Aspecte privind clauzele contractuale abuzive în procedura insolvenţei
ASPECTS CONCERNING ABUSIVE CONTRACTUAL CLAUSES IN INSOLVENCY PROCEDURE

Summary/Abstract: A contract is the agreement of wills of two or more persons with the intent of establishing, modifying or cancelling a judicial relationship. It has power of law between the contracting parties. In the Romanian legal system contract negotiation, as a preliminary stage to closing contracts is not mandatory and does not produce legal effects. The Romanian legislator does, however, punish bad faith in contract negotiation. This would yield the conclusion that if a clause has not been negotiated by the parties, but was assumed by these by signing of the contract, this clause will be imposed on the parties who will have to execute it, regardless of its content. This conclusion is in essence correct, with the exception, however, of unfair terms - abusive clauses, because inserting such clauses in contracts is penalised by law by nullity. In judiciary practice it was established that nullity of an abusive clause can be invoked in various form, in situations where the co-contracting party who benefits from such a clause would attempt to use it. Thus nullity of the abusive clause can be requested directly, by legal action, in defence by exception, consequently to the court being notified by the Office for consumer protection, incidentally even by contestation in execution, but also as a novelty in insolvency procedures, by the special contestations provided by insolvency law.

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