The impact of the elimination of the variable interest clause based on the WIBOR reference rate on the validity of the entire loan agreement – commentary to the ruling of the District Court in Suwałki, Civil Division I, of 21 August 2024, I C 217/24

Abstract

The subject commentary is partly critical in nature. Its purpose is to assess the validity of the decision of the District Court in Suwałki in terms of the possibility of maintaining a loan agreement with a variable interest rate based on the WIBOR index after eliminating the entire variable interest clause from the loan agreement. For the purposes of assessing the validity of the Court’s decision, the leading line of case law was presented in terms of the possibility of maintaining a loan agreement in force after eliminating the material contractual terms from it. The subject matter has a significant impact on the practice of resolving disputes in the context of PLN loans based on the WIBOR reference index. The commentator agrees with the position of that part of the legal doctrine which indicates that such a far-reaching transformation of the contract means that it should be considered a contract of a different essence and nature. However, the contract cannot be assessed solely from the perspective of the actual possibility of its further performance, but the legal possibility of its maintenance under national regulations should also be taken into account. The lack of consensus regarding the principal performance resulting from the elimination of the variable interest rate clause must result in the lack of binding force of the contract in the remaining scope.