ro fr
universul juridic magazin

anamorphosis of hardship clause in the register of giving in payment law: the protection of the contracting debtor versus the protection of the insolvent debtor

The institution of hardship is and shall remain – according to its own nature – a remedy for the contractual imbalance, and not a remedy for the imbalance between the property of the debtor and respectively, the property of the creditor, as it is intended to protect the contractual debtor and not, necessarily, the insolvent debtor. In the light of hardship clause – considered from the perspective of the substantive law – the excessive contractual burden is of interest, determined by the assessment of the balance of contractual obligations, and not depending on the existence or nonexistence of other methods of payment and resources enabling the performance of the agreement, in the property of the debtor. The hardship is, by its source, outside the scope of the debtor, independent of the behaviour and its personal circumstances, as it is objective, while insolvency is subjective, closely related to the characteristics of the concrete debtor, to the manner in which it manages its property and understands to assume obligations in the contractual relationships. The hardship modifying the performances of an agreement puts at a disadvantage to the same extent – strictly from the contractual point of view – both the insolvent debtor (lacking methods of payment), and the debtor whose property is not significantly affected by the same contractual imbalance.