29. Particularități ale clauzei penale în convențiile de garantare aferente contractului de credit
29. Features of the penalty clause in the guarantee agreements related to credit contracts

Summary/Abstract: According to the guarantee agreement clause, if the financier initiates enforcement proceedings against the Fund by unjustifiably imposing garnishments, in cases where the Fund has ascertained that the payment conditions for the guarantee specified in the agreement have not been met and has communicated its decision to the bank, the bank is obligated to pay damages equal to the total amount of the unjustified garnishments. This clause has the nature of a penalty clause, in the sense of Article 1.538 of the Civil Code, the parties acknowledging through their mutual agreement the seriousness of the harm caused by the bank's failure to fulfill this obligation, which consists of blocking the activity of a non banking financial company. The interpretation of the contract according to the true or internal will of the parties must be made by reference to the elements mentioned as examples in para. (2) of Article 1.266 of the Civil Code – the purpose of the clause in the contract, the negotiations held, the practices established between the parties, and their behavior after the conclusion of the contract, which represent both internal and external factors of the agreement. The clause was inserted in the contract to prevent the bank from abusively exercising its right to initiate enforcement proceedings, ensuring instead that it follows the general law process to verify the legitimacy of the Fund's refusal to pay the guarantee. Therefore, through this contractual clause, the defendant bank assumed the obligation not to initiate enforcement proceedings in the event of a payment refusal communicated to the bank, until the legitimacy of the refusal was verified through ordinary law procedures. When the courts of first instance and of appeal, disregarding the purpose of inserting the penalty clause into the parties' agreement and the meaning resulting from the entire article meant to regulate the settlement of the dispute between the parties, added a further condition to the literal meaning of the terms used by the parties (terms that are presumed to express their true will) – that the Fund's decision not to pay the guarantee must be justified – the rules of substantive law regarding the interpretation of agreements are violated. This is because the legitimacy of the Fund's refusal could only be challenged in court by the party whose subjective right was violated, namely the bank. The debtor's failure to fulfill the obligation not to impose unjustified garnishments cannot be classified as a cause for impunity by the interpreter of the penalty clause. Consequently, the appellate court interpreted this contractual clause not in the sense in which it produces effects, but in the sense in which it would produce none, contrary to the provisions of Article 1.268 para. (3) of the Civil Code.

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