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02/19/2021

BREAKTHROUGH RESOLUTION OF THE SUPREME COURT ON CHF LOANS

The chances of CHF loan borrowers for favorable settlements of court disputes with banks are growing day by day. Although last year was favorable for borrowers – everything indicates that it can be even better! The Supreme Court took a position on the side of the borrowers on an important issue, which is mutual settlement between the parties in the event of the annulment of the loan agreement. So far, there have been no unified views among judges on it.

In a recent resolution Supreme Court recognized the theory of two conditionalities as the most correct. It assumes that as a result of the invalidity of the contract, both parties become unjustifiably enriched, thus each party has a separate claim. In the justification of the Supreme Court it was emphasized that the claim in question must be independently raised by the party.

This forces banks to take legal action consisting in summoning the consumer to return the amount due – only then may the bank’s claim be accepted. It will not be possible for the judge to apply automatic netting. Apart from confirming the correctness of the theory of two conditionalities, the Supreme Court also found that there was no legal justification for the application of the balance theory.

If the balance theory were found to be correct – the borrower could sue the bank for the reimbursement of the benefits made to him, only up to the difference between the sum of the repaid installments and the capital that was paid out by the bank to the borrower. A borrower who did not pay the bank with the entire loan principal would not be able to bring an action for payment.

The Supreme Court referred to the above, ie the possibility for the borrower to demand the return of all installments paid to the bank as undue benefits. In accordance with the adopted resolution – in the event of the annulment of the contract, the borrower is entitled to a claim for reimbursement of the benefit in question, regardless of how much the loan has been repaid. This is an extremely important decision of the court from the borrower’s point of view.