Abstract
In 2016, the Romanian Parliament voted on the final version of the datio in solutum law (Law No. 77/2016 on the datio in solutum of real estate in order to settle the obligations assumed by credits), allowing the borrowers to fully settle their liability by transferring to the banks the ownership right over mortgages used as collateral for loans. The final version of the law includes some important restrictions: the ‘First Home’ governmental program was excluded from the jurisdiction of the law, a ceiling amounting to the equivalent of 250,000 EUR on the size of the loan at time of origination was set and the law only applied for mortgages that qualify as dwellings and were contracted by ‘consumers’. However, the law would apply to all existing contracts (retroactive applicability). 1 This article analyzes datio in solutum from the Romanian perspective, a new approach in the national legal system that already made the object of the constitutional control by a number of decisions. We will also review the solutions of Spanish and French legal systems regarding these particular consumer protection problems.
Highlights
In 2016, the Romanian Parliament voted on the final version of the datio in solutum law (Law No 77/2016 on the datio in solutum of real estate in order to settle the obligations assumed by credits), allowing the borrowers to fully settle their liability by transferring to the banks the ownership right over mortgages used as collateral for loans
The consequence of taking the criterion of good faith into account is a widening of the role of the judge in the contract, but legal certainty will not be jeopardized, as judicial intervention is limited by the fulfillment of the conditions specific to the contractual imprevision
In the motivation of Decision No 623/2016, it is emphasized that the legislator has configured the legal framework represented by Law No 77/2016 taking into account an ope legis applicable to all ongoing credit agreements deforming the conditions for the application of unpredictability
Summary
After the financial crisis, which hit worst after 2009, Romanian society has been dominated by a sentiment of strong dissatisfaction vis-a-vis the position of non-intervention on the financial sector adopted by the government and The National Bank. The right to extinguish the claim arising from a credit agreement and its accessories, together with the correlated debt, by giving in payment the real estate, is set up by Law No 77/2016 and the rise of this right may take place only after at least the conditions provided by Art. 4. For exercising the right to extinguish the bank debt and the correlative debt by means of giving in payment, according to Art. 5 of the Law No 77/2016, the consumer shall send the creditor, through a bailiff, a lawyer or notary, a notice informing him that he has decided to transfer ownership of the property in order to settle the debt arising from the mortgage credit agreement detailing the ‘admissibility’ of the application as set out in Art. 4. The two rules established by law for the calculation of the loan amount are: 1) the amount to be the one at the time of the grant and 2) the exchange rate to be the one published by the National Bank of Romania on the day of the conclusion of the credit agreement
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