The protocol of necessity and documenting additional construction works — how to win on evidence (Polish law)

Ten artykuł jest dostępny także po polsku. Dieser Beitrag ist auch auf Deutsch verfügbar.

Disputes over additional construction works in Poland are rarely lost on the law and often lost on the evidence. The judge never saw the site — the judge will only see documents. Below we explain how the notification under Article 651 of the Polish Civil Code works, what the protocol of necessity (protokół konieczności) really is and what the Supreme Court decides when it is missing, what the construction log (dziennik budowy) records and what it can never replace, and how to document works that become covered. At the end you will find a minimum checklist and answers to frequent questions.

Why site documents outweigh witnesses

A lawsuit for payment for additional works under a lump-sum contract is usually tried years after the events. Witnesses’ memories fade, employees change jobs, and the site looks nothing like it did. A document drawn up on the day of the events has two advantages over testimony: it was created before anyone knew there would be a dispute, and it bears a date. That is why Polish courts build their findings above all on the construction log, protocols, correspondence and photographic records, and merely supplement them with testimony.

Then there is the burden of proof. Under Article 6 of the Civil Code (Act of 23 April 1964 — Civil Code, consolidated text Dz.U. 2024 item 1061) it is the contractor claiming payment who must prove that the disputed works went beyond the agreed scope, that they were carried out following a decision of the employer or at least with the employer’s knowledge, and what they are worth. Each of these three elements calls for different evidence — and each can be secured on an ongoing basis at almost no cost, while reconstructing it years later is difficult or impossible. How the agreed scope itself is determined is discussed in the article on the scope of works covered by a lump sum.

The notification under Article 651 of the Civil Code — where it all starts

The provision stipulates:

„If the documentation supplied by the employer, the construction site, machinery or equipment are not fit for the proper execution of the works, or if other circumstances arise which may prevent the proper execution of the works, the contractor should notify the employer thereof without delay.”

— Article 651 of the Polish Civil Code, translation by the author

The statute prescribes no form for the notification — but written form is the only sensible choice, because that notification will later be evidence. The notification serves three functions. It protects the contractor against the charge of having built in full awareness of the defect and of therefore bearing its consequences. It forces a decision of the employer, because the Civil Code gives the employer no unilateral right to order additional works within the lump sum. Finally, it documents that the source of the problem lies on the employer’s side rather than in the contractor’s own failings. At the same time it is a concretisation of the parties’ general duty to cooperate in performing the obligation (Article 354 § 2 of the Civil Code) and not an independent basis of liability — the liability of a contractor who stayed silent about a discernible defect flows from the general rules (judgment of the Supreme Court of 30 September 2009, V CSK 89/09, LEX No. 1402683).

The limits of this duty have been drawn narrowly and consistently since the judgment of the Supreme Court of 27 March 2000, III CKN 629/98 (OSNC 2000, No. 9, item 173), through the judgments of 26 June 2008, II CSK 101/08 (LEX No. 637702) and of 25 April 2014, II CSK 417/13 (LEX No. 1486970), up to the judgment of 25 November 2016, V CSK 138/16 (LEX No. 2216196): the contractor is not obliged to examine someone else’s design in detail or to possess design expertise, and reports those defects which are apparent without such expertise. What must be notified is what can be seen from the perspective of workmanship and pricing — not the result of re-designing the project, which nobody may demand of the contractor.

The paradox nobody talks about: the notification brings no money

One might expect the notification to lift the financial burden of someone else’s errors from the contractor. That was to be the role of the provision on the consequences of defective materials and instructions of the employer:

„If the completed structure is destroyed or damaged as a result of defects in the materials, machinery or equipment supplied by the employer, or as a result of carrying out the works in accordance with the employer’s instructions, the contractor may demand the agreed remuneration or an appropriate part of it, provided that he warned the employer of the danger of destruction or damage to the structure […]”

— Article 655 of the Polish Civil Code, translation by the author

The trouble is that this provision is triggered only where the structure has actually been destroyed or damaged. On a construction site that happens rarely — far more often the structure simply cannot be completed without the disputed works. The typical sequence is that, after the notification, the employer changes the design and expects the additional works to be performed within an unchanged lump sum.

The result is a situation that is hard to defend logically. A contractor who failed to spot the defect and executed the flawed design to the letter may rely on Article 655 of the Civil Code if the structure is destroyed. A contractor who reported the defect, brought about a design change and handed over a properly functioning structure is left carrying the cost of the additional works. The notification then loses its original function, which is to free the contractor from liability for the result where someone else’s design does not lead to that result. This is no argument for staying silent — one must always notify. It is an argument for not stopping at the notification.

After the notification: force a decision of the employer

Since the Civil Code knows no unilateral variation order, after the notification the contractor must force the issue. The possible scenarios are worth knowing in advance, because each requires a different document.

• The employer orders construction according to the original design. The contractor executes the flawed solution, but the notification releases it from liability for the functionality not achieved. Such an order is worth having in writing — it is the most valuable document in a later dispute over defects.
• The employer changes the design. Then the financial consequences must be agreed immediately, before the works proceed. Silently executing the more expensive solution means returning to square one, because the employer will say that additional costs were never mentioned.
• The employer stays silent. The absence of a decision is a refusal to perform an act without which the performance cannot be rendered — the contractor may therefore turn to the regime of the creditor’s default and claim compensation for the resulting damage (Article 486 § 1 and 2 of the Civil Code). The weakness of this route is that it does not end the stalemate.
• The contractor builds its own way without authority. This is the worst variant. Whoever departs from the agreed — even flawed — solutions without a decision of the employer breaches the contract itself: it is for the employer, not the contractor, to decide whether to achieve full functionality against additional payment or to stay with the flawed design.

In the silence scenario an analogy with the contract for a specific work looks tempting: there, the lack of the ordering party’s cooperation allows the contractor to set a time limit and then rescind the contract (Article 640 of the Civil Code). The case law closes this route, however. The Court of Appeal in Poznań, in its judgment of 10 July 2013, I ACa 472/13 (LEX No. 1353800), held that Article 656 § 1 of the Civil Code lists exhaustively the provisions on specific work applicable to construction works and that Article 640 is not in that catalogue, while the contractor retains other protection:

„For in the event of a change of circumstances and a threat of a glaring loss to the contractor obliged to deliver the construction works in accordance with the contract, he may seek protection of his interests through the appropriate application of Article 632 § 2 of the Civil Code, with the possibility of demanding an increase of the lump-sum remuneration or even dissolution of the contract.”

— judgment of the Court of Appeal in Poznań of 10 July 2013, I ACa 472/13, LEX No. 1353800, translation by the author

Part of the literature does allow the analogy with Article 640, but that view has not prevailed in the case law — it is safer to plan the dispute around Article 632 § 2 of the Civil Code and the creditor’s default than around a rescission which a court may hold ineffective.

Where the employer accepts the changed scope but refuses to talk about money, it helps to know the rule of Article 628 § 1 of the Civil Code, applied to construction works via the reference in Article 656 § 1: „If the parties determined neither the amount of the remuneration nor the bases for establishing it, it is presumed in case of doubt that the parties intended an ordinary remuneration for a work of that kind” (translation by the author). Honesty requires adding the limit of this rule: it operates where the parties passed over the price in silence. If the employer declares outright that no additional remuneration will be paid, there is no „doubt” for the provision to resolve — there is an open dispute, which will travel the route described below.

Who on the employer’s side can effectively vary the contract

This question decides many cases, yet it is often asked only in court. An order of the employer’s site inspector (inspektor nadzoru inwestorskiego), an entry made by the designer within author’s supervision (nadzór autorski) or a ruling of the building authority are not in themselves declarations of the employer’s will and do not automatically vary the contract. A variation requires a juridical act on the employer’s side.

This does not mean that a signed annex is always necessary. A variation may come about by implication (Article 60 of the Civil Code) — for instance where the employer itself hands the contractor the amended documentation and the contractor proceeds to build to it. The designer or the inspector may also act as authorised representatives if they have been granted authority, and in some configurations it suffices that the employer knew of them acting in the role of its representative and tolerated it, or expressly instructed the contractor to follow their orders. The simplest practical rule remains: if an order comes from anyone other than the employer, confirm it with the employer in writing without delay, spelling out the financial consequences.

Why the designer’s position is so strong

The Construction Law (Act of 7 July 1994 — Prawo budowlane, consolidated text Dz.U. 2025 item 418) allocates the roles in a way that takes contractors by surprise. It is among the designer’s fundamental duties to provide „clarification of doubts concerning the design and the solutions contained in it” (Article 20(1)(3) of the Construction Law, translation by the author), within author’s supervision the designer approves the possibility of introducing substitute solutions proposed by the site manager or the site inspector (Article 20(1)(4)), and it is the designer alone who qualifies whether an intended departure from the approved design is material (Article 36a(6)). An objection to the design thus lands, in practice, on the desk of the design’s author — the person who rules on the merits of complaints about his own work. The designer may also demand, by an entry in the construction log, that works carried out contrary to the design be halted (Article 21 of the Construction Law), and the site manager must implement instructions entered in the construction log (Article 22(6)).

A pair of scissors opens here which one must understand: under public law the amended design binds the site manager, while under civil law the mere handing over of amended drawings by the designer is not yet an offer to pay for a larger scope. A contractor who executes the amended design without written confirmation from the employer is building someone else’s investment at its own expense. That is why every document from the designer or the inspector should immediately be „lifted” to the employer’s level: with a covering letter demanding a position on scope and remuneration.

Design changes and the Construction Law: when a new decision is needed

In parallel runs the administrative plane, which contractors tend to forget. A departure from the approved design is either material or immaterial, and a material one „is permissible only after obtaining a decision amending the building permit” (Article 36a(1) of the Construction Law, translation by the author). The catalogue of material departures includes, among others, changes to the characteristic parameters of the structure: the built-up area „to an extent exceeding 5%”, the height, length or width „to an extent exceeding 2%”, and the number of storeys, as well as a change of the intended use of the structure or a part of it and departures requiring new or amended decisions, permits or approvals (Article 36a(5)). The qualification is made by the designer, and an immaterial departure is documented by a drawing and description appended to the construction documentation (Article 36a(6)).

These thresholds are worth knowing because they mark the moment at which a „minor adjustment on site” stops being minor and requires an amendment of the permit — which takes time that the schedule usually does not provide for. For the accounts, however, what matters is keeping the planes apart: the administrative authority’s consent creates no claim for payment, and its absence takes no claim away if the works were actually carried out on the employer’s order. The administrative plane decides legality, the civil plane decides money.

The protocol of necessity: what it really is

The protocol of necessity (protokół konieczności) is a document drawn up when, in the course of construction, the need arises for works not provided for in the documentation. No statute defines its content or form — it is a creation of site practice, usually introduced by a clause of the contract. The Civil Code itself does know the idea of written acceptance of such works: the provision on the payment guarantee extends it to claims for remuneration for „additional works or works necessary for the performance of the contract, accepted in writing by the employer” (Article 649³ § 1 of the Civil Code, translation by the author).

Two models appear in contracts. The first makes the protocol of necessity a condition of payment: additional works will be paid for only if their necessity has been recorded in a protocol signed by the persons named. The second makes it a procedure for commissioning: additional works may begin only after the protocol and a separate order or annex have been signed. Both models share a weak point familiar to every practitioner: an employer who does not want to pay simply refuses to sign. How the case law deals with this stalemate is shown by the three judgments below.

The judgment that set the rules of the game: IV CSK 460/07

The case decided by the Supreme Court’s judgment of 14 March 2008, IV CSK 460/07 (LEX No. 453070), is worth knowing in detail, because it focuses all the errors and chances of documentation as if under a lens. A contractor was building for a municipality for a lump sum. The contract provided that any additional works determined on the basis of a protocol of necessity could not exceed 20% of the contract value, with rates taken from the bill of quantities. In the course of the works the usual things happened: the designer re-designed the brackets, the cross-section of the canopy pipes was changed with the designer’s consent, a concrete sub-floor not included in the design was executed, the designer supplemented the design with posts for beams by an entry in the construction log, and the bill of quantities omitted the windows of the connecting wing and the facade windows. The contractor applied for a protocol of necessity only once. The municipality refused payment of a total of 321,443.92 zlotys, and the courts of both instances dismissed the bulk of the claims — since the contractual procedure required protocols of necessity and there were none, there is no payment.

The Supreme Court set the judgment aside and explained what a protocol of necessity is and what it is not:

„A statement that the execution of a given piece of work is necessary for the realisation of the investment is a declaration of knowledge, not of will. It is a document concerning technical matters, to which the features of a form of concluding a construction works contract cannot be ascribed. If, therefore, the parties determined the additional works, for example, at minuted meetings concerning the ongoing construction, the requirement of drawing up a protocol of necessity was satisfied. An entry made by the employer’s representative in the construction log and not challenged by the contractor must be qualified in the same way.”

— judgment of the Supreme Court of 14 March 2008, IV CSK 460/07, LEX No. 453070, translation by the author

This ruling cuts both ways. The good news for the contractor: the protocol of necessity is not a juridical act, so its function can be performed by equivalent documents — minuted site meetings, an unchallenged entry in the construction log. Omitting the label „protocol of necessity” does not defeat the claim if the need for the works was recorded in another document with the employer’s side involved, and a court which ignores such documents violates Article 354 of the Civil Code. The bad news: some contemporaneous document is needed. Where the contractor did not even ask a tender question about the windows missing from the bill of quantities, and simply priced them into its own bid, the Supreme Court had nothing left to save.

The same judgment confirms in passing the admissibility of the construction on which most contracts featuring a protocol of necessity rest:

„Not infrequently a so-called mixed system is used in construction works contracts, consisting in determining the remuneration as a lump sum and stipulating that for additional works not covered by the design a cost-based remuneration is due.”

— judgment of the Supreme Court of 14 March 2008, IV CSK 460/07, LEX No. 453070, translation by the author

A lump sum for the base scope and a cost-based settlement for documented additional works can therefore coexist in one contract — contrary to the view that a lump sum excludes any additional payment. On the margin of the case remained the question of the limit: the contractual 20% corresponded to Article 71(1)(5) of the then Public Procurement Act of 10 June 1994 (consolidated text Dz.U. 2002 No. 72, item 664, repealed), and the Supreme Court signalled that works beyond that limit would fall to be settled under the restitution rules of Article 410 § 1 in conjunction with Article 405 of the Civil Code — today the analogous boundaries of contract modifications are drawn by Article 455 of the Public Procurement Law of 11 September 2019 (consolidated text Dz.U. 2024 item 1320).

The protocol decides both ways: three scenarios from the case law

Procedure observed — the contractor wins

In the case closed by the Supreme Court’s judgment of 6 August 2015, V CSK 671/14, the contract required a protocol of necessity drawn up by the site inspector and accepted by the employer. That is exactly what happened — and it sufficed for works not expressly covered by the contract to be settled „on the terms and conditions provided for in the contract”. The Supreme Court also rejected the objection that qualifying the works as necessary required an expert opinion:

„The basis on which the appellate court qualified those works as necessary and indispensable for the realisation of the subject-matter of the contract was the protocol of necessity drawn up by the site inspector and accepted by the employer, which proves that the requirements of clause 7(2) of the parties’ contract were observed.”

— judgment of the Supreme Court of 6 August 2015, V CSK 671/14, translation by the author

A properly drawn-up protocol did double duty here: it opened the contractual payment route and replaced expert evidence on the necessity of the works. It is hard to imagine a better argument for taking care of this document.

Procedure ignored — the contractor loses

The mirror image is the already cited judgment II CSK 101/08. The contract made the execution of additional works conditional on the employer confirming their necessity and on an additional order. Under the binding findings, there was no confirmation before the works were carried out, and the protocol was drawn up only three months after their completion. The Supreme Court held the remuneration claim unfounded and recalled the rule:

„The parties may modify the shape and scope of the obligations laid down by statute, but this requires an unambiguous determination in the contract.”

— judgment of the Supreme Court of 26 June 2008, II CSK 101/08, LEX No. 637702, translation by the author

The practical lesson: if the contract provides a protocol-of-necessity procedure, follow it to the letter and in the right order. A protocol drawn up after the works documents at most the fact of their execution — it does not replace a consent that was to be given before they began.

Technical documents are not an annex

The third lesson comes from the Supreme Court’s judgment of 19 January 2012, IV CSK 303/11. The contractor produced minutes of site meetings and 72 cost estimates for abandoned, substitute and additional works, arguing that they varied the contract. The courts saw it differently:

„[T]he documents indicated by the appellant, reflecting informal working meetings of the parties, do not contain declarations of will to change the content of the contract binding the parties.”

— judgment of the Supreme Court of 19 January 2012, IV CSK 303/11, translation by the author

The background was telling: when the parties really wanted to vary the contract, they knew how — they concluded an annex, prepared another one and signed a separate contract for other works. Against that background the working minutes looked precisely like working minutes. The juxtaposition with IV CSK 460/07 is not a contradiction but a division of roles: technical documents prove facts (what was found, what was necessary, what was executed), while varying the contract requires declarations of will — the employer’s signature or conduct which reveals its will sufficiently (Article 60 of the Civil Code). Good documentation serves both layers at once: the facts through protocols and log entries, the employer’s will through a covering letter demanding a position.

What a protocol of necessity should contain — a practical template

Since no statute prescribes the content, the evidentiary purpose does. A complete protocol of necessity contains:

• a description of the circumstances discovered — what was found, when and where on the site, because the date of discovery later determines whether the Article 651 notification was made without delay,
• a statement of why the works go beyond the documentation — with references to specific drawings, specification items and the bill of quantities, because it is on this juxtaposition that the court will build the qualification of the works as additional,
• the physical scope and a preliminary cost estimate — an estimate bearing the protocol’s date is later evidence of the scale of the claim and a reference point for the expert,
• the positions of the participants in the construction process — the site manager, the site inspector, the designer and the employer’s representative, because concordant technical assessments deprive the defendant of the argument that the works were not necessary (the model from V CSK 671/14: the inspector’s protocol accepted by the employer),
• date and signatures, and where signature is refused, a note of who refused and why.

A protocol signed by one side only is not worthless. Served on the other party without delay, it fixes the timeline, documents that the matter was raised loyally and shifts onto the employer the burden of taking a position. A minimal version can be written up on site the same day — a simple, immediate protocol beats a perfect, late one.

The construction log: an official document, but not an annex to the contract

Since the 2023 reform the construction log has had its own chapter in the Construction Law, and its role is defined directly by Article 47a(1):

„The construction log is an official document intended for recording: 1) the course of the construction works, and 2) the events and circumstances occurring in the course of the execution of the construction works which are of significance for the assessment of the technical correctness of their execution.”

— Article 47a(1) of the Polish Construction Law, translation by the author

The log is kept on paper or electronically in the EDB system (Article 47c of the Construction Law), the site manager is responsible for keeping it (Article 47d), and entries may be made by the participants in the construction process, a licensed surveyor and authorised officers of the authorities (Article 47e). Here lies a detail that surprises: the participants in the construction process are the employer, the site inspector, the designer and the site manager or works manager (Article 17 of the Construction Law) — the contracting firm as such is not on that list. The contractor’s voice in the construction log is therefore its site manager or works manager, and it is he who must have clear instructions on what to record: discovered discrepancies, orders, work stoppages, notifications under Article 651 of the Civil Code.

The evidentiary weight of the entries is considerable but specialised. An entry documents the course of the works and technical events — and within that scope an entry by the employer’s representative which the contractor has not challenged can perform the function of a protocol of necessity (so IV CSK 460/07). An entry is not, however, a declaration of will and does not replace an annex: the site manager must implement instructions entered in the log (Article 22(6) of the Construction Law), but payment for the resulting larger scope requires the employer’s decision on the civil-law plane. The practical rule reads: the log entry opens the documentation, the letter to the employer closes it.

Works that vanish or become covered: evidence or nothing

The rigour of documentation bites hardest with works which, once covered, neither the inspector nor the expert will ever inspect: excavations and soil replacement, reinforcement before concreting, insulation, structural layers, installations inside partitions. The Construction Law obliges the site manager to notify the employer, „for inspection or acceptance”, of completed works that become covered or vanish (Article 22(7) of the Construction Law). It is in the contractor’s interest that this notification leave a trace: an entry in the construction log, an acceptance protocol for vanishing works, measurements, a surveyor’s survey and dated photographs — before the excavator or the concrete mixer closes the subject forever.

What this looks like in a live dispute is shown by the judgment of the Court of Appeal in Białystok of 23 June 2017, I ACa 69/17, given against the background of earthworks in the shaping of a waste landfill, whose true scale departed from the bills of quantities while successive layers covered the previous ones. The contract required information about the necessity of additional works with the inspector’s acceptance by an entry in the construction log, plus a protocol of necessity and a separate order. The contractor did what it could document:

„To that end he notified the defendant both through the relevant entries in the Construction Log and by separate letters […] and sought a meeting with the defendant’s representatives.”

— judgment of the Court of Appeal in Białystok of 23 June 2017, I ACa 69/17, translation by the author

The site inspector ordered, by an entry in the construction log, that the works be continued, while for many weeks the municipality neither halted the works, nor rescinded the contract, nor drew up a protocol of necessity — and communicated its refusal once the works had been executed and covered. The outcome went the contractor’s way precisely thanks to that documentation (the legal construction — economic compulsion within undue performance — is discussed below). For accuracy: the case concerned cost-based remuneration, but the evidentiary mechanics are identical under a lump sum. Whoever fails to measure and notify before covering will prove neither scope nor value.

The reservation of restitution — one sentence that saves the claim

If the disputed works end up being settled as unjust enrichment, the opponent will reach for Article 411(1) of the Civil Code: restitution cannot be claimed „if the person rendering the performance knew that he was not obliged to perform”. The same provision, however, marks the exits — restitution may be claimed nonetheless where the performance was rendered „subject to a reservation of restitution, or in order to avoid compulsion, or in performance of an invalid juridical act” (translation by the author). When proceeding with disputed works, the contractor should therefore declare in writing that it performs them subject to a reservation of restitution of their value, on the ground that in its assessment they fall outside the agreed scope. One sentence in a covering letter or in the protocol of necessity can decide the outcome of the case.

Economic compulsion — the second exit under Article 411(1) — was successfully invoked by the contractor in I ACa 69/17:

„Despite the awareness that he was performing unduly (without a protocol of necessity and an additional order), the claimant had to execute the scope of works enlarged in relation to the contractual one, as indispensable for completing the works covered by the contract and achieving the purpose of the contract.”

— judgment of the Court of Appeal in Białystok of 23 June 2017, I ACa 69/17, translation by the author

The court added that, in the face of the notifications, the inspector’s order and the employer’s passivity, the contractor could not be reproached for continuing the works despite the lack of a protocol of necessity and an additional order. A caveat, though: economic compulsion must be proved with contemporaneous documents — notifications, entries, demands for a decision. The premises, the value of restitution and the traps of this route are analysed in detail in the article on unjust enrichment on a construction site.

Your own documents can hurt you too

Documentation works both ways, and the case law supplies warnings in abundance.

• Declarations of sufficiency. In II CSK 101/08 the contractor had declared that the quantity of works recorded in the survey allowed the subject-matter of the contract to be executed without additional works — and the courts of the merits pointed to that declaration as one of the reasons for dismissing her later claims when the survey proved inaccurate. Before signing a declaration of completeness, sufficiency or absence of objections, treat it as future evidence against yourself.
• Your own pricing papers over someone else’s error. In IV CSK 460/07 the municipality had omitted the windows from the bill of quantities, but the contractor asked no tender question and demanded no protocol of necessity — it simply priced the windows into its bid, and never recovered that item (74,714.77 zlotys).
• Missing entries also cost you the defence. In II CSK 417/13 the contractor defended itself against contractual penalties for delay by pointing to additional works it had executed. The Supreme Court, referring to the binding findings, spelled it out: „the defendant executed certain works as additional ones, yet — contrary to what was agreed in the contract with the claimant — did not see to it that this was reflected in the construction log and in a written annex to the contract, in which the parties, in view of the necessity of executing the additional works, would have changed the time limit for completing the works covered by the contract” (judgment of the Supreme Court of 25 April 2014, II CSK 417/13, LEX No. 1486970, translation by the author). The penalties stood. Documenting additional works therefore protects not only the payment claim but also the defence against claims over deadlines.

Contractual time limits for notifying claims can be preclusive

Contracts based on FIDIC forms, and elaborate employer-drafted contracts, often set a short time limit for notifying a claim — 28 days from the event, for example — on pain of losing it. The case law treats such clauses with great distrust: the Court of Appeal in Warsaw, in its judgment of 4 July 2016, VI ACa 569/15, assessed the contractual preclusive time limit of FIDIC sub-clause 20.1 as an impermissible circumvention of the prohibition on shortening limitation periods (Article 119 of the Civil Code) — more on this in the article on a court-ordered increase of the lump sum. Prudence, however, counsels against building a strategy on the hope that a court will strike the clause down: notifying within the contractual time limit costs one letter, while a dispute over the clause’s effectiveness costs years of litigation.

Form of arrangements: private dealings versus public procurement

A construction works contract „should be confirmed in writing” (Article 648 § 1 of the Civil Code), but between businesses a failure to observe that form does not restrict evidence, because the provisions on the consequences of failing to observe a form stipulated for evidentiary purposes „do not apply to juridical acts in relations between entrepreneurs” (Article 74 § 4 of the Civil Code, translations by the author). An oral or e-mail arrangement on additional works may therefore be valid and is proved by working documents and testimony. Public procurement is different: the contract „requires written form on pain of invalidity” (Article 432 of the Public Procurement Law, translation by the author), which extends to annexes, and the admissibility of the modification itself is policed by Article 455 of that law. Without a written annex no contractual claim arises — what remains is the settlement of the value of an undue performance.

Public procurement also has one more documentation instrument, albeit a pre-contractual one: the request for clarification of the tender documents (Article 135(1) of the Public Procurement Law). A question asked at tender stage, and the employer’s answer, bind the interpretation of the contract — and their absence tends to be held against the contractor, as in IV CSK 460/07, where the courts stressed that doubts about the scope could have been clarified by a question before the tender.

The remaining links of the documentation chain

• The protocol of handover of the site — from that moment the contractor is liable on general principles for damage on the construction site (Article 652 of the Civil Code), and the handover protocol starts the investment’s timeline.
• Partial acceptances — the provision stipulates that „in the absence of a contrary stipulation of the contract, the employer is obliged, at the contractor’s request, to accept the works performed in parts, as they are completed, against payment of an appropriate part of the remuneration” (Article 654 of the Civil Code, translation by the author). Partial acceptance protocols document progress and the state of the works over time.
• Correspondence — move the findings of site meetings into an e-mail the same day. Oral arrangements die together with the witnesses’ memory.
• Dated photographs and recordings — critical for vanishing works, helpful everywhere. File metadata and context (information board, benchmark, a person in the frame) strengthen credibility.
• Ongoing surveys and pricing — the burden of proving value rests on the contractor (Article 6 of the Civil Code), and reconstructing the scope years later can be impossible. An as-built cost estimate drawn up on an ongoing basis gives the expert something to hold on to.
• As-built documentation — its preparation is the site manager’s duty (Article 22(8) of the Construction Law) and it preserves the state actually executed, including where it departs from the design.

The minimum checklist

When work outside the design appears on site: an entry in the construction log the same day, a written notification under Article 651 of the Civil Code, a protocol of necessity with a cost estimate (even a unilateral one, with a note of the refusal to sign), a letter to the employer demanding a decision on scope and remuneration, a written reservation of restitution of the works’ value, photographs and measurements before covering, a survey and cost estimate after execution, a check of the contractual time limit for notifying claims. If the contract provides a protocol-of-necessity procedure — observe it to the letter and before the works begin, and document the employer’s refusal.

Frequently asked questions

I reported a design defect. Is that enough to get paid?

No. The notification under Article 651 of the Civil Code protects against liability for functionality not achieved, but by itself creates no claim for payment. After the notification you must bring about a decision of the employer and agree the financial consequences before the works proceed — or start them with a written reservation of restitution.

The employer refuses to sign the protocol of necessity — what should I do?

Draw up the protocol unilaterally with a note of the refusal, serve it against confirmation and demand a written position. The refusal does not block the claims — in I ACa 69/17 the contractor won precisely because the notifications and entries documented its loyalty, while the employer’s passivity was plain to see.

Can an entry in the construction log replace the protocol of necessity or an annex?

The protocol of necessity — yes, it can. The Supreme Court held in IV CSK 460/07 that an unchallenged entry by the employer’s representative performs the protocol’s function, because both are declarations of knowledge about technical matters. An annex — no: an entry is not a declaration of will, and varying the contract requires the employer’s decision, in public procurement exclusively a written one (Article 432 of the Public Procurement Law).

The order came from the site inspector or the designer. Does it bind the employer?

Not automatically. Under public law the site manager must implement instructions entered in the construction log (Article 22(6) of the Construction Law), but under civil law an inspector’s order or a designer’s entry is not a declaration of the employer’s will. It is different where they held authority, where the employer told the contractor to follow their orders, or where the employer itself handed over the amended documentation. Always: confirm with the employer in writing without delay, spelling out the financial consequences.

Are e-mails enough instead of a protocol?

Between businesses they are fully-fledged evidence of arrangements (Article 74 § 4 of the Civil Code). They are inferior to a protocol in that they rarely contain the physical scope, the participants’ technical assessments and a cost estimate in one document. In public procurement an e-mail will not replace a written annex — it may, however, prove the employer’s knowledge and passivity for the purposes of a restitution settlement.

We executed vanishing works without measurements or photographs. Is the case lost?

Not decided, but difficult. Indirect evidence remains: the as-built documentation, invoices for materials and their quantities, testimony, exploratory openings and an expert opinion. All of that costs money and leaves the court a wide margin of assessment — which is why a measurement, an acceptance protocol for vanishing works and photographs before covering are the cheapest litigation insurance there is.

The contract gives me 14 days to notify a claim. I missed the deadline — is it over?

Not necessarily. Contractual preclusive time limits for notifying claims are challenged as circumventing the prohibition on shortening limitation periods (Article 119 of the Civil Code) — so the Court of Appeal in Warsaw in VI ACa 569/15 as regards the 28-day FIDIC time limit. The outcome of such a dispute is uncertain, however, so contractual deadlines are best simply kept, and the notification should be sent even if late — with arguments for both eventualities.

Quotations from Polish judgments and legislation have been translated by the author. All translations are unofficial. The Polish texts are authoritative.

State of the law: 12 August 2026.

Author: Artur Barczewski PhD — Polish attorney-at-law (radca prawny), conducts construction payment disputes for contractors and employers alike. About the author · Discuss your case →