Sodna praksa

  • Podatki o zadevi
    • Nacionalna ID: Ljubljana High Court, Judgement I Cp 2242/2018
    • Država članica: Slovenija
    • Splošno ime:N/A
    • Vrsta odločbe: Sodna odločba v pritožbenem postopku
    • Datum odločbe: 20/02/2019
    • Sodišče: Višje sodišče v Ljubljani
    • Zadeva:
    • Tožnik:
    • Toženec:
    • Ključne besede: Consumer credit, credit agreement, professional diligence, average consumer
  • Členi direktive
    Unfair Contract Terms Directive, Article 3
  • Uvodna opomba

    ECLI:SI:VSLJ:2019:I.CP.2242.2018

    The contractual provision on the currency of repayment in the credit agreement in question is the main subject of the agreement, as it is an essential part of the contractual relationship. Thus, it can be subject to an assessment of fairness only if the requirement of its clarity and comprehensibility has not been met. The latter, however, is fulfilled only if the defendant has fulfilled its duty of explanation.

    This applies and explains when the bank’s duty of explanation is fulfilled.

  • Dejstva

    The plaintiff as a borrower, the plaintiff as a guarantor, and the defendant as a creditor entered into a consumer mortgage credit agreement. The plaintiff agreed to repay the credit in monthly annuities,  set in CHF. The defendant agreed to pay out the credit in EUR. It is thus clear from the summary of the content of the credit agreement that the litigants entered into credit in foreign currency. This assessment is not affected by the defendant's commitment to pay out the credit in EUR, as it is only a way of fulfilling the agreed obligation, which does not change the very nature of the basic agreement. The Court of First Instance also correctly concluded that the defendant also assumed currency risk by granting credit in CHF.

  • Pravna zadeva

    1. What should be the scope of the bank's explanatory duty?

    2. At the time the credit was granted, were the currency risks in the case of foreign currency credits a well-known fact?

  • Odločba

    The contractual provision that the plaintiffs expressly agreed to by signing the contract in question claiming that they are aware of the risk arising from any possible change in the exchange rate of the CHF against the EUR and that this may affect their ability to repay this credit meaning that they assume this risk in full, is not sufficient to meet explanatory duties of the bank. It does not follow from that provision what the actual content of the information was and whether it enabled the plaintiffs to evaluate the risk assumed. Nor can the warning of a notary public, who merely reminded the plaintiffs of the obligations they incur with the credit, be decisive. The bank cannot relieve itself of the duty to explain by objecting that the client has not expressed an interest in obtaining relevant information. The basis for the conclusion that the defendant has fulfilled its obligations under a specific contractual relationship is not provided by publicly available information on the risks that consumers assume by concluding credit agreements in foreign currency. The defendant is the one who is obliged to disclose to the borrower the information about the banking product that was known to it as an expert in the field of banking.

    Celotno besedilo: Celotno besedilo

  • Povezane zadeve

    Zadetki niso na voljo

  • Pravna literatura

    Zadetki niso na voljo

  • Zadetek

    The appeal was upheld. The judgement under appeal was set aside and the case is remanded to the Court of First Instance for a new trial. The Court of Appeal found that the Court of First Instance had correctly concluded that the defendant had complied with its obligations to fulfil the explanatory duty and that the average diligent consumer could and should be aware of the risks involved in concluding such an agreement. It also confirms the view of the Court of the First Instance that reliable and accurate forecasts as to the period and extent of the change in the exchange rate are not possible. The movement of exchange rates is also influenced by completely unpredictable circumstances. However, the Court of Appeal found that not all of the proposed evidence had been adduced or taken into account. This is a violation of the applicants' right to a statement under art. 339/2/8 of the Civil Procedure Act. As a result, the decision of the Court of  First Instance is burdened with the infringement of essential procedural requirements. The Court of Appeal, therefore, upheld the appeal and annulled the impugned judgement and returned the case to the Court of  First Instance for a new trial (art. 354/1 and article 355/1 of the Civil Procedure Act). In the retrial, the Court of First Instance will have to eliminate the established procedural infringements. After a comprehensive evidentiary assessment, the Court of First Instance will assess whether the defendant has fulfilled its duty to explain or not.