Abstract

In its judgment of 20 February 2020, the Appellate Court in Białystok referred to a very important issue of remuneration for a non-contractual use of financial capital when a loan agreement has been found invalid. The Court assessed that if a mortgage loan agreement indexed to the Swiss franc rate of exchange had been found invalid there are no legal grounds for a bank’s claim against the “borrower” for using the lent financial capital and thus the claim is unjustified. Such a position arouses serious doubts and in our opinion does not deserve to be accepted in any case; what is more, such a position is very dangerous for practical functioning of financial institutions. Sharing the above view would in fact result in that banks would not be at all able to effectively assert their claims for non-contractual use of financial capital by a borrower for the entire duration of a loan agreement. This would mean that the “borrower” would in fact use a “gratuitous” (interest free) financial capital received from the bank, which concept is irreconcilable both with the principle of banking as well as the construction of a bank’s condiction under the prerequisite of unjust enrichment.