The Supreme Court ruled that the unilateral determination of a foreign currency exchange rate by a bank without reference to objective criteria is contrary to the nature of the legal relationship of a loan indexed to a foreign currency. A written justification of the resolution adopted at the end of April was published on the website of the Supreme Court.
The resolution of the Civil Chamber of the Supreme Court was passed on April 28 this year. in response to questions from the Court of Appeal in Warsaw regarding the validity of foreign currency-indexed loan agreements, in which the bank freely and unilaterally determined the exchange rate of this currency, without any verifiable criteria.
The question concerned the validity of foreign currency indexed loan agreements, in which the bank may unilaterally determine the exchange rate of this currency without reference to objective criteria. The question was whether such a contract could be considered invalid on the basis of the general provision of the Civil Code, according to which the provisions of the contract cannot oppose “the properties (nature) of the relationship, the law or the principles of social coexistence”, or in such a case it can be considered null and void due to the so-called abusive clauses. The second understanding is related to the reference to the provision of the Civil Code stating that “provisions of a contract concluded with a consumer not individually agreed shall not bind him, if they shape his rights and obligations in a manner contrary to morality, grossly violating his interests (prohibited contractual provisions)”.
Resolution of the Supreme Court
In accordance with the adopted resolution Supreme Court held that a unilateral determination by the bank currency rate is contrary to the nature of an indexed loan, but in the case of contracts with a consumer, the provisions on abusive clauses should be applied.
“A contractual provision making the amount of the benefit dependent on the discretion of one of the parties is contrary to the nature of the legal relationship. (…) A provision based on the ‘I will pay as much as I want’ scheme calls into question the actual will to contract. to freely determine the amount of the benefit of the other party, it places that party in the authority of the creditor, who may freely influence its economic situation “- it was indicated in the written justification.
In the written justification of the resolution, however, the Supreme Court did not agree with the assumption that finding the contract contrary to the nature of the legal relationship precludes the application of the provisions relating to consumers. “In individual cases, it is possible to assume that a provision granting the creditor the freedom to determine the amount of the other party’s benefit will only exceed the limits of contractual freedom, which may occur primarily in the case of non-consumer relations, and that it will also constitute an illegal contractual provision” – he noted SN.
At the same time, the justification stipulates that in the case of contracts concluded by professional entities, e.g. entrepreneurs, a certain margin of discretion in the designation of the service may be allowed, which at the same time may be considered an illegal contract term as regards the relationship between the entrepreneur and the consumer.
The resolution was passed by three judges of the Civil Chamber of the Supreme Court: Marcin Krajewski, Beata Janiszewska and Mariusz Załucki.
What effect can a resolution have?
After the resolution was announced, it was pointed out that such a ruling could be a “green light for entrepreneurs” to question non-consumer credit agreements.
– This is absolutely untrue, because the court did not adjudicate on loans granted to entrepreneurs, it only talked about certain situations in which there may be a so-called mixed configuration, i.e. the purpose of the loan is partly consumer, partly economic. Even in such a case, he ordered an individual examination of whether we are dealing with criteria that were assessed as biased – judged then by the vice-president of the Polish Bank Association, Tadeusz Białek.
The April resolution of the Supreme Court refers basically to loan agreements from before the summer of 2011. At that time, the Banking Law was amended and the provisions on indexed loans and the determination of exchange rates in contracts were made more precise.
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