Payment order request for EUR 50,000 dismissed: unfair contract terms and the defence of non-performance

In a case concerning an application for a payment order over a claim of approximately EUR 50,000 arising from a services contract, the Sabău Avocați team obtained the dismissal of the creditor’s application — an outcome that became final after the application to set aside was dismissed as well. Our client’s defence was built on two pillars: the absolute nullity of a set of unfair terms in the contract, and the defence of non-performance.

The background

Our client was taken to court by the other contracting party through the special payment order procedure, governed by art. 1014 et seq. of the Romanian Civil Procedure Code. The claim, of roughly EUR 50,000, was based on a services contract concluded earlier between the parties.

The payment order procedure is a fast one, designed for claims that raise no real dispute: the court reviews the application solely on the documents on file and the parties’ explanations, and the claim must be certain, liquid and due. That statutory filter proved decisive.

The defences we built

We started from a full review of the contract and of how it had actually been performed, not merely of the invoices issued. On that basis, we raised three defences:

• Inadmissibility of the application in the special procedure, since the claim did not have the undisputed character that this procedure presupposes;
• Absolute nullity of a set of unfair terms in the contract — the very terms on which the creditor based its claim;
• The defence of non-performance, under art. 1556 of the Romanian Civil Code: in a synallagmatic contract, a party that does not receive the agreed performance may refuse, to a corresponding extent, to perform its own obligation.

The court joined the objections to the merits of the case, under art. 248 (4) of the Civil Procedure Code, finding that deciding them called for the same evidence as the merits, and admitted the documentary evidence filed.

The court’s decision

The court reclassified the objection of inadmissibility and the objection of absolute nullity of the unfair terms as substantive defences, and dismissed the application for a payment order brought against our client.

The decision follows the logic of art. 1021 of the Civil Procedure Code: where the debtor’s defence is well founded, or where the substantive defences would require evidence other than documents, the court dismisses the creditor’s application. The claim does not disappear, but the creditor can no longer obtain an enforceable title by the short route; what remains open is an action under ordinary law, with everything that entails — full evidence, argument on the merits and a significantly longer timeline.

The application to set aside was dismissed too

The creditor challenged the decision through an application to set aside, the remedy specific to this procedure, heard by the same court sitting as a panel of two judges. That application was dismissed as unfounded, with no order for costs. The decision is final.

Why this outcome matters

The payment order is a procedure many debtors underestimate. If the party sued does not contest the claim, the order is issued within no more than 45 days of the application and becomes, under the law, an enforceable title. In other words, a defence not filed in time turns a questionable claim into enforcement.

In this case, the difference was not made by a spectacular argument, but by applied work on the contract: identifying the terms on which we based the request for a declaration of nullity, matching them against the services actually delivered, and showing — using documents alone — that the claim lacks the clarity this special procedure requires.

If you have received an application for a payment order or a formal demand under a services contract, the deadlines are short and the defence is built on documents. Book a discussion and we will review the situation together.

Note. This account is anonymised: the parties, the case number and the details identifying the contract have been omitted. The material is for informational purposes and to illustrate our professional experience; it does not constitute legal advice for an individual situation, and outcomes depend on the specific circumstances of each case.