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universul juridic magazin
Revista Română de Drept Privat

Configurarea acţiunii reglementate de art. 8 alin. (5) din Legea nr. 77/2016 după publicarea în Monitorul Oficial a Deciziilor Curţii Constituţionale nr. 623/20161 şi nr. 639/20162

The Constitutional Court ruled, with binding legal effect, in the considerations of its decisions, regarding the credit agreements in course of performance upon the effective date of Law no. 77/2016, that the institution of giving in payment, including in the sense of this law, involves the existence of the consent of the mortgage creditor regarding the transfer of the ownership right over the mortgaged immovable property into its estate from the debtor’s estate in order to extinguish its debts. Moreover, the Court upheld, in its argumentation, as well with reference to the assumption of the agreements in course of performance upon the effective date of Law no. 77/2016, the obligation of the courts to examine, within the action regulated by art. 8 of the Law, the conditions provided for the existence of the hardship clause and, even more, for applying the solutions specific to this latter institution. As regards art. 8 paragraph (5) of Law no. 77/2016, the Constitutional Court considered that its implementation supposes that the enforcement over the mortgaged immovable property should not have been completed by its adjudication. At the same time, the Court considered that the courts are obliged to verify, in the trial of the action lodged, the observance by the debtor, of the special procedure specified in art. 5 of the Law. In this context, in the case of credit agreements in the course of performance upon the effective date of Law no. 77/2016, the text of art. 8 of the Law, regulating a self-standing action, with an expressly outlined object and with particular procedural rules, even if not declared as unconstitutional by the Constitutional Court, it has actually been devoid of application. With reference to the case of credit agreements concluded after the effective date of the Law, art. 8 of the Law regulates in fact a single action whose object consists in ordering the extinguishment of the debtor’s debts and of the transfer of the ownership right over the mortgaged asset from the property of the debtor into the property of the creditor, and the single intent of paragraph (5) is to emphasize that the action provided for under paragraph (1) shall apply as well, in the event that the enforcement was initiated against the debtor over the mortgaged property.