ro fr
universul juridic magazin

Unfair terms. Conversion of the loan currency and “freezing of the foreign exchange rate”: are these solutions compliant with the analysis of the unfair terms?

The issue related to unfair terms has monopolized in the recent years not only the legal system, but also all Romanian society. A new type of cases has emerged in the last 2 years in the legal dispute between professionals and consumers: the claims under which consumers request, as the case may be, “the freezing”/ stabilization of the foreign exchange rate of the Swiss franc or the conversion of loans from Swiss francs to lei. In this paper, we intend to examine to what extent, notably starting from the case law of the Court of Justice of the European Union, the terms under which consumers are forced to reimburse the loan in Swiss francs may be deemed as unfair and whether the solutions of “freezing”/ stabilization of the foreign exchange rate or of conversion of the loan from Swiss francs to lei find a support in the matter of unfair terms. In this respect, after a summary statement of the conditions under which a term may be deemed as unfair (I), we will present the essential elements of Kásler case (II), and subsequently, we will examine common issues raised by domestic cases (III), by reference to the internal problem, respectively the aspects relating to the main object of the agreement, the imbalance between the rights and obligations of the parties and the compliance of the solutions of “freezing/ stabilization of the foreign exchange rate or of conversion of the loan with the matter of unfair terms. Moreover, certain specific aspects will be examined depending on the type of agreements concluded (IV). For drafting this paper, we particularly took into consideration the practice in the matter for the last two years. Following the examination of the aspects stated, we concluded that very often, the terms under which a consumer was required to reimburse a loan contracted in francs in the same currency were not unfair, and the “freezing/” stabilization of the foreign exchange rate or of conversion of the loan currency did not have any support in the matter of unfair terms.