Recovering a Prepayment Made Against a Pro Forma Invoice in Poland

Recovering a Prepayment Made Against a Pro Forma Invoice in Poland

A Polish supplier labels your payment zadatek on a pro forma invoice and says it can keep the money after the transaction falls through. That label alone does not settle the issue. Under the Polish Civil Code rule discussed below, retaining a zadatek requires two conditions together: the payer must have failed to perform the contract, and the recipient must have withdrawn from it.

If neither happened, the supplier’s position is difficult to sustain. The absence of a written contract does not, by itself, deprive you of a refund claim. It may instead make it harder for the supplier to establish that the payment had the legal character it claims.

Payments against pro forma invoices without written contracts are common in Polish business-to-business transactions. Parties agree terms by phone, transfer funds, and only when delivery fails discover that they disagree about what the payment meant. In PARP’s 2023 report on the SME sector, 42.4% of surveyed businesses identified late payments by counterparties as a problem. Prepayments that cannot readily be recovered are a separate, often overlooked loss.

This article explains the Polish concepts, how to structure a refund demand, what evidence to preserve, and how to reduce the risk before making or accepting the next prepayment.

The Polish terms that matter

The English word “deposit” can obscure an important distinction. In this article, zadatek means the payment addressed by Article 394 of the Polish Civil Code; zaliczka means an advance payment toward the price.

Why “zadatek” on the pro forma invoice does not decide the dispute

The pro forma invoice is not the parties’ contract

A pro forma invoice is not a VAT invoice and does not itself constitute a contract between the parties (biznes.gov.pl). The supplier’s description of a payment on that document may be evidence of how it understood the arrangement. It does not automatically establish that Article 394 applies.

That distinction matters particularly when the commercial terms were agreed by phone and neither party signed a document stating that the payment was zadatek.

Your bank transfer reference is evidence too

The transfer reference may be the only contemporaneous document in which you described the purpose of your payment. If it says “advance payment for…” or “prepayment for…,” a court can consider that description when assessing the payment’s character. It is not automatically decisive, but neither is the supplier’s pro forma invoice.

The Polish lower-court decisions cited in the source address the treatment of a prepayment where the contract did not expressly reserve it as zadatek: I C 136/21 and XV GC 2847/15. Article 394 is a default rule, applying “in the absence of a different contractual stipulation or custom” (Civil Code, consolidated text).

Even if it was zadatek, the supplier must meet the retention conditions

The source’s analysis of Article 394 §1 requires both of these conditions for the recipient to retain the payment:

1. The party that paid the zadatek failed to perform the contract.
2. The party that received it withdrew from the contract.

If either condition is missing, the recipient cannot rely on that retention rule. Where the supplier failed to deliver, never gave notice of withdrawal, raised no objection, and said by phone that it would refund the money, those facts work against its claim to keep the payment.

Build the refund demand on two arguments

An effective demand need not depend entirely on winning an argument over the word “deposit.” Use a primary claim and a fallback response to the supplier’s likely defense.

Primary argument: the payment’s intended purpose was not achieved

The source identifies undue performance because the intended purpose of the payment was not achieved as the main basis for a refund: Article 410 §2 in conjunction with Article 405 of the Civil Code. You paid to receive goods or services; the goods were not delivered or the service was not performed. On that analysis, the payment should be returned.

The argument does not depend on having a written contract or on the label used on the pro forma invoice.

Fallback argument: a zadatek still cannot be retained

If the supplier insists that the payment was zadatek, address Article 394 §1 directly. Ask it to establish both the payer’s failure to perform and the supplier’s withdrawal from the contract. If the supplier itself did not deliver and gave no notice of withdrawal, the source’s analysis is that it has no right to retain the money under that provision.

Address a claim that the money has been spent

The supplier may say it no longer has the funds and invoke Article 409 of the Civil Code, concerning consumption or loss of a benefit. Under the source’s analysis, that defense is available only where the recipient should not have expected to have to return the benefit.

Identify when that expectation arose. For example, once an agreed collection deadline passed without the goods being available, the supplier should have anticipated a refund obligation. Set out the relevant date and evidence in the demand rather than leaving the point unanswered.

What to put in a pre-litigation demand

A written demand gives the supplier a final opportunity to refund voluntarily. It also creates a record of an attempt to resolve the matter without court proceedings. Under Article 187 §1 point 3 of the Polish Code of Civil Procedure, a statement of claim must include information about such an attempt.

Keep proof of sending and delivery. The date of receipt matters if your payment deadline runs from it.

When does interest start, and which rate applies?

For an obligation with no specified due date, the source explains that a demand makes the claim due under Article 455 of the Civil Code. It therefore recommends giving a clear deadline—typically seven days after receipt—and stating that statutory interest for late payment will accrue after that deadline under Article 481.

For a B2B commercial transaction, the source also identifies interest on commercial transactions as a potentially higher rate. For January 1–June 30, 2026, it gives 14% for standard commercial transactions, citing the announcement published as Monitor Polski 2025, item 1257. Check the applicable rate and basis for the period of your claim rather than treating a historical figure as permanent.

Do not let the limitation period expire

A claim for the return of undue performance under Article 410 follows the general limitation rules in Article 118 of the Civil Code. Where a B2B claim is connected with business activity, the source gives a three-year period, ending on December 31 of the relevant year (Civil Code, consolidated text).

Under Article 120 §1, the source describes the starting point as the earliest date on which the claim could have become due:

1. No contract was ever concluded: from the payment date.
2. The legal basis ceased later, for example following withdrawal from the contract: from that later event.

Waiting to send a demand does not postpone the start of the limitation period. The source cites Polish Supreme Court decision II CSKP 1908/22 on the earliest objectively possible due date. Act promptly so that there is time to pursue the claim if the supplier does not pay.

When withdrawal from the contract may be needed

An oral agreement can still be relevant. If the parties concluded a reciprocal contract, even without signing it, and the supplier has not performed, consider the separate route of withdrawal under Article 491 of the Civil Code.

The sequence set out in the source is:

1. Set an additional performance deadline. Give the supplier a specific further period to perform and warn that you will withdraw if it does not.
2. Give notice of withdrawal. If the additional period expires without performance, make the withdrawal declaration.
3. Demand return of your payment. Rely on Article 494 of the Civil Code and specify a refund deadline.

The withdrawal notice and refund demand can be combined in one letter; the source cites I C 41/24 for that practical approach.

If a lawyer or other representative signs the letter, check the power of attorney. Authority to send a payment demand should not be assumed to include authority to make a declaration of withdrawal. Conversely, granting authority to withdraw does not itself withdraw from the contract: the letter must actually contain the declaration.

Can the supplier rely on standard terms you never received?

A supplier may point to its general terms and conditions, or OWU, saying that prepayments are zadatek or non-refundable. The source’s Article 384 §1 position is that a standard form binds the other party if it was provided before the contract was concluded. The Polish Supreme Court judgment I CSK 241/17 emphasizes an opportunity to review the terms before entering the particular contract.

How the terms were provided—and whether the supplier can prove it—therefore matters.

If the supplier did not provide its standard terms before the contract was concluded, the source’s conclusion is that it cannot rely on them in the dispute.

Preserve the evidence before sending your demand

Without a signed contract, the transaction history becomes especially important. Collect:

1. The bank transfer confirmation, including the complete payment reference.
2. The supplier’s pro forma invoice, showing how it described the payment.
3. Emails recording the order, price, delivery arrangements, and any promise to refund.
4. Text and messaging-app conversations. The source notes that these may be evidence as documents containing text under Article 243¹ of the Code of Civil Procedure or as other evidence.
5. Call recordings, where the person who recorded the conversation participated in it; the source cites Supreme Court decision II PSK 203/21.
6. Every agreed collection or delivery deadline, including dates on which collection did not occur.
7. The record of what contract documents and standard terms were—or were not—sent before the parties agreed.

Preserve complete message threads with dates, phone numbers, and account identifiers. A coherent history that matches the invoices and bank transfers is more useful than isolated screenshots; a screenshot without its source file is weaker evidence.

Court costs and practical recovery

For a claim of up to PLN 20,000, the source identifies simplified proceedings under Article 505¹ §1 of the Code of Civil Procedure. Poland’s electronic writ-of-payment procedure, known as EPU, can produce a payment order remotely. The government’s EPU information gives an average 49-day wait for an order in 2025.

That is a time to obtain an order, not a forecast for receiving the funds. If the defendant objects, the matter proceeds before an ordinary court.

Legal-representation costs awarded against the other party may not cover the fee you actually pay your lawyer (Journal of Laws 2026, item 215). A well-supported pre-litigation demand gives you an opportunity to obtain repayment before incurring litigation costs.

VAT documents when a prepayment is refunded

A pro forma invoice is not a VAT invoice and does not itself entitle the buyer to deduct VAT. If the supplier issued an advance payment invoice after receiving the funds under Article 106b(1)(4) of the Polish VAT Act, the source states that refunding the payment requires a corrective invoice under Article 106j(1). A buyer that deducted input VAT from the advance payment invoice should reduce that deduction after receiving the correction (VAT Act, consolidated text).

If only a pro forma invoice was issued and no advance payment invoice followed, the source says there is no VAT invoice to correct. Where a correction is required, transferring the refund alone does not replace the corrective invoice.

If your company receives prepayments

The documentation problem works both ways. If your company accepts money without clear contract terms, proof that its OWU were provided, or a written record of a customer’s withdrawal, it may struggle to defend a decision to retain the payment.

To reduce that risk:

1. Provide your OWU before the contract is concluded and retain proof, such as the email attaching the PDF or an acknowledgment of receipt.
2. Document a customer’s withdrawal with a dated, signed written declaration.
3. If a payment is intended to be **Article 394 *zadatek***, say so expressly in the contract, refer to Article 394, and set out the consequences of non-performance and how the sum is credited toward the price.
4. If it is intended to be an advance payment, exclude the application of Article 394 and specify the refund deadline.

Checklist before paying a Polish pro forma invoice

Checklist before sending a refund demand

1. Establish the facts: Is there a written contract? Were OWU provided? What does the bank transfer reference say? Did the supplier give notice of withdrawal?
2. Use both arguments: Article 410 §2 with Article 405 as the primary refund basis; Article 394 §1 as the response if the supplier claims it may retain a zadatek.
3. Address Article 409: identify when the supplier should have expected to return the money.
4. Set a payment deadline: typically seven days from receipt, with the refund account and the interest basis stated clearly.
5. Record the settlement attempt: identify the letter as a final pre-litigation demand and an attempt to resolve the dispute out of court for Article 187 §1 point 3 purposes.
6. Secure the evidence: especially the full transfer reference, pro forma invoice, correspondence, and missed collection dates.
7. Check the representative’s authority: if the letter withdraws from a contract, ensure the power of attorney covers that declaration.
8. Check the final document: remove unfinished placeholders and drafting comments; verify dates, places, authorized signatures, and attachments.

Put a clearer payment process in place

A confirmation email, a precise bank transfer reference, and an express agreement on whether the money is zaliczka or zadatek can prevent a costly dispute. The same discipline should apply to sales: agree the payment’s character and provide standard terms before the contract is concluded.

If a Polish supplier is withholding your prepayment, send us the pro forma invoice, transfer confirmation, and correspondence. We can assess the recovery prospects and prepare a pre-litigation demand with an appropriate specific power of attorney. We can also prepare short order-confirmation templates, payment clauses, and OWU with a delivery process. Contact us.

Frequently asked questions

Can I recover a prepayment if there is no written contract and the supplier did not deliver?
Yes, the absence of a written contract does not itself remove your refund claim. The source’s primary argument is undue performance because the payment’s intended purpose was not achieved, under Article 410 §2 in conjunction with Article 405 of the Civil Code. It may also be harder for the supplier to prove that the payment was zadatek without written terms.

Does “zadatek” on the supplier’s pro forma invoice let it keep the money?
Not by itself. The label is evidence, not a conclusive agreement. Under the Article 394 §1 retention analysis used here, the payer must have failed to perform and the recipient must have withdrawn from the contract. If the supplier failed to deliver and did not withdraw, those conditions are not met.

Does my bank transfer reference matter?
Yes. It records your own description of why you paid. A reference saying “advance payment” or “prepayment” may be important alongside the supplier’s documents and the parties’ correspondence. Write it deliberately rather than copying the pro forma invoice without checking the agreed terms.

Must I send a demand before filing a claim?
The source does not treat it as an absolute procedural prerequisite. A statement of claim must, however, contain information about an attempt to resolve the dispute out of court under Article 187 §1 point 3 of the Code of Civil Procedure. For an obligation without a specified due date, the source also explains that a demand makes the claim due under Article 455; the deadline it sets is relevant to late-payment interest.

What if the supplier says it has spent the money?
That does not automatically end the claim. Under the source’s Article 409 analysis, the question includes whether the supplier should have expected to return the benefit. Record when a delivery or collection deadline passed and why, from then on, a refund should have been anticipated.

How long do I have to claim the refund?
For a claim connected with business activity, the source gives a three-year limitation period under Article 118 of the Civil Code. Its starting point is tied to the earliest date the claim could have become due, not the date you eventually send your demand. Do not delay while trying to settle informally.