The opposability of general banking clauses against consumers

Abstract

The study of general banking clauses shows that the referential clauses are very frequent in contracts concluded by consumers and that a number of differences, some slight and others more marked, become apparent between various banking agreements. General provisions which have not been individually negotiated may be invoked against consumers only if the bank took reasonable steps to bring them to the consumer’s attention before the conclusion of the contract. Moreover, the legislator has recognized the consumers’ right to act to suppress abusive clauses contained in the standard form contracts, such as credit agreements. Romanian jurisprudence only made timid usage of the mechanism of abusive clauses in the case of banking general provisions. Finally, a two-fold approach would appear to be emerging with regard to contractual obligations generated by general banking clauses: those which result from a referential clause and those which arise out of an express agreement.