Judgment of the Regional Court in Lodz 1st Civil Division of 19th October 2018
I C 519/16

Points 1., 2. and 3. of the operative part of the judgement were set aside by the judgement of the Court of Appeals in Lodz 1^st Civil Division of 9^th March, I ACa 80.19.

1. The prerequisite of legal interest from Article 189 CCP should be applied to members of the group and not to a representative of the group.
2. A legal interest within the meaning of Article 189 CCP does not occur if the claimant can obtain the protection of their rights by other legal means – e.g. an action for an award. The possibility to bring an action for a performance precludes the existence of a legal interest in bringing an action for establishment on the claimant’s part.
3. The fact of introducing an amendment to Article 69 of the Act of 29 August 1997 the Banking Law (adding Article 69 (2) (4a) and Article 69 (3)) does not mean that before the date of 26 August 2011 it was not possible to conclude agreements on a credit denominated, indexed or valorised to a foreign currency.
4. The change in the amount of the borrower’s liability in the valorised credit agreement is the result of a legal valorisation mechanism.
5. The allegation indicating that the entire foreign exchange risk burdens the borrowers is ungrounded. Depending on the economic situation on the market, the negative consequences of the currency conversion are borne by both the clients and the bank.
6. Using the valorisation mechanism is without prejudice to the nature of the credit agreement, banking law, or any other generally applicable national or international law. Under the principle of freedom of contract (Article 353¹ CC) the use of such a mechanism is permitted.
7. The parties may stipulate in the agreement that the amount of the monetary performance will be determined by a value measure other than money. What is at issue here is a measure other than that of the money that the obligation involves. It may, therefore, be a different currency.
8. The assessment of the compatibility of agreements with the principles of social coexistence should not be made in the light of the individual characteristics of individual consumers, since the claimant, claiming that the agreements covered by the action are invalid, seeks to examine their compatibility with the principles of social coexistence in a normative manner. What is to be examined is whether the construction of the contract, expressed on the basis of a single contract template and the resulting mechanism of valorisation, are compatible with the principles of social coexistence, and not whether the borrowers are educated people with knowledge of the financial market or incompetent people who are in a difficult situation at the date of conclusion of the credit agreement.
9. The conflict with the principles of social coexistence would arise if the defendant repudiatedly introduced into the market factors which would increase the exchange rate of the foreign currency in order to achieve its own benefits outside of the economic market mechanisms. The increase in the Swiss franc exchange rate over time is the result of economic market rules, which are not influenced by any of the parties to the agreement.