Case law

  • Case Details
    • National ID: 510/1285/2010
    • Member State: Romania
    • Common Name:link
    • Decision type: Other
    • Decision date: 31/03/2011
    • Court: Inalta Curte de Casatie si Justitie (Appellate court)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Unfair Contract Terms Directive, Article 2 Unfair Contract Terms Directive, Article 3, 1. Unfair Contract Terms Directive, ANNEX I, 1.
  • Headnote
    The High Court of Cassation and Justice, Commercial Section held that the early full prepayment right stipulated in the provisions of the general terms of credit Agreement is intended to maintain the contractual balance, for both of the customer and the bank. Hence, the disposition is not an unfair clause in the sense of the article 4 paragraph and article 1 letter i from Annex of the Law no. 193/2000 on abusive clauses in the contracts concluded between traders and consumers (which transposes the Unfair Terms Directive 93/13).
  • Facts
    The claimants physical persons argued that the credit contract signed with the defendant contained two abusive clauses, according to Law no. 193/2000 and requested the court to render the clauses void.
    By the commercial sentence no. 1.941/C/2010, the Cluj Tribunal and then, by decision no. 139/2010 of October 14, 2010 the Bucharest Appeal Court – Commercial, Administrative and Tax litigation Section, rejected the above mentioned request.
    In order that the above mentioned decision were issued, the Cluj Tribunal held that the clause which changes the date on which it must be paid back the bank loans, on the basis that the debtor is in breach for not performing its contractual obligations, does not represent an unfair term in the sense provided by Law no. 193/2000. Thus, the Cluj Tribunal rejected the claim.
    After the above mentioned decision was issued, the defendant filed appeal which was rejected by the Bucharest Appeal Court as not grounded. The Court reasoned that there is not a disproportion between the damage caused to the defendant in case of Agreement non-performance and the correlative sanction provided for the claimants, considering the fact that the defendant can not enforce the guarantee for each due unpaid installment, but only once; otherwise, it would result in a lack of any guarantee for performing the obligations which have not yet meet the due date.
    The High Court of Cassation and Justice established that the first two courts rightfully considered the contested clause is not abusive because the bank modified the loan due date only after claimants recorded 471 days of delay in performing the due payments.
    According to the respective clause, during the performance of the contract, the bank reserves its right to declare a loan due in advance, only after the debtor’s obvious refusal to meet its payment obligations.
    The High Court considered the second appeal as undergrounded based on the fact that claimants, by signing the Agreements and negotiating the special terms of the contracts, expressed their consent for the general terms, implicitly.
    Therefore, the High Court rejected the second appeal against the decision of Bucharest Appeal Court.
  • Legal issue
    The first court argued as follows:
    • bank’s decision to declare the loan due and payable before its initial term does not represent an abusive clause in accordance with art. 4 paragraph 1 and art. 1 letter i from the Annex of Law no. 193/2000;

    The appeal court holed as follows:
    • the contested clause is not abusive because the bank modified the due date pursuant the Agreements provisions after debtor’s obvious refusal to meet its payment obligations;

    The High Court of Cassation and Justice ruled as follows:
    • the claimants consented on disputed clauses by signing the Agreements and negotiating the special conditions;
    • the full prepayment right stipulated in the general terms of credit Agreements is intended to maintain the contractual balance, for both of the customer and the bank.
  • Decision

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