Issues of non-performance or improper performance of carriage contracts constitute significant matters under the applicable transport law. Given the common and mass nature of carriage contracts concluded in everyday life, the Legislator has specifically regulated the pre-trial obligations of entities intending to pursue their rights arising from carriage contracts.
The legislator has emphasized the possibility of an amicable settlement of a dispute, which in principle allows for reducing the high costs incurred in connection with taking a case to court, and also influences the speed and flexibility of the proceedings. However, actions taken outside of court do not always lead to the resolution of the problem that has arisen.
When is a complaint procedure required?
The complaint procedure can be mandatory or optional. Under the Polish Act – Transport Law of November 15, 1984, relating to domestic transport, we are dealing with a mandatory complaint procedure. This means that claims against the carrier can only be pursued in court after the unsuccessful exhaustion of the complaint procedure. Conversely, the carrier can only pursue its claims in court after an unsuccessful demand for payment from the obligated party. This article will refer in particular to the first of the aforementioned modes, although many similarities can be found in the proceedings following the submission of a demand for payment.
It should be noted that the issue of the legal nature of a complaint is regulated differently in the CMR Convention, which relates to international transport. The Convention does not make the effectiveness of taking a case to court dependent on the prior exhaustion of the complaint procedure, and therefore the complaint path is only optional under this convention.
It is worth mentioning here, regardless of the nature of the complaint indicated above under the Transport Law and the CMR Convention, that in the case of a court dispute between entrepreneurs, and thus conducted according to the rules of civil commercial proceedings, the necessity of attempting an out-of-court settlement of the dispute was introduced by Art. 479 § 2 of the Code of Civil Procedure. In accordance with this regulation, the plaintiff should attach to the statement of claim a copy of the complaint or a demand for voluntary fulfillment of the claim, together with proof of its delivery or sending it to the defendant by registered mail, as well as copies of letters proving an attempt to clarify the disputed issues through negotiations.
What is a complaint
Under Polish civil law, a complaint is considered to be the submission to the service provider of a demand to fulfill those obligations which they should have fulfilled in connection with the non-performance or improper performance of an obligation. In principle, it does not matter how the letter containing the above-indicated demand is named or titled. Therefore, even if we call such a letter, for example, a “demand for payment”, it will in essence constitute a demand to initiate a complaint procedure, provided that such an intention can be interpreted from its content. Nevertheless, in order to best protect one’s own interests, it is advisable to head the document in question with the title: “Complaint”.
Complaint as a procedural requirement
Submitting a complaint is a prerequisite for pursuing claims in civil proceedings. A court to which a lawsuit is filed against a carrier, to which a complaint has not been attached along with proof of its submission, has an obligation to reject such a lawsuit. Additionally, it cannot be the case that the lawsuit is filed after the complaint has been submitted, but before its negative consideration by the carrier or before the expiry of the three-month period, calculated from the date of delivery of the complaint, during which the carrier has not paid the claimed amounts.
In summary, for the condition of ineffectiveness to exist, the following conditions must be met:
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the complaint was submitted before the expiry of the limitation period for the claimed amount, with the limitation periods for claims under the Transport Law being regulated in Art. 77
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the complaint was settled negatively in any part
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in the absence of a response to the complaint, the authorized person waited for a period of three months, calculated from the date of actual delivery of the complaint.
The article comes from the magazine “Logistyka” 5/2011.