THE CONTRACTUAL JUSTICE IN THE CONTRACTING AND THE EXECUTION OF THE MORTGAGE GUARANTEE, AFTER THE ACT 1/2013, OF MAY THE 14TH, ON MEASURES TO REINFORCE THE PROTECTION TO THE MORTGAGE DEBTORS, RESTRUCTURING OF DEBT AND SOCIAL RENTING

Abstract

The Act 1/2013, of may the 14th, on measures to reinforce the protection to the mortgage debtors, restructuring of debt and social renting gives entry to the public, preventive and judicial intervention, from the consumers Law in the contracting of the lending and credit mortgage, so that the admission of the proconsumatore principle and the judicial control of the contractual balance in the mortgage execution, might turn out to be equal or more relevant for the protection of the debtor, that the own forecast of the retroactive datio pro soluto. In the European systems of contracting of the 21st century, the juridical contractual safety cannot be based on the untangibility of the agreed, but on the fulfillment of the economic and social function of every contract, for what all of them have to, arbitrate effective instruments that guarantee the balance of the parts in the moment of the contracting, but also in that of fulfillment of the contract, attending to the good faith and to the equity. This is unavoidable when one of the parts is consumer and his protection is forced for the national laws of the countries members of the European Union. From this point of view our system of contracting and guarantee mortgages cannot escape. It is precise, at the time, that in the mortgage execution the judge considers to be, not only the concurrence of improper conditions at the moment of contracting, but also the struck circumstances that concern the causal relation that guarantees the mortgage, and the opportunity to apply, or not, certain procedures, in consideration of the good faith and the prohibition of the abuse of the Law.