Judgment of Appeal Court in Wrocław, 1st Civil Division

24 October 2008

Case No. I A Ca 789/08

Civil (contractual) tender procedure

Discrimination against foreign bidders

Freedom of contract

1. The freedom to select a trading partner involves such aspects as the ability to demand that the other party meet conditions that are not required by law. The organizer of a private tender could freely set the conditions for participating in the tender. Requiring that a bidder hold a permit under the Polish Waste Management Act, then rejecting the offer of a bidder who accepted the conditions of the tender specifications but did not fulfil them, cannot be regarded as unlawful influence over the result of the tender by the organizer.

2. The plaintiff's argument that it does business in Germany and holds an analogous permit under German law, but it was impossible for it to meet the condition set by the organizer of the tender that it present a certificate issued under the Polish Waste Management Act because it does not perform waste management activities in Poland, cannot be accepted. Impossibility of performance under Civil Code Art. 387 must be objective in nature, meaning that no one is in a position to perform it. The condition of obtaining a permit under the Polish Waste Management Act was met by other participants is the tender, and thus was not objectively impossible under Civil Code Art. 387.

3. The bidder's failure to meet the conditions accepted for the tender cannot affect the organizer  of the tender or other participants, particularly the one whose bid was selected and who entered into a contract with the organizer.

4. The principle of freedom of contract means that parties may freely establish legal arrangements within their discretion, so long as the purpose or substance does not violate the nature of the legal relationship, a statute, or principles of social coexistence. This principle includes the freedom to establish the terms of the legal relationship, as well as the freedom to enter into a contract as such, i.e. the freedom to decide whether or not to enter into a contract, the procedure (offer, auction or tender) and selection of the other party.