On 31 October 2025, in case no. III CZP 22/25, the Supreme Court adopted a resolution concerning standard-form developer contracts in the area of contractual penalties. Developer contracts are of considerable significance on the consumer market, in particular due to the high value of their subject matter for the consumer, their legal complexity and, as a rule, the significant economic advantage of the developer over the purchaser of the apartment. The resolution will therefore undoubtedly have noticeable practical implications.
Within the above-mentioned resolution, the Supreme Court answered the following question:
“Does the mere omission, in a developer contract, in a clause providing for a contractual penalty in favour of the consumer against the developer for each day of delay in meeting the deadline for concluding the contract transferring the right of separate ownership of a residential unit, of a right to claim damages exceeding the amount of the agreed contractual penalty, constitute an unfair contract term which significantly limits, to the detriment of the consumer, the trader’s liability for improper performance of the obligation (Article 385³ point 2 of the Civil Code)?”
The answer given by the Supreme Court is as follows:
“In case of doubt, a clause in a developer contract which provides for a contractual penalty in favour of the consumer for each day of delay in concluding the contract transferring the right of separate ownership of a residential unit, but which does not provide the consumer with a right to claim damages exceeding the amount of the agreed contractual penalty (Article 484 § 2, second sentence, of the Civil Code), is to be regarded as an unfair contract term. The clause referred to in point 1 is in particular unfair where the contractual penalty has been stipulated in a grossly low amount.”
This answer appears, at first sight, to be balanced and to require consideration of the individual circumstances of each case – through the use of the expressions “in case of doubt”, “in particular” and “in a grossly low amount”. In practice, however, it can be expected that decisions will be given against developers in virtually every case. Moreover, the content of the resolution may be criticised on the grounds that, in substance, it concerns not a contractual clause but the absence of provisions which, under the law, are optional, and that where contractual penalties are stipulated in the same amount for both parties, it is not possible to speak of a disturbance of the contractual balance.