Study on the fee payment clause into the contracts for credit risk with mortgage

• Author: Aida Diana Dumitrescu - Stefan Mihaila
• Position: Ph.D. universitary assistent, University of Craiova, Faculty of Law and Administrative Sciences, Departament of Public Law - Ph.D. universitary reader, 'A. I. Cuza' Police Academy, Faculty of Police, Departament of Privat Law
• Pages: 279-283

STUDY ON THE FEE PAYMENT CLAUSE INTO THE CONTRACTS FOR CREDIT R ISK WITH

MORTGAGE

Dumitrescu Aida*

Mihil Ştefan**

Abstract

The problem of unfair terms in co ntracts with the mortgag e loan is a real and presen t theoretical and

practica l situation that r equires a proper a nalysis.

One of the unfair terms in contracts of mortgage credit, which excite the expert discussions, i s the

clause tha t obliges the bank customer - the borrower to pa y a r isk fee. Discussions on the cla use concerning the

risk fee have to be relating to the r ecent legislative change in order to ha rmonize with EU legislation.

Keywords: risk, risk fee, good insurance, bank credit a greement with mortgage gua rantees, unfair.

Introduction

The Romanian citizen, a s debtor in a bank cr edit agreement, is obliged, under the impact of economic

crisis especially today, to grow at a rapid pace in ter ms of how it intends to address existing or future

contractu al relations with creditor s (banks).

A consequence of this situation is that, in signing a credit agreement secured by rea l estate banking, the

customers - borrowers began to show increa sed responsibility, r eflected by a more ca reful documentation a nd

information and hence, obser vation and punishment of abusive clauses in the contr act stipulated by the lender.

Problems a rising from the provision of unfair terms into contra cts with the mortgage ba nk led

determined in the curr ent period, multiple theoretical discussion a nd an abundant jur isprudence.

1. Theoretical considerations on the stipulatio n of a fee payment clause in the credit risk of

mortgage guarantees.

1.1. The risk and the risk fee. Statement bank loan agreement secured by real estate is a feature in

relation to bank credit agreement and the discussion on t he stipulation clause that obliges the bank to pa y a fee to

the credit risk in bank secured by real estate sho uld be reasonably on part due to recent changes in legislation in

the field, on the other hand, due to the need to sanction non-compliance to the law.

The specific of the credit mortgage contract is that the risk involved in granting credit by the bank is

covered by the existence of real estate collateral, which is an insurance guarantee on the lease for the bank, paid

by the client. Moreover, into these contracts there is a clause inserted which oblige the debtor to pay a

commission fee for not paying on time penalty rates.

Given the above considerations, the risk of the bank, whatever its nature, is entirely covered by the

existence subsumed under the same purpose of the insurance and the penalty fee.

According to art. 3 ¶ 1 letter g from the provisions of the National Bank of Ro mania no. 17 of 18

December 2003, the credit risk, as a bank risk is defined as the risk of loss or failure of the record profits

expected, failure to perform contractual obligations to customers consisting of repayment and the cost of its.

Someone ma y plead that this insurance is not covering the risk integral if the insured property value of the

mortgage good would fall until after the conclusion of insurance and renewal thereof, below the credit, but then,

we have to observe that there is a penalty clause for fee timely pa ying annuities which is supposed to cover the

difference in value.

In banking practice, some banks have arrangeme nts with customers – borrowers, so it included into the

credit agreements secured by real estate outside the clause of property mortgage insurance requirement and the

clause of penalty fee for not paying on time annuities, another clause to which the debtor must pay a fee of risk.

The risk commission is established as a co mmission which is going to cover the risk premium associated

with a particular customer financing by the financial institution.

This situation led to a series of d iscussions in doctrine and practice sp ecialty, enhanced by recent

legislative changes, changes in the growth of currency in which they were borrowed and economic crisis, all

within the meaning of the unfair nature of this provision.

1.3. The pro blem of unfair terms in contracts regulation of mortgage credit. Initially, the provisions of Law

no. 193/2000 on unfair terms in contracts concluded between traders and consumers

1 were the general

regulatory provisions on the problem of unfair terms.

* Ph.D. universitary assi stent, University of Craiova, Faculty of Law and Administrative Sciences, Departament of Public Law, e-mail:

aida_dumitrescu@yahoo.com

** Ph.D. universitary reader, “A. I. Cuza” Police Academy, Faculty of Police, Departament of Privat Law, e -mail:

stefan.mihaila@academiadepolitie.ro