Data
- Date:
- 22-04-2013
- Country:
- Romania
- Number:
- 351/R/2013
- Court:
- Timiș County Court
- Parties:
- --
Keywords
INSURANCE CONTRACT – BETWEEN TWO ROMANIAN PARTIES - UNIDROIT PRINCIPLES IN SUPPORT OF THE SOLUTION ADOPTED UNDER APPLICABLE DOMESTIC LAW (ROMANIAN LAW)
ASSIGNMENT OF A MONETARY RIGHT ARISING FROM AN INSURANCE CONTRACT – INSURANCE CONTRACT CONTAINING A NON-ASSIGNMENT CLAUSE - ASSIGNMENT EFFECTIVE NOTWITHSTANDING THE EXISTENCE OF SUCH CLAUSE – REFERENCE TO ART. 1570 OF THE ROMANIAN CIVIL CODE WICH IS INSPIRED BY ART. 9.1.9(1) UNIDROIT PRINCIPLES
Abstract
A Romanian individual and a Romanian insurance company entered into an optional car insurance contract. Pursuant to the contract, no assignment of the rights arising out of the optional insurance contract could be considered valid towards the other party without its prior written consent.
After a loss has occurred, the policyholder paid the costs of all vehicle repairs and became entitled to claim from the insurer the restitution of such payment. After few months, the policyholder (hereinafter ‘the Assignor’) assigned its monetary right against the insurer (hereinafter ‘the Obligor’) to another individual (hereinafter ‘the Assignee’).
The Assignee brought an action against the Obligor claiming the payment of the amount due under the optional insurance contract. The Obligor objected that, according to Romanian law, the assignment was not enforceable against him.
The Court of first instance ruled in favour of the Assignee affirming that the assignment of a right to the payment of a monetary sum is effective notwithstanding an agreement between the assignor and the obligor limiting or prohibiting such an assignment. Therefore, the Assignee was entitled to the payment of the amount due under the optional insurance contract.
The Appellate Court confirmed the aforementioned ruling, stating that in any modern economy the assignment of right(s) is extremely important because of its virtue to promote the needs of credit. The relevant provision of the 2011 Romanian Civil Code (Art. 1570) is inspired by Art. 9.1.9(1) of the UNIDROIT Principles, which states that the assignment of a right to the payment of a monetary sum is effective towards the obligor notwithstanding an agreement between the assignor and the obligor limiting or prohibiting such assignment, but the assignor may be liable to the obligor for breach of contract. Therefore, the assignment of the right to claim may be opposed by the assignee to the obligor, even in the presence of a conventional prohibition or limitation, if the obligor has consented to the assignment or if the prohibition or limitation, which does not appear in the text of the written statement, could not and should not have been known by the assignee at the time of the assignment.
Fulltext
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Source
Original full text in Romanian available at www.rolii.ro}}