The First President of the Supreme Court clearly notes the legal problem of mutual settlements between the parties after the collapse of a contract, not from the consumer’s perspective, but also from the bank’s perspective. The Civil Chamber of the Supreme Court will not clarify all doubts in relation to the franc cases, but it will still be a resolution that puts many issues in order.
The opinion voiced here and there that the so-called banking community is alarmed by Professor Manowska’s decision cannot be confirmed, but we agree with those who welcome the prospect of an orderly statement from the Supreme Court. Following David L. George, let us remind you that we should not be afraid of a big step, because you cannot bridge a chasm with two small ones.
Read also: Swiss franc borrower may claim repayment of instalments even if he has not repaid the loan he borrowed – Supreme Court resolution
The possibility to maintain the loan agreement in force is rightly posed at the beginning of the request, in the case of removal by the court of prohibited contractual provisions concerning the rules of determining the exchange rate. The elimination of abusive clauses from legal trading should not in principle consist in the annihilation of contractual legal relations. Besides, this desire to maintain the contractual relationship seems to be a common element of the request and the widely discussed proposal of the chairman of the Financial Supervision Authority, Professor Jastrzębski, concerning conversion of franc loans into zlotys and also maintaining the contractual bond. By the way, an analysis of the interaction between Prof. Jastrzębski’s comprehensive and internally coherent proposal and Prof. Manowska’s proposal deserves a separate analysis.
The sanction of invalidity, or to be more precise, the sanction of not being bound by the content of the template, which leads to lack of enforceability of the agreement, should be considered as ultima ratio also through the prism of the principle of proportionality, equality before the law (let us remember about those who incurred debt in PLN from the very beginning) and the principle of pacta sunt servanda. This all adds up to systemic consumer protection under Directive 93/13.