A penalty written into the transport order. Which clauses to catch straight away

A transport order (zlecenie transportowe) looks like a form. Loading place, unloading place, dates, goods, freight. Underneath, a dozen lines of small print that nobody reads, because three more orders will arrive in ten minutes.

That small print is the contract. When the dispatcher confirms the order, the company accepts everything in it. Including a EUR 1,000 penalty for delay on a freight of PLN 2,400.

This piece is about why such a penalty can be binding, what it really costs and which clauses are worth catching before anyone clicks “confirm”.

Why a penalty in the text of the order is binding

Many transport companies have their own general terms and conditions (ogólne warunki, OWU). It is easy to assume they protect you. That if your terms say “contractual penalties only up to the amount of the freight”, the penalty in the client's order will not work.

It is not that simple. The Civil Code distinguishes between the content of a contract and a standard form contract (wzorzec umowy). If they conflict, the parties are bound by the contract 1Art. 385 § 11Kodeks cywilny (Civil Code) (opens in a new tab): Arts 68 and 68¹ (reply to an offer with changes), Art. 385 § 1 (contract prevails over a standard form), Art. 484 § 2 (reduction of a contractual penalty).. A penalty written directly into the text of a specific order you confirm is part of the contract. Your terms are a standard form. In a conflict, the order usually wins.

How two sets of terms work at the same time is the subject of the second piece: Your terms or the client's terms.

The same mechanism also has a side that works in your favour. If you reply to an order with changes, for example you strike out the penalty, that is no longer an acceptance of the order but a new offer 1Art. 68. Between businesses, minor changes can be treated as acceptance, but changing the amount of a penalty or the scope of liability is a material change 1Art. 68¹. The client has to accept it.

The conclusion is simple: the moment to talk about the penalty is before you confirm. After that, all that is left is a dispute.

What a penalty higher than the freight really costs

Take an example. Freight of PLN 2,400. The carrier's margin on this run is, say, 10 to 15%, so PLN 240 to 360. The order sets a penalty of EUR 1,000 for delay, which is over PLN 4,000.

One delay wipes out the margin from a dozen or more runs like this.

And here is the trap many carriers find out about too late: this penalty is usually not paid by the insurer. Typical carrier's liability insurance (OC przewoźnika, OCP) policies exclude contractual penalties from cover 22PZU, general terms of road carrier's liability insurance (OC przewoźnika drogowego) (opens in a new tab). Exclusion of contractual penalties and of liability under Arts 24 and 26 CMR.33ERGO Hestia, key information on carrier's and freight forwarder's liability insurance (opens in a new tab).. The policy mirrors liability under the Transport Law and the CMR Convention 44Trans.info, “Klauzula art. 24 CMR w OCP” (The Art. 24 CMR clause in carrier's liability insurance) (opens in a new tab) and “Klauzula art. 26 CMR w OCP” (The Art. 26 CMR clause in carrier's liability insurance) (opens in a new tab). Carrier's liability insurance as a mirror of CMR liability, and the risk of liability above the limit.. Whatever the carrier accepts in the order beyond that, it pays out of its own pocket.

That is why the penalty eats the margin before anyone has read the order. The risk arises when the order is confirmed, not when the delay happens.

How high a penalty can be under the law

The Code and the Convention give the carrier some limits, but they are not as simple as is often assumed.

International carriage (CMR). Compensation for delay in delivery may not exceed the carriage charges 5Art. 23(5)5Konwencja o umowie międzynarodowego przewozu drogowego towarów (Convention on the Contract for the International Carriage of Goods by Road, CMR), Geneva 1956 (opens in a new tab): Art. 23(3) and (5), Art. 24, Art. 26, Art. 41.. Any clause that directly or indirectly derogates from the Convention is null and void 5Art. 41. On this basis, some courts hold penalties for delay in delivery in CMR carriage to be void 66Markowski Michałowski, “Kary umowne za opóźnienie a art. 23 ust. 5 Konwencji CMR” (Contractual penalties for delay and Art. 23(5) CMR) (opens in a new tab). Discussion of the Supreme Court decision of 11 August 2022 (II CNPP 6/22) and of the distinction between delay in delivery and delay in providing the vehicle.77Prawo Przewoźnika, “Nieważność kar umownych za opóźnienie w razie sprzeczności z Konwencją CMR” (Penalties for delay void where they conflict with the CMR Convention) (opens in a new tab) and Karbowski Rasiński & Partners, “Konwencja CMR a kary umowne” (The CMR Convention and contractual penalties) (opens in a new tab). Review of case law of the common courts, including where it diverges.. Case law is not uniform, though. For example, courts distinguish delay in delivery from delay in providing the vehicle for loading, which CMR does not expressly address 6.

Domestic carriage. Compensation for delay in carriage may not exceed twice the carriage charges 8Art. 83(1)8Ustawa z dnia 15 listopada 1984 r. Prawo przewozowe (Transport Law Act of 15 November 1984) (opens in a new tab): Art. 83(1) (limit on compensation for delay)..

Any contractual penalty. A court may reduce it if the obligation has been largely performed or the penalty is grossly excessive 1Art. 484 § 2. One of the factors is the ratio of the penalty to the value of the service itself 7.

These are all arguments in a dispute. They help once the penalty has been charged or deducted from the freight. They do not replace catching it before the order is confirmed.

Which clauses to catch straight away

You do not have to read the whole order like a lawyer. You just need to know where to look. These are the clauses that most often shift risk onto the carrier:

1. A penalty higher than the freight. Especially a penalty for delay alone, whatever the cause. This is the main warning sign.
2. Liability up to the full value of the goods. CMR limits liability for loss of or damage to goods to 8.33 SDR per kilogram of gross weight 5Art. 23(3). It provides for higher liability only where a value or a special interest in delivery is declared in the consignment note, against an extra charge 5Arts 24 and 26. A clause saying “the carrier is liable up to the full value of the goods” bypasses this structure. Carrier's liability insurance without an additional clause will not cover it 4.
3. A payment term longer than 60 days. Between businesses, the payment term should not exceed 60 days from delivery of the invoice. A longer term is possible only if the parties expressly agree it and it is not grossly unfair to the creditor 9Art. 7(2)9Ustawa z dnia 8 marca 2013 r. o przeciwdziałaniu nadmiernym opóźnieniom w transakcjach handlowych (Act of 8 March 2013 on Counteracting Excessive Delays in Commercial Transactions) (opens in a new tab): Art. 7(2) and (2a) (60 days).1010ifirma.pl, “Ograniczanie zatorów płatniczych: zmiany w ustawie o terminach zapłaty” (Reducing payment backlogs: changes to the payment terms act) (opens in a new tab). Discussion of Art. 7 and the consequences of an overly long payment term.. When a large company pays and a small or medium-sized one invoices, there is no exception 9Art. 7(2a). Also check when the term starts to run. “60 days from receipt of the original documents” in practice means 75 or 90.
4. A ban on contacting the client, backed by a penalty. Penalties for “taking over the client” are sometimes set in tens of thousands of euros, many times the freight.
5. A ban on subcontracting, backed by a penalty. If you work with subcontractors, one run passed on can cost more than a month of work for that client.
6. Set-off of penalties against the freight. A clause that lets the client charge the penalty itself and deduct it from your invoice. The dispute then starts with you having to recover the money.

The first three are the ones where the dispatcher should always stop the order. The rest depend on how your company works. How to turn this list into a standard for dispatchers is the subject of the third piece: A stop list for dispatchers.

What to do with such a clause

There are three moves, in this order:

1. Reply before you confirm. Strike out or change the clause and send it back. That is a new offer, not an acceptance.
2. Have replacements ready. A penalty “up to the amount of the freight, for delay caused by the carrier” instead of “EUR 1,000 for each delay”. Liability “in accordance with CMR” instead of “up to the full value of the goods”. A ready replacement cuts the negotiation down to one email.
3. Know when to say no. If the client will not accept any change and the penalty exceeds the margin from a dozen or more runs, sometimes the best decision is not to take the order.

This piece describes the law in general terms and is not legal advice on a specific matter. The freight and margin example is illustrative. The law is stated as at 12 October 2026.