The consumer’s right to have goods restored to a condition consistent with the agreement

In the opinion of the Regional Court in Elbląg (judgement of 15 April 2015, I Ca 68/15), allowing the seller to rely in proceedings on the defence based on the pleading of the non-existence of the claim in case the seller fails to reply to a demand from the consumer (buyer) to have the good restored to the condition stipulated by the agreement, and as a result this demand being deemed justified, would mean the limitation in exercising consumer rights. The failure to react to the consumer’s demands within the prescribed term creates the fiction of allowing the claim, which means the seller in general accepts the pleading that the good is inconsistent with the agreement from the moment of the handover thereof.

Posted on 29/10/2017 by Krzysztof Riedl in Consumer Law, Contract Law, General Issues

Promissory note enforcement vs. an ex officio review of unfair terms (Profi Credit Polska: C-176/17)

On 17 February 2017, the District Court in Siemianowice Śląskie (the “Court”) referred to the CJEU a preliminary question (C-176/17), asking whether the provisions of Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, especially Article 6(1) and Article 7(1), and the provisions of Directive 2008/48/EC of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC, especially Article 17(1) and Article 22(1), are to be interpreted as precluding the entrepreneur (the lender) from pursuing a claim against the consumer (the borrower), where the claim is acknowledged by a duly completed promissory note, by way of payment order proceedings specified in Article 485 § 2 and subsequent provisions of the Polish Civil Procedure Code, in relation to Article 41 of the Act on Consumer Credit of 12 May 2011, which limit the national court solely to examining the validity of the promissory note obligation with regard to the formal requirements of the promissory note, excluding examining the basic relation (the loan agreement).

Posted on 05/08/2017 by Krzysztof Riedl in Civil Procedure, Consumer Law, Contract Law, General Issues

Promissory note enforcement vs. an ex officio review of unfair terms

In the opinion of the District Court in Siemianowice Śląskie (judgement of 15 September 2016, I C 741/16), on the one hand the legislation provides for instruments making it possible to protect the consumer against unfair market practices, but on the other hand there functions a procedure of pursuing claims (in this case: payment order proceedings on the basis of a promissory note), which makes it possible to considerably weaken, in the consumer trade practice, the application of instruments of consumer protection. The Court, by limiting itself to an assessment of whether a promissory note has been issued correctly, does not need to examine whether a consumer loan agreement contains any abusive clauses, or whether the information obligations of the lender have been fulfilled, etc. Therefore, the provisions on payment order proceedings constitute a clear intrusion into the system of protecting the consumer against unfair market practices, which are described in Article 76 of the Constitution.

Posted on 12/07/2017 by Krzysztof Riedl in Consumer Law, Contract Law, General Issues