In Poland, contracts can be made orally or in writing. Typically contracts will be made in writing, on the basis that this provides a written record of the terms of the contract agreed between the parties. An oral contract can leave substantial room for debate as to its terms.
There are four forms of written agreement under Polish law: simple written contracts, contracts with signatures confirmed by a notary public, notarial deeds and contracts executed "virtually". Different form of contract is required by law depending on the circumstances. Choosing the right form has far-reaching consequences on validity and enforceability of the contract.
Simple written contract
Agreements are most commonly executed as simple written contracts. A contract is made binding on the date that both parties intend it to come into effect, which is typically evidenced by both parties signing the agreement. There is no requirement for the signature to be witnessed.
Simple written contracts are often executed in counterparts. This means that each party to the contract will sign separate but identical copies of the same document. The signed copies will together form a single binding agreement.
Contracts with signatures confirmed by a notary public
Contracts with signatures confirmed by a notary public are required by law in certain circumstances. For example, the acquisition of shares in a Polish limited liability company must be made with the signatures being confirmed by a notary public. The notary public (in Poland or abroad) needs to check the identity of all persons signing the document and confirm that all signatures have been made in his presence. Failure to apply the required form results in the lack of legal effect of the share purchase agreement.
Notarial deeds are required by law in certain circumstances. For example, transfers of real estate and powers of attorney to the lawyers must be made by the notarial deed otherwise these documents are invalid.
Notarial deeds can also be advantageous even when they are not strictly required by law. For example, if only one party under a contract is receiving a donation, it would be advisable under Polish law to execute the contract as a notarial deed so that it is not void for lack of consideration.
Contracts executed "virtually"
There are often difficulties, especially in cross-border cooperation, in getting all signatories to a contract together in one room to sign the contract. Furthermore, physically posting the contract between the parties may be prohibitively slow.
To avoid these difficulties, it is possible to sign a contract "virtually". That is, the signature pages are prepared and signed in advance and the signatures are "released" upon mutual agreement, often given by email or SMS. Naturally, it could be debatable later on who actually sent the email, so contracts executed virtually sometimes may not be enforceable. Another solution is the use of the so-called qualified electronic signatures. If all signatories have qualified electronic signatures, there is no risk that the contract is unenforceable.
In Poland, the legal framework for electronic signatures is established under the Regulation (EU) No. 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC (the ‘eIDAS Regulation’) and by the Act of 5 September 2016 on trust services and company identification. The eIDAS Regulation distinguishes three levels of electronic signatures: 1. electronic signature 2. advanced electronic signature and 3. qualified electronic signature.
Only the last one in the eIDAS Regulation typology (the qualified electronic signature) is recognized under Polish law as equal to a physical signature (written "under hand") – that is a qualified electronic signature. A qualified electronic signature based on a qualified certificate issued in any EU member state is recognized as a qualified electronic signature in all other member states. Therefore, a qualified electronic signature issued by a trust service provider from any of the EU countries is sufficient to comply with an electronic form requirement under Polish law.
Qualified certificates for electronic signatures can be obtained from private providers which have been granted a qualified status by a national competent authority as indicated in the national trusted lists.
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