The Supreme Court's resolution of February 16, 2021, is favorable to Swiss franc debtors – the two-condition theory prevailed over the balance theory.
On February 16, 2021, the Supreme Court adopted a Resolution with file reference III CZP 11/20, composed of three judges, in which it answered the legal question posed by the District Court in Warsaw - " In the light of Article 405 and Article 409 of the Civil Code, in the event that an indexed loan agreement is deemed invalid due to the inclusion of abusive clauses therein, when unjust enrichment occurs on both parties to the agreement, can the borrower effectively demand from the bank the repayment of the benefit in the form of principal and interest installments paid in Polish currency or in foreign currency, in a situation where the borrower has not repaid the nominal amount of the loan paid by the bank? "
The Supreme Court answered the question that " The party that, in the performance of a loan agreement affected by invalidity, repaid the loan is entitled to a claim for the repayment of the repaid funds as an undue benefit (Article 410 § 1 in connection with Article 405 of the Civil Code) regardless of whether and to what extent it is a debtor to the bank for the repayment of the unduly received loan amount. "
What does this mean for Swiss franc borrowers?
The Supreme Court's resolution states that if the court hearing the Borrower's case finds the loan agreement invalid, settlement between the Borrower and the Bank will be possible using the two-counterpart theory. This theory states that the court hearing the Borrower's case may issue a judgment ordering the repayment of all amounts transferred by the Borrower to the Bank (repaid in both PLN and CHF), even if the loan has not yet been fully repaid. However, the Bank's claim against the Borrower for repayment of the disbursed loan will be considered separately, in separate proceedings. The two-counterpart theory is the opposite of the balance theory, which—if the loan agreement is deemed invalid—allowed for settlement between the Parties (mutual offsetting of claims) in a single judgment, along with the recognition of the agreement as invalid.
A resolution of this nature will make Swiss franc borrowers even more bold in filing lawsuits against banks in Swiss franc cases.
And today we are already waiting for the Resolution of the Supreme Court of 25 March 2021, in which the entire Supreme Court Chamber will consider the most important issues from the point of view of Swiss franc cases.
