Zasady etyki adwokackiej wymagają wstrzemięźliwości w chwaleniu się wygranymi sprawami. Adwokat nie powinien zachęcać klientów do współpracy sugerując wysoki odsetek pozytywnych wyroków.
Mam zamiar przewrotnie zadośćuczynić tym wymaganiom. W przeciwieństwie bowiem do poprzednich wpisów, ten będzie mówił o sprawie przegranej. Tak to bowiem bywa na sali sądowej, że nie wszystkie procesy kończą się sukcesem.
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Orzeczenie, o którym mowa ma w sobie coś, co wyróżnia go od wielu innych. Chodzi mianowicie o jakość. Ważne, aby przegrywając sprawę, mieć poczucie, że sąd z rozmysłem wydał wyrok. Można się z nim wtedy nie zgadzać, ale należy szanować.
Ten kończący omawiany proces jest jednym z lepszych, które miałem okazję czytać. Paradoksalnie, bo przecież spór przegraliśmy. Sąd przedstawił wywód czytelny, wyraził go starannym językiem, wnioskuje logicznie i wszechstronnie odniosi się do wszystkich dowodów. Po lekturze staje się jasne, dlaczego sprawa skończyła się tak, a nie inaczej.
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Jaki to wszystko ma związek z działalnością firmy leśnej?
Otóż w wyroku pojawiły się interesujące wytyczne odnośnie stosowania umowy z Nadleśnictwem.
Przedmiotem sporu były kary umowne od zamawiającego za opóźnienia. Sąd ocenił, że okoliczności wskazywane przez wykonawcę w sprawie nie wydają się na tyle wyjątkowe, aby usprawiedliwić nieterminowe usługi. Jednocześnie w ocenie sądu potwierdziły się zarzuty Nadleśnictwa odnośnie braku należytej organizacji prac przez ZUL-a.
Sąd zwrócił uwagę, że firma ani razu w toku współpracy nie złożyła pisemnych zastrzeżeń dotyczących terminów wykonania zleceń oraz nie domagała się anulowania kolejnych kar. Sąd uznał, że pisemne zgłoszenia nie są nadmiernie sformalizowane i nie zastąpią ich sporadyczne rozmowy w terenie. Skrócony cytat z wyroku:
„Tego rodzaju wymiana stanowisk [czyli – na piśmie] może być rozpatrywana w świetle przepisu art. 354 kodeksu cywilnego, nakładającego obowiązek współdziałania stron przy wykonywaniu zobowiązań i prowadzi do wniosku że ZUL nie współdziałał należycie z Nadleśnictwem.”
Wedle sądu brak zgłaszania problemów na piśmie nie oznacza automatycznie, że wykonawca ponosi winę za opóźnienia. Jednak
rezygnacja z takiej formy komunikacji wpływa na ogólną ocenę wiarygodności firmy
w chwili, gdy trzeba stwierdzić, kta ma rację. W tej sprawie szala przechyliła się na stronę Nadleśnictwa.
***
Wytyczne sądu korespondują z moimi doświadczeniami. Zachęcam wszystkich, aby wszelkie istotniejsze problemy we współpracy z zamawiającymi sygnalizować na piśmie lub mailowo. Jak widać, nigdy nie wiadomo, kiedy może się to w przyszłości przydać…
***
Fotografia z cyklu „Adwokat w terenie”:
{ 68 komentarze… przeczytaj je poniżej albo dodaj swój }
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