Doctrine

Unfair Contract Terms Directive, ANNEX I, 1., (i)

Précisions sur le rôle du juge pour apprécier le caractère abusif de la clause visant le calcul du taux conventionnel sur une année de 360 jours

For a long time, the conventional interests linked to a loan raised a question: is it possible to calculate them not on the basis of a calendar year of 365 or 366 days, but on the basis of a theoretical year of 360 days (corresponding to 12 months of 30 days each), better known as the "Lombard" year? A question arose: could the law of unfair clauses not be usefully applied here, and constitute another basis for possible actions by the borrowers? In its decision of 9 September 2020, the High Court considered that "it is incumbent on the judges of the merits, examining the nature abusive of a clause providing for a calculation of interest on the basis of a year of three hundred and sixty days, a semester of one hundred and eighty days, a quarter of ninety days and a month of thirty days, to assess its effects on the cost of credit, in order to determine whether or not it leads to a significant imbalance between the rights and obligations of the parties to the contract". It is they who must assess, on a case-by-case basis, this quantified threshold characterising such an unacceptable imbalance. As it stands, the decision does not put an end to all the uncertainties likely to be encountered in this area. In any event, by adopting such a limited vision of the notion of significant imbalance, the Cour de Cassation clearly seeks to "lock-in" disputes related to the calculation of interest by resorting to the "Lombard" year (13).