Significant legislative changes have been introduced in Romania affecting finance lease and operating lease agreements, according to the legal team from Bucharest-based Filip & Company.
On 19 April, Law 83/2021 came into force amending and supplementing Government Ordinance no. 51/1997 on leasing operations and leasing companies (Law 83/2021).
The main purpose of these amendments and supplementary provisions is the balancing of the relations between lessors/financers and consumers within the leasing agreements, including by exempting those agreements from being enforceable by the operation of law, which was a specific trait of leasing agreements, and by establishing the right of the consumer or of a third party delegated by it to buy with priority the financed good in case the agreement is terminated.
The changes apply both to financial leasing agreements as well as to operational leasing agreements concluded with consumers. The main changes brought by Government Ordinance no. 51/1997 on leasing operations and companies (GO 51/1997) are the following:
1. The concept of the consumer in the context of the changes
Law 83/2021 introduces, for the first time, the concept of a “consumer” in relation to leasing operations and, according to it, any natural person or group of natural persons who (i) is a user or lessee in a leasing agreement and (ii) who acts for purposes outside his/her business activity has the capacity as “consumer”. Furthermore, whether the consumer acts in relation to a business or for his/her personal interest is decided relative to the specific agreement in question and not relative to the entire activity of the consumer; however, the capacity as a consumer is presumed when the agreement is concluded with a natural person.
2. Agreements with consumers are no longer writs of execution
One of the most talked-about and controversial changes made during the last years is the exemption made in case of consumer leasing agreements, which are no longer subject to the general rule that rendered them writs of execution by the operation of the law. Thus, in case of a forced execution, the lessors or the financers, will have to obtain a court decision in order to enforce consumer leasing agreements. This change aims at creating an additional guarantee to ensure that the consumer’s rights are observed.
3. Changes to the legal term for non-payment
Another important change brought by Law 83/2021 is the introduction of a mandatory grace term that has to be granted to users and the extension thereof from two to three months. Thus, as a consequence of Law 83/2021, in case the consumer fails to pay the leasing instalment for three consecutive months, the lessor/financer has the right to terminate the leasing agreement without, however, having the possibility to derogate from that term. We note, however, that according to the amended GO 51/1997, only consumers seem to benefit from the new grace term although the term was applicable to all users, irrespective of whether they were natural or legal persons.
4. The priority right to purchase the good in case the good is returned
Law 83/2021 institutes a right that will be held by the consumers or by the third party designated by the consumer to purchase with priority the good returned in case of termination of agreement if (i) the good is returned within the deadline indicated in the agreement and (ii) if the user/third-party consumer proposed by the user firmly and irrevocably accepts to purchase the good for a price which is at least equal to the value of all the amounts remaining to be paid under the agreement.
5. The imperative diminution of the amounts owed by the consumer
Pursuant to Law 83/2021, the amounts that the consumer must pay after the termination of the leasing agreement will be imperatively diminished with the amount of the money obtained from the realisation of the good returned to the lessor/financer or, as the case may be, with the value of the returned good established in a valuation report.
In conclusion, we believe that the changes made by Law 83/2021 are intended to limit consumer liability under the leasing agreements, a liability that the legislator deemed excessive and disproportionate in the rationale of the law. We observe that the new provisions of GO 51/1997 have a more restrictive and limiting nature as compared to the similar ones regulating credit agreements, particularly by reference to the exemption made for the consumer leasing agreement which is no longer deemed a writ of execution. This makes us wonder whether the legislator intends to make similar future changes in relation to the consumer credit legislation.
The authors of this report are Alexandra Manciulea (partner), Rebecca Marina (senior associate), Andrei Konya (associate), Diana Dinca (associate) of Filip & Company.