Zarzut potrącenia w postępowaniu nakazowym

Abstract

This article addresses the problem of a set-off defence in the order for payment proceedings. The analysis covers: (i) the legal nature of limitations concerning admissibility to unilaterally set-off mutual claims in the order for payment proceedings before 7 November 2019 in accordance with the repealed Article 493(3) of the Polish Code of Civil Procedure; and (ii) the assessment of the recent amendment that removed the above-mentioned provision from the Polish Code of Civil Procedure and its impact on the order for payment proceedings in its second phase following the objections to the payment order. The assessment of the amendment is not unambiguous, because the new regulation may on one hand unnecessarily prolong the proceedings, but on the other hand it may, in a broader sense, counteract fragmentations of the proceedings. However, the author advocates a thesis that the restrictive regulation that was previously in force, which according to the majority opinion contained a substantive limitation of the set-off defence in the order for payment proceedings, was consistent with the legal nature of the order for payment proceedings. The author indicates that the repealed Article 493(3) of the Polish Code of Civil Procedure restricted: (i) the possibility of an unreasonable prolongation of the proceedings, and (ii) the court?s jurisdiction in this specific proceedings. As a result, the author argues against the recent amendment that in many cases is not conducive to the achievement of the intended goal ? optimisation of the civil procedure.