Bank loan agreement. Benchmarks in the application of the unpredictability theory

DREPTUL CONTENCIOSULUI ADMINISTRATIV ŞI FISCAL

Abstract

In the considerations of Decision no. 623/2016, the Constitutional Court established benchmarks in the application of the unpredictability theory, according to the Civil Code, in the situations that the giving in payment procedure is appealed to, emphasizing that „the unpredictability shall only aim at the superadded risk” (para. 97), establishing that the assessment of its occurrence „should be regarded and achieved as a whole, at least by the analysis of the capacity and economic/legal training of the co-contractors [professional/consumer dichotomy], of the value of the services determined under the agreement, of the already materialized risk incurred during the performance of the loan agreement, as well as of the new economic conditions which distort both the parties’ will and the social usefulness of the loan agreement (…). However, once the overcoming of the inherent risk of the agreement and the occurrence of the superadded risk, the intervention on it becomes binding and it must be actual, either in the sense of its cessation, or of its adaptability to the new conditions, as it produces legal effects in the future, and the services already carried out shall remain gained to the agreement”. Therefore, since the inherent risk of the agreement has been known and assumed (as well) by the consumer, from the conclusion of the agreement, the superadded risk is that likely to determine the disruption of risks arising from the loan agreement. Besides the occurrence of the unexpected situation (objective condition), its effects on the performance of the agreement are also required to be assessed, respectively the good faith in the exercise of the contractual rights and obligations of the parties (subjective conditions), as well as fairness involving both an objective side, and a subjective side. The depreciation of the CHF/RON exchange rate during the period 2008 (the conclusion date of the initial loan agreement) – 2015 (the conclusion date of the deed of novation of the loan), from an amount of 2.54 in the year 2008, to an amount of 4.646 in January 2015, represents unpredictability which may be connected to the notion of superadded risk, exceeding the expectations of a diligent person, which could not be subject, in concreto, to a forecasting of the parties to the agreement and which depends on the occurrence of certain items which could not be envisaged at a quo time. Loan incurring has become too burdensome for consumers, taking into consideration their support obligations (by reference to all family members) and in relation to their income realized, the respondents’ bad faith regarding the performance of the contractual obligations cannot be acknowledged. Supporting the professional in the sense that the birth of a child cannot be deemed as a case of unpredictability is correct in principle, however, as far as concerns the consideration of the good faith and the actual likelihood to continue the contractual relationships it is necessary to take into account the consumer’s financial state, inclusively influenced by the number of dependent children.