Abstract

The article discusses the interpretation of Art. 385¹ § 1 of the Civil Code adopted by the Polish Supreme Court. According to the Supreme Court, this provision implies that the consumer has the right to unilateral rectification of the unfair terms of a contract – within the time limit set by the court. The Supreme Court also found that if a contract cannot be functional without the unfair terms, the court should decide on the legal regime of the legal relationship under the defective contract – considering what is best for the consumer. However, the consumer may decide to terminate the contract as a whole – even against their best interests. In the article, the author presents a strong criticism against the view of the Supreme Court. The arguments refer to, inter alia: the wording and function of Articles 384 and 385¹ of the Civil Code, the mismatch between the position of the Supreme Court and the structure of the sanction of suspended nullity, difficulties in practical application of Art. 385 of the Civil Code as interpreted by the Supreme Court, disproportionate strengthening of the consumer’s legal position by the Supreme Court in the context of their factual situation. The considerations contained therein lead to the conclusion that an abusive contractual clause is not binding on the parties ex lege and ab initio, while the consumer and the court cannot arbitrarily decide on the occurrence of this legal effect.