The Romanians credit contracts contain abusive clauses which stipulate risk fees, modifiable fixed interests, varying interests which vary and increase only upward while EURIBOR/LIBOR were decreasing or variable interests calculated following internal and non-transparent bank indexes.

Although it is prohibited by law for professionals to insert abusive clauses in contracts, these exist and continue being maintained.

The abusive clauses from the contracts concluded between merchants and consumers are being enumerated in the law no 193/2000. From it, we can enumerate:

– The trader’s right to alter unilaterally the terms of the contract

– The consumer’s obligation to obey some contract terms of which he never had the real possibility to know when signing the contract

– The consumer’s obligation to fulfill his obligations when the trader did not fulfill his

– The restriction or cancellation of the consumer’s rights for claiming compensations when the merchant does not fulfill his contract obligations

– The trader’s exclusive right to interpret the contractual clauses

– Excluding the consumer’s right to undertake legal action or to exercise a different legal remedy, but in the mean time asking him to solve the disputes especially through arbitration.

By strictly referring to the abusive clauses inserted in contracts by banks, we can mention the following:

– Abusive clauses regarding commissions

– Clauses governing the payment of a management fee

– Clauses governing the payment of a commission tracking risks

Generally, these clauses are mentioned in the adhesion contracts, so that the client does not have the possibility to negotiate with the bank the dispositions from the contract. Article number 4, paragraph1, of the law no 193/2000 provides that: “A contract term which had not been negotiated directly with the consumer shall be considered abuse if by itself, or along with other provisions from the contract, creates, a significant imbalance between the obligations and the rights of the parties, contrary of the requirements of good faith and damaging the consumer.”

The administration fee actually represents a disguised interest as well as the risk commission or the management commission.

During the execution of the contract, might appear certain circumstances which can make the execution of the contract excessively burdensome for the client. Such an example represents the accelerated growth of the currency in which the loan was made, which leads to an increased monthly installment owed to the bank. We can mention the case of the Swiss franc which in the early 2008 had a rate of 2.36 RON, and in 2013, a rate of 3.63 RON, which affects a long term signed credit contract. In this situation should be applied the principle of unpredictability, provided in the New Civil Code article 1271, paragraph2, “if the execution of the contract had become excessively burdening due to an exceptional change of circumstances which would make obviously unjust forcing the debtor to finish with the obligation, the court can order: a) adapting the contract in order to distribute equitably between the parties the losses and the benefits resulted from changing circumstances; b) ceasing the contract at the timing and the established conditions”.

According to Article 1170 from the NCC “the parties must act in good faith at the negotiation and the signing of the contract, and also during its execution. They cannot remove or limit this obligation”, which means that the risk of a grown currency, in which the loan was made, has to be assumed properly, by both parties, the creditor and the debtor.

“TANASE IOAN MIHAI” law firm provides counseling, assistance, legal representation in the trials with the banks, and also direct negotiations with the banks for obtaining the cancellation of the abusive clauses from the contracts.

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