In writing?
The loan agreement may be concluded in any form, unless its value exceeds PLN 500. In this case, it should be confirmed in writing. When the act stipulates a written form for a legal act, then, in accordance with the general rule, an act performed without observing the reserved form is invalid only if the act provides for the rigor of nullity.
The provisions on granting loans do not provide for invalidity if the loan agreement is not concluded in writing. Therefore, the form provided for in Art. 720 § 2 of the Civil Code is a written form ad probationem . If the reserved form is not observed, evidence from witnesses or evidence from the hearing of the parties to the fact of the act is not admissible in the dispute.
However, the taking of such evidence is admissible if:
both parties agree to it,
it is requested by the consumer in a dispute with the entrepreneur,
the fact of performing a legal act will be substantiated by a letter.
However , the provisions on the written form provided for evidence purposes ( ad probationem ) do not apply to legal transactions in relations between entrepreneurs.
The loan consists in the borrower's commitment to transfer ownership of the borrower a certain amount of money or items marked only as to the species, and the borrower to return the same amount of money or the same amount of items of the same species and quality.
Who can lend to whom?
There are no subjective restrictions in the Civil Code , therefore all civil law entities may be parties to the loan agreement . Any restrictions may be introduced by special provisions.
The loan agreement is a consensual, bilateral agreement. It is concluded by mutual agreement of the parties. It is not necessary to hand over the subject of the loan to conclude the agreement.
The loan agreement is not a reciprocal agreement. The return of items of the same type or money of the same size does not correspond to the lender's service.
The will of the parties decides about the payment and non-payment of the loan.
In the absence of determining the amount of the lender's remuneration, it is considered that the contract is free of charge. The parties set the remuneration freely, taking into account the provisions on maximum interest.
Only money?
The subject of the loan may be money or items marked only as to the species. Banknotes and coins are considered money. In accordance with the currency principle, the subject of the loan agreement may be any other currency, apart from Polish currency. If the parties choose a foreign currency, and the contract does not provide otherwise, the borrower is entitled to its return in the Polish currency.
Who has the responsibilities?
The lender is responsible for the timely performance of the contract and in the event of a delay, he is liable under the general rules for non-performance. Issuance of the subject of the loan involves the transfer of ownership of the subject of the loan (as opposed to lending). Thanks to this, the borrower can freely dispose of it with the intention of achieving certain benefits.
The borrower is entitled to a claim for the delivery of the loan subject, which expires after 6 months from the date when the loan was to be issued. He is not obliged to collect the subject of the loan, because it is in his interest to grant the loan.
The subject of the loan is the property of the borrower only for a limited period of time, and the lender is usually entitled to a percentage (interest) of the loan granted. In this case, the interest is the lender's remuneration, so it is a payable contract.
The lender may make granting a loan conditional on securing its return, e.g. by a surety, issuing a guarantee bill, or establishing a pledge.
The borrower is obliged to return the subject of the loan within a specified period. If the loan is payable, this also applies to salary. It is not necessary for the borrower to return the same things. They can be the same things, as long as they correspond to the same quantity and quality.
As in the case of delay in the issue of the subject of the loan by the lender, in the event of a delay or delay in repayment by the borrower, effects arise under the general principles of non-performance (interest for delay, compensation for delay in payment, contractual penalties stipulated in the contract, compensation for delay in non-monetary). When the interest is the remuneration of the lender, late payment interest can be claimed from it.
In a situation where the borrower is in a bad financial condition, the lender may withdraw from the contract and refuse to hand over the loan if the return of the loan is doubtful for this reason. You can withdraw from the contract before the subject of the loan is issued.
This right is disabled in two cases:
At the time of conclusion of the contract, he could easily find out about the poor financial condition of the borrower.
Withdrawal from the loan agreement does not justify the return of the correctly calculated and paid stamp duty (Judgment of the Supreme Administrative Court of November 21, 1994, reference number III SA 248/94).
When to return the loan?
The loan repayment date may be specified in the contract. The fact that the loan agreement does not specify the return date, interest rate or collateral does not make it invalid, nor does it qualify it for other types of civil law transactions (Judgement of the Supreme Administrative Court of October 14, 1998, reference number I SA/Ka 96/97). If the parties did not specify the return date, the debtor is obliged to return the loan within 6 weeks after termination by the lender.
It may happen that the items received by the borrower have defects. The lender is then obliged to repair the damage he caused to the borrower by not informing him about the defects, knowing about them. This rule does not apply when the borrower could easily notice the defect.
It should be emphasized that the above rules for granting loans apply to entities that do not professionally grant loans, also known as loans. An agreement similar to a loan is a bank loan agreement, which has been regulated in detail in the Act of August 29, 1997. Banking Law (last amendment: Journal of Laws of 2011, No. 232, item 1378).
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