Sodna praksa

  • Podatki o zadevi
    • Nacionalna ID: High Court, Judgement I Cp 27/2020
    • Država članica: Slovenija
    • Splošno ime:N/A
    • Vrsta odločbe: Sodna odločba v pritožbenem postopku
    • Datum odločbe: 01/07/2020
    • Sodišče: Višje sodišče v Mariboru
    • Zadeva:
    • Tožnik:
    • Toženec:
    • Ključne besede: unfair terms, imbalance between the rights of the parties, nullity, court
  • Členi direktive
    Unfair Contract Terms Directive, Article 3 Unfair Contract Terms Directive, Article 4 Unfair Contract Terms Directive, Article 5 Unfair Contract Terms Directive, Article 5
  • Uvodna opomba


    The Appellate Court emphasised that the unfairness of the contractual condition (agreement on the currency of return in CHF), which would lead to the legal consequence of annulment of the contract, is given, if the following assumptions are cumulatively met:

    • violation or non-fulfillment of the bank's obligation to inform,
    • bad faith of the bank,
    • the existence of a significant imbalance between the rights and obligations of the contracting parties.

    Simply put, it must be established whether, at the time of concluding a credit agreement in CHF, the contractual terms (due to the bank's failure to fulfil the obligation to inform) were only unclear or whether they were also unfair, because if contractual terms are unfair due to the bank's bad faith and significant imbalance of the rights of parties, this results in the most severe sanction: the nullity of the contract.

    Relevance: The judgement presents a case where the First Instance Court applied correct substantive legal principles regarding consumer law, but it proceeded from an incomplete, if not erroneously established factual situation.

  • Dejstva

    The plaintiff as a borrower and the plaintiff as a guarantor concluded a Consumer Mortgage Loan Agreement (the Agreement) with the defendant as a lender on 26 November 2007 in notarial deed SV 652/07, by which the plaintiff as a borrower obtained a foreign currency loan in the amount of 150,000 CHF, which amounted to 89,643.22 EUR at the middle exchange rate of the BS for CHF on the day of approval. The repayment period was 240 consecutive monthly annuities or 20 years. The loan amount was paid to the plaintiff in EUR. With the loan, the plaintiffs covered three original loan agreements and repaid the renovation of the house. A mortgage was set up to secure the loan. Due to the appreciation of CHF, the credit burden of the plaintiffs increased, so on 30 March 2015 they entered into a new credit agreement for the principal amount of EUR 100,850.00. The plaintiffs repaid the loan by paying installments at the defendant's current selling rate of EUR for CHF18.

  • Pravna zadeva
    What is considered an unfair contract term in notarial deed under Article 4(2) of Directive 93/13 and under Articles 22 and 23 of Consumer Protection Act?
  • Odločba

    Article 22 of the ZVPot (Consumer Protection Act) stipulates that contractual conditions must be clear and comprehensible. Otherwise, unclear provisions are interpreted in favour of the consumer, while Article 23 of the same Act prescribes a sanction of nullity for conditions that would be unfair to the consumer. ZVPot does not explicitly determine whether the unfairness of the main subject of the contract can be assessed (agreement on the currency of loan repayment). However, under Article 4 (2) of Directive 93/13, the assessment of the inadmissibility of the contractual term at issue is admissible only if the condition is not written in clear and comprehensible language. Only if it turns out that the bank has not given appropriate explanations to the consumer and therefore the contractual provision cannot be considered clear and comprehensible, is it also possible to assess the unfairness of the main subject of the contract.

    However, in assessing the unfairness of the main object of the contract, it is necessary to assess whether the bank acted in good faith and whether there was a possible significant imbalance between the rights and obligations of the parties. Only a finding of unfairness of a contractual provision leads to the legal consequence of the nullity of that provision or the nullity of the entire contract. Due to the lack of fulfillment of the obligation to inform, the fact that it is (only) an unclear provision does not in itself mean it can be defined as unfair. Due to this finding, an unclear provision cannot be a reason for establishing the nullity of the credit agreement or the disputed provision.

    According to the assessment of the Court of Second Instance, the issue of the bank's good faith regarding the conclusion of credit agreements in foreign currency also arises here. The Court of First Instance wonders why the bank marketed loans in CHF when it constantly claims that a loan in EUR (as a domestic currency) is significantly less favourable for the bank (and significantly more favourable for consumers) than a CHF loan. At the same time, the Court argues that it is necessary to take into account the fact that the bank's market products (loans) are intended to obtain the highest possible profit.

    The Court of the Second Instance finds that, although the Court of First Instance used correct substantive legal principles, it proceeded from an incomplete, if not erroneously established factual situation. The decision of the Court of First Instance on the fulfilled obligation to inform stems from the lack of evidentiary assessment of all evidence offered from the plaintiffs. This means a violation of the constitutional right to equal protection of rights (Article 22 of the Constitution of the Republic of Slovenia). As this is a complex, high-profile case and considering the principle of equal protection of the rights of the parties and the right to an ordinary remedy, the Court of Second Instance returned the judgement to the Court of First Instance for a new trial.

    Celotno besedilo: Celotno besedilo

  • Povezane zadeve

    Zadetki niso na voljo

  • Pravna literatura

    Zadetki niso na voljo

  • Zadetek

    The appeal is upheld, therefore the judgement and the decision of the Court of First Instance are annulled and the case is returned to the Court of First Instance for a new trial. The decision on the costs of the appeal proceedings shall be reserved for the final decision.