Credit facility according to the new civil code

• Author: Rada Postolache
• Position: Lecturer doctor, 'Valahia' University of Târgoviste, Faculty of Law and Social-Political Sciences, Social-Political Sciences Department
• Pages: 42-45

CREDIT FACILITY ACCORDING TO THE NEW CIVIL CODE

Rada Postolache

Abstract

Credit facility i s described by the pr ovisions of the new Romania n Civil Code as the main form of a

bank cr edit, particula rized by the fact that funds are kept at the customer’s will and by th e way such funds are

reimbursed. Cr edit facility is not the sa me thing with the classic money loan, which is distinctively regula ted by

the new Civil Code.

Key words: credit facility, loan, cr edit line, interest, unilater al termination.

Introduction

Adopting the view on the unity of private law, the new Romania n Civil Code has brought special

private contr acts in the field of its contra ctual regula tion, including bank contracts. The new Romanian

regulatio ns provide in a synthetic manner for the contr actual forms mentioned above, as much as to offer them a

legal identity a nd content, thus leaving to the pr otagonists involved a gr eat freedom when it comes to their lega l

establishment, a s long a s banking pruden ce requirements instituted by the author ities concerned are obser ved.

The present work shall analyze credit facility by starting from its na tural connection with specific banking

normative acts, so as to prove in the end its featur e of a named, consensual and unilatera l contract, with its own

specific acknowledged identity, reserved to some special entities.

1. Definition, legal classification and modalities of credit facility

Credit facility is regulated by the new Civil Code

1, Book V, Title IX “Various special contracts”,

Chapter XV “Current bank a ccount and other bank contracts”, Section 3 “Credit facility”, art. 2193-2195. T he

aspects which concern banking prudence and customers protection – banking services consumers – remain,

undoubtedly, under the incidence of special legal norms, particularly the Government Ordinance No. 99/2006 on

credit institutions and capital adequacy2, aligned to the European Union law.

Credit notion. The new law, just like t he special law in force, does not define credit. Under these

circumstances, we will offer the definition provided by a special normative act, currently abrogated, namely Law

No. 58/1998 on banking activity3, art. 3 point 7, according to which credit means “any commitment to give an

amount of money, in the exchange of the right to have reimbursed the paid amount of money and to receive an

interest or other expenses concerning the amount of money in question, or any exte nsion of a due date and any

commitment to purchase a title incorporating a debt or another right to the payment of an amount of money”.

The definition co ntains common elements, on the basis of which the species o r forms4 of the category involved

can be established, among which there is also credit facility.

Notion of credit facility. According to art. 2193 of the new Civil Code, “credit facility is the contract b y

means of which a credit institution, a financial non -banking institution or any other entity authorized by a special

law, called financer , takes upon the commitment to keep an amount of money at the customer’s will, for a

determined or non determined period of time”. The definition mentioned above co ntains the characteristic

element of the contract under scrutiny – the obligation to keep an amount of money at the customer’s will, for a

determined or non determined period of time, by setting at the same time apart such contract from its classical

form – loan, which involves giving the funds to the person borrowing the money. Establishing the co ntent of the

contract requires, nonetheless, taking into account all the provisions which are assigned to it by the new Civil

Code (art. 2193-2195).

Legal qualification. Cred it facility is a named contract, thus regulated by the new Civil Code. T he name

“credit facility” constitutes a novelty element of the new regulations, but within banking practice and doctrine5 is

used, with the same meaning, the expression “credit opening”, with all its varieties.

 Lecturer doctor, “Valahia” University of Târgovişte, Faculty of Law and Social-Political Sciences, Social-Political Sciences Department, e-

mail: radapostolache@yahoo.com.

1 Law no. 287/2009 on the Civil Code, Romanian Official Gazette, part I, no. 511 from July 24th 2009, modified by Law No. 71/2011,

Romanian Official Gazette, part I, no. 409 from June 10th 2011, republished, Romanian Official Gazette, part I, no. 505 from July 15 th 2011,

in force from October 1st 2011, denominated in this work New Civil Code or New law, in order to set it apart from the former Civil Code.

2 Off. Gaz. No. 1027 from December 27th 2006.

3 Republished, Off. Gaz. No. 78 from January 24th 2005, currently abrogated.

4 On credit classification, see: I. Turcu, Operaiuni şi contracte bancare. Tra tat de dr ept bancar, volume 1 and 2, Vth edition, updated and

completed, Lumina Lex Publising House, Bucharest, 2004, p. 260-280; Rada Postolache, Creditul bancar . Forme de manifestare potrivit

tehnicilor juridice utilizate, in Annals of the Faculty of Legal Sciences, “Valahia” University of Targoviste, No. 2/2008, p. 202-209.

5 For example, see Fr. Grua, Contrats bancair es. Contrats de ser vices, tome 1, Economica, Paris, 1990, p. 219-279. The author analyzes the

contract under the name of “credit opening contract”.