The Financial Ombudsman view concerning contractual provisions of CHF credit agreements
Autor: Przemysław Stopnicki
Financial ombudsman – based on the request of two plaintiffs indebted in CHF – presented its opinion on the subject of the case. FO stated that a contractual clause which allows for the bank to arbitrarily determine the interest rate is unclear, ambiguous and illegible, and as a result shall not be binding upon consumemers.
The discussed case concerned two borrowers, who litigated against the bank and claimed repayment of an overpaid CHF loan interest. The overpayment resulted from changes in the interest rate – based on the credit agreement provisions. On the other hand, terms of the agreement which determined a possibility of changing the interest rates were imprecise and ambiguous, and in effect allowed to change the interest rate at an arbitrary frequency and amount.
The case in litigation concerned a following contractual provisions: “A change in the interest rate amount can be made in case of a change of a benchmark rate for the given currency or a change in financial parameters of capital and monetary market of the country (or countries within EU), the currency of which consists a basis for valorization.”. Therefore the dispute revolved around a question of the accuracy of the contractual provision determining the conditions for changing the interest rate.
As it was indicated in the Ombudsman’s opinion by Bartosz Wyżykowski – a Deputy Director of Banking-Capital Market Client Department at Financial Ombudsman’s office – the legislation and Supreme Court’s jurisprudence state that contractual provisions shall be unambiguous, objective, legible and shall indicate without any interpretational doubts, precisely indicated circumstances (factors and correlations between these factors) – when and how the agreement can be changed.
What is important, these conditions must be verifiable by the court and the consumer. In other words: a borrower must have a possibility to verify business decisions of the bank with regard to their compliance with the contract accepted by both parties. Wyżykowski also stated that in their (representatives of the Ombudsman) opinion, such rule also stems from good customs and practice.
Examples of court decisions in similar cases:
- Regional Court in Wrocław, dated: 25th January 2016, signature: II Ca 1557/15;
- Regional Court in Łódź, dated: 8th May 2015 r., signature III Ca 155/15;
- Regional Court in Wrocław, dated: 17th September 2013 r., signature II Ca 716/13.