A new approach to construction contracts
On 22 October 2025, at the Polish Chamber of Commerce in Warsaw, Prof. Piotr Machnikowski provided an overview of the work underway in the Codification Commission on new regulations for construction contracts. If the proposal becomes law, it will be a fundamental change for the entire Polish construction market.
Diagnosis of the problem
Prof. Machnikowski pointed out that the existing regulations on construction contracts in Poland were originally conceived as a framework scheme to be supplemented by general contract conditions issued at the ministerial level. But these were overturned for constitutional reasons, leaving a huge gap. Currently, there is no set of regulations in place which, even if the parties could opt out of them, would at least serve as a point of departure for the courts in determining fair market practice.
The gaps in the regulations are not filled by the cross-reference to the rules for a contract for a specific work (umowa o dzieło). This cross-reference is narrow, applying only to certain sections of those regulations, and otherwise leaves the parties in uncertainty. The regulations for contracts for a specific work are also sub-optimal, particularly from the perspective of professional operators. Some of the solutions, such as Civil Code Art. 635, are too rigid. They also cross-reference the warranty on sales, which was intended as a tool for protection of consumers, not professionals. Moreover, the Civil Code does not contain a separate set of regulations governing service contracts, which is another weakness of the current system.
Construction works are characterised by a wide range of specific features, fully justifying a set of standalone provisions governing this type of contract.
First, these types of contractual relationships typically involve a certain imbalance, as the contractor has specialised knowledge and information at its disposal on the circumstances relevant to performance of the contract. At the same time, the contractor is dependent to some degree on cooperation from the investor’s side. The contractor’s position is further weakened during the course of contract performance, when it essentially contributes labour and materials to augmenting the investor’s assets, which are only accounted for later.
Second, construction contracts are often concluded for a longer term, and new risk factors arise during the course of performance. These typically do not rise to the level of extraordinary circumstances that would justify seeking judicial modification of the contract, but they are still risks that are hard to foresee and evaluate at the contracting stage, and present difficulties in the subsequent settling of accounts between the parties. Consequently, conflicts often arise under construction contracts, which can escalate and lead to breaking off of the parties’ cooperation. On top of this, the consequences of repudiation of the contract are also imperfectly regulated—repudiation should exert effects only for the future, but that is not expressly stated in the regulations.
Even if a dispute does not arise until after the completed structure is handed over, the current regulations don’t properly address this situation. Defects uncovered at that stage often cannot be cured, and even if they could, the existing rulings from the courts do not allow the investor to commission substitute performance for claims under the warranty against defects (rękojmia).
The work of the Codification Commission
For these reasons, the Civil Law Codification Commission, a body established under the Ministry of Justice, appointed a team to draw up a new set of regulations governing contracts for construction works (comprised of Supreme Court judges Dr Marta Romańska and Dr Roman Trzaskowski, Prof. Przemysław Drapała, Prof. Piotr Machnikowski, Prof. Fryderyk Zoll, and Marek Miller). The outline for the amendments has already been accepted by the commission. Work is currently underway to draft the amending bill, which will be released to the public following internal deliberations within the commission.
Proposed new regulations
The aim of the changes is to introduce solutions supporting the achievement of the principal purpose of the parties’ undertaking: execution of a structure.
A redefinition of contracts for construction works is being proposed. Instead of the term “investor” it will most likely use the notion of “employer” (here, zamawiający). More broadly, it will take a functional approach, referring to works furthering the execution of a structure (an autonomous notion in relation to the Construction Law). The definition of “construction works” would also cover renovation works, but minor projects such as home renovations could be exempted from the regulation.
The new set of regulations would generally not be mandatory, and would apply insofar as the parties do not provide otherwise. Their application would not be limited to dealings between professionals, although having the status of a business would be relevant for the allocation of duties and risks.
If both parties to the contract are businesses, then at the stage of concluding the contract they would be required to exchange information about risks that could affect performance of the contract. The employer would bear a standardised duty to prepare the construction site, subject to verification by the contractor. Both of the current remuneration schemes (based on a bill of quantities, or a flat fee) would remain, but the financing should better reflect the real progress of the works—hence there would be an obligation to make partial payments. The contractor would also be required to draw up a timetable for the works, which would then serve as a tool for the employer to oversee the timeliness of performance.
A key new feature would be the notion of “change orders,” which would build into the contract a mechanism for modifying the scope of work, as well as clarifying the contractor’s right to an appropriate fee.
The regime of liability for defects would be clarified by distinguishing between curable and incurable defects, and between material and immaterial defects, while allowing for substitute performance within the warranty. The mechanism for overseeing the timeliness and quality of performance would be more flexible than the current rigorous Art. 635 of the Civil Code, but also effective enough to enable a response to the situation before the delay gets out of hand. Another key provision would be clarification of the consequences of repudiation of a contract for construction works, by expressly excluding the operation of Civil Code Art. 494 and specifying that repudiation of such contracts operates only prospectively.
Finally, the method for resolving disputes arising during the course of contract performance would also change. The solution being considered is to introduce interim resolutions, allowing construction works to continue while the litigation over payment for disputed items is ongoing. These resolutions would be issued either by the courts, under a procedure similar to that used for interim relief in civil litigation (although that could be ineffective given the current caseload of the courts), or via a dispute adjudication process.
Summary
If these amendments are adopted, they will be a fundamental change for this entire sector of the economy. At the current stage, the proposed solutions can be assessed positively—although, as always, the devil is in the details. Hopefully, the commission will complete its work smoothly and the bill will see the light of day as soon as possible.
Piotr Golędzinowski, attorney-at-law, Dispute Resolution & Arbitration practice, Wardyński & Partners
