Abstract

The glosses judgment concerns a problem arising when a bank seeks to enforce repayment of a foreign currency denominated loan secured by a contractual mortgage the value of which is stated in the land and mortgage register in a foreign currency. In jurisprudential practice various solutions have been adopted and in each case an attempt has been made to ascertain whether such mortgage has been established properly and how the bank’s claims for repayment of a foreign currency denominated loan should be formulated. In this controversial judgment the Supreme Court took a position that if an entry of a mortgage stated in a foreign currency is based on an agreement of a loan apparently also denominated in the same currency, while repayment of the loan has been set in the Polish currency, the mortgagor who is not a personal debtor is obliged to repay their material obligation also in the Polish currency.

It should be noted that the Supreme Court position is unsubstantiated in light of the Banking Law and fundamental principles of civil law. The author finds the judgment to be full of inner contradictions manifested, in particular, in the lack of consistency as regards stating the currency in which the obligation has been actually stated. The author believes that the Supreme Court’s problems may arise from failure to perform an in-depth analysis of the legal nature of a foreign currency loan agreement. Legal relevance of potential consequences of a defective analysis performed by the Supreme Court should be considered in the context of court proceedings concerning loans denominated in Swiss francs. An answer to the question concerning the currency of a loan and the meaning of the phrase “make a definite amount of funds available for the borrower” shall be inseparably linked with, among other things, the problem of definiteness (indefiniteness) of the amount of the loan, compliance (incompliance) with the principle of currency orientation, and finally the fundamental question concerning validity (invalidity) of a foreign currency denominated loan agreement

The author presents the nature of a foreign currency denominated loan which consists in the commitment of bank to disburse an amount in the Polish currency (which is linked with the notion of “making available” referred to in Art. 69.1 of the Banking Law), constituting an equivalent of the amount in a foreign currency specified in the agreement. At the same time, the author provides an interpretation of Art. 353 of the Civil Code by showing an inseparable relationship between “debt”, “obligation”, “receivable” and “performance”. An analysis of those notions leads to a conclusion that if the performance of a debtor (here: a bank) consists in making available a definite amount, which is disbursed to a Polish currency bank account specified in the agreement (account directly specified in the loan agreement), it should be recognized that the commitment itself has been stated in the Polish currency. To substantiate his position the author quotes not only the provisions of civil and banking law and view of the doctrine, but also the hitherto interpretational line adopted by the Supreme Court, National Bank of Poland and Polish Bank Association, inter alia when elaborating the so-called anti-spread act. As a result of his analysis the author arrives at conclusions differing from those of the Supreme Court and states that a foreign currency denominated loan agreement is stated in the Polish currency, and in consequence the mortgage securing repayment of the loan entered in a currency other than the Polish currency has been stated improperly.