Acknowledgment of debt: what does the behavior of the debtor mean?

Recently, the Supreme Court of Poland ruled on the subject of acknowledgment of debt and at the same time gave general guidelines on how to interpret statements and behavior of a debtor. This is an essential practical question, because the action of the debtor can lead to the interruption of the prescription of the claim. Therefore, debtors should be careful about what they report to creditors. Conversely, in many cases, creditors can take advantage of the behavior of the debtor to improve their legal situation.

The acknowledgment of a debt, that is to say the confirmation by the debtor of the existence of the debt, constitutes a reason for interrupting the course of the prescription (Civil Code art. 123 §1 (2)) . This recognition can be made:

  • Explicitly (uznanie właściwe), when the debtor directly declares that a certain debt is due to a person
  • By implication (uznanie niewłaściwe), that is, inferred indirectly from the behavior of the debtor or from a declaration of knowledge of the debtor.

The latter designates any behavior (or declaration of knowledge) of the debtor sufficiently revealing the knowledge of the existence of an obligation. Such behavior may be the partial payment of a debt (or the payment of interest), a promise to perform an unperformed part of a performance in the future, or a request to postpone the time for performance or settlement of a debt.

In the judgment of November 26, 2021 (Case No. III CSKP 88/21), the Supreme Court reiterated its previous position that, in principle, the recognition of a claim interrupts the course of the limitation period even if the debtor raises objections against the amount of the debt. According to the court, if the debtor accepts the debt in principle and at the same time enters into negotiations with the creditor on the amount of the debt (without explicitly showing that he accepts the debt only up to a certain amount), the creditor may believe that the debtor will perform the performance in full (as intended by the creditor) if it turns out to be legitimate.

The Supreme Court requires debtors to leave no doubt as to which part of the claim they accept and which part they dispute. Therefore, debtors must explicitly express their position to the creditor to avoid the risk that they have implicitly acknowledged the debt. On the other hand, if the declarations of the debtor are equivocal, the creditor can affirm that the limitation period has been interrupted. Indeed, if not protected by appropriate reservations, negotiations between the parties can lead to serious legal consequences of which the parties may not even be aware.

In addition to the interruption of the prescription, the acknowledgment of debt can provide a procedural advantage to the creditor. Made explicitly and in writing, express acknowledgment is a prerequisite for the issuance of an order for payment in an order for payment procedure (postępowanie nakazowe) (Code of Civil Procedure art. 485 §1), which initially take place without the knowledge of the debtor and result in the issuance of an order for payment without a hearing, served on the debtor with the declaration of claim. In such a situation, the debtor becomes aware of the legal case when there is already an order for payment against him. At the same time, the payment order is equivalent to a protective injunction (tytuł zabezpieczenia), on the basis of which the creditor can for example seize the bank account of the debtor. Revocation of such an order is difficult and requires the filing of charges subject to court costs. Compared to the classic procedure, in the order for payment procedure, the situation of the debtor is much more difficult.

On the other hand, implicit recognition can lead to the issuance of a summary payment order (postępowanie upominawcze). This is less severe for the debtor than an order for payment procedure (a summary order for payment does not constitute a protective order, for example), but nevertheless improves the procedural position of the creditor and facilitates the pursuit of his debt.

In the judgment of January 22, 2021 (Case No. III CSKP 25/21), the Supreme Court provided guidance on how to determine whether a statement by the debtor constitutes an implied acknowledgment of debt. The court held that this requires a detailed analysis of the circumstances, correctly applying the principles developed under Art. 60 of the Civil Code. This provision stipulates that the will of a person performing a legal act may be expressed by any behavior of the person which sufficiently reveals his intention.

However, the Supreme Court held that for this purpose, the behavior of the debtor cannot be interpreted liberally. On the contrary, this assessment requires rigor and rigor, in order to maintain clarity around the statute of limitations. Thus, the freedom of interpretation of declarations of knowledge of the debtor is not unlimited, and must take into account the seriousness of the limitation period as a means of defense leading to the extinction of a claim.