The bank must explain its risks even if it was contracted on the customer’s own initiative.
Adequate knowledge of the multicurrency clause and its significance is an irreplaceable result in order for the consumer to be able to make a fully informed decision. It is of little relevance that the initiative in contracting this type of loan comes from the customer himself, since in any case the bank must comply with the requirement to provide the necessary pre-contractual information on the risks involved.
This has just been expressed by the Supreme Court (SC) in a recent ruling that has put an end to a lawsuit brought through a users’ association by customers of a financial institution who took out a multi-currency mortgage loan. As a result of the devaluation of the Japanese yen, not only did the amount of the repayments in euros increase, but also the amount of the sum borrowed in euros outstanding. They then switched to the euro and from the euro to the pound sterling.
In their lawsuit, they requested the nullity of the multi-currency clauses, on the grounds that they had not received sufficient information on the specific risks of this type of loan and that the clause was abusive due to a lack of transparency and the creation of an imbalance between the contracting parties.
Although the court agreed with them, the provincial court with territorial jurisdiction upheld the appeal filed by the bank, considering that the multi-currency clause was incorporated with transparency, as the loan application form included a clear explanation of the meaning and scope of the exchange rate risk with a specific simulation for the case of appreciation of the Japanese yen against the euro. Nor did it consider the clause to be abusive.
However, the SC has now upheld the appeal brought by the consumers before the higher court, because it does not consider it to be proven that they received pre-contractual information on the risks of the loan they were taking out. There was a lack of transparency of the clauses relating to the currency denomination of the loan and the equivalence in euros of the repayment instalments and the capital pending repayment, causing a serious imbalance, contrary to the requirements of good faith.
If you find yourself in a similar situation, our professionals are at your disposal to advise you on consumer matters and, if necessary, to defend your rights as a consumer.