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The Supreme Court decides in accordance with the position of the Financial Ombudsman.

17 February 2021

The Supreme Court decided that in the event of the cancellation of a foreign currency loan agreement, the so-called the rule of two claims applies. This is important for Swiss franc loan holders because it is a more advantageous way of settling the cancelled contract. Such an approach is a good sign against the concept of the Supreme Court’s resolution resolving discrepancies in the jurisprudence requested by the Financial Ombudsman.

Information on the application of the Financial Ombudsman for a resolution of the Supreme Court – click the link

The Supreme Court composed of three members yesterday (February 16, 2021) dealt with a legal issue presented by the District Court in Warsaw. It concerned the principles of mutual settlements resulting from Swiss franc indexed loan agreements, which were deemed invalid due to its abusive clauses.

In the resolution (file no. III CZP 11/20), the Supreme Court opted for the application of the theory of two claims in such a situation, therefore each claim by both the borrower and the bank for issuing enrichment should be treated separately and independently of the other. The court referred to, among others, Art. 405 of the Civil Code, according to which, if the contract is deemed invalid, there is unjust enrichment on both sides of the contract. In such a situation, the borrower may effectively demand from the bank the return of the benefit in the form of principal and interest installments paid in the Polish currency or in a foreign currency. At the same time, the bank cannot refuse to pursue such a claim, arguing that the borrower has not returned the loan amount paid by the bank in the nominal amount.

– The position of the Supreme Court is an important step towards a fair solution to the problem of foreign currency loans. This problem is also related to one of the questions addressed to the full composition of the Civil Chamber by the First President of the Supreme Court. An unequivocal resolution of this issue is important for all litigants pending before the court. It is also important for those who withhold filing a lawsuit while awaiting a settlement proposal from the bank. Having knowledge of the rules of settlement of the contract, it is possible to more accurately estimate the financial effects of specific actions and make an informed decision – says dr. hab. Mariusz Jerzy Golecki, professor at the University of Łódź, Financial Ombudsman.

The Financial Ombudsman consistently presents arguments similar to those expressed in yesterday’s position of the Supreme Court. They can be found e.g. in his important views issued at the request of customers or courts at the stage of court proceedings. The Ombudsman also presented the same position by submitting an application for the resolution of discrepancies in the case-law by the Supreme Court (reference number III CZP 6/21) on October 19, 2020.

– After the annulment of the foreign currency loan agreement, both parties are obliged to make mutual settlements and return all benefits related to the implementation of this agreement, based on the provision of 410 of the Civil Code. Therefore, the bank may seek reimbursement from customers of a sum equal to the amount paid under the loan agreement. In turn, customers can claim the return of a sum of money corresponding to the sum of the amounts paid by them. Both of these claims are independent – explains dr. Ewa Skibińska from the Office of the Financial Ombudsman.


The Financial Ombudsman’s website in Ukrainian
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