Due to the fact that courts have recently been frequently declaring Swiss franc loan agreements invalid, banks are seeking ways to "deter" Swiss franc borrowers from attempting to pursue their claims. They do this by filing claims against their borrowers for compensation for the non-contractual use of capital. However, such a claim should be considered completely unlawful, as it violates both Polish and European Union law.
A judgment invalidating a loan agreement means that the Parties are obliged to return what they have provided to each other - the borrower is therefore obliged to return the loan amount to the Bank, and the Bank must return to the borrower the principal and interest installments paid and the costs of obtaining the loan.
However, the banks also argue that the borrower is obligated to pay the bank a fee due to the fact that they used the provided capital during the loan period. However, such a claim is unlawful because, if upheld, it would result in additional damage to the borrower, while the bank would not experience the negative consequences of using abusive clauses in its contracts, and therefore would bear absolutely no risk associated with the use of prohibited contractual provisions. If the contract were found invalid, the bank would still earn a profit, perhaps even greater than what it could have earned had the contract been properly performed.
The arguments put forward by the banks are therefore considered erroneous. The first final judgment dismissing this type of claim has already been issued. The Court of Appeal in Białystok, in its judgment of February 20, 2020 (ref. I ACa 635/19), stated that there is no basis to conclude that, in settling an invalid contract under the provisions on undue performance, the borrower "paid for the use of money." This is because a restitution claim is not a "pure" monetary obligation, therefore, there is no possibility of claiming interest on it, while the obligation to repay the benefits of both parties becomes mutually due upon the judgment declaring the invalidity.
Polish law does not provide for a structure enabling a claim for payment based on an invalid contract. Therefore, if a loan agreement is deemed invalid, meaning it was deemed non-existent from the outset, then compensation for the use of capital cannot be claimed on this basis.
However, banks defend their position by citing Article 405 of the Civil Code. However, applying this construct would essentially create a new legal act that would, in a sense, replace the invalid contract.
Furthermore, the banks' claims are assessed in light of European Union law. Pursuant to Article 7(1) of Council Directive 91/13 of 5 April 1993, Member States are required to ensure effective means to prevent the use of unfair terms in contracts concluded between traders and consumers.
