Loan contracts in the New Civil Code LEGAL NEWSFLASH

Nr. 12, September 2011
Nemoianu Attorneys at Law – the correspondent law firm of KPMG in Romania
contracts in the New Civil Code
KPMG in Romania
The New Civil Code brings amendments to loan contracts in
terms of risks attached to, transfer and return of items lent,
and also introduces a new regulation governing loan
promises. Such amendments will have an impact on the
extent and outcome of private and business relationships
between contracting parties, which will give rise to rights
and obligations to come into effect after 1 October 2011. As
a general remark, borrowers’ rights have been broadened in
terms of transfer to third parties of the item borrowed,
borrowers’ quick access to favourable court rulings, and the
extent of security interests offered by the borrower. By
contrast, borrowers’ obligations in the event of destruction
and early return of the item borrowed have been tightened.
also for the first time, the new code provides a possible
solution for consecutive enforcement of obligations: an
emergency legal action. The party refusing to keep the
promise and enter into a contract at the term agreed will
be obliged to conclude the contract and even to pay
under gratuitous loan agreements (also known as
commodate or free use agreements) borrowers
(beneficiaries) may now transfer their right of use to a
third party if they have the lender’s (owner’s) consent;
if the beneficiary uses the leased item for a purpose
other than the one stated under the contract or extends
the use of the item beyond the term established, the
beneficiary shall be liable for the loss or deterioration of
the item even if such loss or deterioration has been
caused by a force majeure event;
another novelty for commodate agreements is the
owner’s liability for defects of the leased item while in
use by the beneficiary, an obligation similar to a seller’s
guarantee for an object sold;
Some of the issues arousing interest are:
it is for the first time that loan promises have been
regulated. However, such promises allow for the
conclusion of consecutive agreements over the same
item, in consideration of a promise previously made.
The major risk posed by such agreements is the
enforcement of the obligation strictly at the term
About us
under certain conditions, a loan agreement may be
deemed as a writ of execution;
where an interest-free loan agreement is concluded
over fungibles, the deadline for the return of such items
may now be deemed to be set only in favour of the
In light of the above, our lawyers can provide assistance in
connection with:
drafting and ensuring assistance during contract
ensuring that the legal provisions are properly
transposed in agreements;
reviewing conformity of ongoing contracts with the
provisions of the New Civil Code;
drafting contract clauses on timely or early return of
borrowed items;
ensuring enforceability of contracts without preliminary
court intervention;
ensuring assistance and representation in disputes
arising out of loan agreements;
identifying optimum solutions pertaining to type and
nature of loan contracts concluded between parties
having a distinct/mixed legal capacity, such as between
legal entities and individuals, between entities belonging
or not to the same group, so as to meet the
group’s/company’s interests.
Our lawyers are business-oriented advisors with legal and
financial background, with strong negotiation skills and a
result-driven approach. Having a thorough understanding of
the specifics of various industries, our professionals offer
uniform quality, observe tight deadlines, anticipate clients’
needs and meet their requirements with professionalism and
Over the last 17 years, we have gained a strong track
record of large transactions brought to a successful
completion, advising our clients and delivering clear,
pragmatic advice on various matters such as financial
services, mergers & acquisitions, public sector,
restructuring, energy and employment. We actively assist
our clients, tailoring our services to help investors develop
investment strategies, seeking cost-effective solutions and
protecting their interests.
Contact details:
Impozitul pe profit
Daniela Nemoianu
Executive Partner
[email protected]
Impozitare internaţională
Corporate and Commercial
Sebastian Olteanu
[email protected]
Banking, Finance & Insurance
Private Equity & Capital market
Public sector & Infrastructure
Energy & Utilities
Restructuring & Insolvency
Real estate
Intellectual Property Rights
Communications &Technology
Dispute Resolution
Nemoianu Attorneys at Law
The correspondent law firm of KPMG in Romania
Victoria Business Park
DN1 Bucuresti Ploiesti nr. 69-71
Sector 1, Bucuresti 013685, Romania
P.O. Box 18 – 191
Tel: i+40 372 377 800
Fax: +40 372 377 700
E-mail:[email protected]
The information contained herein is of a general nature and is not intended to address the
circumstances of any particular individual or entity. Although we endeavor to provide
accurate and timely information, there can be no guarantee that such information is accurate
as of the date it is received or that it will continue to be accurate in the future. No one should
act on such information without appropriate professional advice after a thorough examination
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© 2011 KPMG Romania S.R.L., a Romanian limited liability company and a member firm of
the KPMG network of independent member firms affiliated with KPMG International
Cooperative (“KPMG International”), a Swiss entity. All rights reserved. Printed in Romania.