Beating banks through knowledge

• Author: Monica Calu - Costel Stanciu
• Position: Consumer Law Expert Pro Consumatori Association (e-mail: monica.calu@apc-romania.ro). - Associate Professor, PhD, 'Nicolae Titulescu' University of Bucharest (email: costelstanciu@apc-romania.ro).
• Pages: 7-14

LESIJ NO. XXIV, VOL. 2/2017

BEATING BANKS THROUGH KNOWLEDGE

Monica CALU

Costel STANCIU

Abstract

In Romania, in the last decade, a significant number of solutions favorable to consumers with

foreign currency denominated loans were o btained in courts against the banks or non -bank financial

institutions. The judges noted the unfairness of the contractual terms inserted in the loans agreement

and absolute nullity of these clauses. Also, in the context of the global economic and financial crisis

triggered by the collapse of the banking system with the consequence of depreciation and/or sudden

and high fluctuation of domestic currencies against the “safe-haven currencies”, the theory of

unpredictability becomes a particularly important institution.

This paper deals with the concepts of „abusive clauses”, „unfair commercial practices” and

„providing untruthful information to consumers to influence their choices”. It is also presenting a view

of good faith and equity on the performance of contract and the “distribution of the risk” of the contract

in the conditions of applying to the “unpredictability theory” in the context of terms of law doctrine

and the relevant case law.

The objective of this study is to demonstrate that by applying the theory of unpredictability to the

occurrence of currency risk associated with loans in foreign currency and by subjecting to examination

by court to the clauses whereby the consumer must assume the risk given by the changing of the

circumstances of the execution of the contract can be obtain by the consumer or a rebalancing of the

understanding of the parties or the cancellation clause which significantly unbalanced the consumer's

obligation to bear any risk.

Keywords: „abusive clauses”, „unfair commercial practices” and „providing untruthful

information to consumers to influence their choices”, “distribution o f the risk”, “theory of

unpredictability”.

1. Introduction

In the last ten years, Romanian co urts

had to face a large number of files in which

the National Agency for the Protection of the

Consumers and/or the consumers requested

the lack of effects of t he abusive clauses

included in the agreements of bank credits

entered into between consumers and

professionals. Although for most of the

times the co urts established the presence of

abusive clauses and admitted the complaints,

 Consumer Law Expert Pro Consumatori Association (e-mail: monica.calu@apc-romania.ro).

 Associate Professor, PhD, “Nicolae Titulescu” University of Bucharest (email: costelstanciu@apc-romania.ro).

other contracts of the same type belonging to

the same professional continued to pro duce

their effects. Moreover, that final solutions

obtained in court did not stop ped the

professionals from concluding other

contracts whose co ntent include the clauses

qualified by the court as abusive. Starting

from this reality and in order to stop its

continuation in the future, certain aspects on

abusive clauses of the La w no 193/2000

were modified in 2010. Given that t he

problem of the over indebtedness of the

consumers due to the contracts concluded

before the economic and financial crisis