comments on the ruling of the Appellate Court in Wrocław, 30.12.2010, I ACa 1201-1210.
title refers the duty of the bank, even though the transactions are inherently two-sided. This is the legitimate practice of formulating the agreements by the bank and the bank to join the client-entrepreneur.
thesis sentence:
In the absence of universally applicable regulations governing the transaction in question, all rights and obligations of the parties shall appoint a contract entered into by the parties, including the rules. It is not permissible to reaching an undisclosed agreement in binding the banking practice. The very ambiguity rules and need to reach a different interpretation than the grammatical militates against the defendant bank, even if the other party to the agreement is a professional.
first The basic premise
settlement demand was unambiguous and understandable formulation of standards of the contract (art. 385 § 2 sentence. 1 Kc.) And the penalties - translation of ambiguous provisions for the benefit of the customer (Article 385 § 2 sentence. 2 Kc.). The court held that linking the power of the bank to calculate the customer's commitment to termination by the customer, "probably was the intention of the defendant" (p. 11) but the "systematic and teleological interpretation of the Rules makes this question a negative answer" (ibid.). The Court of Appeal stressed the need for regulations and lack of clarity to refer to a different interpretation than the grammar, which argues against the defendant (p. 10).
with this motif ruling involves two observations:
1) The Court of Appeal applied the principle " in doubt against the author pattern, "which grammatically is used only in consumer law (Article 385 § 2 sentence. 2 Kc.), But both the Supreme Court and the doctrine of this rule also apply in the relations professional.
2) In the case of derivatives contracts that are unnamed, the Rules should "fully normalize the material terms of the transaction [...] if they are not agreed on a specific contract" (p. 11, also p. 7). This statement can be extended to the observed practice of derivatives trading without some of the elements referred to as important in the regulations or the framework agreement. This practice should be evaluated negatively as well as the actual transactions as null and void to failure to by the parties of all relevant elements of the transaction . The Court of Appeal also stated that "it was not allowed to tap into an undisclosed side agreement in the binding of banking practices."
second
worth mentioning is the reference to burden of proof on the payment for reimbursement . If the plaintiff contests the claim and provide the defendant had, in accordance with the contract, the settlement of transaction, This "thing was to prove the defendant's entitlement to such a valuation" (p. 7).
third
It is also pointed out that the Court of Appeal considered it acceptable amend the rules in the course of the Framework Agreement (concluded for an indefinite period) and derivative (concluded for a fixed period with the possibility of termination). This position should be evaluated critically.
sample contracts may be modified during the contract only if the contract (regulations) contain a clause modification, specifying the relevant facts to justify the change (see eg resolution 7SN of 05/22/1991, III CZP 15/91, OSNC1992/1/1, the resolution of 7SN 06.03.1992, III CZP 141/91, OSNC 1992/6/90). Acceptance by the customer can not change this rule.
position of the Supreme Court about the need to include in the original text of the agreement (or the same master contract, the contract is not concluded with a reference) and modify clause as provided for in the circumstances of the modification has been repeatedly confirmed in subsequent rulings, and is widely adopted also in the doctrine (eg Supreme Court resolution of 19.05.1992, III CZP 50/92, OSP 93/6/119, cited the Supreme Court of 05.04.2002, II CKN 933/99, Lex 54492; M. Bednarek in private law system, Vol V, s . 602, K. Zagrobelny in E. Gniewek, Civil Code. Commentary, p. 589; Sat. Żuławska in: G. Bieniek, Commentary to the Civil Code, K.3, Vol 1, p. 139).
It is difficult to say what reasons the Court of Appeal departed from this principle.
4th
It is unfortunate that the Court of Appeal took the opportunity to refer to the same method of calculating the bank's customer obligations. Arbitrariness of the calculations by the bank customer commitments is widespread. Most such contractual provisions are not accompanied establish valuation principles that bind the bank. This in turn raises doubts about the effectiveness of such provisions contract due to the complete discretion in determining the obligations of the bank's customer. Court of Appeals concluded only that the bank could not expect a settlement under different rules than the agreed (p. 7). did not, however, the arbitrariness in determining the amount of the obligations and restrict himself to observing that the rules did not provide the rules for determining the customer's obligations in the event terminate the contract by that customer.
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