As PAP learned from the National Prosecutor’s Office, in 2004 the man’s family was in a very difficult financial situation. He earned 1.5 thousand. PLN, his wife received a PLN 350 pension, and they had three children to support. The couple coped by taking out a series of loans. To support her parents, the eldest daughter started working in Germany. However, she died in a car accident. “It was a shock to her parents, who, in conditions of prolonged, severe stress, were even more unable to make fully rational financial decisions, in particular to analyze the consequences of concluded contracts,” the prosecutor’s office said.
The family’s liabilities also included a loan of PLN 800 granted by one of the loan companies. According to the contract, it was to be repaid in installments of PLN 204 over 8 months. In the event of late payment, the interest rate was set at 18%. on a monthly basis. As indicated by the prosecutor’s office, in the event of difficulties in timely repayment, the amount of interest would make it practically impossible to continue paying liabilities. The contract was secured with a blank promissory note.
When the “temporarily insolvent” family stopped repaying the loan according to the schedule, the lender terminated the contract and the case went to court. As a consequence, the District Court in Bytom, in order for payment proceedings, obliged the family to pay over PLN 4.6 thousand. PLN with interest. Ruling in this mode, the court did not examine the loan agreement. The order for payment was not appealed against, which made it final, and the case was not examined at the hearing. The family was unable to pay the rapidly increasing installments. According to the prosecutor’s office, by mid-2021, the loan company had already received 41,000 from the family. zloty. Despite this, the debt is still over 102,000. zloty.
The General Prosecutor’s Office, Zbigniew Ziobro, did not agree with the payment order in this case, and filed an extraordinary complaint with the Supreme Court. In it, he requested that the challenged order for payment be revoked and that the case be referred to the District Court in Bytom for re-examination. Ziobro also requested that the bailiff’s actions against the family be suspended until the conclusion of the extraordinary complaint proceedings.
According to the prosecutor general, the court infringed the constitutional principle of a democratic state implementing the principles of social justice in this case – ruling in the case without examining the correctness of the contract and not taking into account its consumer nature. According to the prosecutor’s office, the provision of the constitution guaranteeing the protection of consumers against unfair market practices was also violated.
“The conditions for referring the case to ordinary proceedings (and not injunctive proceedings, without the participation of the defendant) were contained in the lawsuit itself. Demand for such exorbitant amounts, completely disproportionate to the amount of the loan granted, resulting in the charging of interest in the amount of 18 percent. per month on the amount borrowed, should be recognized by the court as contrary to the social sense of justice.
Zbigniew Ziobro also emphasized that the consumer status of the man and his wife as a guarantor in this case does not raise any doubts in the light of Art. 22 of the Civil Code.
“This provision clearly states that a consumer is a natural person who performs a legal act with the entrepreneur not directly related to his business or professional activity. The need to examine the basic relationship (contract) in this case also results from the Community provisions. Pursuant to the interpretation of Directive 93/13 made by the CJEU, the court before which promissory note order proceedings against the consumer are conducted, in addition to the provisions of the Code of Civil Procedure, must ex officio apply parallel provisions aimed at protecting the consumer, argued the prosecutor general. (PAP)
author: Mateusz Mikowski
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