The operative part of uniformity decision no. 2/2014 PJE

Printer-friendly versionPrinter-friendly version

1.    The clause of a foreign exchange loan contract which stipulates that the risk of foreign exchange shall be taken without restrictions by the consumer – in exchange for a favourable interest rate – forms part of the main subject matter of the contract, therefore, as a main rule, its unfairness is exempt from assessment. The unfairness of such clause can be assessed and established only if its content, i.e. the text of the contract and the information provided by the financial institution, is not clear and intelligible for the average consumer, who is reasonably well-informed and reasonably observant and circumspect (hereinafter: consumer) when the contract is concluded. If due to insufficient information or lack of information by the financial institution there is reason for the consumer to believe that the risk of exchange is not real or that it burdens him/her only to a limited degree, the contractual clause related to the risk of exchange is unfair, which leads to the invalidity of the contract in part or in full.

2.    Contractual clauses enabling unilateral amendment of a contract are unfair if they do not comply with the principles laid down in point 6 of Opinion no. 2/2012 (XII. 10.) of the Civil Department of the Curia on the unfairness of the right to unilateral contract amendment in the general terms and conditions applied by financial institutions in consumer loan contracts (the principle of clear and intelligible drafting, the principle of taxonomic definition, the principle of objectivity, the principle of factuality and proportionality, the principle of transparency, the principle of terminability, and the principle of symmetry). Based on these principles, contractual clauses defining the criteria of unilateral contract amendment are fair if they clearly and intelligibly define how and to what extent changes in the circumstances of causes listed in the above Opinion affect the consumer’s payment obligations and if they make it possible to verify the unilateral amendments’ compliance with the principles of proportionality, factuality and symmetry as well as with the other contractual terms.

3.    The application of a different exchange for the purposes of repayment of the loan (selling rate) to that used for the advancement of the loan (buying rate) is unfair because the financial institution does not provide any service directly for the consumer, therefore it is an unjustified cost for the consumer. These clauses are furthermore unfair because the economic reasons for their application are not clear, not intelligible and not transparent for the consumer. In view of the derogatory provisions of Article 231, paragraph (2) of the Civil Code, the buying and selling rates applied in foreign exchange loan contracts as rates of conversion shall be replaced by the official foreign exchange rate of the Hungarian National Bank until mandatory provisions of law enter into force.

The Curia does not uphold decision no. EBH.2013.G.10 in its quality as a decision on principle.