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universul juridic magazin

Other conditions for the extinguishment of bank debts by the method of giving in payment

The Constitutional Court has reconfigured Law no. 77/2016, by supplementing it with a number of substantive conditions that need to be reviewed by the judge in order to be able to decide on the applicability of forced giving in payment. Nevertheless, the constitutional judge has not clarified in full the correlation of this law with the rest of the applicable regulatory framework, arguing that this prerogative is related to the interpretation and enforcement of the law by the court. The derogations operated by Law no. 77/2016 have an exceptional and express nature; we consider it is necessary for the courts to also examine other substantive conditions, such as those applicable in the matter of payment, or of the contract. Their examination could determine the impossibility for the judge to apply the legal solution of forced giving in payment, and the possibility of offering other appropriate solutions to debtors (loan restructuring, rather than termination thereof). Otherwise, the debtor’s breach of contract is not sanctioned, but may be validated, and the giving in payment may be easily converted into a forced remission of debt and/or even into a forced takeover of debt. Finally, in certain situations, the mortgagee may even become the mortgage guarantor of its own debtor. Such legal paradoxes can be avoided by a systematic examination of requirements and criteria stipulated by all applicable laws.