On January 29, 2021, the First President of the Supreme Court, Małgorzata Manowska, requested that the full composition of the Civil Chamber of the Supreme Court adopt a resolution on the interpretation the legal issues regarding loans denominated and indexed in foreign currencies:
1.Assuming the provision of an indexed or denominated loan agreement relating to the method of determining the foreign currency exchange rate are deemed inadmissible and do not bind the consumer, could such provisions be replaced by another methods of determining the foreign currency exchange rate resulting from legal provisions or customs?
If no, then:
2. Assuming is impossible to establish a binding exchange rate for a foreign currency in a loan agreement indexed to such currency, could the agreement be binding the parties in the remaining scope of the agreement?
3. Assuming is impossible to establish a binding exchange rate for a foreign currency in a loan agreement denominated in a foreign currency, can this agreement be binding on the parties in the remaining scope of the agreement?
Regardless of the answers to the questions 1-3:
4. Assuming the court declares the loan agreement null and void or ineffective, in the performance of the said agreement the bank has paid the borrower all or part of the loan amount and the borrower has repaid (all of the part of) the loan – does such situation constitute a claim regarding the undue performance of a party, or just constitutes a single claim, equal to the difference in the received benefits?
5. Assuming the court declares the loan agreement null and void or ineffective due to the inadmissibility of some of its provisions, does the running of the limitation period for the bank’s claim for reimbursement of the amounts paid under the loan start from the moment of their payment?
6. Assuming the court declares the loan agreement null and void or ineffective, is either party entitled to claim the reimbursement of the performance provided in the performance of such a contract, and may that party also demand remuneration for the use of its funds by the other party?
The gathering of the full Civil Chamber to examine the above-mentioned motion was scheduled for March 25, 2021 at 10.00 a.m. It will be chaired by the First President of the Supreme Court. Supreme Court judge prof. dr hab. Joanna Misztal-Konecka was appointed as an rapporteur.
The verdict relating to the issues presented by the First President of the Supreme Court should comprehensively resolve the most serious controversies that have emerged against the background of the previous verdicts of courts relating to the problem of loans denominated and indexed in foreign currencies, in particular the so-called Swiss franc loans.
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