O dozvoljenosti ugovaranja troškova obrade kredita u pravu Srbije
On Legality of the Loan Processing Fee

Summary/Abstract: Ever since the outbreak of the world economic crisis the banks have been burdened by a negative public image, which is a trend existing in Serbia as well. One of the consequences of such reputation are numerous lawsuits against the banks, including the ones requesting that the clause on loan processing fee be declared null and void, accompanied by the request for a refund of the amount paid with interest. Comparatively, in Germany, since 2014, a position has been taken by the Federal Court (Bundesgerichtshof, BGH) that contracting the payment of the loan processing fee by means of general terms and conditions of banks is null and void. This position of German courts resonated outside Germany as well, but nevertheless, the courts in some other countries, such as Austria, took the position that such contracting is allowed. In Serbia, after the transition commenced in the early 2000s, the case law was unified in the position that such contracting is allowed and valid until March 2017, when the Higher Court in Sombor passed a decision that such contracting is invalid, invoking Article 1065 of the Law on Contracts and Torts (ZOO), after which the case law started to meander. The reasons put forward in the domestic case law do not suffice for the successful defense of the position that contracting the clause on loan processing fee is null and void. Additional analysis of applicability of the reasoning of German courts within the framework of the Serbian law also demonstrates that the conclusion of such contracting being invalid is out of place, irrespective of whether the other contracting party is a consumer or not, and irrespective of whether the clause is a part of general terms and conditions or is individually agreed. Lastly, the author highlights the legal and economic consequences should the Supreme Court of Cessation take a different position regarding this issue, concluding that, apart from the favorable consequences for one party to the dispute and adverse consequences for the other, there would be severe negative consequences for the common interest, both from the legal and economic point of view.

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