Abstract

On 16 December 2021, the Court of Appeal in Gdańsk referred the following legal issue to the Supreme Court (III CZP 85/21): „1. Is a loan agreement a reciprocal agreement in light of Art. 497 of the Civil Code in conjunction with Art. 496 of the Civil Code?If the answer to the first question is affirmative: 2. Will the plea of detention made by the party’s attorney in a pleading served on the attorney of the other party be effective if both attorneys avail themselves of the powers the scope of which is indicated in the disposition of Art. 91 of the Code of Civil Procedure? And3. Will it be effective to submit a plea of detention as an alternative plea, i.e. in the event the contract is declared invalid?” The issue of the legal nature of a loan agreement, as well as the rights of the parties to a loan agreement - has already been the subject of legal issues resolved by the Supreme Court. However, despite the fact that the Court clearly defines a loan agreement as a reciprocal agreement, in the doctrine and jurisprudence such a view is evidently in minority, while commercial banks in their lending operations (especially as regards loans denominated in CHF) take advantage of the opportunities opened up by the Supreme Court and employ novel methods of action.Banks, aware of the increasing number of judgments issued in favour of borrowers, in order to minimize losses – report charges of detention, often also as alternative claims. Such actions put borrowers in an extremely disadvantageous situation in court proceedings, which, due to the appropriate procedural strategies of banks, may be significantly prolonged and expose borrowers to major losses.The publication analyses the current position of the Supreme Court on the legal nature of a loan agreement, together with an assessment of the arguments defining a loan agreement as a reciprocal agreement. The publication also analyses the position of the Supreme Court on admissibility of the application of the plea of detention in disputes regarding loans indexed to the Swiss franc exchange rate. The publication also includes an assessment of possible decisions to be taken by the Supreme Court as regards the discussed legal issue, along with an assessment of their purposefulness.