Beating banks through knowledge

AuthorMonica Calu - Costel Stanciu
PositionConsumer Law Expert Pro Consumatori Association (e-mail: - Associate Professor, PhD, 'Nicolae Titulescu' University of Bucharest (email:
Monica CALU
Costel STANCIU
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
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:
 Associate Professor, PhD, Nicolae Titulescu” University of Bucharest (email:
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

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