Money makes money… but not under all conditions. The amount of legal penal interest, in the light of the ÎCCJ Decision no. 28/2026
Interest is an essential element of any civil and commercial dispute, and can have a significant influence on the amount of the total amount that the debtor may be required to pay.
Government Ordinance no. 13/2011 regarding the legal remunerative and penal interest for monetary obligations, as well as for the regulation of some financial-fiscal measures in the banking field (hereinafter “OG no. 13/2011”) makes a clear distinction between two main types of interest. Art. 1 para. (2) orders that “The interest owed by the debtor of the obligation to give an amount of money at a certain term, calculated for the period prior to the maturity of the obligation, is called remunerative interest“. Art. 1 paragraph (3) provides that “The interest owed by the debtor of the monetary obligation for failure to fulfill the respective obligation at maturity is called penalty interest“. Art. 1489 paragraph (2) Civil Code regulates the anatocism mechanism, through which the interest can in turn produce interest, thus allowing its capitalization under the conditions provided by the law or the agreement of the parties.
On February 9, 2026, the High Court of Cassation and Justice (the Chamber for resolving legal issues) issued an important decision – Decision no. 28/2026, which clarified the legal regime of interest capitalization, in the interpretation of art. 1489 para. (2) the second sentence of the Civil Code, related to art. 8 of OG no. 13/2011.
- The context of the pronouncement of Decision no. 28/2026
The legal regime of interest is subject to a complex normative framework, with both provisions of the Civil Code and rules of special legislation – mainly, it is about OG no. 13/2011. Thus, on the one hand, article 1489 para. (2) of the Civil Code stipulates that interest due itself produces interest, but only when the law or the contract provides it or, failing that, when it is requested in court. However, the scope of the article is not clearly defined, since it is not specified whether it is incident both in the case of remunerative interest and in the case of penal interest. On the other hand, article 8 para. (3) from OG no. 13/2011 provides that remunerative interests can be capitalized.
The intervention of the ÎCCJ comes in the context in which, although the norms in question have been in force since 2011, few decisions have been identified in the judicial practice to give a solution to this problem, the legal issue retaining its novelty character. At the same time, the opinions expressed by the specialists consulted by the ÎCCJ were discrepant, highlighting the need to prevent a non-unitary jurisprudence.
- The solution retained by the ÊCCJ
In essence, the High Court of Cassation and Justice decided two issues: (i) that penal interest cannot be capitalized under the law and (ii) that the remunerative interests, originating either from loan contracts or from other types of contracts, can be capitalized even in the absence of an express clause to this effect.
As regards penalty interest, the law establishes that, in the absence of any agreement to this effect, the creditor is entitled to the legal penalty interest, calculated differently according to the type of legal relationship. For example, currently, the penalty interest rate is 14.5% per year in relationships between professionals. The first conclusion of the ÎCCJ is that art. 1489 para. (2) of the Civil Code, which allows capitalization of interest, refers exclusively to remunerative interest. In other words, when requesting the payment of penal interest in court, the creditor will not be able to use this provision to claim its capitalization.
To reach this conclusion, the High Court noted that article 1489 C.civ. it is placed in the chapter on payment, a concept that involves the voluntary execution of an obligation. Thus, while remunerative interest is subsumed under this notion, taking into account the development of the contractual relationship itself, penal interest represents a form of civil liability, an institution regulated in a separate chapter. In the same note, the ÎCCJ emphasized that only remunerative interests can have a genuine payment due date, this reinforces the conclusion that the legislator had in mind only remunerative interests as part of the scope of Article 1489 of the Civil Code.
As regards the remunerative interest, the second conclusion of the High Court clarifies the field of application of art. 8 para. (3) from OG no. 13/2011. Thus, it was ruled that the remunerative interest can be capitalized both in the case of loan contracts and in the case of any other contracts involving civil fruits, such as the deposit contract. Thus, when the debtor does not pay the remunerative interest on time, the law allows the creditor to request late penalties on it, even in the absence of an express stipulation to this effect.
- Practical implications of Decision no. 28/2026
Dismissal given by the High Court refers exclusively to the assumption of the application of the legal regime of penal and remunerative interests. But the norms analyzed have a supplementary character, which means that they can be validly derogated from by agreement of the parties, provided that the applicable mandatory provisions, such as those provided by the consumer protection legislation, are respected.
Thus, Decision no. 28/2026 has the following consequences:
- As a rule, the creditor will not be able to claim the capitalization of penalty interest. However, the parties are allowed to derogate from this rule by means of a penalty clause.
- Both in loan contracts and in other contracts involving civil fruits, the creditor may request the capitalization of the remunerative interest under the law, starting from the due date. At the same time, the parties can remove this consequence by means of a liability limitation clause.
An article signed by Mara Colțan – [email protected] – and Iulian Chetreanu – [email protected] – Junior Lawyers – STOICA & ASSOCIAțII.
Article supported by STOICA & ASSOCIAțII
