Sodna praksa

  • Podatki o zadevi
    • Nacionalna ID: High Court, Judgment II Cp 1012/2019
    • Država članica: Slovenija
    • Splošno ime:N/A
    • Vrsta odločbe: Sodna odločba v pritožbenem postopku
    • Datum odločbe: 29/04/2020
    • Sodišče: Višje sodišče v Ljubljani
    • Zadeva:
    • Tožnik:
    • Toženec:
    • Ključne besede: unfair terms, good faith, informed decision, average consumer, consumer protection
  • Členi direktive
    Unfair Contract Terms Directive, Article 2 Unfair Contract Terms Directive, Article 2 Unfair Contract Terms Directive, Article 3
  • Uvodna opomba

    ECLI:SI:VSLJ:2020:II.CP.1012.2019


    When concluding credit agreements, the bank, as an expert, is required to have a high level of diligence (diligence of a good expert). The bank, which was in a better informational position than the borrowers (the consumers), is required to perform an obligation to inform carefully. The bank must inform the borrowers of all relevant information that may influence their decision and explain what kind of credit agreement they will enter into. The borrower's education is not important for the bank's obligation to inform. The situation of the appellant must be assessed in the light of the average consumer. The bank must provide all borrowers with all known information that enables the assessment of the economic impact of the disputed condition on the borrower’s financial liabilities. As the bank acted in accordance with the requirement of good faith when concluding the credit agreement, the disputed contractual condition on assuming currency risk is not unfair. The average reasonable consumer can be expected to be aware that entering into a transaction involving the currency risk to which the consumers have been alerted is a risky transaction. An individual cannot be released from the minimum due diligence expected of all participants in legal transactions merely because he or she has entered into a contract as a consumer. Since the defendant acted in good faith when concluding the credit agreement, the disputed contractual condition on assuming currency risk is not unfair within the meaning of Article 3 of Directive 93/13.

    Relevance: The judgement tackles the question of good faith and the level of protection that the consumer can expect regarding obligation to inform. The decision also gives context regarding the average consumer and the unimportance of the consumer’s previous knowledge.

  • Dejstva
    The bank and the consumers (the appellants) concluded a loan agreement in a foreign currency (CHF) in 2007. To secure the obligations, they also concluded a mortgage agreement on the consumer’s real estate. The consumers claim that the bank did not fulfill its obligation to inform and that as they only had high school education, were unaware of the fluctuation of the exchange rates and interest rates. They claim that they are regular consumers who did not know that there could be significant growth in the value of CHF.
  • Pravna zadeva
    Did the bank correctly fulfill its obligation to inform and did it act in good faith, making the contractual provision in question fair, as set down in article 3 of the Directive?
  • Odločba

    Based on the evidence, such as the credit agreement and witnesses, the Court of Second Instance decided that the credit agreement is not unfair. The credit agreement specifically states that with his signature, the borrower confirms that the bank has previously fully informed him of the risk of a possible increase in the loan repayment obligation in EUR and declares that he assumes this risk in full. From the testimony, it also follows that the bank employee warned the consumers regarding the risk and that there were graphic simulations presenting the fluctuation of the exchange rate in the past. Furthermore, the borrower's education is not important for the bank's explanatory duties. The situation of the appellant must be assessed in the light of the average consumer.

    Celotno besedilo: Celotno besedilo

  • Povezane zadeve

    Zadetki niso na voljo

  • Pravna literatura

    Zadetki niso na voljo

  • Zadetek
    The appeal was denied and the challenged judgement of the Court of First Instance was confirmed. There are extraordinary legal remedies left.