Hardship in the Context of Law no. 52/2020 for Amending and Supplementing the Law no. 77/2016 on the Giving in Payment of Immovable Assets to Discharge Obligations Undertaken by Credit

Maria Dumitru
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Maria Dumitru: Associate Professor PhD, Faculty of Law and Administrative Sciences, Stefan cel Mare University, Suceava; Attorney-at-law in the Iasi Bar

European Journal of Law and Public Administration, 2020, vol. 7, issue 1, 80-88

Abstract: The present article proposes a brief analysis of hardship given the amendments brought by Law no. 52/2020 to article 4 from Law no. 77/2016, taking into account the considerations of the Constitutional Court pointed out in two relevant decisions in this matter: Decision no. 623 of October 25, 2016 and Decision no. 731 of November 6, 2019. In the legislative context created by Law no. 77/2016 and made explicit by the Constitutional Court, the institution of hardship provoked numerous debates and dilemmas, especially the ones of a practical nature, which do not seem to be eradicated by the amendments brought by Law no. 52/2020, but on the contrary. The answer to the question whether by amending art. 4, two special cases of hardship were consecrated or two absolute presumptions were established, is the key to the interpretation and application of Law no. 77/2006 and even to the verification of its concordance with the constitutional provisions.The difficulty of identifying the unique answer urges a careful and prudent reading of the text of the law, in order to avoid possible hasty and possibly erroneous conclusions.

Keywords: Hardship; giving in payment; absolute presumptions; cases of hardship; the active role of the judge; good faith; equity; contractual balance; proportionality; binding force of the contract. (search for similar items in EconPapers)
JEL-codes: H7 K10 K15 K33 (search for similar items in EconPapers)
Date: 2020
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Persistent link: https://EconPapers.repec.org/RePEc:lum:ejlpa1:v:7:y:2020:i:1:p:80-88

DOI: 10.18662/eljpa/7.1/116

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