Daune interese moratorii, dobândă legală (penalizatoare) şi rata inflaţiei sau despre Codul civil versus reglementarea specială şi politica monetară

Rezumat

Delay in the performance of the financial obligation is a topic which cannot be boring at any times. The consequences of the delay may be fatal to the debtor, causing him to become insolvent or on the verge of insolvency, however, this does not mean that the creditor itself, when the obligation performed in delay takes part of an economic chain, would be exempted from such unfavourable consequences.
Lately, Romania, but not only this country, has faced a significant increase of the inflation rate, so that the delay, proportionally, erode the claim even more. Careful to cover the inflation risk, creditors which have the occasion to provide any securities in this respect, given the contractual nature of the relationships with the debtors of
the financial obligation, shall appeal to penalties of intimidating amount, as a consequence.
The creditors’ life is, from this point of view, more difficult. Does Civil Code help them to file any claims based on the discount of the debt with the inflation rate, just to preserve the buying power of money the restitution of which the debtor requests?
This analysis shall start from brief remarks made in relation to the place reserved by the Civil Code for the inflation rate indexation (item 1), it shall remind of the all powerful position, in the absence of any derogation, of the principle of monetary nominalism (item 2) and shall become, after a quick look at the preferable solution – the criminal clause – (item 3), in its main area of interest. Thus, the classification of the statutory penalty interests depending on the nature of the relationships and the parties’ capacity (item 4) and the catching of the real relationship between the inflation rate and the key interest (item 5) shall allow the issuance of certain remarks based on examples and less hypothetical calculations than at first sight, in relation to the relationship between the statutory penalty interest and the inflation rate (item 6).
These last remarks shall entitle us to a proposal of amendment of the Civil Code, which should place the inflation rate in a more visible, equitable and satisfactory position from the economic point of view for the creditor, which is the victim of that delay.
Keywords: default interest; statutory penalty interest; key interest; inflation rate; Article 1.535 of the Civil Code; G.O. no. 13/2011.