Sodna praksa

  • Podatki o zadevi
    • Nacionalna ID: Hight Court, Judgement I Cp 1426/2019
    • Država članica: Slovenija
    • Splošno ime:N/A
    • Vrsta odločbe: Sodna odločba v pritožbenem postopku
    • Datum odločbe: 13/05/2020
    • Sodišče: Višje sodišče v Ljubljani
    • Zadeva:
    • Tožnik:
    • Toženec:
    • Ključne besede: imbalance between the rights of the parties, unfair term, consumer debt, consumer contract, court
  • Členi direktive
    Unfair Contract Terms Directive, Article 4 Unfair Contract Terms Directive, Article 4, 2.
  • Uvodna opomba

    ECLI:SI:VSLJ:2020:I.CP.1426.2019

    When the plaintiffs (consumers) were warned that the annuity and loan principal could be higher if the CHF strengthened against the EUR, the plaintiffs, as average diligent consumers, were also informed that the currency ratio was not immutable and that their credit could change (increase). The average diligent consumer (as well as the plaintiffs) can easily calculate the given rules with sufficient precision, taking into account the basic rules of logical reasoning, which he/she must master, and the basic arithmetic operations, which he/she must know how to use. Therefore, the average diligent consumer understands what a minor or major change in the exchange rate of CHF means for his liabilities. The plaintiffs accepted the risk given the warning, which was sufficient, so the plaintiffs cannot argue that the defendant failed to perform its obligation to inform.

    Relevance: The Appellate Court explicitly lists the conditions that must be given in order for the obligation to inform to be fulfilled.

  • Dejstva
    On 29 August 2007, the litigants entered into a consumer mortgage loan agreement. The agreement was concluded in a notarial deed. The subject of this contract were loans in foreign currency (CHF) with the Libor interest. The second paragraph of Article 5 of the credit agreement stipulated that the plaintiff (borrower) and the other plaintiff (guarantor) explicitly confirmed by signing the agreement that they were aware of the risk arising from any possible change in the CHF exchange rate to EUR and may affect their ability to repay credit and that they bear this risk in full. This Article was a subject of the dispute.
  • Pravna zadeva
    Has the defendant fulfilled its obligation to inform to the plaintiffs regarding the conclusion of a credit agreement in foreign currency (CHF)?
  • Odločba

    The key issue, in this case, was whether the defendant had fulfilled its obligation to inform regarding the conclusion of a foreign currency credit agreement (CHF). The Court of Justice of the EU (CJEU) has developed criteria for assessing the fulfillment of banks' obligation to inform. Therefore, the borrower must be aware of the possibility of an increase or decrease of the value of the foreign currency in which he is required to repay the loan and must be able to assess the potentially significant economic consequences of the contractual condition for his financial obligations or total loan costs. Furthermore, he must be aware that he is taking on currency risk, which he may find difficult to bear in the event of a devaluation of the domestic currency. Also, the bank must provide borrowers with information that must be sufficient in order for them to make informed and prudent decisions. The agreement on the currency of the loan repayment is the main subject of the contract, as it is an essential part of the contractual relationship (SEU judgement C-186/16). As such, it may be subject to a fairness assessment only if the requirement of its clarity and comprehensibility has not been met. The latter is fulfilled if the bank has fulfilled its obligation to inform.

    The Court of Appeal accepts as correct the conclusion of the Court of the First Instance that the defendant fulfilled her obligation to inform. The witness explained to the plaintiffs the possibility of currency fluctuations and showed them the impact of the currency fluctuations on the amount of monthly annuity and principal due by oral calculations in hypothetical cases of currency fluctuations. The latter, in the opinion of the Appellate Court, means that the disputed contractual provisions of the credit agreement were based on the preliminary explanation of currency fluctuations and the effect of such fluctuations. The CJEU pointed out that the level of consumer information must be of a certain intensity. As also stated by the first court, excessive concern 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.

    As the defendant had fulfilled her obligation to inform, the terms of the contract were clear and comprehensible, including the disputed provision - Article 5(2) of the credit agreement. It is therefore not possible to agree with the plaintiffs that the main object of the contract (agreement on the currency of loan repayment) is unfair and that the credit agreement is, therefore, null and void, since the assessment of the fairness of the main object of the contract is excluded (Article 4 (2) of Directive 93/13/EEC). Therefore, the Court of Appeal did not respond to the remaining appellate allegations on the issue of good faith and a significant imbalance between the rights and obligations of the parties (the first paragraph of Article 360 of the Contentious Civil Procedure Act).

    Celotno besedilo: Celotno besedilo

  • Povezane zadeve

    Zadetki niso na voljo

  • Pravna literatura

    Zadetki niso na voljo

  • Zadetek
    The appeal is dismissed and the judgement of the Court of First Instance is upheld. The decision on the costs of the appeal proceedings shall be reserved for the final decision.