{"id":3449,"date":"2026-10-06T10:37:27","date_gmt":"2026-10-06T10:37:27","guid":{"rendered":"https:\/\/sawaryn.com\/?p=3449"},"modified":"2026-10-06T10:37:46","modified_gmt":"2026-10-06T10:37:46","slug":"confidentiality-clauses-polish-law-contractual-penalties","status":"publish","type":"post","link":"https:\/\/sawaryn.com\/en\/publikacje\/confidentiality-clauses-polish-law-contractual-penalties\/","title":{"rendered":"Confidentiality clauses under Polish law: which concessions weaken your protection?"},"content":{"rendered":"

You are negotiating a consulting agreement, investment agreement, or IT contract. The other party sends you a redline with two requests concerning the confidentiality clause. The first: \u201conly documents expressly marked as confidential are considered confidential". The second: \u201cno contractual penalty is payable if the breach was unintentional and the party remedies it within the specified period". Both sound reasonable. Both are legally permissible. But one renders the protection completely meaningless, while the other \u2014 if properly reworded \u2014 will strengthen your position in court.<\/p>\n

In this article, I will show you how to distinguish a concession worth accepting from one that undermines the entire purpose of the clause. You will learn about the structure of a contractual penalty for breach of confidentiality<\/strong><\/a>, understand how a cure period<\/strong> works, and discover why requiring information to be marked as confidential is a trap. At the end, you will find a checklist that you can use to review your own agreement in just a few minutes.<\/p>\n

Key concepts before you continue<\/h2>\n

Before we get into the details of the negotiation, it is worth clarifying a few concepts. Not to give you a lecture, but to make sure you know exactly what changes in your agreement when you accept a particular provision.<\/p>\n\n\n\n\n\n\n\n\n\n
Concept<\/th>\nWhat it means in an agreement<\/th>\n<\/tr>\n<\/thead>\n
Contractual penalty<\/strong> (Article 483 of the Civil Code)<\/td>\nAn amount payable by a party for breaching a non-monetary obligation \u2014 for example, disclosing confidential information. It is payable regardless of whether any loss was incurred.<\/td>\n<\/tr>\n
Reduction of a contractual penalty<\/strong> (Article 484 \u00a7 2 of the Civil Code)<\/td>\nThe court\u2019s right to reduce a penalty if it is grossly excessive or if the obligation has been performed to a significant extent. It does not mean setting the penalty aside \u2014 it means reducing it.<\/td>\n<\/tr>\n
Trade secret<\/strong> (Article 11(2) of the Act on Combating Unfair Competition)<\/td>\nInformation that has commercial value, is not publicly available, and has been subject to measures intended to preserve its confidentiality. Documents do not need to be marked.<\/td>\n<\/tr>\n
Cure period<\/strong><\/td>\nA period during which the breaching party may remedy the effects of a breach before the penalty becomes due. It does not exist as a separate legal concept under the Polish Civil Code \u2014 it is a contractual mechanism.<\/td>\n<\/tr>\n
Damages exceeding the penalty<\/strong> (Article 484 \u00a7 1, second sentence, of the Civil Code)<\/td>\nThe right to claim damages exceeding the amount of the contractual penalty \u2014 but only if this is expressly stipulated in the agreement. Without such a provision, this avenue is closed.<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

With these concepts in mind, let us move to the heart of the matter: why one of the counterparty\u2019s requests is worth accepting and the other should be rejected.<\/p>\n

Requiring information to be marked as confidential \u2014 why it is a trap<\/h2>\n

How this request arises in negotiations<\/h3>\n

The other party proposes: \u201cConfidential Information means only materials expressly marked as confidential". They argue that this eliminates the risk of abuse \u2014 no one will claim that casual conversations were confidential. It sounds like a sensible way to bring clarity.<\/p>\n

Except that in most consulting, transactional, and IT engagements, the most valuable information is not contained in files bearing a confidentiality footer.<\/p>\n

What you lose if you agree<\/h3>\n

With a definition based on markings, the following remain outside the scope of contractual protection:<\/p>\n

    \n
  1. An investor list provided over the phone<\/li>\n
  2. A transaction price discussed at a meeting<\/li>\n
  3. The reasons why an investor withdrew, explained via instant messenger<\/li>\n
  4. Commercial terms discussed during a video conference<\/li>\n
  5. Technical know-how communicated orally to a developer<\/li>\n<\/ol>\n

    These are often the most commercially valuable pieces of information in the entire project. Yet your clause protects only attachments bearing the appropriate marking.<\/p>\n

    What the law says<\/h3>\n

    Article 11(2) of the Act on Combating Unfair Competition (consolidated text, Journal of Laws 2026, item 85<\/a>) does not list marking materials as a condition for protection. Protection covers information that meets three conditions: it has commercial value, is not publicly available, and has been subject to measures intended to preserve its confidentiality. Courts \u2014 including in cases XXIII Zs 24\/23<\/a> and XXIII Zs 177\/24 \u2014 apply this three-part test without making protection dependent on the form in which the information is recorded.<\/p>\n

    Accepting a marking requirement is a concession that gives you less contractual protection than the law does. Protection in tort under the Act on Combating Unfair Competition may still cover oral information \u2014 but a claim for a contractual penalty<\/strong> for disclosing unmarked information will be excluded because a closed definition does not cover it.<\/p>\n

    What to do instead<\/h3>\n

    Instead of a marking requirement, propose a list of exclusions<\/strong> to the other party. This is a standard mechanism that genuinely addresses the counterparty\u2019s concerns about abuse of the clause without hollowing out the protection:<\/p>\n\n\n\n\n\n\n\n\n
    Exclusion<\/th>\nWhat it means<\/th>\n<\/tr>\n<\/thead>\n
    Publicly available information<\/td>\nYou do not protect information that is already public<\/td>\n<\/tr>\n
    Information known to the party before disclosure<\/td>\nYou do not restrict knowledge the counterparty already had<\/td>\n<\/tr>\n
    Independently developed information<\/td>\nYou do not restrict the other party\u2019s own research and development<\/td>\n<\/tr>\n
    Information disclosed at the request of an authority<\/td>\nYou do not prevent compliance with a legal obligation<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

    This mechanism eliminates the risk the counterparty is concerned about \u2014 without leaving a gap in the protection of information communicated orally or indirectly.<\/p>\n

    It is also good practice to define the scope of confidential information more precisely by listing relevant categories, such as financial data, commercial terms, technical know-how, and lists of counterparties. Such a list does not make the definition exhaustive \u2014 it provides interpretive guidance that clarifies the scope without narrowing it.<\/p>\n

    Contact us<\/a><\/p>\n

    Cure period \u2014 when it protects and when it disarms the clause<\/h2>\n

    The problem with a fault-based test<\/h3>\n

    The other party proposes: \u201cNo contractual penalty is payable if the breach was unintentional and the party remedies it within the specified period". At first glance, this seems fair \u2014 why impose a penalty for an accident?<\/p>\n

    The problem is that a fault-based test shifts the dispute to the breaching party\u2019s state of mind<\/strong>. In court, you have to prove that the counterparty acted intentionally. And they will always say: \u201cI did not know the file was confidential", \u201cAn employee sent it by accident", \u201cI did not intend to disclose it". In practice, these claims are almost impossible to refute.<\/p>\n

    The result is that a clause based on fault looks good on paper but is unenforceable in a dispute.<\/p>\n

    A test that works \u2014 objective remediability<\/h3>\n

    Instead of asking \u201cwas the breach intentional?", ask a different question: \u201ccan the effects of the breach be remedied?". This is an objective test \u2014 it does not depend on what the breaching party claims about its intentions.<\/p>\n\n\n\n\n\n\n
    Type of breach<\/th>\nExample<\/th>\nCan it be remedied?<\/th>\nConsequence<\/th>\n<\/tr>\n<\/thead>\n
    Reversible<\/td>\nAn employee sends a financial model to the wrong address within the organisation<\/td>\nYes \u2014 access can be revoked and copies deleted<\/td>\nCure period: 14 days to remedy the breach<\/td>\n<\/tr>\n
    Irreversible<\/td>\nProviding an investor list to a competitor<\/td>\nNo \u2014 the information is already in circulation<\/td>\nPenalty payable immediately, without notice<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

    Proposed wording of the clause<\/h3>\n

    Below is wording that changes only the date on which the penalty becomes due, not its amount \u2014 and only for breaches that are objectively remediable:<\/p>\n

    \n

    \u201cIf a breach of the confidentiality obligations arising under the Agreement can objectively be remedied, the Entitled Party shall, before imposing a contractual penalty, give the Breaching Party written notice requiring it to remedy the breach within 14 (fourteen) days from the date on which the notice is received. The contractual penalty shall become payable only if the Breaching Party fails to remedy the breach within that period."<\/em><\/p>\n<\/blockquote>\n

    This mechanism provides three benefits:<\/p>\n

      \n
    1. The written notice requirement creates evidence<\/strong> \u2014 you document that the breach occurred and that you identified it. This works in your favour, not against you.<\/li>\n
    2. A penalty imposed after an unsuccessful notice to cure is more difficult to reduce<\/strong> \u2014 the court can see that you gave the other party an opportunity to remedy the breach and that it failed to do so. An automatic penalty for an incident remedied on the same day is an easy target under Article 484 \u00a7 2 of the Civil Code.<\/li>\n
    3. Irreversible breaches trigger the penalty immediately<\/strong> \u2014 you do not give the counterparty 14 days to \u201cremedy" something that cannot be undone.<\/li>\n<\/ol>\n

      Why this strengthens your position in court<\/h3>\n

      Article 484 \u00a7 2 of the Civil Code allows a court to reduce a contractual penalty if it is grossly excessive. Courts apply a proportionality test \u2014 they compare the penalty with the protected interest, the seriousness of the breach, and its consequences (Szczecin Court of Appeal, I ACa 221\/18<\/a>).<\/p>\n

      A penalty imposed automatically for a minor, reversible incident that the breaching party remedied on its own initiative is precisely the kind of situation in which a court is likely to reduce it. A penalty imposed after an unsuccessful 14-day notice to cure \u2014 much less so.<\/p>\n

      A cure period does not weaken the clause. It strengthens it by moving the date on which the penalty becomes due to the point at which the breaching party has had an opportunity to remedy the breach and failed to do so.<\/p>\n

      Five elements of a confidentiality clause you need to check<\/h2>\n

      In addition to the definition of confidential information and the cure period, several other areas regularly cause problems in disputes. Review them in your own agreement.<\/p>\n

      Damages exceeding the contractual penalty<\/h3>\n

      Article 484 \u00a7 1, second sentence, of the Civil Code expressly provides that damages exceeding the amount of the contractual penalty may be claimed only if this has been expressly stipulated in the agreement<\/strong> (Civil Code \u2014 consolidated text<\/a>). Without such a provision \u2014 even if your actual loss is many times greater than the penalty \u2014 you cannot recover the excess.<\/p>\n

      Check whether your agreement contains a sentence such as \u201cirrespective of the contractual penalty, the entitled party may claim damages exceeding the amount of the penalty". If not, add one.<\/p>\n

      Aggregate cap on penalties<\/h3>\n

      A penalty stipulated for each individual breach without an aggregate cap may be challenged as grossly excessive in the event of repeated breaches. Courts consider the total amount of the penalties in relation to the value of the agreement (Szczecin Court of Appeal, I AGa 320\/20<\/a>).<\/p>\n

      Consider whether you need an aggregate cap. If the penalty is tens of thousands of Polish zlotys per breach and breaches may be repeated, a cap may protect the clause from being successfully challenged.<\/p>\n

      Liability for third parties<\/h3>\n

      The chain of protection ends with the first subcontractor unless the party is liable for the persons to whom it discloses information. Add a clause making the party liable for its employees, advisers, and subcontractors as if for its own acts and omissions.<\/p>\n

      Term after the agreement ends<\/h3>\n

      Five years is the transactional standard, but there is no single \u201ccorrect" period. Directive 2016\/943 does not establish a maximum period of contractual confidentiality (Directive 2016\/943<\/a>). Protection under Article 11 of the Act on Combating Unfair Competition continues for as long as the statutory conditions are met.<\/p>\n

      Match the period to the type of information:<\/p>\n\n\n\n\n\n\n\n
      Type of information<\/th>\nSuggested approach<\/th>\n<\/tr>\n<\/thead>\n
      Technical know-how (algorithms, architecture)<\/td>\nLonger \u2014 its value is maintained for years<\/td>\n<\/tr>\n
      Commercial data (price lists, terms)<\/td>\nShorter \u2014 it becomes outdated more quickly<\/td>\n<\/tr>\n
      Transaction information (valuation, funding-round terms)<\/td>\nDependent on the transaction cycle<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

      Conflict with the right to provide references<\/h3>\n

      Check whether the same agreement contains a clause permitting the parties to disclose the business relationship and use logos in marketing materials. Strict confidentiality in one paragraph and permission to provide references in another creates an inconsistency that weakens both clauses in a dispute.<\/p>\n

      Contractual penalties for breaches of confidentiality and the GDPR \u2014 a deadline you cannot postpone<\/h2>\n

      A single event \u2014 such as the disclosure of a customer list \u2014 may breach both the agreement and the GDPR. Article 33(1) of the GDPR requires a personal data breach to be reported<\/a> to the President of the Polish Data Protection Office without undue delay and, where feasible, no later than 72 hours<\/strong> after becoming aware of the breach (Polish Data Protection Office \u2014 reporting breaches<\/a>). The period begins when the breach is identified and includes non-working days.<\/p>\n

      A contractual 14-day cure period does not postpone or suspend<\/strong> this obligation. A contractual penalty and an administrative fine are different in nature and do not replace one another.<\/p>\n

      If your agreement involves the processing of personal data, the clause should distinguish between:<\/p>\n

        \n
      1. The processor\u2019s obligation to notify the controller without undue delay (Article 33(2) of the GDPR) \u2014 a deadline independent of the agreement<\/li>\n
      2. The controller\u2019s 72-hour deadline for reporting the breach to the Polish Data Protection Office \u2014 a statutory deadline<\/li>\n
      3. The contractual cure period (14 days) \u2014 applicable solely to when the contractual penalty becomes due, not to public-law obligations<\/li>\n<\/ol>\n

        How to document a breach and serve notice<\/h2>\n

        A cure period works only if you can prove two things: that the breach occurred and that the notice reached the addressee.<\/p>\n

        Hierarchy of evidence of service<\/h3>\n\n\n\n\n\n\n\n\n
        Method of service<\/th>\nEvidentiary strength<\/th>\nComments<\/th>\n<\/tr>\n<\/thead>\n
        e-Delivery from an electronic delivery address<\/td>\nStrongest<\/td>\nHas the same effect as registered mail with acknowledgement of receipt (Article 42 of the Electronic Delivery Act \u2014 consolidated text<\/a>)<\/td>\n<\/tr>\n
        Registered mail with acknowledgement of receipt<\/td>\nStrong<\/td>\nStandard method; difficulties may arise if delivery is refused<\/td>\n<\/tr>\n
        Email with delivery confirmation and a reply from the recipient<\/td>\nModerate<\/td>\nSatisfies documentary form requirements (Article 77\u00b2 of the Civil Code), but not written form requirements without a qualified electronic signature<\/td>\n<\/tr>\n
        Sending an email alone<\/td>\nWeakest<\/td>\nNo evidence that it reached the addressee<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

        What the notice should contain<\/h3>\n
          \n
        1. Identification of the provision of the agreement that has been breached<\/li>\n
        2. A description of the event and the date of the breach<\/li>\n
        3. Evidence of the breach, or identification of such evidence<\/li>\n
        4. The amount of the contractual penalty<\/li>\n
        5. The period for remedying the breach (14 days from receipt)<\/li>\n
        6. Information about the consequences of failing to comply within the period<\/li>\n<\/ol>\n

          Remember: a contractual requirement for something to be \u201cin writing" is not automatically equivalent to documentary form. This depends on the interpretation of the specific agreement. If you want to use email to serve notice, make sure the agreement permits it.<\/p>\n

          Contractual penalties for employees and B2B contractors<\/h2>\n

          If confidential information is disclosed to your team \u2014 employees and B2B contractors \u2014 you need to know that the liability rules differ depending on the engagement model.<\/p>\n\n\n\n\n\n\n\n\n
          Element<\/th>\nEmployment contract<\/th>\nB2B contract<\/th>\n<\/tr>\n<\/thead>\n
          Basis of the confidentiality obligation<\/td>\nArticle 100 \u00a7 2(4)\u2013(5) of the Labour Code<\/td>\nContractual clause<\/td>\n<\/tr>\n
          Contractual penalty for breach of confidentiality<\/td>\nPermissible under a post-employment non-compete agreement (Supreme Court, II PK 327\/10<\/a>); during employment \u2014 restricted by the rules on employees\u2019 financial liability<\/td>\nPermissible under Articles 483\u2013484 of the Civil Code<\/td>\n<\/tr>\n
          Liability cap<\/td>\nUnintentional fault: up to three months\u2019 remuneration (Article 119 of the Labour Code); intentional fault: full liability (Article 122 of the Labour Code)<\/td>\nNo statutory cap; subject to reduction under Article 484 \u00a7 2 of the Civil Code<\/td>\n<\/tr>\n
          Risk<\/td>\nLabour Code restrictions may prevent enforcement of a high penalty<\/td>\nA B2B clause may be challenged if the relationship has the characteristics of employment (Article 22 \u00a7 1 of the Labour Code)<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

          Conclusion: for B2B contractors, a contractual penalty for breach of confidentiality is permissible and is not subject to Labour Code limits<\/a> \u2014 but only if the relationship is genuinely B2B rather than disguised employment.<\/p>\n

          A clause based on a common-law template \u2014 what to change to make it work under Polish law<\/h2>\n

          Many agreements \u2014 particularly in the IT sector and in transactions involving foreign investors \u2014 contain confidentiality clauses copied from common-law templates. Polish law does not use concepts such as \u201ccure period" or \u201cliquidated damages" (Rome I Regulation<\/a>). Using English terminology without a choice-of-law clause does not result in English law being selected.<\/p>\n

          For a clause based on an English-language template to work under Polish law, it must be adapted functionally:<\/p>\n

            \n
          1. Specify the governing law (Article 3 of the Rome I Regulation)<\/li>\n
          2. Define confidential information in line with Polish law, either by referring to the Act on Combating Unfair Competition or by using your own definition with a list of exclusions<\/li>\n
          3. Classify the sanction as a contractual penalty under Article 483 of the Civil Code \u2014 not as \u201cliquidated damages"<\/li>\n
          4. Specify the amount or an objective method for calculating it<\/li>\n
          5. Distinguish between remediable and irreversible breaches<\/li>\n
          6. Specify whether the cure period is a condition for the penalty becoming due or a prerequisite for terminating the agreement<\/li>\n<\/ol>\n

            A clause that makes the sanction dependent solely on the unsuccessful expiry of a cure period \u2014 without distinguishing between remediable and irreversible breaches \u2014 may prevent recovery of a penalty for a disclosure whose effects cannot be reversed. The Supreme Court considered a penalty of PLN 100,000 for breach of confidentiality (Supreme Court, IV CSK 443\/18<\/a>) without questioning the mechanism itself \u2014 but in that case the clause had been adapted to Polish law.<\/p>\n

            Checklist for a confidentiality clause with a contractual penalty<\/h2>\n

            Use the checklist below to review your own agreement. Each item is a specific question \u2014 if the answer is \u201cno" or \u201cI don\u2019t know", you have an area that needs to be corrected.<\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
            No.<\/th>\nQuestion<\/th>\nWhat to look out for<\/th>\n<\/tr>\n<\/thead>\n
            1<\/td>\nDoes the definition of confidential information cover information communicated orally?<\/td>\nIf it is limited to marked materials, oral information is outside the scope of contractual protection<\/td>\n<\/tr>\n
            2<\/td>\nIs a list of exclusions used instead of a marking requirement?<\/td>\nExclusions for public, previously known, independently developed information and information disclosed at an authority\u2019s request protect the counterparty without hollowing out the clause<\/td>\n<\/tr>\n
            3<\/td>\nIs the cure period based on objective remediability?<\/td>\nA fault-based test based on whether the breach was unintentional is impossible to apply in evidentiary terms<\/td>\n<\/tr>\n
            4<\/td>\nDo irreversible breaches trigger the penalty immediately?<\/td>\nWithout this distinction, a penalty for disclosing an investor list to a competitor is delayed by 14 days<\/td>\n<\/tr>\n
            5<\/td>\nHas the right to claim damages exceeding the penalty been reserved?<\/td>\nWithout an express provision, such damages cannot be claimed (Article 484 \u00a7 1, second sentence, of the Civil Code)<\/td>\n<\/tr>\n
            6<\/td>\nIs there an aggregate cap where a penalty applies to each breach?<\/td>\nThe absence of a cap for repeated breaches creates a risk that the penalty will be challenged as grossly excessive<\/td>\n<\/tr>\n
            7<\/td>\nIs the party liable for the persons to whom it discloses information?<\/td>\nWithout such a clause, the chain of protection ends with the first subcontractor<\/td>\n<\/tr>\n
            8<\/td>\nIs the post-termination confidentiality period appropriate for the type of information?<\/td>\n5 years is standard \u2014 but it may be too short for technical know-how<\/td>\n<\/tr>\n
            9<\/td>\nDoes the confidentiality clause conflict with the right to provide references?<\/td>\nConfidentiality in one paragraph and permission to use logos in another creates an inconsistency<\/td>\n<\/tr>\n
            10<\/td>\nMust notice be given in writing, and does the agreement permit email?<\/td>\nInconsistent form requirements may prevent effective service<\/td>\n<\/tr>\n
            11<\/td>\nFor personal data, does the clause distinguish between the GDPR deadline (72h) and the cure period (14 days)?<\/td>\nThe 14-day contractual period does not postpone the obligation to report the breach to the Polish Data Protection Office<\/td>\n<\/tr>\n
            12<\/td>\nIs the penalty proportionate to the protected interest?<\/td>\nToo high \u2014 risk of reduction; too low \u2014 no deterrent effect<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

            Bring consistency to the confidentiality clauses in your agreements<\/h2>\n

            A confidentiality clause with a contractual penalty is one of the most frequently negotiated elements of consulting, IT, and transactional agreements. It is also one of the most frequently drafted incorrectly \u2014 because parties copy templates, accept seemingly reasonable concessions, and discover the problem only when a dispute arises.<\/p>\n

            If your company uses multiple agreement templates, negotiates confidentiality with different counterparties, and has no consistent rules, it is worth conducting a review. Check whether definitions of confidential information narrow the scope of protection, whether contractual penalties are likely to withstand scrutiny in court, whether cure periods disarm the clauses, and whether the chain of protection ends with subcontractors.<\/p>\n

            This is exactly the kind of work we help with \u2014 auditing confidentiality and contractual penalty clauses in the templates you use, introducing proven mechanisms such as lists of exclusions, cure periods based on an objective test, aggregate penalty caps, and liability for subcontractors, as well as establishing negotiation guidelines on which concessions can be made and which cannot.<\/p>\n

            Contact us<\/a><\/p>\n

            Frequently asked questions<\/h2>\n

            The other party wants only documents marked as confidential to be treated as confidential. Why shouldn\u2019t I agree?<\/strong><\/p>\n

            Because the most valuable information \u2014 an investor list provided over the phone, a transaction price discussed at a meeting, or commercial terms shared via instant messenger \u2014 does not end up in files bearing a confidentiality footer. With a definition based on markings, your clause protects only attachments bearing the appropriate marking. Article 11(2) of the Act on Combating Unfair Competition does not require materials to be marked \u2014 it requires measures to be taken to preserve confidentiality. Accepting a marking requirement gives you less contractual protection than the law does. Instead, propose a list of exclusions covering public information, previously known information, independently developed information, and information disclosed at the request of an authority.<\/p>\n

            If I agree to a 14-day cure period, am I not giving the counterparty a free pass for one breach without consequences?<\/strong><\/p>\n

            No \u2014 provided that the cure period applies only to breaches that are objectively remediable. Irreversible breaches, such as providing confidential data to a competitor, trigger the penalty immediately without notice. A cure period postpones the date on which the penalty becomes due, not its amount. And a penalty imposed after an unsuccessful notice to cure is much more difficult to challenge in court than an automatic penalty for an incident remedied on the same day.<\/p>\n

            Can a court reduce a contractual penalty that I negotiated?<\/strong><\/p>\n

            Yes. Article 484 \u00a7 2 of the Civil Code allows a court to reduce a penalty if it is grossly excessive or if the obligation has been performed to a significant extent. Courts apply a proportionality test \u2014 they compare the penalty with the protected interest, the seriousness of the breach, and its consequences. Reduction means reducing the penalty, not setting it aside. A penalty imposed for each breach without an aggregate cap is particularly vulnerable to this challenge where breaches are repeated.<\/p>\n

            How do I know whether a breach is \u201cobjectively remediable"?<\/strong><\/p>\n

            The question is whether the effects of the breach can be reversed. An employee sent a file to the wrong address within the organisation \u2014 access can be revoked and copies deleted. This is a remediable breach. A customer list was provided to a competitor \u2014 the information is already in circulation and the effect cannot be reversed. This is an irreversible breach. In the event of a dispute, the court will assess this, but the test is objective, based on the facts, rather than subjective, based on the breaching party\u2019s intentions.<\/p>\n

            Doesn\u2019t the Act on Combating Unfair Competition protect me anyway, even without a contractual clause?<\/strong><\/p>\n

            Article 11 of the Act on Combating Unfair Competition protects trade secrets \u2014 but only if three conditions are met: commercial value, lack of public availability, and the implementation of protective measures. Statutory protection exists independently of the agreement, but pursuing claims under it is more difficult and time-consuming than enforcing a contractual penalty. A contractual penalty clause gives you a faster tool that is easier to prove \u2014 the penalty is payable regardless of whether you can demonstrate a loss. This is why both layers of protection, statutory and contractual, should operate in parallel.<\/p>\n

            What should I do if I discover a leak \u2014 do I have to send a notice first, or can I impose the penalty immediately?<\/strong><\/p>\n

            It depends on how the clause is structured and on the nature of the breach. If the clause provides for a cure period and the breach is objectively remediable, you first send written notice allowing 14 days to remedy it. If the breach is irreversible, the penalty is payable immediately. Regardless of this, if the breach concerns personal data, you are required to report it to the Polish Data Protection Office within 72 hours \u2014 the contractual cure period does not postpone this deadline.<\/p>\n","protected":false},"excerpt":{"rendered":"

            Learn why marked-only definitions can exclude oral disclosures and how an objective cure period affects contractual penalties under Polish law.<\/p>\n","protected":false},"author":13,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":"","sip_alt_url":"","sip_en_pl_url":"","sip_pair_uuid":"57ee3e0f-b20b-47d3-8284-1d17b5ada542","sip_pair_state":"verified"},"categories":[1],"tags":[1530,1535,1533,1446,1534],"specialization":[1214],"practice_area":[],"class_list":["post-3449","post","type-post","status-publish","format-standard","hentry","category-bez-kategorii","tag-b2b-agreement","tag-contractual-penalties","tag-data-breach","tag-gdpr","tag-uodo-en","specialization-contract-law"],"acf":[],"_links":{"self":[{"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/posts\/3449","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/users\/13"}],"replies":[{"embeddable":true,"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/comments?post=3449"}],"version-history":[{"count":6,"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/posts\/3449\/revisions"}],"predecessor-version":[{"id":3486,"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/posts\/3449\/revisions\/3486"}],"wp:attachment":[{"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/media?parent=3449"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/categories?post=3449"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/tags?post=3449"},{"taxonomy":"specialization","embeddable":true,"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/specialization?post=3449"},{"taxonomy":"practice_area","embeddable":true,"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/practice_area?post=3449"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}