Recently, the article on the application of contractual penalties for failure by a carrier to deliver documents on time was very popular among our readers. This time, I would also like to touch on this sensitive subject, but from a slightly different perspective.
Here is an example of a provision written in a transport order:
The Contractor undertakes to deliver the original shipping documents (waybill, CMR, etc.) within 7 days from the date of unloading under threat of imposing a contractual penalty of 20% of freight.”
This time I will not refer to the mere legitimacy of imposing such a penalty, but I will try to answer the question regarding when the documents were delivered.
Of course, the simplest answer is that the transport documents were delivered when the addressee received them. But what if our contractor says that he will not receive mail?
Several theories can be adopted in this respect.
1. Appropriate application of the provisions of the Code of Civil Procedure
In the Code of Civil Procedure (C.C.P.) there is a so-called “service by default”. To put it simply – if the court sends something to us, and despite the double notification (each for 7 days) do not collect the mail, it is considered as delivered on the last day when we could collect it at the post office. By the way, I would like to say that the rule applied sometimes, “if I do not collect it, nothing will happen” is not the best idea.
Returning to the subject, however, assuming that we could apply C.P.C. properly, we would have a situation where even if our contractor (sometimes even deliberately) does not collect the documents, they can still be considered as delivered but only after 14 days from the first notification.
For example, the unloading takes place on 4 June – the driver has the originals of all the documents and was kind enough to find the post office and send it by registered mail. If we are lucky, the mail will arrive on June 5th. Unfortunately, if our contractor does not collect it and the letter is notified, there may be a situation where we will be after the deadline anyway, because the effect of delivery will not occur until 19 June, i.e. 15 days after unloading.
As you can see from the above example, this theory is unfortunately not very useful, but whether it can be applied will be explained later – in summary.
2. Appropriate application of the provisions of the Civil Code on declarations of will
In general, the Civil Code assumes that the declaration of will to be made to the other person is made at the moment when it happened in such a way that the other person could become acquainted with its contents. How do you translate this into practice? Let us return to the example from paragraph 1. The change is important because while I wrote above that the effect of delivery will occur after double notification, in this case, it can be assumed that the effect of delivery took place already on 5 June – because it was then that our addressee had the opportunity to familiarize himself with the wording, or rather the content of the mail.
This sounds better, but we still need to consider whether we can actually apply these rules.
3. Moment of sending the letter
The last theory which we can accept is the so-called “theory of sending”. The assumption here is that the date of fulfilment of the obligation to provide documents will be the date on which they are sent. As an analogy, the provisions of the Code of Civil Procedure should also be applied here – specifically Article 165 § 2, according to which the submission of a pleading in a Polish post office of an operator designated in the meaning of the Postal Law Act or a post office of an operator providing postal universal services in another Member State is tantamount to filing it with the court.
This is the most advantageous solution, but is it possible to act in this way?
Summary: transport documents effectively delivered
Now is the most difficult moment, namely, the answer to the question – which option seems to be the most feasible? In my opinion, options 1 and 3 cannot be applied for one simple reason – these are rules of the civil procedure, which are only applied in court proceedings and we are not in court when the documents are sent out.
That leaves us with the second option, which, in my opinion, is the one that best defends itself. Firstly, it is based on the provisions of the Civil Code, which regulate the majority of our activities in everyday life. For example, when buying bread rolls in a shop, we conclude a sales contract which is regulated by the Code.
Secondly, it is a certain compromise – on the one hand, it protects the client because the contractor will try to send the documents as soon as possible. On the other hand, it protects the contractor in the event that the addressee avoids collecting the mail in order to cause the deadline to be missed.
Once again, it’s just a theory. There will probably be many lawyers who do not agree with it, but I would personally argue for such a solution.