Help to borrowers
The law firm specializes in handling cases for the recognition of prohibited contract terms as non-binding customers, and also for the return of claims not due from banks that apply so-called abusive clauses (clauses not allowed). This is manifested first of all in the free determination by the bank of the loan installments indexed by the Swiss franc rate.
Therefore, from the point of view of the bank’s customer, it is important that he is aware of whether the bank with whom he signs a loan agreement does not apply clauses, which in the light of the case-law of the Competition and Consumer Protection Court are considered unlawful.
In case of doubt, the abusive clauses are those which:
- make the conclusion of the contract subject to the conclusion of another contract not directly related to the contract in question,
- they grant the contractor of the consumer the right to increase remuneration after the conclusion of the contract, without conceding in the agreement to the consumer the right to withdraw from the contract,
- in the event of termination of the contract, they deprive the consumer of the right to demand the return of the benefit fulfilled earlier than the performance of the contractor,
- provide that only the consumer’s contractor will be entitled to terminate the contract,
- provide for the payment by the consumer of a transfer fee in grossly excessive amounts.
In a situation in which a consumer has entered into a contract with prohibited provisions, he has the right to challenge those provisions through proceedings before a civil court. The court conducts incidental control in the individual case of the consumer, i.e. the bank’s client. The issuing of such an action, if it proves to be justified, will allow the bank’s contractor to receive the repaid refund of the benefit not due from the bank that used the abusive clauses.
Moreover, the title of supplement should be indicated that the entity authorized to carry out abstract control is the President of the Office of Competition and Consumer Protection. The control of the President of UOKiK is primarily based on an analysis of the provisions contained in the contract templates, and not a conclusive agreement that the client actually concluded with the bank.
It is also worth remembering that the claim for reimbursement of the benefit not due from the bank expires after ten years. Therefore, the above claim is not a periodic claim whose period of limitation is three years. This was confirmed, among others District Court in Wrocław in a judgment of 15 January 2015 (file reference No. II Ca 1695/14) according to which: “the benefit consisting of the return of an undue benefit is not in itself a periodic benefit, because it is a one-time benefit, whose fulfillment obligation arises from under the terms of the Act, it does not provide for any periodic performance of benefits in this respect, but a one-off reimbursement of an undue payment.”
