An astute observer would notice that the period, which CHF loans were made was between 2005 and 2007 when the Euribor rates were higher than the Libor rates in which Swiss francs were made. During this period, banks lured customers by offering loans at very low interest, without properly informing borrowers details of hidden dangers. Few Greek bank officials understood the complexities of the loans or were qualified to explain them. Fewer still tried to explain the transactions. This resulted in thousands of people having Swiss franc mortgages blissfully unaware of the financial perils.
Some of the dangers are:
· Lack of clarity about whether the bank or the borrower would bear the "currency risk" if the Euro-Swiss Franc exchange rate underwent a major change, which is exactly what happened when the financial crisis hit in 2008.
· The banks created a highly stressed market and many borrowers have been driven into default. For the most part, the blame for this lies with the lender and poses the question of whether the bank owed a duty of care to the borrower.
Under English law, in the landmark case of Selangor United Rubber Estates Ltd v Cradock [1968 1WLR 1555], judge Thomas J. Ungoed Thomas took the view that: "To my mind a bank has a duty of care under its contract with its customer to exercise reasonable care and skill in carrying out its part with regard to operations within its contract with its customer. The standard of that reasonable care and skill is an objective standard applicable to bankers. Whether or not it has been attained in any particular case has to be decided in the light of all the relevant facts".
Ungoed clearly recognized that banks DO owe a duty of care to their customers and although other courts qualified that decision other English cases recognize that such liability does exist. In Cornish v Midland Bank plc L.J. Kerr stated that banks owe their customers a duty to explain adequately the nature and effect of any security documents that they intend to execute. A
French court also recognised that Swiss franc lenders owe a duty of care. This was Foti v Banque Nationale de Paris (1989) 54 SASR 354 (see full text below). In that case two Italian labourers borrowed money in Swiss francs. It has to be borne in mind that the court recognized that a bank owes a duty of care to advise a customer with no prior experience of "forex loans". The important essence of this is that the court recognized that loans made in Swiss francs were actually "forex loans" about which special knowledge about the risk of adverse currency fluctuations, was of vital importance. The court ruled that if special knowledge is required then a bank is under an obligation to inform the borrower of this.
The basis of the lawsuit was