• Dane sprawy
    • Identyfikator krajowy: Supreme Court, II CSKP 975/22
    • Państwo członkowskie: Polska
    • Nazwa zwyczajowa:N/A
    • Rodzaj decyzji: Orzeczenie sądu najwyższego
    • Data decyzji: 03/02/2022
    • Sąd: Sąd Najwyższy
    • Temat:
    • Powód/powódka:
    • Pozwany/Pozwana:
    • Słowa kluczowe: unfair terms, main subject matter, credit agreement, nullity, cancellation of contract
  • Artykuły dyrektywy
    Unfair Contract Terms Directive, Article 4
  • Uwaga główna

    The judgement deals with the problem of considering a valorisation clause in a credit agreement as an unfair term. It also touches on the issue of the consequences of considering such a clause as unfair a regards the validity of the credit agreement.

  • Fakty

    On 19 March 2008, the plaintiff concluded a mortgage loan agreement with the bank. On the basis of the agreement, the bank lent the borrower the amount of PLN 372,000. The loan was indexed to a foreign currency, CHF, for the purpose of acquiring the ownership title to a dwelling on the primary market. The agreement provided that the provisions of the Regulations constituting an appendix to the Agreement would apply to the extent not regulated in it. The bank paid the claimant the loan amount on April 18, 2008. On April 28, 2014, the bank sent the claimant the text of the changes introduced to the Regulations by the defendant. Among other things, § 9 clause 2 point 1), which in the new wording, provided that the loan instalments to be repaid are expressed in a foreign currency and on the maturity date, the loan instalments are collected from the bank account referred to in para. 1, at the selling rate in accordance with the Table in force at the bank on the maturity date of the loan instalment. § 15 sec. 7-10, providing a catalogue of factors determining the buying and selling rates of currencies, as well as the size of the currency spread. Until January 26, 2018, the plaintiff had paid a total of PLN 222,050.57 as repayment, and PLN 2,046 as real estate insurance premiums. Moreover, on April 18, 2008, the bank charged a preparation fee in the amount of PLN 2,976. The plaintiff used the loan for the purchase of a flat, which was not related to her business activity.

  • Zagadnienie prawne

    May a valorisation clause in a credit agreement be considered as an unfair contractual term?

  • Decyzja

    The argument that valorisation clauses are not subject to examination in terms of their abusiveness cannot be accepted. The provisions specifying the main services of the parties are not subject to such control only if they have been formulated in an unambiguous manner (Art. 3851 § 1 sentence 2 of the Civil Code). Such a solution, derived from Art. 4 sec. 2 of Directive 93/13 is based on the assumption that the provisions specifying the main services of the parties usually reflect the actual will of the consumer, as the parties usually attach the greatest importance to their content. Consequently, the principle of consumer protection must allow the general principle of autonomy of will under civil law. The exemption from control cannot, however, cover non-transparent provisions, as the consumer is not able to easily assess his contractual obligations and his relation to those of the other party.

    The elimination of the exchange rate risk, characteristic of a loan indexed to a foreign currency and justifying the linking of the interest rate with the LIBOR rate, is tantamount to such a far-reaching transformation of the contract that it should be considered an agreement of a different essence and nature altogether, even if it was still only a different sub-type or a variant of the loan agreement. This means, in turn, that after the elimination of such clauses, the maintenance of the contract of the nature intended by the parties is not possible, which proves its complete nullity.

    URL: http://www.sn.pl/sites/orzecznictwo/OrzeczeniaHTML/ii%20cskp%20975-22.docx.html

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  • Wynik

    The Supreme Court rejected the defendant’s appeal.