HOW DOES LAW 72/2013 CHANGE THE AGREEMENTS BETWEEN PROFESSIONALS? FASTER DEBT COLLECTION.

DEBT COLLECTION LAWYER

The creditor has the right to recover all expenses made for debt recovery.

The legal interest is increased.

The maximum due term is 60 days.

It is forbidden to state in the agreement the date when the invoice is issued or received.

 

A major issue for professionals’ activity (commercial companies) is the entry into force of law 72/2013 regarding the measures for fighting the delay of payment obligation of amounts arising from the agreements between professionals and agreements between professionals and contracting authorities, starting with the 5th of April 2013.

Because the law posses difficulties of understanding and applying, I will try to briefly answer the questions below, leaving others in charge to rightly criticize the text.

Why is the review of agreements important?

What are the risks of unrevised agreements?

It is necessary to review your agreements in order to avoid:

–          The increase of litigation between professionals caused by the misunderstanding of legal obligations stipulated by the above mentioned law;

–          The nullity of certain contractual provisions which are forbidden to be stipulated in agreements by the law.

Who is this law addressed to?

Which are the changes brought?

Three of the causes which lead to litigation are the following:

–          The lack of clarity on the contractual provisions, including the parties’ obligations;

–          Unawareness of the law which is applicable to the agreements;

–          The amendments of the applicable law and the failure to update the company’s agreements according to the new law.

Therefore, a revision of the company’s agreements due to the entry in force of law 72/2013 is useful and necessary at the same time.

Who is this law addressed to?

The law refers to claims which arise from agreements signed between: a) professionals; b) professionals and contracting authorities. In order to have a clear image over the legal entities targeted by this law I will explain what professionals and contracting authorities mean. Professionals refers to any natural or legal person who exploit a for-profit enterprise. Translated into common language this means: limited liability company, limited liability company for starters, natural legal person, joint stock company, individual enterprises, family associations… The non-profit organizations are not targeted by the present law and neither the agreements between the professionals and consumers. Contracting authorities are the public authorities of the Romanian state, which act at the central, regional or local level, as well as any other public body with legal personality, established to meet the needs of general interest, without obtaining a profit.

If you are the owner, administrator or employee of an entity among the ones listed above, it means that I have already sparked the interest required for you to carefully read this article. My goal for this article is to focus on contracts between professionals.

 Which are the changes brought?

This law implements in the Romanian Law the provisions of Directive 2011/7/UE issued by the European Parliament and by the Council, from the 16th of February 2011 for fighting the delay of payment in commercial trades.

1. The law establishes a general legal frame applicable in case the professionals have not stipulated in the agreement the conditions which govern their business relationship. The agreements signed starting with the date when the law entered into force have to comply with the new provisions.

2. Imposes legal limits which the agreements have to fit in:

Regarding the payment due term of claims arising from the agreement, this cannot exceed 60 days. Unfortunately, the law does not stipulate since when is this term calculated. We suppose that we should calculate this term starting with the date when the services have been provided or the merchandise received. Therefore, an explicit provision in the agreement has to refer to the way the merchandise shall be received or the services shall be provided. This is absolutely necessary. For this reason it becomes very important to insert in the procedure of performing the agreement documents which certify the date when the merchandise was received or the services were provided.

Another very important provision of the law, from which we cannot deflect, under the sanction of nullity, is the prohibition of agreeing in the contract on the date on which the invoice will be issued or received.

In order to establish the date since we can calculate the legal interest, we will take into account the following subsequent criteria:

–          If the payment due term was not stipulated in the agreement, the legal interest will start running after 30 days from the date of receipt by the debtor of the invoice/ an equivalent request for payment;

–          After 30 days from the date from the date when the merchandise was received or the services were provided;

–          If the law or the agreement sets a procedure of reception or for checking, allowing the certification of the merchandise or services conformity, and the debtor has received the invoice or the request for payment upon the date of reception or checking or before this date, after 30 days from this date.

The legal interest is increased.

 If the parties have not agreed on the amount of penalties, these shall be calculated taking into account the Romanian National Bank reference interest rate plus 8 percentage points.

The reference interest that we shall take into account is the one in force on the first day of the semester and this will be applicable for the entire semester, regardless of the changes which may arise.

The law also establishes that the procedure for receiving or for checking, allowing the certification of the merchandise or services conformity, cannot exceed 30 days since the merchandise was received or the services were provided.

I am sure you came across the debt recovery issue. The present law, stipulates expressly that, when the debtor does not fulfill his payment obligation, the creditor is entitled to retrieve all the expenses made for debt collection, being able to ask for damages in amount of at least 40 Euro.

Through “all expenses” I understand that you can ask in a court of law including for the expenses made during the amiable procedures for debt collection, this provision benefiting especially the creditors who chose to externalize this service. It remains to be seen if o judicial practice shall be created in this respect.

We will have to grand a special attention to the payment terms, taking into account that implementing this condition proves to be difficult because the agreements in the commercial chain will have to be correlated, so that we can avoid discrepancies of payment terms from different categories of professionals (producers, suppliers, providers, beneficiaries and so on).

Many of your commercial agreements which you have been signed before the entrance into force of law 72/2013 contain a provision of automatic renewal. At the time of the renewal of the agreement this will have to comply with the provisions of the new law.

Therefore, the update of your company’s agreements for insuring the conformity with the new law is not only advisable, but also necessary.

In case you need further clarifications regarding the provisions of law 72/2013, please write to my email address and I will analyze these.

Have you found this article helpful? If you liked it please recommend it to others.

Please use the share buttons from the left of the screen.

If you find yourself in such a situation or if you wish to find out more details, you can find me available on e-mail.

Until next time, I wish you a lot of profit!


Have your say