Publication date: December 12, 2025
The right to withdraw from a contract, which may result from a statute or other generally applicable act or from a contractual provision between the parties, also requires analysis in terms of the type of relationship (B2B, B2C). When it comes to relationships between businesses and consumers, the most important legal acts regulating such relationships in a cross-border context are European regulations, in particular Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (hereinafter: Directive 2011/83/EU).
Withdrawal from a contract in a B2C relationship
Article 9(1) of Directive 2011/83/EU provides that subject to the exceptions provided for in Article 16, the consumer shall have the right to withdraw from a distance or off-premises contract during a period of 14 days without giving any reason and without incurring any costs other than those provided for in Article 13(2) and Article 14.
Some exceptions indicated in Article 16 of Directive 2011/83/EU are:
a) service contracts under which the service has been fully performed, but, where the contract places the consumer under an obligation to pay, only if performance has begun with the consumer’s prior express consent and after the consumer has acknowledged that he will lose his right of withdrawal once the contract has been fully performed by the trader;
b) the supply of goods or services the price of which is dependent on fluctuations in the financial market over which the trader cannot have control and which may occur during the withdrawal period;
c) the supply of goods manufactured to the consumer’s specifications or clearly personalized;
The condition for exercising this right of withdrawal is to submit an unequivocal declaration to the trader before the expiry of the period. For this purpose, the consumer may use a ready-made form or make any other unequivocal declaration in which he informs of his decision to withdraw from the contract (Article 11 of Directive 2011/83/EU).
The regulations implementing Directive 2011/83/EU in Poland are the Act of 30 May 2014 on Consumer Rights (Journal of Laws of 2024, item 1796). A key provision for protecting consumer rights and limiting the scope of freedom to enter into contracts is Article 7 of the Consumer Rights Act, which states that a consumer may not waive the rights granted to them by statute. Contract provisions that are less favorable to the consumer than the provisions of the Act are invalid, and the provisions of the Act shall apply in their place. This means that clauses limiting or excluding the statutory right of withdrawal cannot be applied to the consumer. Additionally, if the consumer has not been informed by the trader of the right to withdraw from the contract, the withdrawal period expires 12 months after the end of the initial withdrawal period (Article 10 of Directive 2011/83/EU and Article 29 of the Consumer Rights Act).
In cross-border relationships, the consumer is also favored under other provisions of European law. Article 6(1) of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ L 177, 2008, p. 6, as amended) provides that a contract concluded by a natural person for a purpose that can be deemed unrelated to his or her commercial or professional activity (consumer), with another person pursuing a commercial or professional activity (entrepreneur) shall be governed by the law of the country in which the consumer has his or her habitual residence, provided that the entrepreneur: a) pursues his or her commercial or professional activity in the country in which the consumer has his or her habitual residence, or in any other way directs such activity to that country or to several countries including those countries, and the contract falls within the scope of that activity. The consumer is therefore also protected in other ways by the legislation of the Member States, including through institutions separate from the general right of withdrawal within 14 days, allowing the consumer to withdraw from the contract or, in some cases, even to declare it null and void.
Contractual and statutory right of withdrawal in the Civil Code
Article 395, section 1 of the Civil Code states that it may be stipulated that one or both parties will have the right to withdraw from the contract within a specified period. This right is exercised by a declaration made to the other party. Article 395, section 1 of the Civil Code states that if the right of withdrawal is exercised, the contract is deemed not to have been concluded. Whatever the parties have already provided shall be returned unchanged, unless the change was necessary within the scope of ordinary management. The other party shall be entitled to appropriate remuneration for the services provided and for the use of the goods. Such a provision may require payment of a specified sum, if the parties so agree, the so-called compensation (Article 396 of the Civil Code).
The provisions of Articles 395 and 396 regulate the so-called contractual right of withdrawal and are binding in both B2B and B2C relationships. In the absence of a specific contractual provision, the parties do not have an automatic right to terminate their relationship, although in some cases it will be possible to withdraw from the contract without an express contractual provision, the so-called statutory right of withdrawal, which results primarily from the provisions of Articles 491, 492 and 492 with index 1, as well as Articles 493 and 495 of the Civil Code. These provisions stipulate that: in the event of default by one party, the other party may set an appropriate deadline for performance of the obligation, with the warning that if the deadline expires ineffectively, it will be entitled to withdraw from the contract (Article 491).
If the right to withdraw from a mutual contract is reserved for failure to perform an obligation within a strictly specified period, the entitled party may, in the event of default by the other party, withdraw from the contract without setting an additional period. The same applies if the performance of the obligation by one party after the deadline would be insignificant for the other party due to the nature of the obligation or due to the intended purpose of the contract, which is known to the defaulting party (Article 492). Article 492 (1), in turn, states that if the party obligated to perform declares that it will not perform, the other party may withdraw from the contract without setting an additional period, even before the specified performance deadline arrives.
Withdrawal from the contract as a claim may also arise from the provisions on warranty and liability for lack of conformity of goods with the contract. In the case of warranty, the legal basis is the Civil Code, and in the case of liability for lack of conformity of goods with the contract, the Consumer Protection Act.
Warranty provisions apply to real estate, regardless of the type of relationship, and to movable property in B2B and C2C relationships. In the case of movable property in B2C transactions, the Consumer Rights Act applies, which results from the exclusion of the Consumer Rights Act’s application to real estate (Article 4, Section 1 of the Consumer Rights Act). The basis for liability under warranty is a defect (Article 556 (1) of the Civil Code – i.e., nonconformity of the sold item with the contract), while the basis for liability under the Consumer Rights Act is the lack of conformity of the goods with the contract (Article 43b, Section 2 of the Act – objective dimension, Article 43b, Section 1 of the Act – subjective dimension).
The difference between these regimes lies in the sequentiality or lack of sequentiality of claims. In the case of warranty and the Civil Code, the available claims are: removal of the defect, replacement of the item with a new one, price reduction, withdrawal from the contract and compensation (based on general provisions), and in the case of liability for lack of conformity of the goods with the contract, the claims are very similar: repair, replacement, price reduction, withdrawal from the contract and compensation (based on general provisions), but the possibility of exercising e.g. withdrawal from the contract requires the sequential use of the previous claims.
In some cases, the answer to a given legal issue may be found in the provisions of international law, specifically the United Nations Convention on Contracts for the International Sale of Goods, done at Vienna on 11 April 1980 (Journal of Laws of 1997, No. 45, item 286, as amended). The Convention applies to contracts for the sale of goods between parties having their places of business in different countries: if those countries are Contracting States or if the rules of private international law designate the law of a Contracting State as the applicable law (Article 1 of the Convention). The Convention indirectly regulates the issue of rescission of a contract through Article 29, stating in this provision that a contract may be modified or terminated by mere agreement of the parties, and that a written contract which contains provisions requiring a modification or an agreed termination in writing cannot be modified or terminated in any other way. Article 49 of the Convention refers to rescission directly, in turn, where paragraph 1 states that the buyer may declare rescission of the contract if the seller’s failure to perform any of his obligations under the contract or this Convention constitutes a fundamental breach of the contract, or in the event of non-delivery, if the seller has failed to deliver the goods within an additional period specified by the buyer in accordance with paragraph 1 of Article 47, or if the seller has declared that he will not deliver the goods within such period. Article 47 paragraph 2 of the Convention deals with circumstances in which the seller has delivered the goods, but the buyer will nevertheless retain the right to rescind the contract.
While in the case of B2C relationships, the key factor is a kind of “principle of advantage” for consumers, as well as the previously mentioned rule of Article 6 of the Rome I Regulation, in non-consumer relationships, the rule is the freedom of the parties to choose the applicable law. Article 3, Section 1 of the Rome I Regulation states that the contract shall be governed by the law chosen by the parties. The choice of law shall be made expressly or shall be clearly evident from the contractual provisions or the circumstances of the case. The parties may choose the law applicable to the entire contract or only to part of it. In the absence of a choice of applicable law by the parties, the law applicable to the contract shall be determined in accordance with the rules set out in Article 4 of the Rome I Regulation.