they conclude contracts with each other, they read them carefully and consciously sign them.
Guarantee and warranty for the entrepreneur
The law provides for two instruments to protect the rights of each buyer (both consumers and entrepreneurs) in the event that the purchased item or service has any defects: a guarantee of quality and a warranty for defects (legal and physical). The warranty is legally valid and the guarantee results from the inclusion of an additional reservation in the sales contract (it is voluntary).
The entrepreneur has the right to report the defect to the seller if the defect is discovered within two years (five years in the case of real estate) from the delivery of the item. This is a liability arising by operation of law in the event of a physical defect, i.e. a lack of conformity of the item sold with the contract.
In this situation, entrepreneurs are entitled to take the following actions against the seller:
- demand to reduce the price - in the proportion in which the value of the defective item remains in relation to the value of the defective item
- the right to withdraw from the contract - resulting in the obligation to return the mutually performed services - this right is granted only when the defect is significant, i.e. it makes it impossible to use it in a manner consistent with its purpose and characteristics
- demand for repair
- demand a defect-free replacement.
Note! If the item has been installed and only then the buyer could have detected the defect, he can demand that the item be disassembled and reassembled after repair or replacement. Regardless of whether the installation was carried out by the seller or not. If the seller does not comply with this obligation, the buyer may disassemble and reassemble the item at his own expense. This applies in particular to goods which cannot be used without installation. The seller may refuse disassembly and reassembly if the cost of these activities exceeds the price of the item sold.
Complaint made by the entrepreneur
The manner of handling the complaint depends on the seller, because the law does not impose an unconditional obligation on him to fulfill the buyer's request. In the case of demand to reduce the price or withdraw from the contract, if the seller is able to immediately and without inconvenience remove the defect or replace the item with a new one, he does not have to meet the demand, but to use an alternative solution. If you demand that the defect be rectified or that the item be replaced with a new one, the seller may refuse to fulfil this claim at all, if the costs of satisfying this obligation exceed the price of the item sold.
If the complaint is a second, third or subsequent complaint because the previous defect has not been rectified or the item is still faulty, you have the right to demand a refund and the seller has to fulfil it.
Delivery costs are borne by the seller.
The consumer has the advantage over the entrepreneur that in case of silence, the principle of acceptance of the complaint after 14 days applies. The entrepreneur can only hold the seller liable for such actions, as well as withdraw from the contract due to the seller's delay.
Remember also that as an entrepreneur you lose your warranty rights if you did not examine the item at the time of purchase and did not immediately notify the seller of the defect, and if the defect came to light only later - if you did not notify the seller immediately after its discovery.
The seller may also contractually limit his liability to the entrepreneur (e.g. exclude the warranty), and this is no longer possible for the consumer. Moreover, there is no top-down provision allowing you, as a entrepreneur, to give up your purchase without giving a reason (within 10 days) - this applies to traditional trade as well as online purchases.