The loan agreement itself is not enough to demand its repayment.

This issue arose in a case concerning the return of borrowed money by spouses, a claim which the Court of Appeal in Rzeszów dismissed in relation to the wife.

They both borrowed money, he had it at his disposal

The Court of Appeal found that the plaintiff (the lender) failed to demonstrate that the borrowed money was handed over to the wife or otherwise transferred to her. Other findings in the case also did not clearly indicate that the defendant wife had freely disposed of the money transferred to her husband, which was lent to improve the financial situation of the civil partnership in which the husband was a partner. The husband solely disposed of the borrowed money, which he allocated entirely to the needs of his business, while the wife "never saw it" and had no opportunity to access it.

The lender persisted and, in her cassation appeal to the Supreme Court, argued that the Court of Appeal had erroneously found that handing over the loan to one of the borrowers and allocating it for purposes related to his business activity in the form of a civil partnership negated the joint and several liability of the other borrower (here, the wife) and meant that the agreement was concluded solely for the benefit of the borrower who actually received the loan. She further argued, citing case law, that the repayment of the loan from the defendant wife was supported by her consent in the loan agreement to the spouse taking it out. Article 41 § 1 of the Family Code provides that if a spouse incurred an obligation with the consent of the other spouse, the creditor may also seek satisfaction from the marital property.

Whoever received the money from the loan, pays it back

The Supreme Court disagreed with the plaintiff's position, pointing out that a loan agreement does not require the release of money for its validity, but that the release of the loaned asset is a prerequisite for a claim for its repayment. Release of the loaned asset, unless the agreement provides otherwise, may occur in any manner, provided that the borrower is able to freely dispose of the loaned asset. In the case of a cash loan, this principle is confirmed by Article 155 § 2 of the Civil Code, which states that the transfer of ownership of goods defined only by their type (which includes money) requires a transfer of possession.

"This assessment could not be changed by the fact that the defendants were left in a statutory marital community at the time of concluding the loan agreement, as the defendant's liability for joint property (Article 41 § 1 of the Family and Guardianship Code) could only come into play if joint property existed between the spouses . This was not the case given the final judgment of their divorce before the first-instance court issued its judgment in this case," Judge Paweł Grzegorczyk stated in the justification.

Reference number: act I CSK 2783/23