Repayment of the benefit by the bank and the right of detention

The essence of the problem

Let us first callback that, within the meaning of Article 487(2) KC, the contract is reciprocal erstwhile both parties undertake to supply 1 of them as equivalent to the other.

By respective days, the SN had already confirmed, by resolving the legal question put forward by the Financial Ombudsman, that the bank debt agreement was a common agreement within the meaning of Article 487(2) of the KC (resolution of the SN(7) of 28.2.2025, III CZP 126/22/). We reported this in 1 of the earlier entries (A bank debt agreement is simply a common agreement).

The consequence of qualifying a credit agreement as a reciprocal agreement is the application of the provisions of the KC on specified contracts, including Articles 496 and 497 of the KC.

The provision of Article 496 KC provides that where, as a consequence of the withdrawal from the contract, the parties are to repay each of their common benefits, they shall be entitled to detention until the another organization has offered to repay the benefit received or secured the claim for reimbursement.

In contrast, Article 497 KC provides that the provision of the preceding article shall apply mutatis mutandis in the event of the termination or termination of the common agreement.

The applicable application of the 2 above-mentioned provisions to the credit agreement may take place in the event that the court finds that the provisions of specified a contract, which at the same time leads to its nullity, are not respected. There is simply a request for common settlement between the parties. More simply, the request for both parties to reimburse the benefits received from each another in the performance of specified a null contract. The Bank shall reimburse the funds previously repaid by the borrower and shall reimburse the amount of credit paid to him. The parties could then exercise the right of detention provided for in Article 497 KC in conjunction with Article 496 KC. This was the case in practice – banks have in fresh years invoked specified a right of retention in disputes with consumers against the background of alleged indexed and denominated loans to abroad currency, and consequently refused to reimburse the borrowers until they offered to reimburse the amount of capital paid to them.

The application of the right of detention in respect of the credit agreement has already been the subject of respective judgments.

Thus, SN(7) in its resolution of 19.6.2024, III CZP 31/23, Legalis, considered that the right of detention was not granted to a organization who could deduct his claim from the claims of the another party. On the basis of that ruling, it was assumed that, in a situation where the parties’ claims are imputable and so the organization has the chance to satisfy his claim and at the same time to waive his work by offsetting, his interests are more protected than by the right of detention.

In its order of 8.5.2024, C-424/22 and Legalis, the Court of Justice challenged the specified admissibility of the detention right at the phase of the legal proceedings. The CJEU concluded that Articles 6(1) and 7(1) of Council Directive 93/13/EEC of 5.4.1993 on unfair terms in consumer contracts (OJ L 1993 L No. 95, p. 29) precludes the explanation of national law that, in the context of the annulment of a credit agreement due to the unfair nature of any of the terms of that contract, the bank’s right of detention makes it possible for the consumer to get payment from the bank of the amounts he has been ordered to pay, on the basis of the simultaneous offer by the consumer of a refund or on the basis of a safety for the recovery of all the benefits received from the bank under that contract.

Supreme Court Settlement

In the present case, the SN decided on the legal question presented by the SA in Gdańsk by decision of 6.12.2021, I ACa 488/21, which read:

‘1. Is the credit agreement the nature of a common agreement in the light of the provisions of Article 497 KC in conjunction with Article 496 KC?

in the case of a affirmative answer to the first question:

2. Is the plea of detention lodged by the procedural typical of the organization in a procedural letter served on the another party’s agent if the 2 attorneys benefit from the scope of the mandate covered by Article 91 of the KPC? and

3. Will it be effective to lodge a plea of detention as a possible charge, i.e. in the event of the annulment of the contract?’

This issue, due to decisions that were issued in the meantime, is mostly out of date.

The SN has already resolved the fundamental problem of reciprocity of the bank debt agreement. Similarly, there is simply a problem of detention, which has been heard by the SN and the TEU.

However, the SN decided to adopt a resolution and considered that, in the event of an investigation from the bank of reimbursement of the benefit fulfilled under a non-binding credit agreement, the bank was not entitled to detention under Article 496 KC in the mention to Article 497 KC.

Comment