On the consequences of nullity of foreign currency loan agreements

Abstract

The socalled foreign currency loan agreements have become the subject of rapidly growing court proceedings aimed at eliminating the very negative economic effects for borrowers resulting from these agreements and the unfavorable development of the Polish currency exchange rate against, mostly, the Swiss franc to which the loans were indexed or denominated. Legal issues resulting from the court actions have become the subject of considerations and numerous judgments not only of the Supreme Court but also of the CJEU. The recent rulings of both Institutions unequivocally determine, most often, the invalidation of the assessed foreign currency loan agreements. However, no full analysis was made to justify such a conclusion as generally correct, limiting it mostly to contracts concluded with consumers and leaving contracts concluded with entrepreneurs outside its scope. However, serious doubts are raised by the conclusions of the Supreme Court regarding the determination of the consequences of recognizing the analyzed contracts as invalid and the resulting rules of settlement between the parties, which should be assessed as incorrect. The reason for this is the improper reading by the Supreme Court of the content and legal nature of the loan agreement. The purpose of the article is to present the correct consequences and principles for settlement of foreign currency loan agreements as a result of their invalidation.