Abstract
Over the last few years, we have seen an increasingly number of case law that was presented before national courts as well as the European Court of Justice concerning unfair terms in bank credit contracts. This subject was raised especially during the crisis in which the swiss francs had appreciated, leading numerous customers that had previously taken bank loans in this currency unable to pay back loans that had risen in almost half their value. Development in international and national legislation, such as Law no. 193/2000 concerning unfair terms in contracts concluded between professionals and consumers, that transposed into our national legislation the Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, both restricted or banned the use of such practices and were in force long before the crisis was generated. This however did not stop credit institutions from inserting these types of clauses in the contracts that they had concluded. The issue that we aim to treat in this article is whether the recent practices of credit and bank institutions has changed over the course of the last few years, given the development of jurisprudence that most often than not condemns abusive or unfair terms in credit agreements with consumers.
Highlights
We consider the topic of unfair or abusive terms in credit contracts still a current topic
This article, corroborated with article 1270 of the civil Code which establishes that a validly concluded contract has the same power as the law for the parties, might lead to concluding that any type of clauses are permitted in a contract as long as all parties agree upon them. This conclusion is not applicable in matters pertaining to credit contracts – first, we must underline that any banking contract is an adhesion contract, meaning that only one of the parties, in this case the bank, has the power to impose the terms of the agreement to the other party, in our case the consumer
In Romania, the matter of unfair terms in credit agreements tends to be a sensible subject and this is reflected in the evolution of the legislative process as well as in the case law, especially give the media coverage from which it benefits
Summary
We consider the topic of unfair or abusive terms in credit contracts still a current topic. This article, corroborated with article 1270 of the civil Code which establishes that a validly concluded contract has the same power as the law for the parties (pacta sunt servanda), might lead to concluding that any type of clauses are permitted in a contract as long as all parties agree upon them This conclusion is not applicable in matters pertaining to credit contracts – first, we must underline that any banking contract is an adhesion contract, meaning that only one of the parties, in this case the bank, has the power to impose the terms of the agreement to the other party, in our case the consumer. As we shall underline during this study, several other obligations, such as the obligation of information or good faith have to be Technium Social Sciences Journal Vol 12, 101-112, October 2020 ISSN: 2668-7798 www.techniumscience.com imposed during the contract, as well as during the information period (or negotiation to the adhesion of the contract)
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