{"id":4274,"date":"2026-10-26T14:01:34","date_gmt":"2026-10-26T14:01:34","guid":{"rendered":"https:\/\/sawaryn.com\/?p=4274"},"modified":"2026-10-26T14:22:16","modified_gmt":"2026-10-26T14:22:16","slug":"zcp-payment-order-overpayment-refund","status":"publish","type":"post","link":"https:\/\/sawaryn.com\/en\/publikacje\/zcp-payment-order-overpayment-refund\/","title":{"rendered":"You overpaid in a ZCP transaction. Do you know who is entitled to the refund? Hint: not you."},"content":{"rendered":"

You overpaid in a ZCP transaction. Do you know who is entitled to the refund? Hint: not you.<\/p>\n

This is one of those issues that, at first glance, looks like an accounting problem. An overpayment. An error in the schedule. The difference needs to be refunded. Simple? Not quite.<\/p>\n

If you are selling or buying an organized part of an enterprise (ZCP) and settling the seller\u2019s liabilities through a payment order<\/strong> \u2014 the mechanism provided for in Article 921\u00b9 of the Civil Code \u2014 an overpayment resulting from an incorrect schedule of liabilities does not return by the same route it came. Intuition suggests: \u201csince the money came from the buyer, it should be refunded to the buyer”. That answer is wrong. The refund should go to the ZCP seller, even though the buyer physically made the transfer.<\/p>\n

In this article, I will explain why this is the case, what risks are created by a \u201cshortcut” settlement, and what to do \u2014 step by step \u2014 to remedy or prevent the situation.<\/p>\n

Terms you need to know before reading further<\/h2>\n

Before we get to the heart of the matter, here are a few terms that will appear repeatedly:<\/p>\n\n\n\n\n\n\n\n\n\n\n
Term<\/th>\nMeaning<\/th>\n<\/tr>\n<\/thead>\n
ZCP<\/strong> (organized part of an enterprise)<\/td>\nAn organizationally and functionally separate set of assets capable of carrying on business independently \u2014 for example, a product division, business line, or team with its clients and contracts. This definition has been confirmed, among others, by the judgment of the Warsaw Court of Appeal, I ACa 1246\/15<\/a>.<\/td>\n<\/tr>\n
Payment order<\/strong> (Articles 921\u00b9\u2013921\u2075 of the Civil Code)<\/td>\nA three-party mechanism: the person issuing the payment order (the seller) authorizes the person instructed to pay (the buyer) to make a payment to the recipient (the seller\u2019s creditor). It is a technical tool that simplifies settlements \u2014 the buyer pays the seller\u2019s creditor directly instead of paying the seller, who would then pay the creditor.<\/td>\n<\/tr>\n
Cover relationship<\/strong><\/td>\nThe relationship between the buyer and the seller \u2014 this is the source of the buyer\u2019s obligation to pay the price for the ZCP.<\/td>\n<\/tr>\n
Underlying relationship<\/strong><\/td>\nThe relationship between the seller and the creditor \u2014 this is where the debt that the payment order is intended to discharge exists (or does not exist).<\/td>\n<\/tr>\n
Undue performance<\/strong> (Article 410 \u00a7 2 of the Civil Code)<\/td>\nA performance for which the legal basis did not exist, subsequently ceased to exist, or whose intended purpose was not achieved. An overpayment resulting from an incorrect schedule of liabilities is precisely such a case.<\/td>\n<\/tr>\n
Adjustment clause<\/strong> (post-closing adjustment)<\/td>\nA contractual provision governing how differences between the position stated in the agreement and the actual position discovered after closing are to be settled.<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

How a payment order works in a ZCP sale and why an overpayment \u201creturns” by a different route<\/h2>\n

Three parties, two legal relationships<\/h3>\n

A ZCP sale in which liabilities are settled through a payment order involves three parties:<\/p>\n

    \n
  1. Seller<\/strong> (the person issuing the payment order) \u2014 sells the ZCP and authorizes the buyer to pay its creditors.<\/li>\n
  2. Buyer<\/strong> (the person instructed to pay) \u2014 buys the ZCP and, instead of paying the entire price to the seller, pays part of it directly to the seller\u2019s creditors.<\/li>\n
  3. Creditor<\/strong> (the recipient of the payment order) \u2014 the seller\u2019s counterparty whose receivables are \u201cincluded” in the transaction price.<\/li>\n<\/ol>\n

    In its judgment I CSK 486\/15<\/a>, the Supreme Court confirmed that carrying out a payment order may simultaneously discharge obligations arising from both the cover relationship and the underlying relationship. In turn, in judgment IV CSK 537\/19<\/a>, the Supreme Court described a payment order as a technical act that does not independently confer a benefit.<\/p>\n

    What happens when the schedule of liabilities is incorrect<\/h3>\n

    Imagine the following situation: your SaaS company sells a B2B product as a ZCP. The price \u201cincludes” liabilities owed to an API provider, which are settled through a payment order. After closing, it turns out that one invoice listed in the schedule had already been paid and another was a pro forma invoice rather than an invoice. The buyer paid the creditor more than it should have.<\/p>\n

    Who receives the refund?<\/p>\n

    The answer follows from the legal structure of the payment order. A claim for the return of an undue performance (Article 410 of the Civil Code) belongs within the relationship in which the legal basis was absent. Since the seller\u2019s debt to the creditor was lower than stated in the schedule, the absent legal basis concerns the underlying relationship<\/strong> (seller\u2013creditor). The creditor refunds the excess to the seller. Not the buyer.<\/p>\n

    | Who pays | Who receives | Legal relationship | Is there an overpayment here? |
    \n|:———-|:————-|:—————-|:———————|
    \n| Buyer | Creditor | Performance of the payment order (technical cash flow) | No \u2014 the buyer followed the instruction |
    \n| Seller \u2192 Creditor | Underlying relationship | Yes \u2014 the seller\u2019s debt was lower than declared |
    \n| Buyer \u2192 Seller | Cover relationship | Depends on the wording of the ZCP sale agreement |<\/p>\n

    This is counterintuitive, but logical. The buyer carried out the payment order in accordance with the agreement. It was not required to verify whether the schedule of liabilities was correct \u2014 it relied on the transaction document. The excess arose within the seller\u2013creditor relationship, so that is where it should be settled.<\/p>\n

    Five risks created by a \u201cshortcut” settlement of an overpayment<\/h2>\n

    Companies often try to settle an overpayment \u201cby taking a shortcut” \u2014 the creditor transfers it directly to the buyer, without an amendment and without updating the documentation. This works operationally, but creates specific problems.<\/p>\n

    a) Risk of double settlement<\/h3>\n

    The creditor claims that it settled with the seller. The buyer claims that it settled with the creditor. During an audit, a dispute, or subsequent due diligence, no one can explain the basis on which the adjustment payment was made specifically to the buyer. The seller may independently seek a refund from the creditor \u2014 resulting in a three-party dispute.<\/p>\n

    b) Lack of documentary basis<\/h3>\n

    A transfer made without an amendment must be documented after the fact. During an investor audit, there is no good answer to the question \u201cwhat is the basis for this transfer?”. This undermines the company\u2019s credibility in the eyes of a potential investor or buyer.<\/p>\n

    c) Tax liability arising from a prematurely issued invoice<\/h3>\n

    Issuing an invoice against a pro forma invoice \u201cjust in case” creates a tax liability. It then has to be corrected \u2014 and Article 106j(1) of the VAT Act<\/a> requires a corrective invoice, not a corrective note. A corrective note cannot be used to change the price or the taxable amount.<\/p>\n

    d) Unilateral amendment of the schedule<\/h3>\n

    Changing the schedule of liabilities without the knowledge and consent of the other party to the transaction is a unilateral amendment. It is not legally binding. It may lead to the entire settlement being challenged.<\/p>\n

    e) Relationship risk<\/h3>\n

    A delay in identifying and correcting the error complicates the relationship with the creditor \u2014 especially if it is a supplier or partner whose cooperation was intended to continue after the transaction.<\/p>\n

    Remedial sequence \u2014 what to do when the schedule of liabilities proves incorrect<\/h2>\n

    The order of steps matters. Making the transfer before signing the amendment reverses the proper logic \u2014 first you need a documentary basis, then the financial flow.<\/p>\n

    Step 1: verify the schedule of liabilities<\/h3>\n

    Have the accounting team review the schedule item by item against the source documents \u2014 invoices, transfer confirmations, and pro forma invoices. Record the results in a table:<\/p>\n\n\n\n\n\n\n\n\n
    Status of liability<\/th>\nDescription<\/th>\nAction<\/th>\n<\/tr>\n<\/thead>\n
    Paid in full<\/td>\nThe invoice appears in the schedule but was settled before the transaction<\/td>\nRemove it from the schedule in the amendment<\/td>\n<\/tr>\n
    Partially paid<\/td>\nPart of the amount has been paid, with the remainder still to be settled<\/td>\nCorrect the amount in the amendment<\/td>\n<\/tr>\n
    Omitted<\/td>\nThe liability exists but was not included in the schedule<\/td>\nAgree with the parties whether it should be included in the settlement<\/td>\n<\/tr>\n
    Pro forma, not an invoice<\/td>\nThe document does not create a liability \u2014 it is an offer, not a debt<\/td>\nRemove it from the schedule and suspend invoicing<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

    Step 2: notify the other party to the transaction<\/h3>\n

    Even if the error occurred on your side and the amount seems small \u2014 notify the other party. A unilateral correction is not binding. A ZCP sale is a bilateral transaction, and every change to the schedule requires both parties\u2019 consent.<\/p>\n

    Step 3: prepare and sign an amendment<\/h3>\n

    The amendment should cover both agreements: the ZCP sale agreement and the payment order agreement. It must include:<\/p>\n

      \n
    1. A corrected schedule of liabilities referring to specific items.<\/li>\n
    2. The new amount covered by the payment order.<\/li>\n
    3. The method for settling the excess \u2014 a refund to the seller\u2019s account or its application toward another specifically identified liability.<\/li>\n
    4. The deadline for making the adjustment payment.<\/li>\n<\/ol>\n

      Step 4: suspend invoicing<\/h3>\n

      Do not issue invoices against pro forma invoices included in the schedule until the amendment determines whether and to what extent they are covered by the settlement. An invoice issued \u201cjust in case” creates a tax liability that must later be corrected.<\/p>\n

      Step 5: make the adjustment payment<\/h3>\n

      Only after the amendment has been signed \u2014 not the other way around. A transfer made before the amendment will still have to be described in the documents, but only after the fact, which complicates the audit trail.<\/p>\n

      Contact us<\/a> \u2014 we will help you prepare the amendment and put the settlement in order.<\/p>\n

      Why Article 411(1) of the Civil Code does not prevent the overpayment from being refunded<\/h2>\n

      A common question is: \u201cif I paid knowing how much I was paying, can I still request a refund?”<\/p>\n

      Article 411(1) of the Civil Code states that the return of a performance cannot be demanded if the person making it knew that they were not obliged to do so. But this refers to knowledge that no obligation existed<\/strong>, not knowledge of the amount being transferred.<\/p>\n

      A mistake as to the existence of an obligation \u2014 where all parties believed the schedule to be correct \u2014 does not constitute knowledge that no debt existed. The parties acted on the assumption that the schedule reflected the actual position. It was only after the transaction closed that this proved not to be the case.<\/p>\n

      Nor is the excess automatically:<\/p>\n

        \n
      1. An advance payment toward future liabilities owed to the same creditor \u2014 without an express contractual provision.<\/li>\n
      2. An adjustment to the ZCP price \u2014 that is an entirely different legal relationship.<\/li>\n
      3. A gift \u2014 there was no intention to make a gift.<\/li>\n<\/ol>\n

        Unless deliberately addressed in an amendment, the excess remains an undue performance<\/strong> within the meaning of Article 410 \u00a7 2 of the Civil Code.<\/p>\n

        Limitation period \u2014 do not delay sending a demand for payment<\/h2>\n

        A claim for the return of an undue performance is a claim with no specified due date. It becomes due after the debtor has been called upon to pay (Article 455 of the Civil Code). The limitation period begins on the date when the claim would have become due had the demand been made at the earliest possible time \u2014 Article 120 \u00a7 1 of the Civil Code<\/a>.<\/p>\n\n\n\n\n\n\n\n\n
        Parameter<\/th>\nValue<\/th>\n<\/tr>\n<\/thead>\n
        Limitation period (business activity)<\/td>\n3 years<\/td>\n<\/tr>\n
        Limitation period (other claims)<\/td>\n6 years<\/td>\n<\/tr>\n
        Start of the period<\/td>\nThe date on which the demand could first have been delivered<\/td>\n<\/tr>\n
        End of the period<\/td>\n31 December of the year in which the period expires (for periods \u2265 2 years)<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

        The date on which the error in the schedule was discovered is not the statutory starting date of the limitation period \u2014 it is relevant only as evidence. However, the sooner you send a demand after discovering the error, the lower the risk that the claim will become time-barred before you enforce it.<\/p>\n

        Confirmation of this rule can be found in the judgment of a court of general jurisdiction in case I C 34\/22<\/a>, which confirms the three-year limitation period for business-related claims.<\/p>\n

        How to protect yourself in the future \u2014 an adjustment clause and pre-signing verification<\/h2>\n

        A single sentence containing an adjustment clause in the agreement can eliminate the need to negotiate an amendment later. The principle of freedom of contract (Article 353\u00b9 of the Civil Code) allows the parties to define a mechanism for adjusting the price after the transaction closes.<\/p>\n

        What an adjustment clause should include<\/h3>\n
          \n
        1. Definitions of the items subject to adjustment<\/strong> \u2014 working capital, net debt, cash, and trade payables.<\/li>\n
        2. Measurement date<\/strong> \u2014 the specific date as of which the liabilities are determined (e.g. the transaction closing date).<\/li>\n
        3. Hierarchy of accounting principles<\/strong> \u2014 the standards according to which the settlement is prepared.<\/li>\n
        4. Procedure for preparing and delivering the settlement statement<\/strong> \u2014 who prepares it, by what deadline, and in what form.<\/li>\n
        5. Deadlines for objections<\/strong> \u2014 how many days the other party has to submit comments.<\/li>\n
        6. Expert\u2019s authority<\/strong> \u2014 who resolves disputes over amounts (e.g. a statutory auditor appointed by both parties).<\/li>\n
        7. Allocation of the expert\u2019s costs<\/strong>.<\/li>\n
        8. Payment deadline<\/strong> for the difference and default interest.<\/li>\n<\/ol>\n

          There is no publicly available official template for such a clause for the Polish M&A market \u2014 but the above elements follow from the principle of freedom of contract and the most common causes of post-closing disputes.<\/p>\n

          Three preventive rules<\/h3>\n
            \n
          1. The schedule of liabilities must undergo accounting verification before the agreement is signed<\/strong> \u2014 with a balance determination date and the position as of a specific date. A list of \u201coutstanding invoices” without a reference date is an invitation to error.<\/li>\n
          2. Sign the payment order agreement at the same time as the ZCP sale agreement<\/strong> \u2014 with both referring to the same specifically identified appendix containing the schedule of liabilities. Misalignment between the two agreements (different appendices or different dates) is the most common cause of this problem.<\/li>\n
          3. Do not issue invoices against pro forma invoices included in the schedule<\/strong> until the agreement determines whether and to what extent they are covered by the settlement.<\/li>\n<\/ol>\n

            Tax consequences \u2014 what you need to know about VAT and CIT<\/h2>\n

            The sale of a ZCP is excluded from VAT under Article 6(1) of the VAT Act<\/a>. The mere refund of an amount received but not due does not constitute a separate transaction subject to VAT, provided that the transaction was correctly classified.<\/p>\n\n\n\n\n\n\n\n
            Situation<\/th>\nIs a corrective invoice required?<\/th>\nComments<\/th>\n<\/tr>\n<\/thead>\n
            Refund of the excess price without changing the tax treatment<\/td>\nAs a rule, no<\/td>\nThe refund concerns a civil-law overpayment, not VAT<\/td>\n<\/tr>\n
            VAT incorrectly shown on an invoice documenting the sale of a ZCP<\/td>\nYes<\/td>\nA corrective note is not sufficient \u2014 a corrective invoice is required<\/td>\n<\/tr>\n
            Adjustment of the transaction price in an amendment<\/td>\nDepends on the wording of the amendment<\/td>\nIf the taxable amount changes \u2014 a corrective invoice is required<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

            The CIT implications depend on whether the refunded amount was previously recognized as income due. There is no single universal answer here \u2014 each set of facts requires a separate analysis. It is worth consulting a tax adviser before making the adjustment payment.<\/p>\n

            Before you sign the schedule of liabilities \u2014 give us 2 hours to verify it<\/h2>\n

            An amendment after the event costs more than verification before signing. Lawyers\u2019 and accountants\u2019 time, negotiations with the other party, document corrections, and the risk of a dispute \u2014 all of this can be reduced through a single transaction consultation before closing.<\/p>\n

            We support founders, management boards, and CFOs of technology companies in ZCP sale and purchase transactions \u2014 from structuring the settlement and preparing schedules of liabilities to adjustment clauses and payment order agreements.<\/p>\n

            If you have already closed the transaction and want to check whether the settlement is correct \u2014 we will conduct a post-closing review of the documentation and identify what needs to be corrected.<\/p>\n

            Contact us<\/a> \u2014 we will put the settlement in order before the problem grows.<\/p>\n

            Frequently asked questions<\/h2>\n

            I am selling a product line as a ZCP \u2014 do I need to verify the schedule of liabilities with the accounting team before signing, or is a report from the system sufficient?<\/strong>
            \nA report from the accounting system is a starting point, not a finished schedule. Systems confuse pro forma invoices with invoices, fail to account for payments in progress, and do not understand the transaction context. The schedule must undergo accounting verification, with a balance determination date and the position as of a specific date. Otherwise, you risk discovering after closing that some items had already been paid or did not constitute liabilities at all.<\/p>\n

            I bought a ZCP and overpaid through a payment order \u2014 should I receive the refund, or should the seller?<\/strong>
            \nUnder the payment order mechanism, the excess concerns the underlying relationship, meaning the seller\u2013creditor relationship. The creditor refunds the overpayment to the seller, not the buyer \u2014 even though the buyer physically made the transfer. The buyer carried out the payment order in accordance with the agreement. If you want to change this and settle \u201cby taking a shortcut”, you need an amendment that provides a documentary basis for a different flow of funds.<\/p>\n

            What if the creditor has already spent the overpaid amount \u2014 can I still demand a refund?<\/strong>
            \nYes. The creditor\u2019s spending of the amount does not extinguish the claim for the return of an undue performance. The creditor may argue that the enrichment has ceased to exist (Article 409 of the Civil Code), but must demonstrate that it should not have expected an obligation to make a refund. In an M&A transaction where the schedule of liabilities is an integral part of the agreement, this is difficult to prove.<\/p>\n

            Can I agree in advance in the contract that any excess will automatically be applied toward subsequent invoices from the same creditor?<\/strong>
            \nYes \u2014 provided that you state this expressly in the agreement or amendment. Without such a provision, the excess remains an undue performance. Automatic application toward future liabilities does not follow from any statutory provision \u2014 it requires a deliberate decision by the parties documented in the agreement.<\/p>\n

            Does the absence of an adjustment clause in the agreement mean that I have to negotiate a full amendment every time the schedule does not match?<\/strong>
            \nIn principle, yes. Without an adjustment clause, you have no contractual mechanism for settling differences. Each discrepancy requires a separate agreement between the parties \u2014 which means negotiations, an amendment, and time. This is why it is worth including an             adjustment clause<\/a> in the standard ZCP sale agreement template. One sentence can save weeks of post-closing negotiations.<\/p>\n

            What if both parties want to settle \u201cby taking a shortcut” and the creditor transfers the money directly to the buyer \u2014 is an ordinary email confirmation sufficient?<\/strong>
            \nNo. An email confirmation is not a substitute for an amendment to the agreement. During a tax audit, a dispute, or due diligence, there will be no document justifying the flow of funds. The creditor claims that it settled with the seller, while the buyer claims that it settled with the creditor \u2014 creating a risk of double settlement. Even if the parties want to simplify the flow, they need an amendment that provides a legal basis for it.<\/p>\n","protected":false},"excerpt":{"rendered":"

            In a Polish ZCP sale, an overpayment made through a payment order generally goes back to the seller. Learn how to document and correct the settlement.<\/p>\n","protected":false},"author":13,"featured_media":3537,"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":"fc9e407a-9916-4de6-887e-540d1af8a76f","sip_pair_state":"verified"},"categories":[1581],"tags":[1557,1548,1641,1549],"specialization":[1208],"practice_area":[],"class_list":["post-4274","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-mergers-and-acquisitions","tag-contract","tag-due-diligence-en","tag-mergers-and-acquisitions-en","tag-taxes-en","specialization-mergers-and-acquisitions-ma"],"acf":[],"_links":{"self":[{"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/posts\/4274","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=4274"}],"version-history":[{"count":5,"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/posts\/4274\/revisions"}],"predecessor-version":[{"id":4282,"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/posts\/4274\/revisions\/4282"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/media\/3537"}],"wp:attachment":[{"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/media?parent=4274"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/categories?post=4274"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/tags?post=4274"},{"taxonomy":"specialization","embeddable":true,"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/specialization?post=4274"},{"taxonomy":"practice_area","embeddable":true,"href":"https:\/\/sawaryn.com\/en\/wp-json\/wp\/v2\/practice_area?post=4274"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}