Granice wolności kontraktowania przedsiębiorców – kilka refleksji o prawie polskim na tle wyroku Sądu Najwyższego Zjednoczonego Królestwa Cavendish Square Holding BV v. Talal El Makdessi; Parking Eye Limited v. Beavis
Limits of the Contractual Freedom of Entrepreneurs – Some Reflections on Polish Law in the Light of the Decision of the Supreme Court of the United Kingdom in Cavendish Square Holdings BV v Makdessi; Parking Eye Ltd v Beavis

Summary/Abstract: In Cavendish Square Holdings v Makdessi, decided by the Supreme Court of the United Kingdom in 2015, two clauses were subject to scrutiny. Under clause 5.1, the claimant would be entitled to withhold the final two instalments of the purchase price for the shares if the seller (defendant) failed in its obligation not to compete with his old business for a period after the sale. Under clause 5.6, the claimant would acquire an option to buy the defendant’s remaining shares at a price which disregarded goodwill upon the same failure of the defendant to fulfil his obligation not to compete. The article presents the interpretation of contractual clauses under scrutiny in the light of Polish law. Applying Polish law to the facts a Polish court would probably assess the Cavendish contract in the light of Article 3531 of the Civil Code, with particular regard to the nature of the contract. The Authors discuss the conditional payment for shares and the nature of liquidated damages clauses in the context of limitation of the principle of the freedom of contract. Using different concepts and general clauses a Polish court would probably uphold the validity of the disputed clauses.

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