Unlawful clauses in credit agreementss

The editors of UCLP have analysed the contents of clauses most frequently used by banks in credit agreements indexed/valorized to the Swiss franc rate where the credit has in fact been granted in Polish zlotys in respect of conformity of such clauses with the laws aimed at protecting interests of consumers.

It is not an entirely new problem since individual provisions of agreements have already for years been questioned in court proceedings some of which ended with questioned clauses being entered in the register of unlawful clauses register kept by the President of the Office of Competition and Consumer Protection.

Some banks continue to use unlawful provisions in transactions with consumers. Recently, the problem gained in significance due to a sudden increase in the Swiss franc exchange rate which induced the borrowers to examine more carefully their own credit agreements in respect of conformity thereof with the law.

Pursuant to article 3851 of the Civil Code, the so called abusive clauses are those not individually agreed/negotiated provisions of agreements concluded with a consumer which shape the rights or obligations of such consumer in a manner contrary to decency grossly jeopardizing such consumer’s interests. However, a clause may not be regarded as being unlawful which contains provisions specifying the main obligations of the parties if these are worded explicitly. If a given contractual provision is regarded as unlawful it is not binding on a consumer. Otherwise the agreement shall be binding on the parties.

There are two types of control over contractual patterns in respect of their abusiveness:

  • Incidental control – exercised by the courts while an individual case is being examined, and the decision about a given provision being regarded as unlawful becomes effective solely in relation to the parties of given proceedings;

  • Abstract control – a given provision is not assessed from the angle of specific relationship based on an obligation but in separation thereof, and if a given clause is regarded as unlawful by the Court of Competition and Consumer Protection and entered in the register of unlawful clauses, such decision under article 47943 of the Code of Civil Proceedings is characterized by the so called extended effectiveness which means it is effective also in relation to third parties.

To date, among other things the following provisions have been entered in the register of unlawful clauses as used by banks in credit agreements indexed to the Swiss franc exchange rate:

Entry No. 3178:

I. “The credit is indexed to CHF/USD/EUR after the amount paid is converted in accordance with the buying rate of CHF/USD/EUR according to the Table of Foreign Exchange Rates effective at the Millennium Bank on the day the credit or tranche thereof is made available.”

II. “In case of credit indexed to the rate of exchange of foreign currency the amount of instalment to be paid shall be calculated according to the selling rate of foreign currency effective at the Bank according to the Table of Foreign Exchange Rates on the day of payment.”

  • judgment of the Court of Competition and Consumer Protection of 14 December 2010, file ref XVII AmC 426/09

Commentary:

The decision determining the basis for converting the amount or instalment of credit does not specify the main obligation of the parties but only the way to fulfil it.

In case of a credit indexed to the rate of foreign currency the main obligation of a borrower is an obligation expressed in Polish currency and is only converted into a foreign currency.

Abusiveness of the clauses mentioned is determined by the possibility of the rate of exchange of foreign currency being unilaterally, arbitrarily fixed by a Bank which is applied to index the credit and instalments. The provisions questioned do not contain correct and clear rules for fixing the exchange rate of a currency which would enable a consumer to calculate the applied rate of exchange independently.

Entry No. 5743:

Principal and interest payments shall be made in Polish zlotys after being converted according to the selling rate of CHF from the exchange rate table of BRE Bank S.A. applicable on the repayment date at 14:50.”

  • judgment of the Court of Competition and Consumer Protection of 27 December 2010, file ref XVII AmC 1531/09

Commentary:

In the opinion of the Court of Competition and Consumer Protection [CCCP] the right of the bank to fix the selling rate of a foreign currency is not subject to any formally imposed limitations, therefore the bank enjoys complete freedom in choosing criteria for fixing the exchange rate of a foreign currency in its exchange rate tables, and hence it can arbitrarily shape obligations of borrowers. The absence of clear criteria for fixing the so called spread in a credit agreement stands in contradiction to decency.

Entry No. 4704:

The interest rate on Credit may be subject to changes during the term of an Agreement in case of a change in at least one of the following financial parameters of the money and capital markets:

  1. interest on interbank deposits (WIBID/WIBOR rates);

  2. profitability of treasury bills, government bonds;

  3. change of NBP interest rates;

and to the extent resulting from a change in these parameters.”

  • judgment of the Appeals Court in Warsaw of 10 February 2012, file ref VI ACa 1460/11

Commentary:

The clause questioned does not specifically and precisely determine the conditions on which a change in interest on credit is dependent. The circumstances that have been referred to therein are too vague and do not allow a borrower to judge whether a possible change of interest has been made properly, and the change itself has been justified.

Entry No. 1987:

The basic obligations of a Borrower include: (.) notifying MultiBank of any circumstances that may affect financial situation of the Borrower, in particular of a reduction in income which may affect prompt repayment of Credit, (.)”

  • judgment of the Court of Competition and Consumer Protection of 22 October 2009, file ref XVII AmC 349/09

Commentary:

Considering vagueness and ambiguity of a provision, the bank may freely qualify specific circumstances as having effect on financial situation of a borrower, and a consumer is not in a position to predict them or verify their essence. In addition, the aforementioned provision exposes consumers to unnecessary and burdensome formalities.

Entry No. 1797:

The Borrower undertakes to provide the following security on credit/target security: Entering into the General Insurance Agreement for low contribution of home loans in TU Europa S.A. The insurance period is <36/60> months. The insurance premium of is payable in advance for the whole insurance period and shall not be refundable.”

  • judgment of the Court of Competition and Consumer Protection of 6 August 2009, file ref XVII AmC 624/09.

Commentary:

The above clause exposes a consumer to the costs which are in no way related to the performance of the agreement. The bank can derive unjustified benefit at the expense of a consumer in cases where the risk related to the low own contribution ceased to exist and the bank has been reimbursed by the insurer for the unused premium.

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One thought on “Unlawful clauses in credit agreementss

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