Law no. 77/2016 regarding datio in solutum. Mortgage consented to by individuals associated with the legal entity that took out the bank loan. Lack of consumer status of the individual plaintiffs

DREPTUL AFACERILOR/ASPECTE DE DREPT PROCESUAL

Abstract

The restriction of the scope of application of Law No 77/2016 to credit agreements concluded with „consumers” is explained by the fact that, by derogating from the principle of the binding force of agreements (established by Article 1.270 of the Civil Code), the law limited itself to protecting the vulnerable party in credit agreements, based on the premise that the latter had neither the information nor the economic and legal strength necessary to negotiate the best conditions for granting the credit nor the ability to make projections for the future regarding the repayment of the loan.

There is no reason to extend the application of the rule to contracts concluded between professionals, even if the obligations assumed by them were guaranteed by individuals with personal assets. This is because such contracts are not intended to cover the specific needs of human beings (as is the case with the 'consumers' referred to in the special legislation), but are intended to finance a profit-making economic activity, for which the borrower, and all those who enter into obligations alongside him, are obliged to act with the utmost diligence, since taking out/guaranteeing the loan in such a situation is a 'business decision'.