How does law 72/ Protected content the agreements between professionals? Faster debt collection
1. The creditor has the right to recover all expenses made for debt recovery.
2. The legal interest is increased.
3. The maximum due term is 60 days.
4. It is forbidden to state in the agreement the date when the invoice is issued or received.
This year, a new legislative text brings with it major changes in the commercial area. The entry into force of Law 72/ Protected content the measures for fighting the delay of payment obligations of amounts arising from the agreements between professionals, and also agreements between professionals and contracting authorities, has started with the 5th of April Protected content .
Right from its publication, the law has been criticized because it posses difficulties of understanding and applying. Thereby, in the following, I will try to answer to these questions:
• 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?
Here are three causes which lead to litigations:
1. The lack of clarity on the contractual provisions, including the parties’ obligations;
2. Unawareness of the law which is applicable to the agreements;
3. The amendments of the applicable law and the failure to update the company’s agreements according to the new law.
Thus, a first conclusion would be the necessity and utility of reviewing the company’s agreements following the entry into force of law 72/2013.
Who is this law addressed to?
The law draws our attention on the claims which arise from agreements signed between: professionals and professionals and contracting authorities. But what do we mean by that?
Professionals are defined as any natural or legal persons who exploit a for-profit enterprise. More accurate, this means: limited liability company, limited liability company for starters, natural legal person, joint company stock, individual enterprises, family associations. The non-profit organizations are not targeted by the present law and neither the agreements between the professionals and consumers.
On the other hand, 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.
This being said, if you are part of the professionals category (owner, administrator or employee of an entity among the ones listed above) I surely woke up the necessary interest for you to carefully read this article.
Which are the changes brought?
I should mention first of all the fact that law 72/ Protected content in the Romanian Law the provisions of Directive Protected content issued by the European Parliament and Council on the 16th of February, for fighting the delay of payment in commercial trades.
First of all, 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.
Secondly, there are imposed legal limits in which the agreements have to fit in: regarding the payment due term of claims arising from the agreement, this cannot exceed 60 days.
The problem with this is the omission of stipulating 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.
A third provision of the law 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:
- 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 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.
A fourth provision brings into discussion the increasing of the legal interest. This is the following procedure: 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. Also, 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.
Furthermore, the law also establishes a procedure for receiving or for checking. The certification of the merchandise or services conformity, cannot exceed 30 days since the merchandise was received or the services were provided.
Last but not least, the text highlights the issue of debt recovery. 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.
The issue of debt recovery is detailed also in article “Do you have debts to recover? Here are 10 things you need to consider in the debt collection procedure”.
Through “all expenses” I understand that you can ask in a court of law including 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 a judicial practice shall be created in this respect.
I want to also draw your attention on the payment terms because the implementation of this condition proves to be already difficult. 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).
You must know that if your commercial agreements which you have signed before the entrance into force of law 72/ Protected content 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.
Vacarescu Law Firm
Address: Mantuleasa Street, no. 12, 4th Floor, ap. 10 Bucharest, 3rd District Protected content
Phone: Protected content