Hardship in the Context of Law no. 52/2020 for Amending and Supplementing the Law no. 77/2016 on the Giving in Payment of Immovable Assets to Discharge Obligations Undertaken by Credit
DOI:
https://doi.org/10.18662/eljpa/7.1/116Keywords:
Hardship, giving in payment, absolute presumptions, cases of hardship, the active role of the judge, good faith, equity, contractual balance, proportionality, binding force of the contract.Abstract
The present article proposes a brief analysis of hardship given the amendments brought by Law no. 52/2020 to article 4 from Law no. 77/2016, taking into account the considerations of the Constitutional Court pointed out in two relevant decisions in this matter: Decision no. 623 of October 25, 2016 and Decision no. 731 of November 6, 2019. In the legislative context created by Law no. 77/2016 and made explicit by the Constitutional Court, the institution of hardship provoked numerous debates and dilemmas, especially the ones of a practical nature, which do not seem to be eradicated by the amendments brought by Law no. 52/2020, but on the contrary. The answer to the question whether by amending art. 4, two special cases of hardship were consecrated or two absolute presumptions were established, is the key to the interpretation and application of Law no. 77/2006 and even to the verification of its concordance with the constitutional provisions.The difficulty of identifying the unique answer urges a careful and prudent reading of the text of the law, in order to avoid possible hasty and possibly erroneous conclusions.
References
Dumitru M. Impreviziunea in contractele incheiate intre consumatori si comercianti. Curierul judiciar. 12, 2018, 718-727.
Romanian Parliament. Law no. 52/2020 for amending and supplementing the Law no. 77/2016 on the giving in payment of immovable assets to discharge obligations undertaken by credit, published in the Official Gazette of Romania, Part I, no. 386 of May 13, 2020.
Romanian Parliament. Law no. 77/2016 on the giving in payment of immovable assets to discharge obligations undertaken by credit, published in the Official Gazette of Romania, Part I, no. 330 of April 28, 2016.
Constitutional Court (CCR). Decision of the Constitutional Court no. 731 of November 6, 2019 regarding the objection of unconstitutionality of the provisions of the sole article point 2 [with reference to Article 4 par. (11) and par. (13)], point 3 [with reference to Article 4 par. (3) and par. (4) )], point 6 [with reference to art. 7 par. (11)], point 7 [with reference to art. 7 par. (4)], point 8 [with reference to art. 7 par. ( 51)] and point 9 [with reference to art. 8 par. (5) second sentence] of Law amending and supplementing Law no. 77/2016 on the giving in payment. published in the Official Gazette of Romania, Part I, no. 59 of 29th January, 2020.
Constitutional Court (CCR). Decision of the Constitutional Court no. 623 of October 25, 2016 regarding the exception of unconstitutionality of the provisions of art. 1 par. (3), art. 3, art. 4, art. 5 par. (2), art. 6-8, especially art. 8 par. (1), (3) and (5), art. 10 and of art. 11 of Law no. 77/2016 on the giving in payment, as well as the law as a whole, published in the Official Gazette of Romania, Part I, no. 53 of January 18, 2017.
Constitutional Court (CCR). Decision of the Constitutional Court no. 62 of March 3, 2017 regarding the admission of the objection of unconstitutionality of the provisions of the Law for completing the Government Emergency Ordinance no. 50/2010 on consumer credit agreements, published in the Official Gazette of Romania, Part I, no. 16 of March 3, 2017.
Romanian Parliament. Law no. 287/2009 regarding the Civil code, published in the Official Gazette of Romania, Part I, no. 505 of July 15, 2011.
Stoica V. O lectura constitutionala, dincoace si dincolo de Legea darii in plata, 2017, February 8. Available at: https://www.juridice.ro/essentials/836/o-lectura-constitutionala-dincoace-si-dincolo-de-legea-darii-in-plata. Accessed: 09.06.2020.
Tit N-H. Prezumtiile instituite prin Legea nr. 52/2020 se aplica numai dacă perioada de 6 luni prevazuta de art. 4 alin. (12) din Legea nr. 77/2016 este plasata, in întregime, dupa intrarea in vigoare a legii noi; 2020, June 5. Available from: https://www.juridice.ro/685429/prezumtiile-instituite-prin-legea-nr-52-2020-se-aplica-numai-daca-intreaga-perioada-de-6-luni-prevazuta-de-art-4-alin-12-din-legea-nr-77-2016-este-plasata-in-intregime-dupa-intrarea-in-vigoare.html. Accessed: 08.06.2020.
Pop L, Popa I-F, Vidu SI. Curs de drept civil. Obligatiile. Bucharest: Universul Juridic Publishing House; 2015.
Tabacu A, Duminica R. Prezumtia ca mijloc de proba, potrivit noului Cod de procedura civila si noului Cod civil, 2011. Available from: sinact.ro. Accessed: 08.06.2020
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