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LUIZA-CRISTINA GAVRILESCU, Implications of the unfair contract terms in banking contracts...

Abstract: The present paper analyzes the modalities of amending the banking contract that includes abusive clauses, in order to maintain its effects. Starting from the premise that following the finding of the abusive nature of a contractual clause, it is necessary to eliminate it, even ex officio, so that it does not binding the consumer, the question arises to determine the consequences of their exclusion, on the rights and obligations assumed by the parties. A distinction is made between the assumptions in which the effects of the contract can continue to occur after the abusive clause is removed and the cases where the elimination of the clause entails the termination of the contract as a whole, if its essential elements are affected. Regarding the latter situation, there were investigated the ways of filling the gaps left in the contract as a result of the elimination of the abusive clause. In this regard, the specific circumstances in which it is admissible to replace the abusive clause with a supplementary rule were highlighted, given that the court has no possibility to revise that clause, and the renegotiation by the parties is unlikely to occur.

Keywords: abusive clauses,  banking contract,  consumer protection,  adaptation of the contract, supplementary provisions


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