Overpaid in a Polish Business-Unit Acquisition? The Refund May Not Go to the Buyer

Overpaid in a Polish Business-Unit Acquisition? The Refund May Not Go to the Buyer

An incorrect schedule of liabilities can look like a simple accounting issue: identify the excess payment and send it back to the company that made the transfer. In a Polish transaction involving a zorganizowana część przedsiębiorstwa (ZCP), or organized part of an enterprise, that approach may be wrong.

If the buyer pays a seller’s creditor directly using the Polish Civil Code mechanism known as przekaz—referred to here as a payment order—an overpayment caused by an incorrect schedule is generally refunded by the creditor to the seller, even though the buyer made the bank transfer. The distinction matters when documenting the correction, protecting the buyer’s position, and avoiding a three-party dispute.

The Polish concepts behind the payment

These are Polish-law concepts. In particular, “payment order” here describes the przekaz mechanism, not simply an instruction to a bank.

Why the creditor refunds the seller, not the buyer

A ZCP sale using a payment order has three participants:

1. The seller sells the ZCP and authorizes payment to its creditor.
2. The buyer pays part of the amount it owes under the transaction directly to that creditor.
3. The creditor receives payment toward a debt owed by the seller.

The Polish Supreme Court stated in case I CSK 486/15 that carrying out a payment order can discharge obligations in both the cover and underlying relationships. In case IV CSK 537/19, it described the payment order as a technical act that does not independently confer a benefit.

Consider a SaaS company selling a B2B product as a ZCP. The transaction schedule includes amounts said to be owed to an API provider, which the buyer pays directly through a payment order. After closing, the parties discover that one listed invoice had already been paid and another document was a pro forma invoice rather than an invoice. The creditor received more than the seller actually owed.

The missing legal basis is in the underlying seller–creditor relationship: the seller’s debt was smaller than the schedule stated. Accordingly, the claim for return of the excess under Article 410 of the Civil Code lies in that relationship. The creditor refunds the seller, not the buyer.

This distinction does not mean the buyer’s economic position should be ignored. It means that a different route for the refund—or an adjustment between buyer and seller—needs a clear contractual and documentary basis. In the arrangement described here, the buyer relied on the transaction schedule rather than independently verifying every listed liability.

Why a direct refund to the buyer creates risk

It may seem efficient for the creditor simply to transfer the excess to the buyer. Without an amendment and consistent transaction records, that shortcut creates five practical problems.

Double settlement. The creditor may say it settled with the seller, while the buyer says it settled with the creditor. If the seller separately seeks repayment from the creditor, all three parties can become involved in a dispute.

An unclear audit trail. A direct transfer to the buyer without an agreed basis has to be explained after the event. That becomes a difficult question in an investor audit, later due diligence, or litigation.

Premature invoicing. Issuing an invoice against a pro forma document “just in case” creates a tax liability under the position set out in the source transaction analysis. If it must be corrected, Article 106j(1) of the Polish VAT Act calls for a corrective invoice, not a corrective note. A corrective note is not a means of changing the price or taxable amount.

A unilateral change to the schedule. One transaction party cannot make a binding correction to the agreed liabilities schedule without the other party’s knowledge and consent. Doing so may put the broader settlement in dispute.

Damage to an ongoing commercial relationship. Delay and uncertainty can be particularly costly if the creditor is a supplier or partner expected to continue working with the business after closing.

How to correct an inaccurate liabilities schedule

The sequence matters: establish and document the basis for the correction before making the adjustment transfer.

1. Verify every scheduled item

Ask the accounting team to compare the schedule against invoices, payment confirmations, pro forma documents, and other source records. Record the result for each item.

2. Notify the other transaction party

Notify the buyer or seller even if the mistake appears small or originated within your own team. A unilateral correction does not bind the other party.

3. Prepare and sign an amendment

The amendment should address both the ZCP sale agreement and the payment order agreement. It should identify:

1. The corrected schedule, with references to specific entries.
2. The revised amount covered by the payment order.
3. How the excess will be settled—by repayment to the seller’s account or application to another specifically identified liability.
4. The deadline for the adjustment transfer.

If the parties want the creditor to pay the buyer directly, they should document the agreed legal basis for that different flow rather than relying on the fact that the buyer made the original transfer.

4. Hold off on invoicing disputed pro forma items

Do not issue invoices against pro forma documents included in the schedule until the amendment establishes whether, and to what extent, they are part of the settlement. An invoice issued as a precaution may then require a tax correction.

5. Make the adjustment transfer

Transfer the funds after signing the amendment. Paying first and documenting the reason later complicates the audit trail.

If you need to correct a closed transaction, contact us for help with the amendment and settlement documents.

Knowing the transfer amount is not the same as knowing no debt existed

Article 411(1) of the Polish Civil Code restricts recovery where the person making a performance knew they were not obliged to make it. That is different from knowing the amount stated in a transfer instruction.

Where all parties believed the liabilities schedule was accurate, a mistake about whether a debt existed is not knowledge that it did not exist. The error became apparent only after closing.

Nor does an excess payment automatically become:

• an advance against future invoices from the same creditor, without an express agreement;
• an adjustment to the ZCP purchase price, which concerns a different legal relationship; or
• a gift, where there was no intention to make one.

Unless the parties deliberately address the excess in an amendment, it remains an undue performance under Article 410 § 2 of the Civil Code in the situation described here.

Limitation periods: send the demand promptly

A claim for return of an undue performance has no specified payment date. Under Article 455 of the Civil Code, it becomes due after the debtor is called upon to pay. For limitation purposes, Article 120 § 1 of the Civil Code looks to when the claim would have become due had the demand been made at the earliest possible time.

Discovering the schedule error is not itself the statutory starting point; the discovery date is relevant as evidence. Do not wait for that reason. Sending a demand promptly after discovery reduces the risk of a claim becoming time-barred before it is enforced. The judgment in case I C 34/22 also addresses the three-year period for business-related claims.

Preventing the problem in the transaction documents

Article 353¹ of the Polish Civil Code, reflecting freedom of contract, allows parties to agree a post-closing price-adjustment mechanism. An effective clause can reduce the need to negotiate a fresh amendment whenever the agreed figures differ from the actual position.

A post-closing adjustment clause should specify:

1. Adjustment items: for example, working capital, net debt, cash, and trade payables.
2. Measurement date: the date as of which balances are determined, such as closing.
3. Accounting hierarchy: the standards used to prepare the calculation.
4. Statement procedure: who prepares and delivers it, when, and in what form.
5. Objection period: the time allowed for the other party to challenge it.
6. Expert’s authority: who resolves disputes over amounts, such as a statutory auditor selected by both parties.
7. Expert costs: how they are allocated.
8. Payment terms: when the difference is payable and the treatment of default interest.

There is no publicly available official template for such a clause for the Polish M&A market. The clause needs to fit the deal and the likely sources of post-closing disagreement.

Three checks before signing are particularly valuable:

• Have accounting verify the liabilities schedule. Identify both the balance determination date and the date to which the balances relate. A system report of “outstanding invoices” is only a starting point: it may include paid items or pro forma documents and may not capture payments in progress.
• Sign the payment order documentation with the ZCP sale agreement. Both should identify the same specific schedule attachment. Different attachments or dates invite inconsistent settlements.
• Resolve pro forma items before invoicing. Decide in the documents whether and to what extent they belong in the settlement.

A useful discussion of contractual adjustment mechanisms is available here.

VAT and Polish corporate income tax

A ZCP sale is excluded from Polish VAT under Article 6(1) of the VAT Act. A transfer returning an amount received but not due does not, by itself, create a separate VAT-taxable transaction if the underlying transaction was correctly classified.

The Polish corporate income tax (CIT) consequences depend on whether the refunded amount was previously recognized as income due. There is no universal answer: have a tax adviser review the facts before making the adjustment transfer.

Before signing—or after closing

Checking a liabilities schedule before signing is usually less disruptive than negotiating an amendment after payment. We support technology-company founders, management boards, and CFOs buying or selling a ZCP, including settlement structures, liabilities schedules, adjustment clauses, and payment order agreements.

If your transaction has already closed, we can review the documents and identify corrections needed to the post-closing settlement. Contact us before an accounting discrepancy becomes a three-party dispute.

Frequently asked questions

Is a report from our accounting system enough to sign the liabilities schedule?
No. Use it as a starting point, then verify entries against source documents, payments in progress, and the transaction’s agreed measurement date. Otherwise, paid invoices or items that are not liabilities may remain in the schedule.

I bought the ZCP and made the excess payment. Why would the seller receive the refund?
Because, under the payment order structure described here, the excess is in the seller–creditor underlying relationship: the creditor received more than the seller owed. The buyer’s payment followed the documented instruction. A different refund route needs an agreed documentary basis.

Can recovery still be sought if the creditor has spent the money?
Yes. Spending it does not automatically extinguish the claim. The creditor may raise a defense under Article 409 of the Civil Code that the enrichment no longer exists, but must show that it should not have expected to repay it. The approved analysis notes that this can be difficult where the liabilities schedule forms an integral part of the M&A agreement.

Can we agree that an excess will be applied automatically to the creditor’s future invoices?
Yes, if that treatment is expressly documented in the agreement or an amendment. Without it, the excess does not automatically become a payment toward future liabilities.

Without an adjustment clause, do we need a new agreement for each discrepancy?
In principle, yes. Without an agreed mechanism, differences require a separate agreement between the transaction parties, with the attendant negotiation and documentation.

Is an email confirmation enough if everyone agrees that the creditor should repay the buyer directly?
No. The approved approach calls for an amendment establishing the basis for that alternative flow. An informal confirmation leaves the parties exposed to questions in an audit, due diligence, or a dispute—and to the risk of inconsistent claims about who has settled with whom.