Abstract

This Article provides reference to the judgment of the Regional Court in Warsaw of 22 August 2016, (III C 1073/14, Legalis) as an illustration of controversies relating to the legal qualification of so-called loans indexed to a foreign currency as well as the application therein of unfair contract terms (Art. 3851 of the Civil Code et.seq.). It presents, in particular, the arguments that – contrary to what the Court assumed in the judgment in question - the agreement on the loan indexed to a foreign currency is not an unnamed agreement, only similar to a bank loan agreement, but constitutes an agreement on the loan granted in the Polish currency, incorporating the provisions laid down in Art. 3581 of the Civil Code which stipulate that the amount of the borrower’s cash benefit in the Polish currency is specified in the value measure other than the Polish currency. The application of such contractual provisions does not constitute any novation to the obligation set out in Art. 506 § 1 of the Civil Code due to the fact that it causes no change in the subject matter of the borrower’s benefit. Therefore, the indexation clause is a substantially essential element (accidentalia negotii), where pursuant to Art. 3851 § 1 of the Civil Code it is subject to the sanction of voidance and shall be eliminated from the agreement, though the agreement shall remain binding for the parties.