Commentary on Order No. 16445 of 2024 on the Conclusion of Credit Opening Agreements

The recent order of the Court of Cassation, No. 16445 of June 13, 2024, offers significant food for thought for legal practitioners, particularly regarding credit opening agreements. This ruling is situated within a regulatory context that has seen important changes, especially with the entry into force of Law No. 154 of 1992, which introduced the written form requirement for banking contracts.

The Regulatory Context Prior to Law No. 154 of 1992

Under the regime preceding Law No. 154 of 1992, credit opening agreements could also be concluded through facta concludentia, meaning through concrete actions demonstrating the existence of the agreement. This method of conclusion is highly relevant, as it allows for overcoming the rigidities imposed by subsequent regulatory developments.

As highlighted in the summary of the ruling:

(DEFINITION, CHARACTERISTICS, DISTINCTIONS) - IN GENERAL Credit opening agreement - Regime prior to Law No. 154 of 1992 - Conclusion by facta concludentia - Admissibility - Burden of proof - Content. In the regime preceding the entry into force of Law No. 154 of 1992, which imposed the written form requirement for contracts relating to banking operations and services, the conclusion of a credit opening agreement by facta concludentia was permitted, with the consequence that proof of the granting of credit, for these contracts, can be provided by any means, including recourse to presumptions, given that the prohibition laid down by Article 2725 of the Civil Code, to which Article 2729, paragraph 2, of the Civil Code refers, is inapplicable to credit opening agreements concluded during a period when they were not required to be in writing under penalty of nullity.

Implications of the Ruling

The Court of Cassation has reiterated that, for credit opening agreements entered into before the introduction of the written form requirement, proof of credit can be provided through any means, including the admissibility of presumptions. This aspect is crucial for the parties involved, as it broadens the methods of proof and allows for the assertion of rights even in the absence of written documentation.

• Conclusion of agreements by facta concludentia, even in the absence of writing.
• Possibility of resorting to presumptions to prove credit.
• Relevance of pre-1992 legislation in the current context of banking operations.

Conclusions

In conclusion, Order No. 16445 of 2024 by the Court of Cassation represents an important reminder of the flexibility in the methods of concluding credit opening agreements in the period preceding the written form requirement. This ruling not only clarifies the rights of the parties but also offers a significant opportunity for a better understanding of contractual dynamics in the banking sector, highlighting how methods of proof can influence the outcome of legal disputes. Therefore, it is essential for companies and professionals in the sector to be aware of such jurisprudential and regulatory developments.