Your terms or the client's terms. Who wins when the conditions conflict

In transport, almost every contract starts with two documents that contradict each other.

The client sends a transport order and attaches its general terms and conditions (ogólne warunki umów, OWU). The carrier confirms the order and attaches its own. The client's terms say: a EUR 500 penalty for delay, liability up to the full value of the goods, payment in 90 days. The carrier's terms say: penalties capped at the freight, liability under CMR, payment in 30 days.

The run goes ahead. The goods arrive late. Which terms apply?

The answer is less obvious than most companies think. And it favours the carrier with its own terms far more than the carrier without them.

What the Code says: conflicting clauses drop out

The Civil Code has a separate provision for this situation. A contract between businesses that use different standard terms does not include those provisions of the standard terms that conflict with each other 1Art. 385⁴ § 11Kodeks cywilny (Civil Code) (opens in a new tab): Art. 384 §§ 1 and 2 (when standard terms bind), Art. 385 § 1 (the contract prevails over standard terms), Art. 385⁴ (conflicting standard terms between businesses). The text of Art. 385⁴ is also on prawnik.cc (opens in a new tab)..

In practice this means that neither of the two conflicting clauses binds. The EUR 500 penalty in the client's terms and the penalty capped at the freight in the carrier's terms cancel each other out. The same goes for liability and the payment term.

The law takes the place of the clauses that drop out: the Civil Code, the Carriage Law (Prawo przewozowe) and, in international carriage, the CMR Convention. And these are relatively safe for the carrier. CMR limits liability for loss of or damage to the goods to 8.33 SDR per kilogram 2Art. 23(3)2Konwencja CMR (CMR Convention, Convention on the Contract for the International Carriage of Goods by Road) (opens in a new tab): Art. 23(3) and (5), Art. 24, Art. 26, Art. 41., and compensation for delay to the amount of the carriage charges 2Art. 23(5). As a rule, the payment term between businesses should not exceed 60 days 3Art. 7(2)3Ustawa o przeciwdziałaniu nadmiernym opóźnieniom w transakcjach handlowych (Act on Preventing Excessive Delays in Commercial Transactions) (opens in a new tab): Art. 7..

This is the most important point in this article: your general terms do not have to win. It is enough that they neutralise the client's terms. Once they are neutralised, the law remains, and in most cases the law is on your side more than the client's terms are.

What happens if you have no terms of your own

Then there is nothing to neutralise.

Standard contract terms, for example general terms and conditions, bind the other party if they were delivered to it before the contract was made 1Art. 384 § 1. Between businesses, where using standard terms is customary, it may even be enough that the other party could easily have learned their content 1Art. 384 § 2.

If the client attaches its terms to the order and you confirm the order without your own, the client's terms become part of the contract in full. With the penalty, with the full value of the goods and with the 90 days.

In short: without your own terms, the client's clauses decide liability.

What general terms will not fix

This is a limit you need to remember. The provision on conflicting standard terms applies to standard terms. It does not apply to clauses written into the transport order itself.

If the client writes a penalty directly into the order and you confirm it, that penalty is part of the contract. Where the contract and the standard terms conflict, the parties are bound by the contract 1Art. 385 § 1. Your general terms will not remove that penalty.

That is why your own terms are half of the protection. The other half is a dispatcher who catches the penalty in the text of the order before confirming it. We wrote about this in the first article: A penalty written into the transport order. How to make it a standard is in the third: A stop list for dispatchers.

There is also a second limit. The provision on conflicting standard terms has an exception: no contract is made if a party, after receiving the offer, promptly gives notice that it does not want to contract on those terms 1Art. 385⁴ § 2. So a client who really cares about its terms can block the neutralisation. You can do the same if the client's terms are unacceptable to you.

What a carrier's general terms should contain

Good carrier terms are short. Their job is to neutralise the client's most dangerous clauses and to fill in what the law does not cover. They are not a catalogue of everything that can go wrong.

The clauses that matter most in practice 44Trans.info, “Umowy-pułapki na przewoźnika. Jakie zapisy nigdy nie powinny znaleźć się w zleceniu” (Trap contracts for carriers: clauses that should never appear in a transport order) (opens in a new tab). An industry overview of typical clauses in transport orders and the limits of freedom of contract.:

1. Liability. Under CMR in international carriage and under the Carriage Law in domestic carriage 55Prawo przewozowe (Carriage Law) (opens in a new tab). Liability rules for domestic carriage.. No extension to the full value of the goods. If the client wants higher liability, CMR offers a route: a declaration of value or of a special interest in delivery in the consignment note, for an extra charge 2Arts. 24 and 26.
2. *Contractual penalties (kary umowne). If at all, then in total no higher than the freight and only for culpable delay (zwłoka*), meaning delay for reasons the carrier is responsible for. Remember that in CMR carriage, penalties for late delivery may be void under Article 41 of the Convention 2Art. 4166Karbowski Rasiński & Partners, “Konwencja CMR a kary umowne” (The CMR Convention and contractual penalties) (opens in a new tab). Penalties for delay and Art. 41 CMR in case law..
3. Payment term. A specific one, for example 30 days from delivery of the invoice. Also what it runs from: from the invoice, not from “receipt of the original documents”.
4. No set-off. The client may not deduct a penalty it has charged from the freight on its own without the carrier's consent.
5. Waiting time. A rate for waiting beyond a set time at loading and unloading. The law does not cover this at all, and it is a common source of loss.
6. Documents and pallets. The deadline and method for returning documents, the rules for pallet exchange. No penalties for late return, or penalties that are low and symmetrical.
7. Governing law and court. Polish law and the court competent for the carrier's registered office.

Seven points fit on one page. That is a good test: if your terms run to twelve pages, nobody will read them, including your dispatcher.

How to use them so they work

Even the best general terms do not work if the other party never received them. Three rules:

1. Deliver them before the first run. At the start of work with a new client, send your terms in a separate email or attach them to your first quote. Standard terms bind if they were delivered before the contract was made 1Art. 384 § 1.
2. Attach them to every confirmation. A short line in the body of the confirmation (“we accept the order on the carrier's general terms attached”) and the file itself. Every order is a separate contract.
3. Have a foreign-language version. A client from Germany will not read Polish terms. A dispute over whether they understood them is a dispute you would rather avoid.

The exact moment and form of delivery is something worth setting up with a lawyer once and then repeating mechanically. Here, a legal review pays for itself many times over.

This article describes the law in general terms and is not legal advice on a specific matter. The list of clauses is not a ready-to-use template. The law is stated as at 12 October 2026.