Abstract

The commentary refers to the SC resolution of 15 September 2020, III CZP 87/19, in which the Supreme Court expressed a view that the request to find a standard agreement provision and non-binding for the consumer (Art. 385¹ of the Civil Code) is not the same and in not covered by the request to find the agreement invalid (Art. 58 of the Civil Code). The gloss outlines how the above SC position applies in the claim for adjudicating a performance (mostly payment), as well as in class action for the determination of the defendant’s liability (Art. 2.3 of the Class Action Act of 17 December 2009), in which the claimants justify their claim by invoking impermissibility of clauses in the agreement with the defendant. The author believes that in cases for adjudication of a performance as well as class actions under Art. 2.3 of the Class Action Act in which the claimants justify their claims with the abusive nature of contractual clauses courts are not bound by the claimant’s view as to whether ineffectiveness of the indicated abusive clauses makes the entire agreement invalid, but are obliged only to assess whether in light of the evidence the requested performance is legally justified.