By the Ordinance of the Minister of Health of March 13, 2020 regarding the announcement of the state of epidemic threat in the territory of the Republic of Poland, issued on the basis of art. 46 section 2 and 4 of the Act of 5 December 2008 on preventing and combating infections and infectious diseases in humans (Journal of Laws of 2019, item 1239 and 1495 and of 2020, items 284, 322 and 374), and from March 14, 2020 until further notice, a state of epidemic threat in connection with SARS-CoV-2 virus infection was announced in the territory of the Republic of Poland. According to parish 2 of the Regulation, in the period from March 15, 2020 until further notice, the movement of passengers in rail transport performed crossing the border of the Republic of Poland was suspended. In addition, a mandatory quarantine was introduced, referred to in the regulations issued on the basis of art. 34 section 5 of the Act of 5 December 2008 on preventing and combating infections and infectious diseases in humans, lasting 14 days from the day following the crossing of the border. Healthy persons who have been in contact with persons suffering from infectious diseases are subject to mandatory quarantine or epidemiological supervision, if so agreed by the sanitary inspection authorities for a period not exceeding 21 days from the last day of contact. This period may be applied to the same person more than once, until it is established that there is no danger to human health or life.
The Regulation of the Minister of Health at the same time established a restriction on the conduct of entrepreneurs within the meaning of the provisions of the Act of March 6, 2018 – Entrepreneurs’ Law and by other business entities. During the epidemic threat, a temporary restriction was imposed on commercial facilities with a sales area above 2000 m2:
1) retail trade to tenants of commercial space
2) conducting catering and entertainment activities.
The above restrictions consist in a total ban on conducting the activities listed in these provisions.
Due to the profile of many companies, most employees performing tasks related to customer service, in order to prevent the spread of COVID-19, were obliged to work remotely, in accordance with the Act of March 2, 2020 on specific solutions related to the prevention, prevention and control of COVID-19. Other employees (sales representatives / service technicians), due to the inability to perform work, stay at home and remain only ready for work.
The effect of entering into force of the above Act and Regulation, is a drastic reduction in revenues from the activities of companies. The circumstances related to the introduction of the state of epidemic threat are independent of the Boards of such companies and were unpredictable. We say that the extraordinary circumstances have arisen that negatively affect the ability to meet contract obligations.
Force majeure is a term not defined in the Polish Civil Code, but it has been defined in many judgments. The Supreme Court (e.g. in its judgment of 31 May 2019, reference number IV CSK 129/18) indicates force majeure as determining the limit of liability on a risk basis. The case law is dominated by the objective concept of force majeure understood as an external event in relation to the movement of the enterprise, of an extraordinary nature, manifesting itself to a small degree in the likelihood of its occurrence, and of an overwhelming nature, consisting in the impossibility of “controlling” it and preventing its effects on the existing level of knowledge and technology development. It can be natural disasters, man-made events, such as hostilities or violent riots, pandemics, as well as acts of public authority, not complying to which must be subject to sanction. In its judgment of 11 January 2001, IV CKN 150/00, the Supreme Court also pointed out that force majeure – apart from the debtor’s acceptance of the risk of its action and the cases of absolute liability – is the limit of liability for damages in general. […] By standardizing liability on a risk basis, they reserve the right to be released from liability by showing that the damage arose as a result of force majeure.
The legal status presented above against the background of the actual facts which have occurred recently lead to the conclusion that the epidemic in the country and the effects of the entry into force of the Regulation of the Minister of Health of 13 March 2020 (Journal of Laws item 433) are force majeure. If it has a direct impact on the ability to perform the contract, it can cause damage for which the affected party is not responsible.
In these circumstances, the inability to conduct business in the normal course, due to the recent Acts and Regulations, may lead to inability to fulfill obligations arising out of a contract to a significant extent. In such an event, the party may be released from the contractual obligations, without liability.
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