Sodna praksa

  • Podatki o zadevi
    • Nacionalna ID: Ljubljana High Court, Judgement I Cp 960/2018
    • Država članica: Slovenija
    • Splošno ime:N/A
    • Vrsta odločbe: Sodna odločba v pritožbenem postopku
    • Datum odločbe: 30/01/2019
    • Sodišče: Višje sodišče v Ljubljani
    • Zadeva:
    • Tožnik:
    • Toženec:
    • Ključne besede: Consumer credit, credit agreement, average consumer, unfair terms,
  • Členi direktive
    Unfair Contract Terms Directive, Article 3 Unfair Contract Terms Directive, Article 4 Unfair Contract Terms Directive, Article 6
  • Uvodna opomba

    ECLI:SI:VSLJ:2019:I.CP.960.2018

    The assessment of the unfairness of the main subject of the contract is only possible if it has been vaguely determined. If the provision on the main subject of the contract is clear, it is decisive that the party agreed with the content of the contract, so the unfairness of individual agreements cannot be revoked, as a subsequent assessment of the fairness of the main subject of the contract would severely interfere with the parties' contractual autonomy. The main subject of the contract is exactly what the parties had before their eyes and expressly agreed to it. It is a well-known fact that there are a large number of lawsuits brought before the courts by borrowers who took out credits in CHF. The framework for resolving such disputes has therefore been outlined by the Supreme Court of the Republic of Slovenia. The fact that the explanatory duty was properly performed by the bank was considered crucial for the decision. The Supreme Court also explained that the importance of the explanatory duty is that contract law is based on the principle of contractual freedom and it is left to individuals to decide to enter into a contractual relationship and what content they will determine.

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

  • Dejstva

    The plaintiff entered into a consumer mortgage credit agreement (notarial deed). In the first instance, he claimed that the contract was void. His claim was denied by the  Court of First Instance. In the second instance, he challenged the judgement of the Court of First Instance. He submitted that the judgement of the Court of First Instance was entirely erroneous in that it did not adequately explain to the plaintiff the risks involved in concluding a credit agreement based on Swiss francs (CHF). The defendant, therefore, failed to perform its duty of explanation, as it did not concretely present to the plaintiff the risks of such a credit.

  • Pravna zadeva

    1.     To which extent (or standard) should the bank perform the explanatory duty to consumers?

    2.     When can the individual credit agreement be revoked due to unfairness?

  • Odločba

    In principle, everyone is obliged to equip themselves with the information needed to carry out their business will. However, this principle should be set aside when the parties are not in an equivalent information position. The so-called ‘information asymmetry’ is particularly characteristic of the banking sector, as the bank acts as an expert in this area, while consumers generally do not have the necessary knowledge and experience in concluding banking transactions. Excessive care for the consumer is not in line with the notion of the individual as a reasonable, prudent, autonomous, and free entity capable of making responsible, economic, life, and personal decisions. Just as too little care for a person's freedom and dignity can be jeopardized, excessive care can have the same effect. The balance between the two, in this case, is expressed by the duty of explanation (i.e., the mechanism that enables the consumer to be acquainted with the necessary information based on which they will be able to make a decision that they consider to be the most acceptable for them). They may opt for risk and greater expected benefits, or lesser benefits with less risk. The law cannot tell an individual what is good for them and direct them to what they consider  useful or a lesser risk. Nor can the fulfilment of the duty of explanation depend on the interest of the consumer. Namely, the bank is obliged to perform an explanatory duty in each case, to the extent required for the average consumer standard.

    URL: http://sodnapraksa.si/?q=id:2015081111418700&database[SOVS]=SOVS&database[IESP]=IESP&database[VDSS]=VDSS&database[UPRS]=UPRS&_submit=i%C5%A1%C4%8Di&rowsPerPage=20&moreLikeThis=1&id=doc_2015081111426821

    Celotno besedilo: Celotno besedilo

  • Povezane zadeve

    Zadetki niso na voljo

  • Pravna literatura

    Zadetki niso na voljo

  • Zadetek

    The Court of Appeal found the applicant's appeal to be unfounded and dismissed it. However, it upheld the judgement of the Court of First Instance.

    The Court of Appeal finds that the applicant's appeal is unfounded and rejected it. The impugned judgement of the  Court of First Instance was upheld (art. 351 of the Civil Procedure Act). It should be added that the plaintiffs' primary claim would not be substantiated even if it turned out that the defendant did not perform its duty of explanation properly and even if it turned out that it had acted in bad faith (it has been established above that this was not so), as no other cumulatively required condition is met, namely the existence of a significant imbalance between the rights and obligations of the parties. Increase in monthly annuity by 8.84% or EUR 86.52, taking into account that the euro value of the annuity at the time of concluding the contract was EUR 978.13 and at the time of filing the lawsuit EUR 1,064.65, and finding that the defendant did not generate disproportionate profits in the contractual relationship, such an imbalance does not exist.