Compliance with the eligibility conditions for the transfer in lieu of payment and the application of the theory of hardship in view of the exchange rate increase
DREPT BANCAR
Abstract
Even if not attached to the notification, the evidence of fulfilment of the conditions of Article 4 para. 1 of Law no. 77/2016, the payment order is admissible, since the text of the law referred to refers to the fulfilment of the conditions in substance and not to the formality of submitting documentary evidence attached to the notification. The legislator has made available to the creditor the special remedy of appeal against the payment notification, a procedure in which any means of evidence may be used to prove the fulfilment/non-fulfilment of the conditions of admissibility of the transfer in lieu of payment.
Having established that the conditions for admissibility laid down in Article 4 para. 1 of Law no.77/2016, the court must proceed to verify the incidence of the theory of unforeseeability, as ruled by Constitutional Court decision no. 623/2016. According to the recitals of this decision, in the case of loans granted prior to N.C.C., the solution is to apply the theory of unforeseeability as it was held by the doctrine and jurisprudence of the time, and in the case of loans granted after 1 October 2011, the provisions of Article 1.271 C. civ. on unforeseeability can be applied.
The increase in the CHF/RON exchange rate by 95.45% compared with the initial rate represents an objective, exceptional and unforeseeable alteration in the circumstances of the conclusion of the contract, which resulted in a manifest disproportion between the mutual obligations of the parties, the defendants being obliged to pay, solely as a result of that increase in the rate, an amount almost double the initial cost of the loan. The legislator has intended to introduce an express criterion of unforeseeability based precisely on the fluctuation of the exchange rate in Article 4 para. 11 letter a. of Law no. 77/2016, according to which "constitutes hardship: during the performance of the loan agreement, the exchange rate applicable for the purchase of the currency of the loan is more than 52.6% higher than at the date of the loan agreement. For the purpose of calculating the percentage of 52.6%, the exchange rate published by the National Bank of Romania on the date of the payment notification and the exchange rate published by the National Bank of Romania on the date of conclusion of the loan agreement shall be taken into account”.
