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Law regarding the measures for combating late payment in fulfillment of obligations arising from contracts

In the Official Gazette of Romania, part 1, no. 182 of April 2nd 2013 was published Law no. 72/2013 on measures for combating late payment in fulfillment of obligations arising from contracts.

The Law transposes into our national legislation the provisions of Directive 2011/7/UE on combating late payment in commercial transactions, issued by the European Parliament and the Council on February  16,  2011.

1. Area of practice

The law is applicable to claims which are certain, determined and owed, consisting of payment obligations arising out of a contract settled between professionals or between them and a contracting authority, considering that the object of the contract is the supply of assets or services, including the design and execution of public constructions, buildings and civil constructions.

The law does not apply to:

–      claims which are submitted to the statement of affairs within a bankruptcy procedure and to claims which are object of a sudden mandate, of an arrangement or of an agreement resulting from extrajudicial negotiations for restructuring a company`s debts;

–      contracts settled between professionals and consumers.

2. Payment deadlines

The contractual term of payment among professionals. According to the new law, the payment term may not exceed 60 calendar days and by exception the parties may stipulate a longer term, as long as such a clause is not abusive. Also, parties may agree on payment at staggered intervals but they  can not agree on the date of issuing / receiving the invoice. Any clause which stipulates a date for issuing / receiving the invoice will be absolutely null.

The legal term between professionals and contracting authorities. The contracting authority must execute the payment obligation resulting from contracts concluded with professionals not later than 30 calendar days, calculated from three different moments prescribed by law. The procedure of acceptance or verification may not exceed 30 calendar days since the receiving of the assets or the providing of services. By exception, the term could be exceeded in cases or for reasons that are objectively justified by the nature or characteristics of the contract.

The contractual term of payment between professionals and contracting authorities. In this case, the payment terms established in the contract may not be higher than the previously mentioned legal terms. Exceptionally, the parties may stipulate a maximum payment term of 60 days, if it is expressly stated in the contract and procurement documentation and is objectively justified, given the nature or features of the contract, as long as the clause is not abusive.

3. Penalty interest

Interest determination. Both in relations among professionals, as well as in those between the contracting authorities and professionals, the claim which represents the price of assets delivered or services provided produces penalty interest in the following cases:

–      when the creditor, including its subcontractors, have fulfilled their contractual obligations;

–      when the creditor has not received the amount owed, unless the debtor is not guilty for the delay.

The penalty interest runs from the due date until the payment, according to art. 1535 of the new Civil Code but if the payment date was not specified in the contract, penalty interest shall run from the terms prescribed by law.

The legal interest penalty. When the parties have not set the interest`s level in case of late payment we shall  apply the legal interest penalty, calculated according to art. 3 of Ordinance no. 13/2011 on the legal interest remunerative and penalties for pecuniary obligations. The legal interest`s benchmark in force on the first day of the semester shall apply throughout the whole semester.

4. The costs for recovering the claim

Under the new law, the creditor may claim damages for all expenses incurred to recover the debt, if the payment obligation was not executed on time.
In addition to these amounts, the creditor may request minimal damages.

Thus, if the conditions for the delay payment are met, the creditor may require the debtor to pay the equivalent  in national currency of 40 euros, representing minimal additional damages since the penalty interest started.

5. Contracts clauses and abusive practices

The law defines the abusive clause and establishes rules for qualifying a clause as abusive.
Thus, it is considered an abusive practice or abusive clause the one that establishes an inequitable payment term, level of interest or additional damage.

Abusive clauses are absolutely null. Law no. 287/2009 establishes the patrimonial liability for damages caused by abusive clauses and practices.

6. The completion of incidental normative acts

The law completes the Government Ordinance no.13/2011 on remunerative and penalty legal interest for pecuniary obligations and for the settlement of fiscal measures in the banking area, introducing the requirement that in relationships between professionals and between them and contracting authorities, the legal interest penalty is settled at the reference of the interest`s rate plus 8 percentage points.
Once the new law is applied, the provisions of art. 1.017 paragraph (2) sections 1 and 2 of the New Civil Procedure Code – for establishing the interest rate, as well as  any contrary provisions, are repealed.

>> The source: JURIDICE.ro

Adina OPREA

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