Distanţele derogatorii. O aplicaţie la clauzele de accelerare a creditului
Derogatory distances. An application to loan acceleration clauses

Summary/Abstract: This study introduces the concept of derogatory distance, defined as the extent to which the parties to a contract depart from a default legal rule. The concept builds on the idea of default distance, understood as the range within which a default legal rule allows its addressees to adjust their conduct through the technique of derogation, by establishing contractual clauses in accordance with their own interests and the specific features of the transaction. The analysis of derogatory distances requires a qualitative and quantitative multifactor assessment, which includes: (i) the substantive intensity of the derogation, measured as the relationship between the statutory normative content (baseline) and the derogating contractual provision; (ii) the functional impact of the derogation, reflecting the effects that modifying or removing the legal rule has on the fulfillment of its role; (iii) the structural imbalance generated by the derogation, assessing the weight of the derogating clause within the overall contract and the degree to which it affects other contractual elements, as well as the existence of potential compensations between opposing derogatory imbalances; (iv) the transparency of the derogation, referring to its explicit nature and the degree of clarity and foreseeability of the effects of the derogating clauses; and (v) the context of the derogation, consisting of the circumstances relevant to the transaction that justify or are invoked to legitimize the derogation. In essence, assessing derogatory distances measures the substantive intensity, functional efficiency, structural balance, formal transparency, and reasonableness of the derogation. An application of these ideas to loan acceleration clauses, used by bank creditors to (directly) control the credit agreement and (indirectly) the client’s business through the mechanism of forfeiture of the benefit of the term, leads to interesting results from the perspective of law and economics. The study proposes a derogation index that measures derogatory distances according to a methodology involving the breakdown of loan acceleration clauses into their component elements, the identification of the default level of the rule from which the derogation occurs, the assessment of the derogation for each of these elements, and the calculation of an overall derogation index, which is then compared with the indices of other banks and with the market level. The analysis argues that: (i) contractual derogations play a significant role through their signaling and control functions; (ii) measuring derogation indices from default legal provisions reveals substantial departures effected through credit agreements, indicating that the level of protection afforded to bank creditors by the relevant legal provisions is perceived by them as insufficient; (iii) creditors tend to assess uniformly the derogatory potential of certain elements of acceleration clauses, implying a sector wide consistent interpretation of the practical consequences of the conventional reconfiguration of the acceleration mechanism; (iv) the derogation index from default legal provisions is, in all cases, situated in the upper range of the measurement scale and is relatively homogeneous, suggesting the emergence of a particular type of sticky default phenomenon, characterized by the alignment of contractual practices not with the statutory baseline established by the default rule, but with the level perceived by the market as ensuring optimal creditor protection; and (v) with regard to loan acceleration clauses, contractual models have been standardized and aligned at a significant level of derogation from the default level, positioned within a safety zone for bank creditors, which thus becomes the new market baseline and confirms the applicability of the market for lemons theory in the field of contractual standardization, including in relation to professional clients, not only consumers. The empirical analysis accompanying the theoretical study confirms that, although the loan acceleration mechanism may be credited with a certain deterrent effect, its primary effect is remedial in nature: (i) an increase in the derogation index is correlated with a decrease in the loan to deposit ratio (LDR), suggesting a more prudent risk profile of the bank; (ii) an increase in the derogation index is correlated with a decrease in non performing loans (NPL), indicating a higher quality of the bank’s credit portfolio; (iii) an increase in the derogation index is correlated with higher interest income, suggesting that the flexibility and control provided by acceleration clauses contribute to the profitability of lending activity. Beyond these correlations, the statistically significant result of the econometric analysis concerns the hypothesis of a high level of non performing loans (NPL), in which a high derogation index – allowing the bank optimized control over the activation of the acceleration clause – produces a positive effect on the bank’s capacity to remove non performing loans from its portfolio, with the correlative consequence of reducing the loan to deposit ratio (LDR). This result indicates that a loan acceleration clause operates as an ex post control mechanism, but does not decisively influence the ex ante assumption of credit risk. Contractual flexibility and the bank’s control over loan acceleration do not generate higher returns and do not encourage greater risk taking, but they play a significant role in stabilizing the bank’s portfolio under stress conditions. The empirical analysis thus confirms that, in their derogatory variants from general contract law, loan acceleration clauses constitute a complex instrument of contractual governance and debtor discipline, balancing the need for credit security with the economic efficiency of lending.

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