Interpretive Challenges in Contract Law

The Problem of Discrepancies Between Numerical and Written Expressions

I. Introduction: When Numbers and Words Collide

A contract states: “1,000 (two thousand).” Which figure governs? This seemingly technical question represents one of the most vexing interpretive problems in legal practice. What appears at first glance to be a mere drafting error may precipitate disputes of substantial economic magnitude, requiring courts to deploy sophisticated tools of contractual interpretation. The problem illuminates a fundamental tension at the heart of contract theory: the relationship between the literal text of a document and the actual intent of the contracting parties.

II. The Regulatory Vacuum in Polish Law

A. Absence of Direct Statutory Guidance

Polish civil law, unlike certain other legal systems, contains no specific provisions governing the consequences of discrepancies between numerical and written expressions in contracts. This represents a notable lacuna in the statutory framework—particularly conspicuous given that analogous regulations exist in the law of negotiable instruments. Article 6 of the Polish Bills of Exchange Law of 1936 provides that where a discrepancy exists between a sum expressed in words and in figures, the sum written in words shall prevail.

B. The Limits of Analogical Application

These provisions, however, do not apply directly to civil law contracts. Courts confronting such discrepancies must therefore resort to the general principles of interpretation governing declarations of intent, as articulated in Article 65 of the Civil Code. This situation creates substantial legal uncertainty and may yield divergent outcomes in factually similar cases.

III. Interpretive Methodology Under Polish Law

A. The Combined Method of Interpretation and the Primacy of Actual Intent

Contemporary Polish legal scholarship and recent jurisprudence embrace a combined method of interpreting declarations of intent (kombinowana metoda wykładni). This approach seeks to accommodate both the actual intent of the declaring party and the reasonable expectations engendered by that declaration in other persons.

Pursuant to Article 65 § 2 of the Civil Code, in interpreting contracts one should ascertain the common intent of the parties and the purpose of the contract rather than rely upon its literal wording. This foundational principle establishes the primacy of subjective interpretation over objective interpretation.

B. Ascertaining Common Intent in Cases of Numerical Discrepancy

Determining the actual intent of the declaring party constitutes a finding of fact, necessitating evidentiary proceedings. In cases involving discrepancies of the “1,000 (two thousand)” variety, the following considerations assume critical importance:

• Pre-contractual correspondence and negotiation documentation
• Earlier drafts of the agreement and preliminary documents
• Testimony of individuals who participated in contract formation
• Other contemporaneous statements by the parties
• The parties’ course of performance following contract execution—particularly where the parties have conducted themselves in accordance with one interpretation
• The economic circumstances of the transaction, indicating the rational magnitude of the obligation

C. Objective Interpretation When Common Intent Cannot Be Established

Where ascertainment of the parties’ “common intent” proves impossible, courts apply objective interpretation. Article 65 § 1 of the Civil Code directs consideration of:

• The circumstances in which the declaration was made
• Principles of social coexistence (zasady współżycia społecznego)
• Established customs and usages

In cases of numerical discrepancy, the linguistic context of the entire agreement assumes particular significance—it is impermissible to confine analysis to the disputed passage in isolation. Examination of other figures appearing in the contract may reveal a systematic error or indicate the appropriate value scale for the transaction.

The purpose of the contract merits special attention: courts should favor the interpretation that better serves the economic objective of the transaction and accords with the rational conduct of the parties.

IV. Practical Evidentiary Difficulties

A. The Problem of “Obvious Clerical Error”

One of the most frequently invoked concepts in practice is that of the obvious clerical error (oczywista omyłka pisarska). However, its application to numerical discrepancies faces significant limitations. An obvious clerical error is, by definition, a mistake apparent on its face—one capable of correction without resort to extrinsic documents.

In cases involving discrepancies of the “1,000 (two thousand)” type, it is frequently unclear which figure contains the error. This ambiguity may preclude application of the doctrine entirely. Moreover, the difference between 1,000 and 2,000 may fail to satisfy the criteria for an obvious error where both sums are economically plausible in the context of the particular transaction.

B. Informational Asymmetry and Evidentiary Constraints

A fundamental difficulty inheres in informational asymmetry: frequently, only one party possesses access to materials capable of illuminating the drafting intent. Witnesses who participated in negotiations may harbor divergent recollections or maintain interests in a particular outcome.

V. Comparative Perspectives: Foreign Solutions

A. The American Approach

Section 3-114 of the Uniform Commercial Code establishes a clear hierarchy: “If an instrument contains contradictory terms, typewritten terms prevail over printed terms, handwritten terms prevail over both, and words prevail over numbers.”

The logic underlying this rule rests upon the assumption that a more deliberate form of expression—words as opposed to figures—better reflects the actual intent of the parties. Recording a sum in words demands greater attention and is less susceptible to technical error than entering digits. The rule ensures predictability of outcomes, a consideration of paramount importance for the security of legal transactions.

B. The Significance for Polish Practice

While this rule does not bind Polish courts, it offers a principled basis for subsidiary application where domestic interpretive methods fail to yield a determinate result.

VI. Subsidiary Doctrinal Rules

A. The Principle of Contra Proferentem

The directive of rigorous interpretation against the drafter (in dubio contra proferentem) provides that an ambiguous written declaration of intent should be construed to the disadvantage of the party who drafted it, where the counterparty had no opportunity to influence the content of the declaration.

This principle finds particular justification in relationships characterized by asymmetric bargaining power, where one party prepares a standard form contract. Application requires, however, identification of which party authored the disputed provision and exhaustion of other interpretive methods.

B. Functional Interpretation

In circumstances where one interpretation would render the contract economically senseless or drastically inequitable, a court may adopt the more rational interpretation even absent direct evidentiary support.

VII. Fundamental Legal Problems: Mutual Mistake Versus Absence of Consensus

A. The Problem of Identifying Mutual Mistake

Application of Article 84 of the Civil Code—governing mistake (błąd)—to a discrepancy of the “1,000 (two thousand)” variety raises a fundamental logical problem: determining what constitutes the “correct” content of the contract, and what constitutes the mistake from which a party might seek to withdraw.

A classic mutual mistake occurs when both parties intend to conclude a contract of specific content, but the document reflects different content. For example: both parties intend to sell plot No. 15, but the contract erroneously references plot No. 51.

B. The Distinctive Character of Numerical Discrepancies

In cases of numerical discrepancy, the situation differs fundamentally. First, there exists no objectively “correct” sum—either 1,000 or 2,000 may accord with the intent of one or both parties. Second, no reference point exists for determining which figure corresponds to the parties’ actual intent and which constitutes the error. Third, mutual mistake requires a finding that both parties shared the same specific intent, which the contract fails to reflect.

In practice, invocation of Article 84 is possible only where evidence establishes what sum corresponded to the actual intent of both parties. Paradoxically, however, where such evidence exists, the interpretive problem largely dissolves—subjective interpretation pursuant to Article 65 § 2 should govern.

C. The Thesis of Non-Formation: Absence of Consensus

A considerably more serious legal problem is the possibility of challenging whether a contract was formed at all, on grounds of absence of consensus (brak konsensu) regarding essential elements—including price.

Pursuant to Article 66 § 1 of the Civil Code, a contract is concluded through the exchange of corresponding declarations of intent by the parties. Consensus requires not merely external conformity of declarations, but actual agreement on essential terms.

D. The Argument for Non-Formation

In cases involving the discrepancy “1,000 (two thousand),” one may argue that the parties tendered contradictory declarations of intent regarding price. Consequently, actual consensus is lacking: one party understands the price as 1,000, the other as 2,000. The contract was therefore never formed, owing to absence of corresponding declarations on an essential element.

E. Consequences of Non-Formation

If the thesis of non-formation is accepted, the legal consequences are far-reaching:

• Neither party may demand performance of the contract in any version
• Provisions governing unjust enrichment apply to any partial performance already rendered
• The parties may conclude a new agreement with clearly specified price, eliminating the risk of adverse interpretation for either party

VIII. Economic Consequences of Interpretive Uncertainty

Uncertainty regarding interpretation of numerical provisions generates substantial transaction costs. Parties must invest in more meticulous drafting, more frequent legal consultations, and—where disputes arise—costly judicial proceedings.

The absence of clear rules undermines transactional security: commercial actors cannot predict how courts will interpret potential discrepancies. This uncertainty may chill transactions or induce inefficient precautionary expenditures.

IX. Practical Recommendations

A. Drafting Techniques to Minimize Risk

• Avoid dual notation of sums in computer-generated documents
• Employ a single, consistent method of expressing figures throughout the agreement
• Introduce interpretive clauses specifying the hierarchy in case of discrepancy
• Implement multi-level document review, particularly for high-value transactions

B. A Proposed Analytical Framework

The following hierarchical approach would provide both predictability and fidelity to the Polish combined method of interpretation:

First tier: Subjective interpretation. Ascertain the actual common intent of the parties pursuant to Article 65 § 2 of the Civil Code, according primacy to the purpose of the contract and the circumstances of its formation.

Second tier: Objective interpretation. Where common intent cannot be established, apply objective interpretation considering:

• The linguistic context of the entire agreement
• The circumstances of contract formation and economic purpose
• Principles of social coexistence and established customs
• The subsidiary rule that words prevail over figures

Third tier: Contra proferentem. Where interpretive doubt persists, construe against the drafting party.

Fourth tier: Fundamental validity analysis. Where none of the foregoing methods yields a resolution, consider:

• Conversion or rectification in cases of obvious error
• Whether consensus was achieved at all, or whether the contract was never formed

Such a framework would ensure predictability while preserving the flexibility characteristic of the Polish combined method of interpretation and respecting the primacy of actual intent over literal text. Simultaneously, it would acknowledge the possibility of finding absence of consensus where discrepancies are sufficiently substantial to preclude genuine agreement.

X. Conclusion: Precision as Prophylaxis

The problem of discrepancies between numerical and written expressions exposes a significant gap in the Polish statutory framework governing contract interpretation. In the absence of specific legislative guidance, courts must navigate between subjective and objective methods, subsidiary doctrinal rules, and—in extreme cases—the fundamental question of whether a contract exists at all.

For practitioners, the lesson is unambiguous: prevention far exceeds cure in value. Meticulous drafting, consistent notation conventions, and express interpretive clauses represent investments that pale beside the costs of litigating what a contract actually means.

When numbers and words collide, the collision reverberates through the entire contractual relationship. The prudent drafter ensures they never collide at all.

Robert Nogacki

Founder and Managing Partner of Skarbiec Law Firm, recognized by Dziennik Gazeta Prawna as one of the best tax advisory firms in Poland (2023, 2024). Legal advisor with 19 years of experience, serving Forbes-listed entrepreneurs and innovative start-ups. One of the most frequently quoted experts on commercial and tax law in the Polish media, regularly publishing in Rzeczpospolita, Gazeta Wyborcza, and Dziennik Gazeta Prawna. Author of the publication “AI Decoding Satoshi Nakamoto. Artificial Intelligence on the Trail of Bitcoin’s Creator” and co-author of the award-winning book “Bezpieczeństwo współczesnej firmy” (Security of a Modern Company). LinkedIn profile: 18 500 followers, 4 million views per year. Awards: 4-time winner of the European Medal, Golden Statuette of the Polish Business Leader, title of “International Tax Planning Law Firm of the Year in Poland.” He specializes in strategic legal consulting, tax planning, and crisis management for business.