| Abstract [eng] |
The decision to grant a particular mortgage, the final choice of the borrower's mortgage product and the borrower's ability to repay the loan are influenced by a number of factors. These may include the economic situation, information asymmetries and conflicts of interest, regulatory gaps and inconsistencies, as well as other factors such as the financial literacy of the borrower or mortgage financing structures. On the 4th of February 2014 following the adoption of Directive 2014/17/EU of the European Parliament and of the Council, consumer protection is expressed as informational content and, in other cases, as a form of information, as well as the moment when this information has to be provided to the consumer. In this way of protection, a model of a sufficiently informed and reasonably observant and circumspect consumer is formed, turning him into an active market participant who can make an intelligent decision on the choice of the product or service offered to him. However, the institute of unfair contract terms in consumer contracts remains relevant, especially in mortgage contractual relationships. The exclusion of special requirements for the content of mortgage transactions entitles the parties to provide grounds for early recovery in the mortgage transaction. This is relevant for creditor who, being in a position from which he can dictate the terms of the contract, tends to take advantage of his position. Meanwhile, the borrower is forced to agree to the pre-determined conditions of the entrepreneur and cannot influence their content. In such circumstances, there is a risk that unfair contract terms may be included in the mortgage agreement. The role of the notary becomes relevant here, which, according to the evolving case law of the Court of Justice of the European Union, may also include the obligation to assess the compliance of the terms of consumer contracts with the criteria of unfairness ex officio. |
