ro fr
universul juridic magazin

A comparative overview over the hardship clause in the system of the old and present civil code with reference to the decision of the constitutional court no. 623/2016

The issue of hardship clause in virtue of the old Civil Code has become again a live issue in the context of the real estate loan agreements granted in Swiss Francs, concluded before 1 October 2011. As a result of the fluctuations of the Swiss foreign exchange rate, a considerable disproportion was created between the amount of the foreign currency upon conclusion of the agreement and the amount to be reimbursed by the consumers. In legislative terms, it was attempted to settle this issue under the Law regarding the forced giving in payment, Law no. 77/2016, which sets forth a unilateral mechanism made available to the debtors in order to obtain the termination of the loan agreement by giving the immovable property in payment, without the creditors’ consent. The law was subject to several pleas of unconstitutionality, which were settled by the Constitutional Court of Romania under the Decision no. 623 of 25 October 2016. The Court expressly classifies the giving in payment as an application of the hardship clause in the stage of the enforcement of the obligation to reimburse the loan in Swiss Francs, indicating that only the review conducted by the courts regarding the specific conditions of the hardship clause protects the legislative measure criticized by the vice of unconstitutionality. It remains to be seen how legal practitioners and theoreticians of law will find the most adequate and correct variants of harmonization of the hardship mechanism with the specificity of the forced giving in payment according to Law no. 77/2016, as well as with the general rules of giving in payment provided for under the Civil Code.