The legal nature of the commercial guarantee under the amendments introduced by the Act on Consumer Rights and its classification under conflict of laws rules

Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights has been implemented into the Polish legal system in December 2014 by the Act on Consumer Rights. The new legal framework raised again the question on the legal character of the commercial guarantee - whether it is a unilateral legal act or a contract. At first, when commercial guarantee was introduced into the Polish Civil Code the prevailing opinion was that it was a contract. This has changed after implementation of directive 1999/44/EC by the Act on Specific Conditions of Consumer Sales (Journal of Laws of 2002 no. 141 item 1176). Under that Act, the prevailing opinion was that a guarantee is a unilateral act. It is worth noting that the consumer guarantee following the amendments made in December 2014 uses the same wording as the Act on Specific Conditions on Consumer Sales. None of the EU directives, including the directive 2011/83/EU, provides an answer to this question. It seems that this issue is left for the national legislators to decide (despite the fact that directive 2011/83/EU strives full harmonization). The paper discusses why a commercial guarantee under the Polish law should be qualified as a unilateral legal act. In the author's opinion it is justified by the wording of the regulation (under which "the guarantee shall be effected by a declaration of the guarantor") and its proximity to the public promise, which is indisputably a unilateral legal act. Opting for one or the other position has an impact on the determination of the applicable law in international transactions. If consumer guarantee is a contract, than applicable would be Regulation EC 593/2008 of 17 June 2008 (Rome I Regulation). If choice of law were possible for a guarantee, however, it could not deprive the consumer of the protection afforded to him by provisions that cannot be derogated from by agreement by virtue of the law which, in the absence of choice, would have been applicable. In case of lack of choice of law, a guarantee would be governed under Rome I Regulation, by the law of the country where the consumer has his habitual residence. If however guarantee is a unilateral act, and Polish Act on Private International Law (Journal of Laws of 2011 no 80 item 432) were applicable, the outcome would be different. The guarantor would be entitled to chose any law, and if no choice were made, than the law of guarantor (not consumer's) habitual residence would be applied. In result, the author recommends to include a choice-of-law clause in each consumer guarantee in order to avoid uncertainty