The regulation of the banking contracts in the new civil code

AuthorGeorge Chiocaru
PhD student George CHIOCARU
Starting with the enactment of the New Civil Code have been regulated for the first time contracts and lega l
institutions specific to the ba nking ac tivity. The new r egulation even if they brought important solutions for certain
problems rega rded in the commercial activity and especially in the banking sector, have a lso raised new questions
regar ding especially their domain of applicability, their imperative or dispositive chara cter or the possibility for the
parties to conclude contract other tha n those expressly regulated. By taking into considera tion the special chara cter
of the opera tions involving the administra tion of money as well a s the sensitivity from a legal and especially social
perspective of the ownership r elation rega rding money, we have focused in our ana lysis on the relations resulting
from the contracts regulated by the chapter “the bank account and other banking contracts”.
Key words: deposit, ownership right over money, credit, credit institution.
JEL Classification: K12
I. Highlights regarding the banking contracts in Romania
Starting with the enactment of October 1st, 2011 of the Law no. 287/2009 regarding the
Civil Code
(hereinafter “the New Civil Code”), as further amended by Law no. 71/2011 for the
enactment of the Law no. 287/2009 regarding the Civil Code, the Romanian legislator abandoned
the dualist conception of law (dichotomy civil law-commercial law) adopting in the New Civil
Code the monist conception.
Furthermore, in the New Civil Code have been regulated for the first time the banking
contractual relations (the bank account, bank deposit, credit facility and renting of the safe
deposit boxes), this actually creating the common law for this matter.
However, the synthetic regulation of the banking contracts in the New Civil Code pursues
only the legal confirmation of the parties intention who are taking part to the banking relations,
without specifying or giving any detail about the contract mechanics. The reason why the
legislator avoided a detailed regulation of such contracts may, on one hand, be represented by the
impossibility of the legal act of covering all the banking operations, and on the other hand,
because of the high complexity and mobility of such operations.
Having in mind the above, the common aspects of the banking contracts will remain
subject to the general contractual regime, as regulated by the New Civil Code, the rules and
regulations issued by the National Bank of Romania, as regulatory and supervisory authority of
the credit institutions, and the general terms and conditions specific to each credit institution and
used in relation with their clients.
II. The bank account and the bank deposit
Although along time the way we are using money has suffered several transformations,
we consider that money have to be analysed from the perspective of the key elements identified
by Aristotel in his work Politics
: means of exchange (the possibility to use them to pay for
George Chiocaru, Bucharest University of Economic Studies,
Law no. 287/2009 regarding the Civil Code, published in the Official Gazette, Part I, no. 505 of 15/07/2011;
Aristotel, Politics, published by Antet, Bucharest, 2001;

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