Retention of Title in Poland – How Foreign Suppliers Can Protect Their Goods

The formal requirement: written form with a “certain date”

Under Polish civil law, a retention of title must be recorded in writing. Against the buyer's creditors, which is exactly what matters in the buyer's insolvency or an attachment by third parties, it is effective only if the document bears a certain date (data pewna). This can be achieved, for example, by:

• notarial certification of the date,
• a reference in an official document or a public register,
• a qualified electronic time stamp.

Consequence: A retention of title that appears only in general terms printed on the back of an order confirmation may bind the buyer if the terms were validly incorporated, but often offers no protection in the buyer's insolvency.

Timing: The retention must be agreed between the parties no later than delivery. A note added to an invoice after the goods were delivered is ineffective. Polish courts also differ on whether a retention clause printed only on invoices becomes binding because the buyer accepts them. Put it in the contract or order confirmation.

Extended and expanded retention of title

Constructions common in Germany, such as advance assignment of resale proceeds or extension to processed products, face significant problems of effectiveness in Poland and have no confirmed recognition in Polish case law. Once the goods are processed, combined or mixed, the Polish property rules on processing and commingling prevail and the supplier may lose ownership entirely. Resale to a third party generally ends protection as well.

Retention of title in bankruptcy and restructuring

• A retention of title survives the buyer's bankruptcy only if it is effective against the buyer's creditors under the Civil Code (Art. 101 of the Bankruptcy Law), i.e. in writing with a certified date.
• In bankruptcy, the supplier can then demand segregation (exclusion from the estate) of goods still present. Without a certified date, Polish courts have treated the goods as part of the estate.
• Speed is essential: goods that can no longer be identified cannot be segregated.

Better or additional security in Poland