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universul juridic magazin

A constitutional interpretation, beyond the law regarding the giving in payment

Both due to the solutions adopted, and to their reasoning, the Decision of the Constitutional Court no. 623 of 25 October 2016 represents a new binding – interpretation – of the Law of giving in payment. The intervention of the contentious constitutional court was necessary in order to provide this legal act with a meaning in compliance with the Fundamental Law. The law regarding the giving in payment could only be interpreted with this decision, as it represents the general framework for the interpretation and application of this legal act in the banking and judicial practice. Decision no. 623/2016 is especially important from several points of view. First, it not only identifies the base of the Law regarding the giving in payment as the theory of the hardship clause, but the contentious constitutional court consolidates the concept of hardship under this decision, linking the principle of the autonomy of the will, from which the binding force of the agreement arises, to the equity principle and to the principle of good faith, on which the entire system of law is based. On this basis it is held that the application ope legis of the hardship clause for all agreements concluded until the effective date of the Law regarding the giving in payment is unconstitutional, and then the question of the application of this legal act in time is settled, which is of procedural nature, in compliance with the constitutional principle of non-retroactivity of the law, provided for under art. 15 paragraph (2) of the Fundamental law. Wisely, the subsidiary role of the court is emphasized when applying the hardship clause. Considering the conclusion date of the loan agreements, in relation to which the examined pleas of unconstitutionally were invoked, the substantive conditions, distinct from the procedural conditions, of application of the hardship clause, which shall be demonstrated by the debtor, as well as the solutions of the hardship clause are considered from the perspective of the Civil Code of 1864, as common law, in substantive matter. As Decision no. 623/2016 was only intended to harmonize the Law regarding the giving in payment with the fundamental law, the questions related to the interpretation and application of law, including the question of the extinctive prescription, shall be settled by the courts of law. Finally, it remains to be seen which is the implicit relevance of the Decision no. 623/2016 over the hardship theory in relation to the loan agreements concluded in compliance with the new Civil Code.