Sodna praksa

  • Podatki o zadevi
    • Nacionalna ID: Ljubljana High Court, Judgement II Cp 1535/2018
    • Država članica: Slovenija
    • Splošno ime:N/A
    • Vrsta odločbe: Sodna odločba v pritožbenem postopku
    • Datum odločbe: 25/01/2019
    • Sodišče: Višje sodišče v Ljubljani
    • Zadeva:
    • Tožnik:
    • Toženec:
    • Ključne besede: Consumer credit, credit agreement, unfair terms, consumer debt
  • Členi direktive
    Unfair Contract Terms Directive, Article 3 Unfair Contract Terms Directive, Article 4
  • Uvodna opomba

    ECLI:SI:VSLJ:2019:II.CP.1535.2018

    The agreement regarding the credit currency is the main subject of the contract, as it is an essential part of the contractual relationship. As such, it can be subject to a fairness assessment only if the requirement of its clarity and comprehensibility has not been met. However, the latter is only fulfilled  if the defendant has fulfilled its explanatory duty. The bank's explanatory duty concerning the customer already derives from the general information obligation, which binds all business entities in the pre-contractual phase and derives from the principle of good faith and fairness. This principle requires a bank that provides financial services professionally in the market to share with the counterparty information relevant to the conclusion of the transaction, including the risks it entails. The information must be true and complete so that the customer can rely on it justifiably. The duty to provide information is supplemented by a ban on the provision of untrue or misleading information and is given regardless of the (un)expressed interest of the client. The bank cannot relieve itself of its explanatory duty by objecting that the customer has not asked or  expressed an interest in obtaining relevant information.

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

  • Dejstva

    The plaintiff appealed against the judgement of the  Court of First Instance and stated as essential that the  Court of First Instance did not comment on his allegations in the supplement to the lawsuit. In this application, he stated that the defendant had set a date on the credit application and that he had not complied with article 6 of the Consumer Credit Act because he had not drawn up the entire credit agreement and handed it over to him as a borrower. The currency risk statement is not credible as it states the incorrect date of the credit application. This statement should be included in the credit agreement, as it significantly affects the borrower's obligation. As a professional in trading in banking products, the defendant knew or should have known that after the conclusion of the contract there would be a strengthening of the CHF concerning the EUR. With an untrue statement, the defendant wanted to transfer the entire currency risk for 20 years to the plaintiff. The defendant acted unfairly by not fulfilling its explanatory duty, but by misleading the plaintiff that CHF was a stable currency and that it was a great deal and an exceptional opportunity.

  • Pravna zadeva

    To what extent should the future movement of exchange rates be considered as predictable for the bank (as an expert)?

  • Odločba

    The Court of First Instance rightly concluded that the defendant had performed its explanatory duty properly and fairly since it had openly provided the plaintiff with information based on which he could make an informed and prudent decision as to which credit agreement he wished to enter into. In his submissions, the plaintiff points out as crucial that the defendant did not inform him of the possibility of such a large change in the CHF / EUR exchange rate as occurred after the conclusion of the contract. Although for the defendant, as an expert, the future movement of exchange rates was to some extent predictable, the plaintiff did not prove that at the time of concluding the contract the defendant knew or could have known that there would be a significant and prolonged fall in the value of EUR against CHF, nor anticipate the economic crisis and its consequences and the decision of the Swiss Central Bank to cease maintaining the CHF / EUR exchange rate. As the defendant could not foresee the changes that took place after the conclusion of the contract, it was not obliged to inform the plaintiff about them. It fulfilled its duty of explanation by presenting the significance of currency risk to such an extent and content that it was clear that this risk was real and could significantly affect the scope of its contractual obligations.

    URL: http://www.sodnapraksa.si/?q=kredit%20v%20CHF&database[SOVS]=SOVS&database[IESP]=IESP&database[SOSC]=SOSC&database[SOPM]=SOPM&_submit=i%C5%A1%C4%8Di&showType=table&rowsPerPage=20&page=0&id=2015081111427583

    Celotno besedilo: Celotno besedilo

  • Povezane zadeve

    Zadetki niso na voljo

  • Pravna literatura

    Zadetki niso na voljo

  • Zadetek

    In assessing the appeal, the Court of Appeal found that the stated findings were partly incomplete, partly unclear, and partly materially incorrect. To determine the scope and content of the information provided by the defendant to the plaintiff before the conclusion of the contract, the Court of Appeal re-examined the plaintiff and Witness A. Then, using the substantive starting points adopted by the CJEU (C-186/16 – Andriciuc) and the Supreme Court, the Court of Appeal reassessed whether the duty to explain had been fulfilled. The defendant disclosed to the plaintiff the information at its disposal, but the defendant itself could not have foreseen the currency changes that occurred after the conclusion of the contract. Based on the facts thus established, the Appellate Court confirms to the Court of First Instance that the defendant performed its duty of explanation properly and fairly, as it openly provided the plaintiff with information with which he could make an informed and prudent decision on what kind of credit agreement he would like to conclude. Due to the above, the appeal was rejected as unfounded and the judgement of the  Court of First Instance was upheld (art. 353 of the Civil Procedure Act).