Ministry of Economy recently attempted to regulate bank spreads ( here.) The spread is the difference between the buying rate and the selling rate of the currency in the bank's currency table. The problem concerns the rate at which the bank makes the exchange agreement with the client (usually it comes to loans contracted in foreign currencies). This legislative initiative results from the banking agreements provided for discretion in setting rates.
This practice is an abuse of freedom of contract, since it is contrary to a property agreement as such (each contract). The essence of the contract is to determine the amount of benefits selected or the criteria for determining such benefits.
This simple truth, the Supreme Court has repeatedly stressed, most often in cases the bank contracts (eg in the appeal 05.04.2002, II CKN 933/99, the Supreme Court stated that "counterparty bank, however, must reckon with the fact that the deposit interest rate may change, however it can not be prevented checking the validity of these changes [...] [...] the principle of equality makes it necessary inclusion of such provisions in the rules that orient to specific circumstances affecting the change "and similarly: T. 7SN of 22.05.1991, III CZP 15/91 , T. from 19.05.1992, III CZP 50/92, post. 7SN 24.09.1993, III CZP 77/93.
Similarly, the Supreme Court considered the appeal of 11.07.2002, IV CKN 1219-1200: "The conflict with the economic nature of each contract should be considered only one side leaving the possibility of making any changes to the content ratio of bonds established upon it during his lifetime. No precise definition of the conditions required to make changes to the Bank's interest rate [... ] would result in an unacceptable unilateral consent to make such changes by the Bank [...]."
Similarly, the District Court recently held in Krakow on the rules of currency options (expressed from the 1/21/2011, Sep GC 624/09).
As for the same spreads ruled last CCCP in XVII above AMC 426/09 of 14.12.2010, which stated that the contracts the borrowers to the bank reference bank exchange rate tables are illegal because of the bank's flexibility in setting these tables.
Judgments CCCP only concern, of course, consumers, and the discussion about the spread includes the settlement of traders. It must be remembered that many of the principles of civil law, which in the case of consumer law are formulated in Kc. CCCP, or in case law are common principles, so that they derive from the general clauses (like good manners - Art. 3531 Kc.). Interpretation of
Kc. of consumers is too often based on a contrario reasoning (to the detriment of entrepreneurs as the weaker parties, such as SMEs in dealing with the bank). For example, prohibition of unilateral changes in benefits and a ban on the raising of wages without the right to withdraw from the contract also in force on both sides of professional contracts (Article 3531 Civil Code.), Even though they are formulated in consumer law (art. 3853 pts. 19 and 20 Kc.). In this particular example should be used to request analogy.
What's more, an entrepreneur - natural person is treated as a consumer for contracts only indirectly related to his business (Article 221 CC).. This provision, which defines the scope of the OCCP and CCCP (in conjunction. Article. 4 paragraph 12 of the Act on competition and consumer protection) is for now considered a lapsus and commonly disregard the legislature, although entered into force in 2003.
Content banking regulations challenged in the above. CCCP above corresponds to the common practice of banks. Credit Agreement (signed eg 5 years) refers to a specific foreign exchange regulations, which further refers to a table published by the bank. Sometimes a reference to the table is combined with the possibility of termination by the customer in the event of disagreement with the new table. Such regulations are unlawful because:
- provides for the above. arbitrariness in determining the exchange rate by the bank,
- the possibility to change the bank's contract for a fixed period and, in return for it - the possibility of termination by the client (Article 3841 Civil Code. permits such a structure, but only for contracts for an indefinite period.)
Sometimes the bank uses less subtle solution: a credit agreement refers simply to a determination of exchange rates in force at the bank (dot).
Unfortunately, a legislative initiative of the Ministry of Economy did not relate to existing solutions in the Civil Code.
positions critical of the initiative have the same defect. What's more, generally based on vague references to the constitutional principle of freedom of establishment (Article 20 of the Constitution) and codes of the principle of freedom of contract (art. 3531 CC).. Meanwhile, the constitutional principle of economic freedom also includes the freedom from arbitrariness in determining civil liabilities.
Economic Freedom of the weaker party is here understood as a restriction on freedom of contract, which the stronger party would push through with no restrictions. The constitutional principles of economic freedom therefore provides a framework for codes (ie the child) the principle of contractual freedom.
Civil Code has the advantage that generally regulates all types of agreements, which develops business practice. It is more attention focused on popularizing the principles of Codex instead develop trade rules that aim to solve one problem, another cause (for example, it is not clear whether the proposed regulations is a matter of civil law - where the sanction is nullity, or of administrative law - where the penalty is a penalty of supervision .)
for the customer to the bank today is the most important one Hint:
only legally effective way to arrange a future exchange rate changes is a reference to the objective variables (eg, NBP average exchange rate of 2%). Every other clause is contrary to the principles of social coexistence and the nullity of this could mean the entire contract (Article 58 § 2 Kc.).
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