Avem o clauză abuzivă: cum procedăm?
We face an unfair term: how do we proceed?

Summary/Abstract: The regulation of unfair terms in consumer contracts has enjoyed considerable attention from both legal scholars, the media and the general public. The aftermath of the financial crisis has also contributed to the development of abundant case law, in particular concerning the relationship between financial institutions and their customers. This article aims to review certain issues which frequently arise in disputes concerning the unfair character of a contractual term. To achieve this purpose, an analysis of the legal reasoning applicable to unfair terms is required. A first step concerns identifying the scope of application of the regulation. This endeavour requires defining the terms used by the regulation, as such terms often carry an autonomous meaning, different from the traditional legal sense. The study carries on to identify the actors involved in discovering and sanctioning unfair terms. Next, we have determined the criteria that the respective actors must observe to determine whether a certain term is unfair. Lastly, we have analysed the possible effects that the unfair nature of the term may produce on the term itself, as well as on the contract as a whole. The option of the national legislator to transpose the exact wording of the Council Directive 93/13/EEC [„shall (…) not be binding on the consumer”] has allowed the development of numerous opinions regarding the applicable sanction. We have argued, however, that determining the term to be null and void is the sanction which comes closest to the goal of the European regulation. On the basis of these observations, we have also analysed certain specific aspects which have received divergent solutions in case law.

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