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Debt collection - legal path

Almost every entrepreneur struggles with the problem of overdue receivables of his contractors. There are many reasons for this type of situation. The most important thing from the perspective of running the business is when the debt is paid. Difficulties in cooperation or constant insolvency of contractors often force companies to take various steps, including those of a judicial nature.

Debt and interest

According to the Civil Code (hereinafter: the Civil Code), the obligation consists in the fact that the creditor may demand a payment from the debtor, and the debtor should fulfill the payment.

In addition, the debtor should perform the obligation in accordance with its content and in a manner corresponding to its socio-economic goal and the principles of social coexistence, and if there are established customs in this respect - also in a manner consistent with these customs. This means that when a debt becomes payable, a debt arises - and the debtor should pay it.

Otherwise, under this act, the creditor is entitled to special measures to compensate him for the longer waiting time for payment. This type of measure certainly includes the charging of late payment interest. It should be mentioned that the interest is ancillary. This means that they are not self-contained - they cannot exist separately from the main claim.

Art. 481 of the Civil Code

§ 1 If the debtor is in delay with the payment, the creditor may demand interest for the delay, even if he has not suffered any damage and even if the delay was a consequence of circumstances for which the debtor is not responsible.

§ 2 If the interest rate for the delay was not specified in advance, statutory interest shall be due. However, when the claim bears interest at a rate higher than the statutory rate, the creditor may demand default interest at this higher rate.

§ 3 In the event of the debtor's delay, the creditor may also demand compensation for the damage on general terms.

Special solutions regarding interest are also regulated by the Act on Payment Terms in Commercial Transactions, in force from April 28, 2013.

It should only be added that, by law, charging interest is the creditor's right and not his obligation.

Pre-trial request for payment

In pre-litigation proceedings, activities should focus on the actual recovery of overdue receivables.

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A request for payment is the primary method of claiming your rights. There is no need to present the entire facts of the case in the content of the summons, as the debtor knows it. It is enough to provide the most important data - first of all, on what basis the creditor makes a payment request.

If sending the first letter does not have the intended effect for the debtor, another should be sent, which should be noted that this is the last pre-trial summons. After the unsuccessful appointment of another deadline for payment of the debt, judicial action should be taken.

Other pre-trial measures

The debtor's disciplinary measures include all kinds of prompts, e.g.in the form of an SMS, e-mail, fax or in the traditional form of correspondence - with a preventive seal (announcement of the sale of a debt or entry in the appropriate register).

In addition, the reminder may be more direct, such as by phone call or personal negotiation.

The talks of both parties may lead to a settlement or novation - i.e. the cancellation of the existing legal relationship and the establishment of a new one, which, for example, will set a new payment date, spread the debt into installments or reduce it, there will be a set-off, exchange, etc.

In the course of pre-trial proceedings, the creditor may also resort to measures that will discipline the debtor more. Less painful solutions include deprivation of discounts or exclusion from the loyalty program. It may be painful for the debtor to report his data to offices managing economic information - such as the National Debt Register.

Good to know!

It is extremely important to document the actions taken by the creditor in the pre-trial proceedings. This will be helpful in claiming debt payment in court.

Court request for payment

In a situation where the debtor still does not fulfill the benefit despite being summoned twice before the court, it is necessary to go to court. Do not delay it too long, because you have to remember that the claim may be time-barred, making it unmatured.

Good to know!

In the case of expired debts, the payment of even PLN 1 by the debtor towards the receivables causes the debt to become due again. Then the creditor can successfully apply for a refund again within the limits of the law.

Bringing a civil action has the advantage that the limitation period is interrupted.

Entrepreneurs often fear court proceedings. This is dictated by the conviction that high costs will be incurred, participation in hearings in cities remote from the place of residence or the loss of a contractor.

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In many cases, these concerns are unfounded, as the debtor is in principle charged with the costs of the court proceedings. Moreover, court costs are claimed through enforcement proceedings that are conducted by a bailiff.

The question arises: in what mode can a creditor go to court to be able to exercise his right? Depending on the grounds of the claim, the proceedings may be prescriptive, admonitory or ordinary.

Typically, matters relating to the claim for payment of debt are dealt with in the form of a reminder or order. The hearing is held in camera and the debtor receives an order for payment, unless he submits an appeal.

If the entrepreneur tries to collect a debt of relatively low value, then the simplified procedure may apply.

What after the sentence?

An entrepreneur for whom the case was successful in court is certainly in a better position than the one who delays the enforcement of his rights. The order for payment judgment should result in the creditor requesting an enforcement clause for the judgment or order. If the debtor fails to appeal, go to the competent court bailiff who will initiate enforcement proceedings.