en fr
universul juridic magazin
Revista Română de Drept Privat

Paradoxul călătorului în timp a fost evitat… la timp: Condiţiile (constituţionale ale) dării în plată*, **

Beyond the political and legal conflicts surrounding it, it is certain that Law no. 77/2016 regarding the giving in payment of certain immovable assets for the purpose of discharging the obligations assumed under loans managed to concentrate the attention of the lawyers from various environments and to generate large debates at the department level and in the newspapers or on the legal or non-legal forums. It was impossible for such a legal (but also social and political) turmoil not to determine a rich case-law. After a somewhat Stakhanovite start in which the courts interpreted the law either as a welcomed breather for the loan consumer, or a e new burden over the judicial system, their enthusiasm faded away by the referrals addressed to the Constitutional Court, which intended to clarify certain legal issues. The first “category” of pleas was focused on the matters related to the application in time (of the effects) of the Law of giving in payment. The interest in settling these matters is major, while even the initiators of the law assert that the legal act is addressed (in particular) to the persons who took on loans within the period 2006-2009. Therefore, Law of the giving in payment mainly deals with loan agreements concluded prior to its entry into force, which obviously, raises the question of applying the lay in time. The importance of settling such pleas was found not only in the interest of attorneys who have waited “holding their breath” the solution of the Constitutional Court, but also in that of the audience. The attorneys in the two categories had various reactions. The reasons for the Decision of the Constitutional Court no. 623 of 25 October 2016 brought about a new wave of comments. In this extremely rich context, we intend to examine an (apparently) eccentric aspect, but in relation to which we believe that it may provide support to the courts of law that should complete cases in virtue of the Law of giving in payment. The aspect depends on the applicable law in case the court decides the termination of the loan agreement, as a possible option of remedy in the event that the requirements if the hardship clause are met. In order to find the answer to this (sole) question, we shall reiterate certain notions related to the loan agreement and to the (real estate) mortgage agreement, then we shall examine the way of termination of the agreement justified by a case of hardship, in order to appreciate to what extent “the giving in payment” may be qualified as a sufficient remedy in these assumptions.