Consequences of eliminating unfair terms on the rest of a contract

Bibliogr. s. 25-28

According to Article 6(1) of the Unfair Terms Directive (93/13/EEC ), the Member States should lay down that unfair terms used in a contract concluded with a consumer should not be binding on the consumer and that the contract should continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms. Although the Unfair Terms Directive has been implemented in Poland for more than ten years, the impact of an unfair term on the rest of a contact is still controversial. Specifically, there is a question whether and under what circumstances declaring a contractual term unfair could result in an unenforceability of the entire contract. In order to answer this problem, the paper looks at the relevant Polish law and recent CJEU and national case law.