Article 1178 of the Civil Code provides us with good news, in that, as a general rule, a contract is concluded through the mere meeting of the wills for the parties. This meeting of the wills, as per Article 1240 of the same Code, could even be expressed verbally or through a conduct which leaves no doubt as to the intent to conclude the contract (e.g. the performance of the obligations deriving therefrom).

Even through the lens of the Civil Code, however, the news starts to become less joyous when considering a loan agreement, as, in such a case, the remittal of the loaned asset is necessary for the valid conclusion of the contract (Article 2145 in conjunction with Article 1174 (3) of the Civil Code). As such, the loan agreement for a sum of money will only be validly concluded when the amount is remitted (Article 2158 (1) of the Civil Code). Otherwise, we are in the presence of a mere precontractual loan agreement (Article 2145 of the Civil Code).

When considering the Code of Civil Procedure as well, the situation tends to get even more complicated. Article 309 (2) of the Code of Civil Procedure sets out the rule that legal acts having a value exceeding 250 lei cannot be proved through the use of a witness testimony. Moreover, according to the final thesis of Article 329 of the Code of Civil Procedure, simple presumptions, i.e. those left to the judge’s discretion, are also not allowed for such legal acts.

As a result, if we wish to loan Irinel a sum larger than 250 lei, we would be wise to draft a written agreement between ourselves, which should be signed by both parties (Article 272 of the Code of Civil Procedure). Otherwise, should Irinel refuse to reimburse our loan and we file a court claim to see our rights upheld, we might run into difficulties in terms of our means of evidence.

These difficulties are not insurmountable. In effect, we might be able to show that we were in a situation of moral impossibility of drafting a written agreement, given our longstanding friendship with Irinel and the mutual trust that we enjoy (Article 309 (4) (1) of the Code of Civil Procedure). Or maybe Irinel will be less hostile in court than he was when the question of reimbursement of the loan arose and he will not oppose our use of witness testimonies (Article (309 (4) (1) of the Code of Civil Procedure).

However, as always, the preventive method is the most effective. As such, it is still preferable to have the parties sign a written agreement.

Nonetheless, the Code of Civil Procedure establishes an additional requirement. Indeed, seeing as how a loan agreement is a contract through which one party undertakes to pay a sum of money to the other – in the above-mentioned example, Irinel must reimburse the loan -, Article 275 (1) of the Code of Civil Procedure provides that, apart from signing, Irinel must also include the hand-written formula ”duly approved for”, followed by the owed amount in letters. An alternative would be to have Irinel write the entirety of the contract by hand, but we wouldn’t necessarily want to put him through that, given the longstanding friendship and mutual trust that we’ve discussed above.

Otherwise, our contract would not have the typical probative value, i.e. that of a document under private signature, but could only be considered a commencement of proof in writing (Article 276 of the Code of Civil Procedure) and, in such a case, we should supplement our items of proof with, for instance, witness testimonies or presumptions (Article 310 (3) of the Code of Civil Procedure).

Consequently, for each Irinel to whom we loan a sum larger than 250 lei, the safest way to proceed, given a prospective trial regarding the reimbursement of the loan, is for both parties to sign a written agreement, followed by a hand-written mention, by Irinel, of the ”duly approved for” formula, as well as of the amount owed, transcribed in letters.

Armed with such an agreement, we could also subsequently meet with a public notary, for the latter to grant the agreement a certified date (Article 278 (1) (1) of the Code of Civil Procedure), in which case the loan contract becomes an enforceable title (Article 2165 in conjunction with Article 2157 (1) of the Civil Code). As a result, we could see our rights upheld directly in front of the court enforcement officer (Article 632 (1) of the Code of Civil Procedure), without having to file a separate claim in front of the court.