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universul juridic magazin

Conditions provided under law no. 77/2016 for the right arising upon extinction of the bank debts by giving in payment

The giving in payment, as a matter of principle, involves risk-sharing between debtor and creditor, if the debtor is unable to pay, by giving the property, with the consequence that the debt is discharged. Therefore, a sine qua non for this procedure to be applicable is the proof of the debtor’s inability to pay. Although Art. 4 of Law no. 77/2016 regulates the conditions for the establishment of the right to settle the claim arising from a credit agreement and its accessories by the giving in payment of the immovable property, without however establishing any objective and legitimate condition on the inability to pay the obligation that has become excessively burdensome, as a result of Constitutional Court Decision no. 623/2016, the law can no longer be applied without making a distinction between debtors acting in good faith and those acting in bad faith. The unclear essential issue that emerged from the law was clarified by the Constitutional Court, and the courts were further required, in the absence of agreement between the parties, to apply the hardship principle if they find that the conditions of its existence are met.