On 31 October 2025, the Supreme Court adopted a resolution (ref. no. III CZP 22/25) whose content is particularly important for developers.
The subject of the Supreme Court’s ruling was the assessment of the unfairness of provisions contained in developer agreements concerning the right of purchasers to claim supplementary compensation on general terms in cases where the developer agreement provided for a contractual penalty in favour of the purchasers in the event of improper performance of the developer’s obligation (delay in concluding the agreement for the transfer of separate ownership of a residential premises), but did not provide for the right to claim compensation exceeding the amount of the contractual penalty.
Pursuant to Article 484 § 1, second sentence, of the Civil Code, a claim for compensation exceeding the amount of the stipulated penalty is not admissible, unless the parties have agreed otherwise.
The Supreme Court ruled that a provision in a developer agreement reserving a contractual penalty for the consumer for each day of delay in concluding an agreement to transfer the separate ownership of a residential premises, which does not provide for the consumer’s right to claim compensation exceeding the amount of the reserved contractual penalty, is considered an unlawful contractual provision. According to the Supreme Court, this is particularly the case when the contractual penalty has been stipulated at a grossly low amount.
The above is of significant importance to developers, because pursuant to Article 385 (1) § 1 of the Civil Code, provisions of a contract concluded with a consumer that have not been individually agreed upon are not binding on the consumer if they shape its rights and obligations in a manner contrary to good practice, grossly violating its interests (unlawful contractual provisions).
When entering into developer agreements, developers should carefully analyse whether the contractual penalty stipulated in the agreement is adequate. Stipulating a contractual penalty in an amount that may prove to be grossly low in relation to the damage that buyers may have suffered may entail the risk of such a clause being deemed prohibited, which will open the way for buyers to pursue further claims for damages from the developer.