On 20.06.2023, the District Court in Gdańsk, XVI Civil Appeals Chamber, issued a judgment in the case against Bank BPH Spółka Akcyjna with its registered office in Gdańsk - the court, composed of 3 judges, found the agreement invalid. The plaintiffs were represented by legal counsel Piotr Poźniak. The judgment is final.

The conclusions of the courts of both instances regarding the indexation clause and the so-called reduction maintaining effectiveness are interesting. Bank BPH SA applies a clause "consisting" of the NBP exchange rate and the margin.

Proceedings in first instance

The lawsuit against Bank BPH Spółka Akcyjna with its registered office in Gdańsk was filed in December 2017 with the District Court of Gdańsk-Południe in Gdańsk, 1st Civil Division. On 15/07/2021, a judgment was issued in which the court of first instance found the plaintiffs' claim to be partially justified, because it found the contractual provisions contained in § 17 of the loan agreement to be abusive to the extent to which the bank, when setting the purchase and sale rates, reduces or increases the PLN exchange rates for given currencies announced in the NBP average exchange rate table on a given business day by the purchase and sale margins of GE Money Bank SA. However, in the opinion of the court of first instance, the recognition of the above contractual provision as abusive did not lead to the elimination of the indexation mechanism from the agreement while leaving the agreement in force, but only to the elimination of the possibility of the Bank charging a currency spread.

With respect to the provisions of the agreement in the scope in which they specified the method of determining the sell and buy rates of the currency to which the loan was indexed by the defendant bank, the court recalled that in the case of loans indexed by GE Money Bank SA, the buy rates are defined as the average PLN exchange rates for given currencies announced in the NBP table of average exchange rates minus the buy margin. The sell rates are defined as the average PLN exchange rates for given currencies announced in the NBP table of average exchange rates plus the sell margin. The buy/sell rates for mortgage loans granted by GE Money Bank SA are calculated using the PLN exchange rates for given currencies announced in the NBP table of average exchange rates on a given business day, adjusted by the GE Money Bank SA buy/sell margins. After analysing the provisions in question, the court indicated that, in its opinion, the buy/sell rates used by GE Money Bank SA were linked to an objective measure in the form of the PLN exchange rate for a given currency announced in the NBP table of average exchange rates, which was, however, adjusted by the bank's margin, which was not expressly specified in the agreement.

The abusiveness of the above contractual provision, in the opinion of the district court, comes down to the fact that the agreement did not precisely indicate how the above exchange rate margins would be determined. The court of first instance found the provisions of the agreement to be unlawful, which concerned the principles of determining the loan balance and the amount of loan installments based on the currency exchange rates applied by the bank, in the scope of the margin specified in the exchange rate tables published by it (so-called currency spread clauses), without questioning the effectiveness of the indexation structure itself. A situation in which the bank unilaterally, arbitrarily and unrestricted by contractual provisions determines the amount of the purchase and sale rates of currencies, on the basis of which the amount of, among others, the consumer's benefit (installment) is then determined, undermines the contractual balance of the parties by introducing a far-reaching disproportion of rights and obligations to the detriment of the consumer.

Odesłanie do prowadzonych przez bank tabeli kursów skutkuje bowiem tym, że jedna ze stron stosunku – kredytodawca przyznaje sobie prawo jednostronnego regulowania wysokości świadczenia drugiej strony. Dotyczy to w szczególności sytuacji, gdy z zapisów umowy nie wynika w żaden sposób jaka tabela stanowi podstawę ustalania kursów oraz w jaki sposób znajdujące się w niej kursy sprzedaży i kupna waluty są ustalane. W niniejszej sprawie powyższe rozważania dotyczą wyłącznie marży, gdyż umowa wprost zawierała wskazanie średniego kursu Narodowego Banku Polskiego jako właściwego dla rozliczenia zobowiązania. Sąd wskazał, że bank ustalając kursy kupna i kursy sprzedaży, które stosowane są odpowiednio do wypłaty i spłaty kredytu, stosuje marżę kursową, o którą powiększany jest kurs średni NBP w przypadku ustalenia kursów sprzedaży oraz o którą pomniejszany jest kurs średni NBP w przypadku ustalania kursów kupna. Brak precyzyjnego ustalenia w umowie sposobu wyliczania marży kursowej rodzi uzasadnione ryzyko, że kryteria stosowane przez bank przy ustalaniu kursów walut mogą być oderwane od rzeczywistości rynkowej oraz ustalane w arbitralny i nieprzewidywalny dla konsumenta sposób. Stawia to konsumenta w niekorzystnej sytuacji, gdyż de facto nie ma on żadnej wiedzy ani wpływu na to w jaki sposób są ustalane parametry danej tabeli, a co za tym idzie, w jaki sposób jest ustalana wysokość kursów walut i tym samym jego zobowiązania. Konsument jest zatem narażony na niczym nieograniczone roszczenia ze strony banku, gdyż nie ma żadnych gwarancji, że stosowane przez niego kursy będą korespondowały z kursami rynkowymi albo średnimi. Niewskazanie przez bank kryteriów branych pod uwagę lub też określenie ich w sposób niezrozumiały powoduje również, że konsument jest pozbawiony realnej kontroli działania kredytodawcy, a w chwili zawarcia umowy nie jest w stanie ocenić wysokości wynagrodzenia banku, które ten zastrzeże z tytułu uprawnienia do ustalania kursu wymiany walut. Tym samym nie może on ocenić skutków ekonomicznych podejmowanej przez siebie decyzji. Ponadto, niejasne i niepoddające się weryfikacji określenie sposobu ustalania kursów wymiany walut w istocie może skutkować przyznaniem bankowi dodatkowego, ukrytego i nieweryfikowalnego przez konsumenta wynagrodzenia w wysokości różnicy między stosowanymi przez niego kursami walut obcych a ich kursami rynkowymi czy średnimi. Analizowane klauzule skutkują również tym, że na konsumenta zostaje przerzucone ryzyko dowolnego kształtowania kursów wymiany walut przez kredytodawcę, albowiem może on w sposób niczym nieograniczonym korygować kurs średni NBP o ustaloną w sobie jedynie wiadomy sposób marżę. W przypadku umów o kredyt hipoteczny jest to zaś o tyle istotne, że kredytobiorcy są narażeni na to ryzyko przez wiele lat trwania umowy. Nie ma więc wątpliwości, że ww. postanowienia umowne są sprzeczne z dobrymi obyczajami oraz rażąco naruszają interesy konsumenta. Badając kwestię dowolnego ustalania przez banku kursów wymiany walut, w niniejszej sprawie ograniczone do tzw. spreadu walutowego, należy również zwrócić uwagę na obecne brzmienie art. 69 ust. 2 pkt 4a ustawy – prawo bankowe, zgodnie z którym umowa o kredyt denominowany lub indeksowany do waluty innej niż waluta polska powinna określać „szczegółowe zasady określania sposobów i terminów ustalania kursu wymiany walut, na podstawie którego w szczególności wyliczana jest kwota kredytu, jego transz i rat kapitałowo-odsetkowych oraz zasad przeliczania na walutę wypłaty albo spłaty kredytu”. Potwierdza to, że arbitralne ustalanie przez kredytodawcę wysokości kursu walut bez wskazania obiektywnych i niezależnych czynników jest nieprawidłowe. Ponadto, również Sąd Ochrony Konkurencji i Konsumentów kilkukrotnie uznawał za niedozwolone postanowienia dotyczące dowolnego określania przez bank kursów walut obcych (np. klauzule wpisane do rejestru klauzul niedozwolonym pod nr 3178, 3179, 5622 i 5743). Warto też zwrócić uwagę na stanowisko Komisji Nadzoru Finansowego wyrażone w Rekomendacji S (II) z dnia 17.12.2008 r. dotyczącej dobrych praktyk w zakresie ekspozycji kredytowych zabezpieczonych hipotecznie. Dokument ten nie stanowi wprawdzie aktu powszechnie obowiązującego, lecz jego treść wyznacza granice minimalnych wymagań wobec banków w ich stosunkach z klientami, tak aby nie naruszały one dobrych obyczajów handlowych (dobrych praktyk) i nie wykorzystywały swojej przewagi kontraktowej. W pkt 5.2.2. ppkt. c) ww. Rekomendacji Komisja Nadzoru Finansowego wskazała, że w każdej umowie, która dotyczy walutowych ekspozycji kredytowych powinny znaleźć się co najmniej zapisy dotyczące sposobów i terminów ustalania kursu wymiany walut, na podstawie którego, w szczególności, wyliczana jest kwota uruchamianego kredytu, jego transz i rat kapitałowo-odsetkowych oraz zasad przeliczania na waluty wypłaty i spłaty kredytu.

As indicated by the District Court in Warsaw in the justification of the judgment of 14 December 2010 in case XVII AmC 426/09, it is obvious that when entering into a foreign currency indexed loan agreement, the consumer is aware (or at least should be) of the risk associated with it, i.e. the risk resulting from the volatility of foreign exchange rates. However, the so-called currency risk is one thing, and the arbitrary setting of exchange rates by the lender is another. Consumers, who, in addition to the exchange rate risk they agreed to when entering into a foreign currency indexed loan agreement, were simultaneously transferred the risk of completely arbitrary setting of exchange rates by the lender. In the case of mortgage loan agreements, this is important because borrowers are exposed to this risk for many years of the duration of the agreement.

In the opinion of the District Court, the contractual provisions concerning the principles of determining the purchase and sale rates of currencies by the bank did not, due to their correction by an arbitrary and unspecified margin in the agreement, ensure that the parties to the agreement were equal. These provisions were not transparent and understandable enough for the plaintiffs to be able to easily understand the specific mechanisms of foreign currency exchange, and therefore they did not have full information on how the defendant determined them and therefore the plaintiffs could not verify them independently. The criteria used by the bank to determine the margin must be objective, external, predictable and independent of it. However, the disputed provisions do not meet such requirements.

In the justification of the response to the lawsuit, the bank described the method in which it formed the exchange rate margin, indicating that it consisted in calculating the difference between the average exchange rates of the given currencies announced in the NBP average exchange rate table on the penultimate business day of the month preceding the period of validity of the calculated margins, and the arithmetic mean of the purchase/sale rates from five banks, i.e. PKO BP SA, Pekao SA, BZ WBK SA, Bank Millenium SA and Citibank Handlowy Polska SA, on the last day of the month preceding the period of validity of the calculated margins. In this respect, the defendant also submitted evidence from the testimony of witness Tomasz Pokora. In the final analysis, however, this circumstance was not significant for resolving the case, because the content of the agreement itself should be sufficient to reconstruct the method of forming the exchange rate margin by the Bank. The very fact that the method of determining the margin was not described in the agreement meant that the Bank could freely change it during the term of the agreement, without having to change the agreement concluded with the plaintiffs or even inform them about it. This constituted a gross violation of the interests of the plaintiffs as consumers and shaped their rights and obligations in a way that was contrary to good practice.

In the opinion of the court of first instance, the use of the provision in the agreement that "to calculate the purchase/sale rates for mortgage loans granted by GE Money Bank SA, the zloty exchange rates for given currencies announced in the table of average NBP exchange rates on a given business day are applied, adjusted by the purchase and sale margins of GE Money Bank SA" with the simultaneous absence of any provision on the method of calculating the margin constitutes an unlawful contractual provision in the second part: adjusted by the purchase and sale margins of GE Money Bank SA, because such a definition of the exchange rate means that the plaintiffs had no possibility of unequivocally calculating their obligation. Moreover, the agreement did not specify the method in which the defendant created the exchange rate tables that it applied to consumers. This means that the provisions contained in § 17 of the agreement in the scope in which they state that the average NBP exchange rates are adjusted by the purchase and sale margins of GE Money Bank SA are ambiguous and undermine the contractual equality of the parties. The bank could have chosen any criteria for setting the margin, which could have been unrelated to the current exchange rate set by the currency market, which allowed it to obtain additional benefits for itself, which constituted an additional cost of the loan for the plaintiffs as the borrower. At the same time, in the absence of clear provisions regarding the setting of exchange rate tables by the defendant, the plaintiffs could not determine the amount and justification of these costs.

Taking into account the above considerations, the District Court found that the provisions contained in the agreement of June 2008, concerning indexation of the loan amount in the manner imposed on the plaintiffs by the bank, constitute prohibited contractual provisions and, in accordance with Art. 385(1) § 1 of the Civil Code do not bind the plaintiffs to the extent that the average PLN exchange rates for given currencies announced in the NBP average exchange rate table are adjusted for the purchase and sale margins of GE Money Bank SA. In the remaining scope, the District Court came to the conclusion that the loan agreement indexed to the Swiss franc, concluded between the plaintiffs and GE Money Bank SA in June 2008, may continue to be in force after eliminating the condition - the margin element contained in § 17, which disturbed the balance of the parties to the agreement, which is the preferred solution in view of the purpose of Directive No. 93/13, i.e. ensuring that unfair terms are not included in agreements concluded by sellers or suppliers with consumers and, if such terms are included therein, that they are not binding on the consumer, and ensuring that the agreement is binding on the parties in accordance with the provisions contained therein, provided that after the unfair terms are excluded from the agreement, it may continue to be in force. According to the district court, such a solution was possible due to the content of the agreement concluded between the parties. The method of setting the rates by the bank was made dependent in the agreement on an objective measure, which is the average rate of the National Bank of Poland, which was to be corrected by the purchase/sale margin. Eliminating the provisions of the agreement contained in its § 17, according to which the purchase rates are the average PLN rates for given currencies announced in the NBP average rate table "minus the purchase margin", and the sale rate is the average PLN rates for given currencies announced in the NBP average rate table "plus the sale margin", will result in that for the purposes of this agreement, both the purchase rates and the sale rates will constitute the average PLN rates for given currencies announced in the NBP average rate table.

In the opinion of the court of first instance, such a decision in the case was also supported by the position adopted by the Court of Justice of the European Union in the judgment of 29 April 2021 (C-19/20), issued in the preliminary ruling procedure in the case against Bank BPH SA in Gdańsk, in which the dispute concerned identical issues related to a loan agreement with content analogous to the agreement that is the subject of the dispute in this case. Taking into account the guidelines of the Court of Justice, the Court of First Instance considered that in the loan agreement between the parties, it is possible to distinguish three levels of contractual terms related to loan indexation. The first, basic one, concerns the loan indexation mechanism in general, is described in § 1 of the agreement and assumes that on the day of payment of the loan amount, which is made in Polish zloty, the loan balance is expressed in Swiss franc currency, and then on the day of repayment of individual principal and interest installments, the balance and loan installment are converted back to zlotys. In other words, both the disbursement and repayment of the loan are made in Polish zloty, but the loan balance, repayment schedule and the amount of individual installments are expressed in Swiss francs. The second level of contractual provisions related to loan indexation concerns the method of converting the loan balance expressed in CHF to zlotys, both at the time of loan disbursement and its repayment (§ 7 sec. 2 and § 10 sec. 8 of the loan agreement). The method of converting the loan balance from CHF to zlotys is necessary for the agreement to be implemented at all, because otherwise it will be impossible to even determine the amount of the monthly installment that the borrower is to repay. The agreement between the parties stipulates that the balance on the date of disbursement is expressed in CHF at the purchase rate of the loan currency given in the table of purchase/sale rates for mortgage loans granted by GE Money Bank SA, applicable on the day of the disbursement by the bank. In turn, the settlement of each payment made by borrowers was to take place according to the selling rate of the currency to which the loan is indexed, given in the Table of Buy/Sell Rates for Mortgage Loans Granted by GE Money Bank SA applicable on the day of receipt of funds by the Bank. Finally, the third level of contractual provisions related to indexation was included in § 17 of the agreement and concerns the method of determining the buy and sell rates of CHF for mortgage loans granted by GE Money Bank SA. In accordance with these provisions, the buy rates are defined as the average PLN exchange rates for given currencies announced in the NBP table of average exchange rates minus the buy margin. The sell rates are defined as the average PLN exchange rates for given currencies announced in the NBP table of average exchange rates plus the sell margin. The buy/sell rates for mortgage loans granted by GE Money Bank SA are calculated using the PLN exchange rates for given currencies announced in the NBP table of average exchange rates on a given business day, adjusted by the GE Money Bank SA buy/sell margins.

Of the above contractual provisions concerning indexation, the District Court found the provisions concerning the method of determining the purchase and sale rates of CHF for mortgage loans granted by GE Money Bank SA to be abusive, and therefore not binding on the consumer, in the part in which the average PLN/CHF exchange rates announced in the NBP average exchange rate table are adjusted by an unspecified purchase/sale margin of GE Money Bank SA.

The fact that the purchase/sale margin is a separate contractual provision in linguistic and normative terms is best demonstrated by the fact that borrowers, already at the time of the loan disbursement by the bank, were obliged to repay a higher amount than was paid to them, without charging any interest, commission or other fees. This results precisely from the fact that the amount of the loan disbursed in PLN was converted into Swiss francs at the average NBP exchange rate on the day of disbursement, reduced by the GE Money Bank purchase margin, while any repayment of the loan on the same day had to take place after the loan amount was recalculated from Swiss francs to PLN, but this time at the average NBP exchange rate increased by the GE Money Bank sale margin. The bank therefore secured additional remuneration in the form of a currency purchase/sale margin. The very fact that in the case of currency trading there is a spread, i.e. the difference between the currency purchase rate and the sale rate, is a natural market phenomenon. However, it was unfair that the bank had the ability to freely shape the currency spread, because it could freely shape the exchange rate margin by which the NBP average rates were corrected.

In turn, in order to determine the essence of the disputed contractual terms, defining the method of setting exchange rates for the purposes of settling the loan agreement, it is necessary to look at the function of these provisions in the agreement. Namely, the inclusion in the agreement of the method of setting exchange rates at which the loan is settled is intended to enable the conversion of the loan amount expressed in Polish zloty to the loan balance expressed in Swiss francs and vice versa, the conversion of the loan balance in Swiss francs to monthly capital and interest installments in Polish zloty. These provisions are therefore necessary for the functioning of the loan agreement indexed to the Swiss franc, because they enable the indexation mechanism to be performed. When this is noticed, it will become clear that in order to meet this goal, it is irrelevant whether the conversion rates are the average NBP exchange rate adjusted by a purchase/sale margin of, for example, 1% or 10%, or completely devoid of the margin element. This provision will also successfully fulfil its function when the Bank converts the amount of the loan granted in PLN to the balance of the loan in CHF at the average NBP exchange rate, and then, at the same average NBP exchange rate, on the loan repayment date, converts the balance from CHF to PLN and thus determines the amount of the principal and interest installment in PLN. The agreement may be performed, and the provisions defining the rates for the purposes of the agreement will fulfil their role. On the other hand, any remuneration of the bank for currency exchange will be completely eliminated from the agreement, which will ensure the deterrent effect of the provisions of the directive. Since the Bank has reserved for itself a hidden remuneration for currency exchange within the framework of the performance of the agreement, not limited by any contractual framework, it should be deprived of this remuneration in its entirety. On the basis of this specific agreement, in which the conversion rates are based on the objective average NBP exchange rate, the elimination of the entire indexation mechanism would possibly be possible if the indexation mechanism in general was considered abusive, unfair and grossly infringing the interests of consumers, which, however, was not the case in this case.

The function of the provisions specifying the method of determining GE Money Bank's purchase and sale rates for mortgage loans is to specify the method of converting the amount of the loan disbursed in PLN into a balance expressed in CHF and, conversely, converting the loan balance expressed in CHF into PLN when the loan is repaid by the consumer.

The provision of § 17, to the extent that it regulates the purchase and sale rates of GE Money Bank, will fulfil the above function regardless of whether it remains in its current wording or whether the part of the contractual provision referring to the correction of the average NBP exchange rate by the purchase/sale margins of GE Money Bank is eliminated. Eliminating the exchange rate margin will not therefore change the substance of the disputed contractual provision.

The deterrent effect of the directive will be achieved because any remuneration of the bank for currency exchange will be eliminated from the agreement. Since the remuneration reserved for this reason by the Bank was not specified, formulated ambiguously and imprecisely, and therefore arbitrary, which meant that the provisions of the agreement in this respect grossly violated the interests of the consumer, it should be eliminated completely. It would be unjustified to apply the "fair exchange rate" or the average NBP purchase and sale rates, because this would be "creative" interference in the content of the parties' agreement. Depriving the bank of any remuneration for this reason will be an adequate sanction for unfair formulation of the contractual terms in this respect.

Taking into account the above considerations, the Court of First Instance found that, on the basis of the case at hand, it is possible to eliminate the condition specifying the exchange rate margin from the contractual provision contained in § 17 of the subject agreement. In the Court's opinion, the contractual provision concerning the margin constitutes a contractual obligation separate from other contractual provisions, which could be the subject of an individualised examination of its unfair nature. The disputed provision concerns two elements: the average NBP exchange rate and the correction of this rate by the Bank's margin. Each of these elements may be the subject of a separate assessment. The District Court examined the condition of the contractual provision concerning the margin and found that it has features of an unfair nature. Eliminating the contractual provisions concerning the correction of the average PLN exchange rates to the given currencies announced in the NBP average exchange rate table by the purchase/sale margins of GE Money Bank SA will not affect the essence of the content of the legal relationship. Eliminating the condition concerning the margin does not change the meaning of the contractual provision contained in § 17, because it will not prevent the indexation mechanism from being implemented. The indexation mechanism will continue to be maintained, which has been deemed not to shape the rights and obligations of the consumer in a manner contrary to good customs and not to grossly violate his interests (Article 3851 § 1 of the Civil Code). The agreement will retain its meaning and effectiveness and is consistent with the provisions of applicable law. Only the rate at which the loan will be settled is determined differently.

The plaintiffs' appeal

The plaintiffs appealed against the judgment, arguing, among other things:

=> incorrect interpretation and assumption that in relation to the indexation mechanism and the methods of setting the rates there was no gross violation of consumer interests or a conflict with good practices,

=> failure to take into account the binding judgment of the Court of Competition and Consumer Protection in Warsaw of 3 August 2012 in case XVII Amc 5344/11 regarding the recognition as abusive of a provision referring to the average NBP exchange rate reduced/increased by the bank’s margin,

=> incorrect interpretation and recognition that the removal of an unfair element of the mortgage loan indexation clause (so-called reduction maintaining effectiveness) is permissible and does not change the essence of the clause itself and its content.

Judgment of the court of second instance

In relation to the removal by the court of first instance of the margin element from the indexation clause (i.e. the so-called reduction maintaining effectiveness), the court of second instance took the position that the elements of the provision distinguished by the district court - the average NBP exchange rate and the bank's margin - are complementary in nature, together determining the manner in which the bank's exchange rate table is created. In accordance with the position of the CJEU, in particular in the judgment of 8 September 2022, reference number C-80/21, it is inadmissible to find unfair not the entirety of the term of the contract concluded between the consumer and the entrepreneur, but only the elements of this term that give it an unfair character, therefore this term remains, after removing such elements, partially effective, if such removal would amount to changing the content of this term, which affects its essence. The purpose of the exchange rate clause, as an element of the indexation clause, is to determine the value of the conversion rate between two currencies on which the construction of the indexed loan is based. The wording of the exchange rate clause, whether as a direct reference to the rate included in the bank's table or as an indication as the basis of the average exchange rate of the currency announced by the NBP increased or decreased by the bank's completely unspecified margin, is of no significant significance for the assessment of its substance. Undoubtedly, removing only the margin elements would result in such a change to this contractual condition (the exchange rate clause) that would affect its substance, while the essence of the construction of the exchange rate clause was the lack of a contractual restriction on the bank's ability to shape the exchange rate of the currency to which the loan was indexed. Consequently, such a reduction is inadmissible. In other words, it concerns the issue of the determinability of the amount of the benefit based on one contractual norm – the so-called bank exchange rate. The content of this norm is created jointly by the average NBP exchange rate and the bank's margin, and not each separately, as the district court found. Consequently, the editorial separation of the individual elements of the indexation clause is not complete. The designation of the so-called the bank exchange rate is based on the average NBP exchange rate and the bank's margin - based on the bank exchange rate, it is planned to determine both the benefit of the bank paying the loan amount and the benefit of the plaintiffs repaying individual loan installments. The provisions of the agreement refer to the bank's exchange rate table and do not distinguish the benefit fulfilled according to the average NBP exchange rate and the benefit constituting the bank's margin (see also the judgment of the District Court in Gdańsk of 27 October 2022, XVI Ca 1173/21).

In the opinion of the district court, the interference made by the district court in the content of the agreement between the parties, consisting in extracting two independent and independent contractual provisions from § 17 and then recognizing only one of these elements as abusive while maintaining the effectiveness of the entire agreement in its modified form, remains defective. The provision contained in § 17 of the agreement as abusive does not bind the borrowers in its entirety, similarly to the other contractual provisions referring to the exchange rate table. In the opinion of the district court, the abusiveness of the indexation clause, including the exchange rate clause, necessitated the acceptance of the invalidity (permanent ineffectiveness) of the agreement in question, because the elimination of the above contractual provisions led to such a deformation of the agreement that it is impossible to reconstruct the rights and obligations of the parties based on its remaining content.