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The Supreme Court confirms the position of the Financial Ombudsman

7 May 2021

The Supreme Court, at a session of the Civil Chamber composed of 7 members, ruled that in the event of the invalidity of a foreign currency loan agreement, the parties to the dispute should settle accounts according to the theory of two claims [Polish: “teoria dwóch kondykcji”]. The resolution adopted today by the Supreme Court has the force of a legal principle and ensures greater predictability of case law in the so-called Swiss franc matters. The ruling of the Supreme Court is consistent with the position of the Financial Ombudsman, who also applied for the unification of judicial decisions.

– The adopted resolution confirms the trend in jurisprudence that is beneficial for consumers – says dr. hab. Mariusz Jerzy Golecki, professor at the University of Łódź, the Financial Ombudsman. – First, it ensures the predictability of the jurisprudence, and only in such conditions are customers able to estimate the possible financial consequences of specific actions. Therefore, the resolution is important both for those who wish to pursue their rights in court and for those considering the possibility of an amicable settlement of the dispute. Secondly, and equally important, the application of the theory of two claims is more beneficial for consumers, who are the weaker party in disputes with financial institutions and they bear the consequences of illegal provisions applied by banks in their loan agreements.

The balance theory and the two claims theory in practice

So far, common courts have presented divergent views on mutual settlements of the Swiss franc loan holders with banks. The Financial Ombudsman postulated that the Supreme Court unequivocally define the rules according to which the parties are to settle claims in the event that the loan agreement is deemed invalid. He pointed out that from a legal point of view it is justified to apply the theory of two claims.

– In practice, this means that if the contract is considered invalid, the borrower has the right to demand the bank to return the benefits in full, even if he has not yet repaid the loan. In this case, the key is how much the borrower has given back to the bank, and not how much he has borrowed from him. Moreover, in order to recover the amount of the disbursed loan, the bank should submit its own claim – explains dr. Ewa Skibińska from the Office of the Financial Ombudsman. – To facilitate the settlement, either party may submit a statement of deduction. For example, a customer who has so far repaid less than the amount of the loan granted can then only settle the difference between these amounts.

The balance theory [Polish: “teoria salda”] questioned today by the Supreme Court said that the subject of the claim could only be the difference between the value of the loan and the already repaid installments. In the opinion of the Financial Ombudsman, the balance theory is unfavorable for consumers, and there is no basis in applicable law. Applying the balance theory, the court would only admit the difference between the sum of the installments paid by the client and the amount made available by the bank. This would lead to a paradoxical situation. Although the court would have declared the contract invalid, the trial would have resulted in a loss for the consumer as regards the demand for reimbursement of the sum of the repaid installments. Most importantly, the balance theory did not lead to the goal of settling the matter in one process. In cases where the courts applied this theory, borrowers continued to face subsequent lawsuits from banks.

Positive effects of the Supreme Court resolution

– Indication of what rules should be applied to settle the contract, if it is deemed invalid, will improve the security of legal transactions and increase consumer confidence in the stability of the law. Due to the lack of predictability in this respect, when filing the claim, the customer had to take into account a number of contradictory legal views, which forced the formulation of possible demands in the claim. This resulted in an unnecessary extension and complication of court proceedings, which was detrimental to consumers. The instruments at the disposal of the Financial Ombudsman allow for a real improvement in the situation of consumers in Poland. If I notice similar problems in other aspects, I will use all available methods to support customers in disputes with financial institutions – declares Mariusz Golecki.

The importance of the Financial Ombudsman’s request

A request to the Supreme Court to resolve discrepancies in the case law is one of the powers of the Financial Ombudsman, which has a significant impact on the rights of consumers in our country. The resolution of the Supreme Court leads to ensuring the predictability of jurisprudence by unifying the jurisprudence of common courts and is an incentive to review the attitude of the banking sector. Since 2003, the Financial Ombudsman has filed 24 requests for a resolution of the Supreme Court (including the above). So far, the Court has adopted 22 resolutions, of which 21 times it shared the Defender’s view expressed in the request.


The Financial Ombudsman’s website in Ukrainian
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An illusory insurance contract to a loan. The court agreed with the Financial Ombudsman and ruled in favour of the borrower who was ill.