Abstract

The resolution under review addresses a legal issue of significant practical importance due to the number of pending proceedings, which attempt to determine the legality of indexation mechanisms applied in credit agreements offered by financial sector entities operating in Poland in the early 21st century and - as a result - the determination of a further fate of the said legal relationships.
The commented resolution should be divided into two parts. In the first part of the resolution, the Supreme Court confirmed that the contractual provisions make one party authorised to modify the content of the legal relationship binding the parties (in this case, in the form of unilaterally setting the applicable exchange rate) go beyond the criterion of the nature of a legal relationship, and are - a contrario to the second sentence of the resolution - invalid due to being against the law (Art. 353¹ § 1 of the Civil Code), which was an answer to the literal legal issue raised by the Court of Appeal.
However, at the same time, the Supreme Court pointed out that, according to Art. 58 § 1 of the Civil Code, a legal transaction that that is against the law shall be invalid unless a relevant law provides for a different effect, in particular that the invalid decisions of the legal transaction are replace by relevant provisions of the law. In the opinion of the Supreme Court - departing from the standpoint held in older jurisprudence - Art. 385¹ of the Civil Code may also be considered a relevant provision within the meaning of the quoted article, as reflected in the second part (second sentence) of the conclusion of the reviewed resolution.
The approach to the relationship between Art. 58 § 1 and Art. 385¹ § 1 of the Civil Code, consistent with the thesis expressed in the resolution, renders more realistic the application of Art. 385¹ § 1 et seq. of the Civil Code, at the same time affecting (under the consumer relations regime) the maturity of restitution claims and thus determination of the starting date of the limitation period for the return of services provided under performance of a permanently ineffective (invalid) legal transaction.