Съдебна практика

  • Данни за случая
    • Национален идентификатор: Supreme Court of Cassation, Judgment 15/18, I com. d.
    • Държава-членка: България
    • Общоприето наименование:N/A
    • Вид решение: Решение на върховния съд
    • Дата на решението: 18/04/2018
    • Съд: Supreme Court of Cassation
    • Заглавие:
    • Ищец:
    • Ответник:
    • Ключови думи: unfair contract terms, unilateral change of terms in a contract
  • Членове от директивата
    Unfair Contract Terms Directive, Article 3, 3. Unfair Contract Terms Directive, ANNEX I, 1., (j)
  • Уводна бележка

    Terms entitling a bank to unilaterally change the base interest rate applicable to a consumer credit contract without specifying the exact method of calculation, and without providing that the change will only be made in the event of a modification in the essential circumstances on which the bank cannot influence, are unfair contract terms.

  • Факти

    The plaintiff is a consumer who has concluded a loan agreement with a bank. The contract contains terms entitling the bank to unilaterally change the interest rate applicable to the loan. Article 3 of the contract provides for the consumer to pay interest at the bank’s base interest rate (BIR) for mortgage loans in € and a contractual allowance of 0.6 percentage points. The bank has the right to unilaterally change the BIR, as the changes bind both parties immediately. The bank only has the obligation to make the changing public by distributing information in a prominent place in the bank offices. The new monthly payment is automatically set depending on the change in the BIR.


    The Yambol District Court and the Burgas Court of Appeal rejected the claim.

    The plaintiff appealed the decision of the Burgas Court of Appeal to the Supreme Court of Cassation.

  • Правен въпрос

    Due to multiple interest rate changes, the plaintiff has filed a claim for the nullity of the contract terms allowing the bank to change the interest rate.

  • Решение

    The Supreme Court of Cassation held that:

    The Supreme Court of Cassation, in a number of its decisions, accepts that bank loan contract terms providing for the bank’s ability to unilaterally change the agreed rate on the basis of a ground not provided for in the contract and where such contracted modification is not linked to objective circumstances, which are outside the control of the bank, is unfair within the meaning of the general definition of article 143 of the Consumer Protection Act. The method of calculating the interest rate must contain a clear and specific calculation procedure indicating the type, quantitative diagnosis and relative weighting of each of the individual components – market indices and indicators. Under the bank loan agreement, it is necessary for the contractors to agree on how the creditor’s remuneration is formed. There must be a specific formula for determining the interest.

    The methodology created by the bank in the form of its internal rules does not form part of the contract. The creditor acts dishonestly by providing for the change of BIR to be made on the basis of the bank’s internal rules that are not known by the consumer and for which it is unclear what factors of change they are reporting.

    Article 134 (2) of the Consumer Protection Act requires that the change in the interest rate owed by the consumer can be unilaterally affected only if there is a reasonable cause and the consumer is entitled to terminate the contract.

    The creditor is obliged in the contract, or in the general terms, in a clear, unambiguous and understandable way, to identify all objectively existent circumstances that are beyond the control of the trader, and which determine the possibility of a unilateral change in the cost of the loan, including the interest. In other words, the methodology for determining the interest rate must be laid down in the contract, specifying the type, quantitative diagnosis and relative weighting of the individual components, and each of them must be bound by objective criteria.

    The attacked texts of articles 3(5) and 6(3) of the contract. constitute unfair terms within the meaning of article 143(10) of the Consumer Protection Act, as there are no indications on the methodology by which the bank calculates the interest rate and the prerequisites for the modification have not been established. It is not specified in the contract how, why and for what reasons (beyond the control of the bank) it is entitled to increase the BIR.

    Пълен текст: Пълен текст

  • Свързани случаи

    Няма налични резултати

  • Правна литература

    Няма налични резултати

  • Резултат

    The Supreme Court of Cassation annulled the decision of the Burgas Court of Appeal and upheld the consumer’s claim.