A former partner closes an outlet while owing you money.

A former partner closes an outlet while owing you money. You have four claims, a blank promissory note, and the temptation to calculate everything “to the max". The problem is that a penalty charged separately for each customer will not hold up in court—and may bring down the part that was calculated correctly along with it. At the same time, customers of the closed outlet are contacting your head office. What customer service tells them may cost you more than the partner’s debt itself.

If you operate a franchise, agency, or partner network, this article explains how to organize a settlement with a former partner and avoid mistakes that could undermine your claims in court. You will also learn how to communicate with customers of a closed outlet without assuming someone else’s liability.

Key concepts before we go any further

Before we get into the specifics, it is worth explaining several terms used throughout this article.

1. Contractual penalty — an amount that a party to a contract agrees to pay for the non-performance or improper performance of a non-monetary obligation. It is governed by Articles 483–484 of the Civil Code. It cannot be charged for failure to pay money—that is a monetary obligation, for which you pursue the principal amount plus interest.
2. Reduction of a contractual penalty — the court’s power to reduce a penalty if it is grossly excessive or if the obligation has been substantially performed (Article 484 § 2 of the Civil Code). The debtor must request it; the court will not do so of its own motion.
3. Blank promissory note — a promissory note issued without all of its elements completed (e.g. the amount), authorizing the creditor to complete them in accordance with the promissory note declaration. It is not a separate claim—it is security that enables faster order-for-payment proceedings.
4. Promissory note declaration — an agreement between the issuer of the promissory note and the creditor specifying when and up to what amount the note may be completed. Its scope defines the limits of what you can pursue in order-for-payment proceedings.
5. Order-for-payment proceedings — a simplified court procedure in which the court issues an order for payment based on a document (e.g. a promissory note) without a hearing. It is faster and cheaper than ordinary proceedings but requires compliance with the formal conditions set out in Article 485 § 2 of the Code of Civil Procedure.
6. Franchise agreement — an innominate contract under Polish law (based on the principle of freedom of contract under Article 353¹ of the Civil Code). The franchisee operates in its own name, on its own account, and at its own risk, using the franchisor’s brand and know-how. The draft amendment to the Civil Code adopted by the Council of Ministers in December 2023 has not yet been enacted (source: gov.pl).

Five rules for settling with a former franchisee

Rule 1: each claim has a different legal basis and enforcement procedure

A former partner’s debt is not a single amount. It is a collection of items, each of which requires separate justification.

Before sending a demand for payment, break the debt down into these four categories. Assign each item to the appropriate legal basis. If you fail to do so and the breakdown proves inconsistent, the court may question the credibility of the entire claim, including the parts that were correct.

Rule 2: a business spreadsheet is evidence, not a final amount

A breakdown prepared by the operations or finance department is a starting point. It is not the document on which you base your claim.

In the case analyzed, the total of thirteen individually listed refunds was calculated incorrectly in the spreadsheet—the correct amount was more than twice as high. If the network had based its demand on the incorrect total, it would have lost part of its claim. If the error had come to light in court, it would have undermined the credibility of the entire breakdown.

What to do:

1. Recalculate every total item by item, independently of the spreadsheet.
2. Check whether an item is already included in the settlement amount specified in the agreement—pursuing the same item twice is the fastest way to lose credibility.
3. Set a cut-off date: the demand covers amounts determined as of the date on which it is prepared. Anything received later should be added in a subsequent letter or in the statement of claim.

Rule 3: one penalty for a documented practice, not one penalty per customer

This is the most common mistake made by networks. The partner accepted payments through a private terminal, outside the system. The temptation is to charge a penalty for every customer served in this way. The result: the court sees an amount many times greater than the actual loss and reduces it under Article 484 § 2 of the Civil Code.

A reduction affects the entire contractual penalty claim—including the part that was calculated correctly. In case I AGa 155/18, the court reduced the penalty to 50% of the amount charged. But there is no statutory threshold—the court may reduce it further.

Additional pitfalls:

1. Double penalization — the same conduct described from two perspectives (e.g. “failure to record the appointment in the system" and “sale outside the system") is a single event. Two penalties under different clauses for the same conduct = an allegation of double penalization.
2. No reference to the penalty clause — an obligation with no direct reference to a contractual penalty (e.g. “maintaining accurate customer records") does not provide grounds for charging a penalty. You need an additional trigger: obstructing an inspection or breaching the data processing agreement.
3. Penalty for failure to pay installments — a contractual penalty cannot be charged for a monetary obligation. In this case, you pursue the principal amount and statutory interest for late payment.

In the case analyzed, the difference between the more cautious option (2 × PLN 20,000 = PLN 40,000) and the broader option (3 × PLN 20,000 = PLN 60,000) amounted to half the value of the second demand. Recommendation: use the more cautious option as the starting point, while reserving the right to charge further penalties.

Rule 4: a promissory note is security, not a guarantee of success

A blank promissory note with a limit of PLN 120,000 is not a separate claim. It is a tool that enables order-for-payment proceedings, which are faster and cheaper than ordinary proceedings (Article 485 § 2 of the Code of Civil Procedure)—but only within the scope covered by the promissory note declaration.

Before completing the promissory note, check three things:

1. Whether the promissory note declaration covers all categories of claims you wish to pursue (fees, penalties, damages)—if not, a claim outside the declaration’s scope cannot be pursued in order-for-payment proceedings.
2. Whether the amount you enter falls within the limit specified in the declaration.
3. Whether you have the original promissory note and declaration—without them, you cannot file a claim in order-for-payment proceedings.

Once the debtor files objections, the court examines the underlying legal relationship. The defendant may argue that the claim never arose, has expired, or exceeds the scope of the declaration (Supreme Court IV CSK 465/17). Completing the note inconsistently with the declaration provides an effective defense.

An additional risk is the former partner’s personal bankruptcy. A former entrepreneur may file for personal bankruptcy without waiting one year after being removed from the register (Article 491¹ et seq. of the Bankruptcy Law, Journal of Laws 2024, item 794). Liabilities arising from the former business—including contractual penalties and damages—may be included in the proceedings and discharged. A promissory note does not create a privileged source of recovery outside the bankruptcy estate.

If you see a genuine risk of bankruptcy, consider filing an application for interim relief alongside the claim (Article 730 § 1–2 of the Code of Civil Procedure). You must substantiate the claim and your legal interest—for example, cessation of payments, disposal of assets, or winding down operations (order VIII GCo 64/23).

Rule 5: close the list of claims with a cut-off date

Without a cut-off date, the case remains open indefinitely. Reports from customers of a closed outlet may continue to arrive even six months after it closes. The costs of replacement staff continue to rise. Each successive letter stating a new amount weakens the impression that you have control over your own claim.

In the demand:

1. Specify a cut-off date—the amounts determined as of the date on which the demand is prepared.
2. Add a reservation clause expressly listing what further claims may concern: additional settlement of services not included in the breakdown, further customer refunds and reports, an inspection fee, and further contractual penalties.
3. Set a payment deadline—once it passes without payment, you can proceed to court.

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The second front: communicating with customers of a closed outlet

This is a separate problem and a separate risk. A single sentence from customer service can destroy the network’s entire line of defense.

Why customer communication is just as important as the lawsuit

The franchisee operated in its own name, on its own account, and at its own risk. It—not the network—entered into contracts with customers. Receipts, invoices, and terms and conditions of sale should all identify the franchisee as the seller.

But customers see the brand. They contact the head office. And they expect an answer.

The risk is that if the head office’s response suggests that the network was a party to the contract or supervised the performance of the services, a consumer ombudsman or the Office of Competition and Consumer Protection may interpret this as an admission of liability. The legal basis for an administrative assessment may be Article 5(1) and Article 5(3)(2) of the Act on Counteracting Unfair Market Practices—misleading consumers as to the identity of the trader (source: Office of Competition and Consumer Protection).

A franchisor may incur civil liability toward consumers in three situations:

1. Where it was the actual party to the contract with the customer.
2. Where it created a misleading impression as to the identity of the trader.
3. Where it assumed specific obligations toward customers in its terms and conditions or under a network-wide guarantee.

Two response templates and one formal criterion

Only one criterion determines which template customer service uses: whether the customer has provided proof of payment. Not the substance of the allegations. Not the tone of the message. Applying this criterion consistently protects the network more effectively than the wording of the response itself.

Drafting rules for customer service

1. Use the word “report", not “complaint"—handling complaints is the seller’s responsibility, and the network was not the seller.
2. Do not assess the quality of the partner’s work. Do not compare it with the quality of company-owned outlets.
3. Do not apologize for the partner’s services. Do not state that the network supervised the outlet.
4. Lock the paragraphs describing the partner’s status and the grounds for refusal so they cannot be edited in the system—employees must not modify or supplement them.
5. Set a cut-off date for accepting reports and specify a contact channel.

A customer service employee who adds an apologetic paragraph about service quality and states that the network supervised the outlet can destroy the entire line of defense with a single sentence.

GDPR: customer data after termination of the franchise

The mere termination of the franchise agreement does not entitle the network to take over the former partner’s customer database. A data processing agreement (Article 28 of the GDPR) does not make processing for the franchisor’s own purposes lawful (GDPR—consolidated text).

Contacting customers for the network’s purposes requires a separate legal basis under Article 6(1) of the GDPR. Direct marketing through telecommunications channels additionally requires consent under Article 172(1) of the Telecommunications Law.

Risks:

1. Failure to determine who is the data controller after termination of the franchise.
2. Using the data processing agreement as a legal basis for the network’s own purposes.
3. Failure to provide, or delayed provision of, the information required under Articles 13–14 of the GDPR.

Checklist: what to implement in your company

What to change in the agreement template for the future

The current settlement process reveals gaps that should be addressed when the franchise agreement template is next updated.

1. Direct references to the penalty clause — for every obligation that is to be subject to a contractual penalty, include a reference to the specific clause. An obligation without a reference = no grounds for charging a penalty.
2. Differentiated penalty rates — instead of a single flat amount (e.g. PLN 20,000 for every breach), set rates proportionate to the seriousness of the breach. This reduces the risk of an allegation that the penalty is grossly excessive.
3. Exit procedure — include in the agreement a mandatory evidence package to be prepared on the date the relationship ends: sales system extracts, appointment records, inspection documentation, and handover reports for the premises and equipment.
4. Customer communication clause — specify who informs customers about the closure of the outlet and how, and prohibit the former partner from contacting customers after termination of the agreement.
5. Scope of the promissory note declaration — ensure that it covers all categories of claims: franchise fees, contractual penalties, damages, replacement costs, and customer refunds.

In Poland, a franchise agreement remains an innominate contract. The draft amendment to the Civil Code adopted by the Council of Ministers in December 2023 provided, among other things, for restrictions on contractual penalties and blank promissory notes used as security (source: gov.pl). As of the publication date of this article, the legislation has not been enacted. Until specific regulations enter into force, contractual penalties remain subject to Articles 483–484 of the Civil Code, while termination of an agreement is assessed according to the terms of the specific agreement and the general provisions of the Civil Code.

Organize the settlement before you lose control of the claim

Settling with a former partner is not simply a matter of “calculating everything and filing a lawsuit". It is a sequence of decisions: legal basis → enforcement procedure → amount → demand letter → lawsuit. Every mistake in this sequence—an incorrect total, a duplicate item, or a penalty charged for every customer—reduces your chances of recovering even the part that was justified.

At the same time, there is a second front: communication with customers of the closed outlet, where a single sentence from customer service may determine whether the network is deemed to be a party to the contract with the consumer.

If you are facing such a settlement—or want to prepare your network so the next one runs more smoothly—contact us. We help organize partner agreement systems: from penalty clauses and promissory note declarations, through partner exit procedures, to locked customer service communication templates.

Frequently asked questions

Can I charge a contractual penalty for every customer served outside the system?
You can, but you risk having the entire contractual penalty claim reduced. The court assesses whether the penalty is grossly excessive in relation to the loss (Article 484 § 2 of the Civil Code). Charging a separate penalty for each customer instead of a single penalty for a documented practice multiplies the amount—and increases the risk that the court will reduce the penalty, including the part that was calculated correctly. The safer option is one penalty for the practice, with the right to charge further penalties reserved.

Does a blank promissory note genuinely speed up the enforcement of my claims?
Yes, but subject to certain conditions. A promissory note enables order-for-payment proceedings, which are faster and cheaper than ordinary proceedings. The condition is that the claim must fall within the scope of the promissory note declaration, and you must have the original note and declaration. Once the debtor files objections, the court examines the underlying legal relationship. If the amount exceeds the scope of the declaration, you lose access to order-for-payment proceedings for the excess. A promissory note also does not protect you against the former partner’s personal bankruptcy.

As a franchisor, do I have to honor packages paid for at the partner’s outlet?
As a rule, no—provided that the franchisee was the party to the contract with the customer. The contents of the receipt, invoice, and terms and conditions of sale are decisive. But if your communications (website, marketing materials, or customer service responses) suggest that the network was a party to the contract, you risk the consumer, a consumer ombudsman, or the Office of Competition and Consumer Protection interpreting this as an admission of liability.

How can I close the list of claims if reports continue to arrive for six months after the outlet closes?
Set a cut-off date in the demand—the amounts determined as of the date on which it is prepared. Add a reservation clause listing the types of further claims: additional refunds, additional settlements, and contractual penalties. Anything received after the cut-off date should be added in a subsequent letter or directly in the statement of claim. Without a cut-off date, the case remains open, and each successive letter stating a new amount weakens the impression that you have control over the claim.

Can I contact the former partner’s customers and offer them services at my own outlets?
The mere termination of the franchise agreement does not entitle you to take over the customer database. You need a separate legal basis under Article 6(1) of the GDPR. A data processing agreement does not make processing for your own purposes lawful. Direct marketing through telecommunications channels additionally requires consent under Article 172(1) of the Telecommunications Law. Before sending anything, determine who is the data controller after termination of the franchise.

What should I change in the agreement template to make the next settlement easier?
Three changes deliver the greatest benefit: (1) direct references to the penalty clause for every obligation subject to a penalty, (2) differentiated penalty rates instead of a single flat amount, and (3) an exit procedure with a mandatory evidence package to be prepared on the date the relationship ends. It is also worth expanding the scope of the promissory note declaration so that it covers all categories of claims.