Legal conditions for identifying abusive clauses in loan
agreements
1. Abusive clauses in credit agreements have not been
negotiated;
The bank is obliged to offer the possibility to negotiate
the contract, thus removing the abusive clauses from the credit agreements.
Although a contract can be concluded by the simple agreement
of will, in the banking financial field the negotiation is also essential,
including especially regarding the abusive clauses. Once notified the competent court, from the evidence to be
administered in the process, it will result that there was no negotiation,
contrary to the task of art. 4 para. 3) of Law 193/2000.
The negotiated character of a contractual clause is not
given by the fact of knowing the existence of this contractual clause, or more
precisely by the bank / IFN policy regarding the respective clause, but by the
possibilities of the consumer to effectively negotiate the elements of the
clauses.
2. The inserted clauses are contrary to the exigencies
imposed by good faith;
In this sense, as the specialized doctrine has shown, the
verification of the abusive character of a clause presupposes the existence of
a contract signed by the parties, so the conclusion of the contract itself
cannot, at the same time, exclude the applicability of consumer protection
norms.
3. Clauses considered to be abusive create, to the detriment
of the consumer, a significant imbalance between the rights and obligations of
the parties.
If the banking institution has inserted in the contract a
series of clauses regarding the bearing of foreign exchange risk, variable
interest, analysis fee, risk fee and annual credit fee, their consequence being
to burden the consumer with some additional amounts of money. , which do not
have any consideration from the Bank, it is obvious the imbalance that has been
created in the consumer's patrimony, he owing as a result of the clauses
mentioned above a huge amount.
4. The clauses are not limited to the notion of "main
object of the contract" so that they allow the intervention of the court
regarding the restoration of the contractual balance.
Solutions to fight against abusive clauses
The most important solution should result from the Case of
the Court of Justice of the European Union C40 / 08 Asturcom and from the
national Civil Code:
Directive 93/13 on unfair terms in contracts concluded with
consumers must be interpreted as meaning that a national court seised of a
request for enforcement of an arbitral award which has acquired the authority
of res judicata, rendered in the absence of the consumer, is bound as soon as
possible. has the necessary legal and factual elements for this purpose, to
assess ex officio the abusive nature of the arbitration clause contained in a
contract concluded between a seller or a supplier and a consumer, insofar as,
according to internal rules of procedure, it may such an appreciation in
similar actions of an internal nature.
Therefore, the courts are obliged to verify ex officio the
legality of all the clauses in the credit agreement.
There are a dozen legal norms, found in Directive 93/13 /
EEC, Law 193/2000, Law 296/2004 and GEO 21/1992, which allow and oblige judges
to restore the contractual balance, on the grounds that the forced executions
of receivables increase the imbalance.
BUT, in practice this does not happen, the active -
mandatory - role of judges is missing.
Whoever expects a judge to invoke ex officio defenses in
favor of the debtor, ie the observance of a legal and professional obligation
under the judge, will have a serious depression.
