The debtor won’t pay? We set out the legal instruments available to the creditor and how they can be used effectively.
3 routes to recovery
One of the most frequent problems faced by companies in Romania is the non-collection of issued invoices. Whether the debtor is a one-off client or a long-standing partner, an unrecovered amount directly affects a company’s cash flow and stability. The law provides several effective instruments, and choosing the right one can make the difference between the swift recovery of the sums and drawn-out litigation.
What is a civil claim?
A claim represents the creditor’s right to require the debtor — a client, contractual partner or supplier — to perform an obligation, most often the payment of a sum of money, arising from a contract, from accepted invoices or from another legal relationship.
In order to be enforced through the procedures set out below, the claim must be certain (its existence unquestionably results from documents), liquid (the amount is determined or determinable) and due (it has reached maturity).
Good to knowIn relations between professionals, as well as between professionals and contracting authorities, Law no. 72/2013 on combating late payment in the performance of payment obligations allows the creditor to claim penalty interest from the maturity date, without the need for a formal notice of default. In the absence of a rate agreed by contract, the statutory penalty interest is, pursuant to art. 3 of Government Ordinance no. 13/2011, the reference interest rate of the National Bank of Romania plus 8 percentage points.
The 3 main routes to recovery
Depending on the specific situation — the value of the sum, the debtor’s position regarding the debt and the urgency of recovery — the creditor has three main instruments available:
| Instrument | Conditions | Recommended when |
|---|---|---|
| Notice + negotiation | Sum not contested by the debtor | Long-term contractual relationship, solvent debtor |
| Payment order | Certain, liquid and due claim, evidenced by a document | Uncontested sum, no dispute on the merits |
| Claim action (on the merits) | Any claim, including a contested one | Disputed sums or complex legal relationships |
Practical steps: from the notice to enforcement
The payment notice — a precondition of the payment order
Prior to referring the matter to the court with an application for a payment order, the creditor is required, pursuant to art. 1015 of the Code of Civil Procedure, to serve the debtor with a notice, through a bailiff or by registered letter with declared content and confirmation of receipt, requiring payment of the sum owed within 15 days of receipt.
Beyond its mandatory nature in this procedure, a notice drafted rigorously by a lawyer frequently produces immediate results — the debtor understands that the sum will be pursued in earnest.
The payment order — the fast route for uncontested sums
If the notice has had no effect, the creditor of a certain, liquid and due claim, resulting from a civil contract evidenced by a document or determined pursuant to a statute, regulation or other document agreed by the parties, may ask the court to issue a payment order, under art. 1014–1025 of the Code of Civil Procedure.
The procedure is significantly faster than ordinary proceedings. Against the payment order, the debtor may file an application for annulment within 10 days of its handing over or communication (art. 1024 CPC). The payment order is enforceable, even if challenged by an application for annulment.
The claim action — for contested or complex claims
Where the debtor contests the debt, the amount is disputed, or there are additional heads of claim (damages, contractual penalties), the route to follow is the ordinary claim action, brought before the district court or the tribunal, according to the rules on jurisdiction based on the value of the subject matter of the claim.
Although it takes longer, this route allows the claims to be pursued in full: the principal debt, interest and penalties, as well as the legal costs.
Enforcement — turning the title into actual payment
Obtaining a court judgment or a payment order is only one stage. If the debtor does not perform voluntarily, the creditor turns to a bailiff, who may proceed to garnish bank accounts and sums owed to the debtor by third parties, to pursue movable assets or to pursue immovable assets.
It is advisable that the enforcement application be made promptly after obtaining the enforceable title — the passage of time may allow the debtor to diminish the assets available for pursuit.
Essential documents you must hold
The success of recovery depends largely on the strength of the evidence presented to the court. It is recommended that the creditor company hold:
- The contract signed by both parties or the correspondence evidencing the agreement of intent
- The issued invoices, together with proof of their communication to the debtor
- The acceptance reports for the works, services or goods delivered
- The correspondence (e-mail, messages, letters) in which the debtor acknowledges the debt
- The notice served on the debtor and proof of its receipt
- The bank statements showing that payment was not made
Mind the limitation periodThe substantive right of action is subject to the general limitation period of 3 years provided for by art. 2517 of the Civil Code. The limitation period runs from the maturity date, that is, from the date on which the obligation became due. Delaying legal action may lead to the action being defeated by the debtor invoking limitation.
What to avoid when the debtor won’t pay
Common mistakes in practiceAccepting repeated verbal promises, without confirming them in writing, deprives the creditor of evidence and lets the limitation period run. Waiving late-payment penalties without adequate consideration unjustifiably reduces the amount recovered. Furthermore, before any individual action, the debtor’s situation must be checked — if the debtor is in insolvency proceedings, the creditor must follow the route of registration in the body of creditors, rather than individual pursuit.
Recovering claims against a debtor in insolvency
Where the debtor has entered insolvency proceedings, governed by Law no. 85/2014 on insolvency prevention and insolvency procedures, the rules change fundamentally. From the date on which the procedure is opened, judicial and extrajudicial actions for the realisation of claims over the debtor’s assets are suspended by operation of law, and individual pursuit of the debtor’s assets is no longer possible.
The creditor must file a request for admission of the claim, within the deadline set by the decision opening the procedure, in order to be registered in the table of creditors. Failure to observe this deadline generally entails forfeiture of the right to participate in distributions. It is advisable to periodically check the Insolvency Proceedings Bulletin (BPI) regarding the situation of the company’s contractual partners.
A sum recovered quickly and in full is worth more than a dispute won after years. The chosen legal strategy makes this difference.
— Gidro & Gidro, from civil law practice
Conclusion
The recovery of uncollected sums does not follow a single pattern — each situation calls for a tailored strategy: the nature of the obligation, the debtor’s position regarding the debt, the debtor’s solvency and the urgency of recovery dictate the appropriate instrument and the order in which it is applied.
The decisive element remains prompt and documented action. The longer legal intervention is delayed, the more time the debtor has to reorganise its assets or to enter insolvency, reducing the chances of full recovery.
Does your company have unrecovered sums?
The Gidro & Gidro team provides specialised advice and representation in the recovery of civil claims for companies in Cluj-Napoca and throughout the country.
This material is for information purposes only and does not constitute legal advice. For an analysis of your specific situation, we recommend that you consult a lawyer.
