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Podatki o zadevi
- Nacionalna ID: Supreme Court, Judgement 439/2021
- Država članica: Slovenija
- Splošno ime:N/A
- Vrsta odločbe: Sodba vrhovnega sodišča
- Datum odločbe: 15/12/2021
- Sodišče: Vrhovno sodišče RS
- Zadeva:
- Tožnik:
- Toženec:
- Ključne besede: consumer credit, mortgage loan, unfair terms, nullity, imbalance between the rights of the parties

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Členi direktive

Unfair Contract Terms Directive, Article 4
Uvodna opomba

ECLI:SI:VSRS:2021:II.DOR.439.2021

Article 367.a(1) of the Civil Procedure set out the conditions for the admission of revision, which were not met in the case at hand. Therefore, the Supreme Court rejected a motion to allow a revision of the judgement regarding the annulment of the consumer credit agreement in Swiss francs.
Dejstva

The consumer (plaintiff) concluded a mortgage foreign exchange credit agreement in Swiss francs on 29 of November 2007. The first plaintiff entered the contract as a borrower and the second plaintiff as a pledgor. The annuity was determined in CHF. The value of CHF increased against EUR right after the credit agreement was concluded, which significantly increased the creditors' credit obligation. The plaintiffs primarily demanded that the contract be annulled, that EUR 27,834.14 be paid, and that the registration of the mortgage be declared invalid. In the alternative, they enforced the termination of the credit agreement, the payment of EUR 27,834.14 and the issuance of a land registry documents for the cancellation of the mortgage. The defendants accused the banks of failing to perform its explanatory duty and of acting in bad faith and dishonestly.
Pravna zadeva

1) Is it sufficient to point out the variability of the EUR-CHF exchange rate without further explanation to assess the seller's or tenderer's duty to explain?

2) Does the seller or supplier have to inform the consumer of economic circumstances that could affect exchange rate fluctuations?

3) Does the effect of a significant increase in the amount of outstanding principal in the currency of payment (in euros) on a loan in a foreign currency (or with a currency clause) when this may also be higher than the originally borrowed loan amount?

4) Is the criterion of assessment from the previous points relevant from the point of view of good faith of the seller or provider, taking into account the strength of the negotiating position of the contracting parties and the situation where the consumer was encouraged to agree to the contractual term?

5) Are the conditions, which stipulate that the payments are used primarily to repay interest, exposing the consumer to disproportionate currency risk?

6) Whether the requirement of transparency and compliance with the seller's or provider's explanatory duty can be met by providing the consumer with information, if this information is based on the assumption that the parity between the clearing currency and the payment currency will remain stable throughout the contract and that this is the case where the seller or supplier has not informed the consumer of economic circumstances that could affect exchange rate fluctuations.

7) Should the legal preconditions from the four points of Article 24(1) of the Consumer Protection Act, which alternatively defines the conditions for establishing the unfairness of a contractual condition, be considered as independent legal conditions for assessment?

8) Are the conditions for the admission of revision met?
Odločba

Since the conditions set out in the first paragraph of Article 367.a of the Civil Procedure Act for the admission of revision were not met, the Supreme Court rejected the proposal in accordance with the second paragraph of Article 367.c of the Civil Procedure Act. The Court allows a revision if the decision of the Supreme Court can be expected to decide on a legal issue that is important for ensuring legal certainty, uniform application of the law or for the development of law through case law. The Court allows a review especially the following cases:

- if it is a point of law in respect of which the decision of the court of second instance deviates from the case law of the Supreme Court;

- if it is a point of law in respect of which the case law of the Supreme Court does not yet exist and especially if the case law of higher courts is not uniform; or

- if it is a point of law in respect of which the case law of the Supreme Court is not uniform.

Those conditions were not met in the present case.

Celotno besedilo: Celotno besedilo
Povezane zadeve

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Pravna literatura

Zadetki niso na voljo
Zadetek

A motion to allow a revision of the judgement was dismissed. Therefore, the Court rejected their proposal to allow the revision together with the cost request contained in it. Namely, the applicants who failed with the proposal cover their own costs of the procedure for allowing the revision (the first paragraph of Article 154 of the Civil Procedure Act in connection with the first paragraph of Article 165 of the Civil Procedure Act). The decision is final.

Sodna praksa

Celotno besedilo