In the case of foreign currency housing loans whose conversion clauses are found to be offensive, it will be appropriate to exchange the exchange rate from the contract with a different rate caused by law or customs – written Position of NBP Chief of the Supreme Court on Foreign Currency Housing Loans.
“From a purely economic point of view, it can be evaluated as a relative solution in relation to contracts in which the so-called transfer clauses are found to be arbitrary, and consist in replacing the exchange rate specified in the contract with another rate determined in a manner resulting from legal provisions or usages” – it was written.
Moreover, the head of the NBP notes that from an economic point of view, it will be particularly difficult to justify decisions that assume the de-linking of the loan value and foreign currency while maintaining the appropriate interest rate for it. Currency (Polish zloty loan based on LIBOR rate) or assuming that the bank’s claims are obsolete.
On the other hand, if the loan agreement was declared invalid and mutual claims were created, according to the National Bank of Poland, the immediate fulfillment by the borrower of the bank’s demand to return the paid-up capital and the possible reward for its use means the need to repay a significant amount.
“This customer in many cases will have to make a new commitment. At the same time, for the bank, receivables (resulting from the borrower’s inability to pay the benefit) may involve credit risk, and, unlike the original foreign currency housing loan, they will be non-existent. Guaranteed. In such a situation, it seems that a consensual solution is worth considering, that is, a possible new legal relationship between the parties should be a PLN housing loan secured by a mortgage on the property, which is the basic guarantee of a foreign currency housing loan “- added.
In general, the NBP indicates that the economic evaluation of individual variables of decisions should take into account broader aspects, including in particular the impact on the position of foreign currency borrowers in relation to the position of other borrowers, including those who took out loans in zlotys and people who They did not borrow to buy real estate.
In mid-May this year. The full formation of the Civil Chamber of the Supreme Court has been postponed without setting a deadline for a meeting on legal issues presented by the first president of the Supreme Court, Magorzata Manovska, and on issues related to foreign currency loans.
Then the judges decided to request positions on the issues before: the Ombudsman for Children, the President of the Polish National Bank, the Polish Financial Supervisory Authority, the Financial Ombudsman and the Ombudsman. The Supreme Court’s press spokesman, Judge Aleksander Stubkowski, said the Supreme Court decided to apply for positions on these bodies “with awareness of the social and economic significance of its decisions for Poles”.
The application submitted by the first president of the Supreme Court at the end of January of this year. It is decided by the formation of the entire Civil Chamber of the Supreme Court, and includes six questions relating, inter alia, to the question of the transfer of the loan.
In the application, the Chief Justice of the Supreme Court questioned whether, if the provision of an indexed or indexed loan agreement with respect to the method of fixing the foreign exchange rate was found to be an illegal contractual clause and does not obligate the consumer it could be presumed that this provision had been superseded by some other way of fixing the exchange rate The foreigner resulting from the provisions of the law or customs. If the answer to this question is in the negative, then the civil department will have to deal with the question of whether the contract is binding on the parties in the remaining range, if it is impossible to establish a binding exchange rate for foreign currency. The issue of index loans will be considered separately and the issue of denominated loans will be considered separately.
Another question relates to a situation where a contract is invalid or ineffective. The first is whether, in the event that benefits need to be returned, the equilibrium theory or the two-condition theory should be applied.
Already in February this year. The Supreme Court, made up of three members of the Civil Chamber, decided that in the event of annulment of a foreign currency loan agreement, the so-called principle of two conditions, not the theory of equilibrium against it. Also at the beginning of May, the Supreme Court, consisting of seven judges from the Civil Chamber, affirmed in a decision that the parties to such disputes must settle accounts in accordance with this principle.
This means that each claim by both the borrower and the bank to issue enrichment must be dealt with separately and independently of the other. On the other hand, according to the equilibrium theory, “In the event of an invalid mutual agreement, the subject of the refund claim is not each of the services rendered separately, but only the excess of the value of one of them over the value of the other.”
In her questions, the Chief Justice also asked whether the limitation period for the claims of the bank that granted the loan starts from the moment the bank makes the payment. The last question is whether, in the event of the return of the unaccrued interest, one of the parties may demand the so-called reward for the use of money used by the other party at a time when the contract is not yet in question.
tus / mouth /