Pozorność umowy pożyczki – glosa do wyroku Sądu Najwyższego – Izba Cywilna z dnia 26 lutego 2021 roku, II CSKP 29/21 (glosa częściowo krytyczna)

Abstract

This commentary focuses on the judgment of the Supreme Court in which the Court quashed judgments of courts of the first and second instance and remitted the case for reconsideration. This commentary, despite approving the main thesis of the judgment, constitutes a critical assessment of individual arguments of the reasoning. The aim of this discussion is to analyse the legislation in force that relates to ostensibility (an ostensible declaration of intent made to another party with its consent) using the example of a loan agreement. It is pointed out that the Supreme Court, in deciding on how the facts should be completed, should not suggest or limit its indications only to one result of these findings of facts. This study demonstrates that an ostensible declaration may occur after excluding false signatures and interpreting the parties’ declarations of intent. The drafting of a contract incorrectly called a loan, may, in the intention of the parties, be, for example, a document confirming the previously concluded contract on joint investment and its settlement. Only after interpreting declarations of intent and confirming their appearance is it possible and desirable to assess the possible existence of another legal relationship (hidden under an ostensible contract).

Keywords

• agreement
• interpretation of a declaration of intent
• ostensibility
• “pretending”