Illegal Clauses in a CHF-denominated Loan Agreement

Abstract

In extraordinary complaint proceedings, the Supreme Court shared the findings and considerations of SA in Krakow, assuming that the elimination of conversion clauses from the loan agreement denominated in CHF does not result in its invalidity ex tunc and ab initio since the agreement was terminated due to the lack of repayment of loan installments, and the consumer did not demonstrate that the discontinuation of the provision in this respect resulted from the existence of prohibited provisions. In the glossed judgment, the Supreme Court devoted a lot of attention to the issue of the performance of the loan agreement, pointing out, among other aspects, that the consumer could have paid the loan installments directly in CHF from the beginning, which would have excluded the need to use the unfair conversion mechanism. The Supreme Court also emphasised that the consumer did not prove in this case damage caused by the materialization of the currency risk on their side. All these issues are analyzed in this critical gloss. In the opinion of the author, the judgment in question is inconsistent with the law sensu largo.