Abstract

This article discusses the issue of indexation clauses in loan agreements used in 2005–2008, i.e. the period when Swiss franc denominated loans were at the peak of their popularity. Most often such agreements, in terms of setting the exchange rate the amounts of the principal and individual instalments were indexed to, referred to FX rates tables prepared by banks’ management boards. Therefore, a question as to admissibility of such a procedure arises – both from the viewpoint of the principle of the freedom of contract because unilateral shaping of a performance seems at first sight to contradict the nature of an obligational relationships, as well as the regulations of the Banking Law, which strictly defines the institution of a loan, and Foreign Exchange Law. The popularity of such loans among consumers makes it possible to subject the contractual provisions to the review mechanism laid down in Art. 3851 of the Civil Code. The prohibition to use effectiveness maintaining reduction resulting from the case law of the European Court of Justice could lead to the collapse of the loan agreement. Without indexation provisions agreements would not be concluded at all, and therefore they would be declared as invalid by the courts, which would consequently lead to complicated mutual settlements. In addition, the article analyses the possibility of using the institution of exploitation, if confirmed, could also lead to finding a given agreement invalid.