− the Supreme Court opted for a two-condition theory in the event that a credit agreement is declared invalid. At the same time,
the Supreme Court pointed out in a written justification that the risks associated with the insolvency of one of the mutually
enriched parties are largely prevented by the right to retain the consideration received until the other party either offers to
return the consideration received or secures a claim for repayment (Resolution of 16 February 2021, III CZP 11/20);
− in disputes with consumers, the provision of Article 385(1) of the Civil Code constitutes lex specialis in relation to Article
353(1) of the Civil Code. Consequently, when the prerequisites for the application of both of the above-mentioned legal norms
exist, the court should apply the sanction of ineffectiveness of the contractual provision, without ruling on its invalidity on
general principles (Resolution of 28 April 2022, III CZP 40/22).
There is still no uniformity on the definition of foreign currency credit. On 20 May 2022, the Supreme Court issued its first ruling on
a foreign currency loan granted by the Bank (II CSKP 713/22). According to the Supreme Court, a foreign currency loan exists
only if the agreement unambiguously establishes the amount of the loan granted and actually disbursed to the borrower exclusively
in a foreign currency and provides for repayment of instalments exclusively in the currency of the loan granted. According to the
Court, the parties entered into a loan agreement denominated in CHF, and nothing in the agreement directly provided for the
client's claim for payment of the amount of loan made available in CHF.
However, it should be noted that in another decision, the Supreme Court took a different stance (decision of 24 June 2022, I CSK
2822/22), stating that the features of a foreign currency loan are the expression of the amount of the loan granted in a foreign
currency and the repayment of the loan instalments in that currency, while not indicating as a characteristic the making of the loan
payment in a foreign currency.
In its judgment of 26 January 2023 (II CSKP 408/22), the Supreme Court emphasised that the decisive factor in assessing the
currency character of a credit agreement is the indication in the agreement of the amount and currency of the credit in a foreign
currency and the granting to the borrower of the possibility to disburse the credit in that currency, and not the actual manner of
implementation of the agreement. The fact that the loan is disbursed in PLN as a result of the borrower's instruction cannot lead
to the conclusion that the loan agreement does not specify the amount and currency of the loan.
In a judgement of 31 January 2023 (II CSKP 334/22), the Supreme Court indicated that a loan in which, on the one hand, a foreign
currency is indicated in the agreement as the so-called loan amount, but the disbursement, i.e. the bank's performance, is to take
place in the Polish currency pursuant to the agreement, is not a foreign currency loan. The recognition of a provision providing for
disbursement of a loan in Polish currency as prohibited means that the Court meriti must assess the impact of its ineffectiveness
towards the consumer on the content of the entire agreement (the remaining provisions), and in particular whether this means that
the parties could remain bound by the agreement to the remaining extent. It is not possible to continue to operate an agreement
which, once the unauthorised provisions (which may, after all, under certain conditions relate to the main benefits of the parties)
have been excluded from it, cannot be enforced - to determine the manner and amount of the parties' performance.
The Supreme Court ruled similarly in a judgment dated 15 September 2023 (II CSKP 1356/22), in which - following the borrower's
complaint - the judgment of the Court of Appeals in Wroclaw, favorable to the bank, was overturned, and it was pointed out that a
foreign currency loan may be identified when the contract unambiguously establishes the amount of the loan granted and actually
disbursed to the borrower exclusively in foreign currency and provides for repayment of installments exclusively in the currency of
the loan granted, and therefore the purpose and intention of the parties, expressed in the contract, is to carry out all mutual
settlements only in foreign currency.
On 5 April 2023, the Supreme Court, in its judgment in case II NSNc 89/23, dismissed the extraordinary appeal of the Public
Prosecutor General against the judgment of the Court of Appeal in Kraków of 11 December 2019. (I ACa 100/19) concerning a
denominated loan agreement. The Court of Appeal in Kraków dismissed the borrower's appeal, finding that some of the regulations
contained in the agreement were abusive, but could not affect the determination of her situation. Indeed, the reason for the
termination of the agreement was the borrower's cessation of payment of subsequent loan instalments. It should be noted that,
according to the loan agreement, the disbursement of the loan could be made in zloty or in another currency, while the borrower
could make repayments of the loan instalments in the currency of the loan or also in another foreign currency. The Supreme Court
held that:
(1) in the case at hand, the key issue to be decided is not whether the agreement concluded between the plaintiff and the
defendant contained abusive clauses, but whether the appellate court correctly verified their impact on the situation of the
borrower. The Supreme Court held that the appellate court did not commit the failings alleged in the extraordinary complaint
in this respect;
(2) the fact that there are abusive clauses in a contract does not automatically render the entire contract invalid. The court
examining the case is obliged to verify whether, due to their elimination from the content of the contract, it is possible to
further assert the claims raised. There is no doubt that if the elimination of the prohibited contractual provision would lead to
such a deformation of the contractual regulation that on the basis of its remaining content it would not be possible to
reconstruct the rights and obligations of the parties, it would become inadmissible to state that the parties remain bound by
the remaining part of the contract;