Many transport orders that I have encountered contain a non-competition clause for the contractor (carrier, forwarder), which means not providing transport services in the future to the sender/recipient of goods known through the client. Such a prohibition may last, for example, 24 months, and in the event of its violation, the client reserves the right to pay a contractual penalty by the carrier/forwarder, e.g. in the amount of PLN 50,000 or EUR 30,000 for each case of violation.

Is such a prohibition of competition absolutely binding on the carrier/forwarder in the light of the principle of freedom of contract expressed in Art. 353 (1) CC?

Well, no, and each case should be considered individually in terms of:

– the length of cooperation between the parties – whether it was permanent or only incidental,

– whether the contractor has previously cooperated with the sender/recipient of the goods,

– whether the client is trying to limit economic freedom and monopolize the market,

– whether the penalty does not lead to serious harm to the carrier/forwarder,

– whether the non-competition clause after the termination of the mandate contract introduces an appropriate equivalent for the carrier/forwarder. If such an equivalent has not been introduced, the clause is invalid (as stated by the Supreme Court in its judgment of September 11, 2003 (III CKN 579/01),

It should be emphasized that the principle of freedom of contract (Article 353 (1) of the Civil Code) is not absolute, as it is limited by legal provisions, the nature of the legal relationship and the principles of social coexistence. As is clear from well-established court jurisprudence, contradiction with these principles may be expressed in including extreme violation of the principle of equal relations, violation of the principle of equivalence leading to gross harm to one of the parties, gross disproportion of benefits, restriction of the freedom of business activity of one of the parties, violation of the principles of fair dealing and loyalty to the contractor (see justification of the resolution of the panel of seven judges of the Supreme Court of March 6, 1992, III CZP 141/91; judgments of the Supreme Court of November 30, 1971, II CR 505/71; May 30, 1980, III CRN 54/80; November 10, 2004, II CK 202/04; May 20, 2004, II CK 354/03; October 13, 2005, IV CK 162/05; January 14, 2010, IV CSK 432/09).

Legal adviser Jerzy Klimkowski