The second query was extra fascinating: What occurs if the mortgage mortgage contract comprises a time period that’s more likely to be unfair, nonetheless, it additionally comprises one other time period, which permits customers to ignore the unfair time period and observe a special path for contractual efficiency? On this case, the contract included a time period that obliged customers to reimburse a mortgage index-linked to Swiss francs ‘solely within the nationwide forex as transformed in line with a price of trade freely decided by the financial institution‘ (para 52). This time period was beforehand decided as unfair by Polish courts. Nevertheless, the contract additionally included a time period that allowed customers as a substitute to reimburse the financial institution straight in Swiss francs. This is able to enable customers to decide on the place to acquire Swiss francs from, avoiding the conversion charges set by mBank. In keeping with the financial institution, customers might have then averted the detrimental impact of the primary time period, which, once more pursuant to the financial institution. wouldn’t result in unfairness. The Court docket rightly rejects this argumentation. Contrarily, it emphasises {that a} contract containing such a mechanism – two various phrases referring to the identical obligation, one in every of which is unfair and one in every of which is lawful – per definition must be thought of unfair (para 55). The dealer might be seen as relying on customers’ ‘lack of knowledge, failure to pay due consideration or a lack of knowledge‘, which might cause them to re-pay the mortgage in the best way set out by the detrimental, unfair time period, with the opposite time period then solely offering a mechanism to keep away from legal responsibility by the dealer (para 55).
Curiously, the Court docket makes the above-finding totally conscious of the common shopper commonplace that applies to the interpretation of the UCTD provisions. On its foundation, we might anticipate that fairly well-informed and circumspect customers, who’re to learn and try to grasp the contract and its penalties, ought to recognise the higher of the 2 choices for re-payment. And but… the Court docket doesn’t suppose so.
The common shopper is talked about by the Court docket when giving the reply to the third query: Does the truth that one of many debtors labored for the financial institution exclude them from the scope of safety of the UCTD? The reply is: No. Because the concluded contract doesn’t pertain to the employment relationship, the only undeniable fact that it’s concluded with the employer doesn’t imply that it might change its non-commercial objective (para 69). Additional, even when the buyer on this case had insights into trade charges of mBank, which weren’t out there to customers not working for this financial institution, this didn’t imply that their ‘extra specialised’ data ought to exclude them from the scope of safety of the UCTD. The CJEU reminds that we consult with the target benchmark of a median shopper and their data. Thus neither much less nor extra shopper data in a given case will matter (para 66).
