Publication date: October 15, 2025
A characteristic of consumer transactions is the inequality of parties. Generally, the entrepreneur has a stronger position than the consumer. Practice and experience show that the entrepreneur will dictate the terms of the contract, including price, warranty terms, delivery time and location, and payment method. This places the entrepreneur in a stronger position vis-à-vis the consumer, who is often forced to comply. This can pose a threat when the entrepreneur exploits their dominant position to impose unfair terms on the consumer, to which the consumer will be forced to adapt.
To counteract this, a branch of civil law called consumer law was created. It contains the rights and guarantees that consumers have against businesses. These rights protect them from being exploited or even defrauded by businesses. These rights create a level playing field for the parties. A prime example of consumer law are the provisions regarding “abusive clauses.”
Abusive clauses are clauses in contracts concluded between a business and a consumer that shape the consumer’s rights and obligations in a manner that is contrary to good practice, grossly violating their interests. These are contractual clauses that are detrimental to the consumer and impose unfair conditions on them. Such a clause is not binding on the consumer.
In practice, abusive clauses are most often found in standard contract forms. These are predetermined and imposed parts of a contract intended to be applied to multiple cases. In practice, a business owner will not enter into a newly written contract with each consumer from scratch, but will instead use a single standard contract for multiple clients. Because the consumer has no control over the content of the standard contract, the Civil Code specifies the requirements that a standard contract must meet to be binding on the consumer.
Provisions regarding abusive clauses can be found in the Polish Civil Code in Articles 3851 – 3853 and Article 23a of the Polish Consumer Protection Act. Polish law in this area implements European law, particularly Directive 93/13/EEC. Consumer law is one of the main areas of EU law, and its strong unification is intended to ensure equal protection for consumers in all member states.
Article 3851 of the Polish Civil Code, however, allows for an exception when it comes to abusive clauses. If such a clause was individually agreed upon with the consumer, it binds them. An individually agreed provision is one over which the consumer had actual influence. This influence consists of the consumer’s freedom to decide whether to accept the specific content of the provision. This applies both to the decision to accept or not to accept a given provision, but also to the possibility of modifying its content. In practice, this will usually come down to the requirement of negotiations between the parties. The burden of proof that a provision was individually agreed upon rests with the party invoking it.
Article 3851 of the Polish Civil Code contains a sample list of prohibited clauses. Neither the Act nor the Directive provides a closed list of prohibited clauses. This would defeat the purpose of ensuring the broadest possible consumer protection by limiting protective measures to only certain clauses. Furthermore, the Office of Competition and Consumer Protection maintains an online register of prohibited clauses. Anyone can check which contractual clauses have been deemed prohibited by a court.
An abusive clause may primarily concern:
Abusive clauses in contracts between entrepreneurs
In a classical concept in professional transactions, i.e., those between entrepreneurs, clauses were supposed to be characterized by equality. It was assumed that, in principle, most entrepreneurs would have similar leverage and economic and financial standing, preventing situations where one could dominate the other. Even if inequality were to arise, with one party being stronger than the other, this would be factored into the risks of running a business and commercial practice. Therefore, there was no need to protect one party.
However, in today’s world, this view seems increasingly erroneous. On the one hand, sole proprietorships dominate the business model. They constitute the majority of business entities in Poland. In practice, however, such enterprises lack significant negotiating power. They are weaker organizationally and economically. Often, their leverage is no different than that of consumers. On the other hand, we have a growing number of large companies employing hundreds, or even thousands, of employees. Their market position is very strong, and they can impose their will on smaller businesses.
In such a situation, the parties in professional transactions are drastically unequal. One clearly dominates the other and may impose unfavorable contractual provisions. This relationship is very similar to that between a business and a consumer. Both the level of knowledge and the leverage of a small business owner may be limited compared to corporations with specialized departments.
Therefore, there are growing calls to extend the application of abusive clauses to professional transactions as well. This would provide greater protection for small and sole proprietorships in their dealings with large businesses. Such protection is essential if we want to ensure market security and stability.
The concept of dividing entrepreneurs based on their level of achievement is not unfamiliar to Polish law. The Entrepreneurs’ Law classifies entrepreneurs based on their earnings and the number of employees they employ. Although this act is administrative in nature, it demonstrates the need to differentiate between types of entrepreneurs. There are growing calls to introduce this distinction into substantive law as well. This would facilitate the functioning of some businesses and could provide a boost to the most vulnerable. This division would allow us to create specialized regulations targeted at smaller businesses.
However, it is important to remember another characteristic of professional transactions – professionalization. The prevailing view is that a company composed of professionals in a given field does not require such extensive protection. Their extensive experience in a given field gives them a sufficiently strong position. Such situations are complex, and legislators implementing reforms should decide which characteristic is more important: economic and organizational strength or professionalism.
Currently, the Civil Law Codification Commission is working on changes that would enable the protection provided by the prohibition of abusive clauses to be extended to certain entrepreneurs.
Case law
The problem of whether an abusive clause can be invoked in an agreement between entrepreneurs has become important in cases involving Swiss franc loans.
Banks entered into Swiss franc loan agreements with both consumers and sole proprietors. This raised the question of whether both had the same defense options.
Judgment of the Court of Appeal in Warsaw I ACa 216/19
Thesis: A legal act is in a specific relationship with a person’s social role – the issue of the lack of a direct connection between a legal act performed by a given entity and its business or professional activity is the most important and most characteristic criterion for the concept of a consumer.
According to the above court ruling, the court relied on a literal interpretation of Article 3851 of the Civil Code, according to which only the consumer may invoke an abusive contractual clause. This means that the consumer could invoke both the abusive nature of the contract’s provisions (Article 3851 of the Civil Code) and its invalidity by operation of law (Article 58 of the Civil Code). On the other hand, the entrepreneur could only invoke its invalidity. This placed them in a weaker position vis-à-vis the bank.
In practice, a sole proprietorship has the same power as a consumer vis-à-vis a bank when concluding a loan agreement. Legally, however, its position was inferior.
Many cases involving Swiss franc loans have shown that protecting the weaker party in loan agreements is not always sufficient. Taking the lessons from these cases into account, there is increasing talk of extending the application of abusive clauses to smaller businesses as well.
However, it is also worth paying attention to another issue that may be a salvation for sole proprietors.
Resolution of the Supreme Court and CSK 1525/23
Thesis: The fact that a borrower is also an entrepreneur does not deprive him of his consumer status. Every natural person who is an entrepreneur is also a consumer, and for the application of Article 3851 of the Civil Code, it is important whether the agreement was concluded outside the scope of business activity.
In this judgment, the Supreme Court notes that a professional entrepreneur can also be a consumer in credit agreements. The definition of an entrepreneur in Article 431 of the Civil Code and the definition of a consumer in Article 221 of the Civil Code are open-ended and must be assessed individually in each situation. The most important criterion is the purpose of the money taken out on credit. This means that in certain situations, it will be possible to recognize a sole proprietorship as a consumer under the contract, and then they will be entitled to rely on the abusive clause in Article 3851.
This is a way to increasingly extend the protection provided by the prohibition of abusive clauses.