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ordonanta leasing in engleza
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cristinuzza
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Ordinance 51/1997, republished
CURRENT TEXT
CHAPTER I
General Provisions
Art 1
(1) This Ordinance shall apply to leasing operations where one party, called Lessor/Financier transmits for a limited period the usage right upon a good, whose owner he is, to the other party, called Lessee, on his request, against a periodic payment, called Leasing Rate and at the end of the leasing period, the Lessor/Financier undertakes to observe the option right of the Lessee to purchase the good, to renew the lease contract or to terminate the contractual relations. The Lessee may choose to purchase the good before the end of the leasing period, if the parties agree so and if the Lessee pays all liabilities undertaken by contract.
(2) Leasing operations may have as an object immovable goods, as well as movable goods of long usage, which are in the civil circuit, except recordings on audio or video tape, theatre plays, manuscripts, patents and copyrights.
Art. 2
For the purpose of the present Ordinance, the terms and expressions below shall have the following meaning:
a) the entry value represents the value at which the good was purchased by the Lessor, respectively the purchasing cost;
b) total value represents the total value of the leasing rates whereto the residual value is added;
c) residual value represents the value at which the ownership right upon the good is transferred to the Lessee, on the termination of the contract;
d) Leasing Rate represents:
- in case of financial leasing, the share-quota from the entry value of the good and of the leasing interest. The leasing interest represents the average rate of the bank interest on the Romanian market;
- in case of operational leasing, the depreciation quota computed according to the normative documents in force and a benefit established by the contracting parties;
e) financial leasing is the leasing operation which fulfils one or more from the following conditions:
1. the risks and benefits related to the ownership right shall be transferred to the Lessee from the moment of concluding the lease contract;
2. the parties have expressly stipulated that on the termination of the contract, the ownership right of the good is transferred to the Lessee;
3. the Lessee may chose to purchase the good and the purchasing price shall represent maximum 50% from the entry value (market value) it has on the date when the option may be exerted;
4. the usage period of the good under the leasing system covers at least 75% from the normal (standardised) lifetime of the good, even if on the termination of the lease contract, the ownership right is not transferred;
f) operational leasing is the leasing operation which does not fulfil any of the conditions stipulated at letter e).
Art. 3
(1) Within a leasing operation, the Lessor may be a leasing company, Romanian or foreign legal entity.
(2) The Lessee may be Romanian or foreign individual or legal entity.
Art 4
In order to perform a leasing operation, any individual or legal entity shall address a firm offer to a leasing company, accompanied by the list of goods intended to be the object of the lease contract, as well as by documents proving its financial standing.
Art 5
During leasing operations, the Lessee is entitled to choose his supplier, as well as the company which will insure the good, with the consent of the leasing company.
Chapter 2
The lease contract
Art. 6
(1) The lease contract must include at least the following elements:
a) the parties in the lease contract:
- the Lessor/Financier;
- the Lessee;
b) the precise description of the good which is the object of the lease contract;
c) the total value of the lease contract;
d) the value of the Leasing Rates and their related payment term;
e) the period of using the good under a leasing system;
f) the clause regarding the obligation to insure the good.
(2) The financial lease contract must include, besides the elements stipulated at paragraph (1), the following:
a) the initial value of the good;
b) the clause regarding the option right of the Lessee in respect of purchasing the good and the conditions under which it may be exerted.
(3) The parties may agree upon other clauses as well.
Art. 7
The lease contract shall not be concluded for a term shorter than one year.
Art. 8
Lease contracts shall be writs of execution, if the Lessee does not return the good in the following situations:
- at the end of the leasing period, if the Lessee has not expressed the option to purchase the good or renew the contract;
- in case of cancelling the contract due to the exclusive cause of the Lessee.
CHAPTER 3
Obligations of parties in a lease operation
Art 9
The Lessor/Financier undertakes:
a) to observe the Lesseens right to choose the supplier according to the necessities;
b) to conclude a selling-buying contract with the supplier designated by the Lessee, under the conditions expressly formulated by him;
c) to conclude a lease contract with the Lessee and transfer to him by virtue of the lease contract all rights deriving from the selling-buying contract except the right of disposal;
d) to observe the option right of the Lessee, which means the possibility to choose the renewal of the contract or the purchase or the return of the good;
e) to guarantee to the Lessee the peaceful usage of the good, provided he has observed all contractual clauses;
f) to insure through an insurance company the goods offered in the leasing system.
Art 10
The Lessee undertakes:
a) to perform the reception of and receive the goods within the term stipulated in the lease contract;
b) to operate the good according to the instructions issued by the supplier and to ensure the training of the personnel appointed to operate it;
c) not to burden the good which is the object of the lease contract without the consent of the Lessor;
d) to perform payments of Leasing Rates at the established value and on the terms stipulated in the lease contract;
e) to bear the maintenance expenses and other expenses which arise from the lease contract;
f) to assume for the entire period of the contract, in the absence of a contrary provision, all liabilities which arise from the usage of the good, directly or through his representatives, including the risk of losing, destroying or damaging the used good due to fortuitous causes, and the continuity of the payments of Leasing Rates until the full payment of the value of the lease contract;
g) to allow the Lessor to periodically control the condition and the exploitation method of the good which is the object of the lease contract;
h) to notify the Lessor in due time about any disturbance of the ownership right by a third party;
i) not to modify the good without the consent of the Lessor;
j) to return the good in compliance with the provisions of the lease contract.
Art. 11
The rights and obligations of the parties within a leasing operation shall be stipulated in the contract and shall not be limited to the provisions of Art. 9 and 10.
Art 12
The Lessee shall have the following rights based on the lease contract:
a) direct action against the supplier, in case of complaints about the delivery, quality, technical assistance, service necessary during the guarantee and post-guarantee period;
b) to exert ownership actions against third parties.
Art 13
(1) The real rights of the Lessor upon the goods used on the basis of the lease contract are binding to the syndic judge, when the Lessee is undergoing judicial restructuring and/or bankruptcy, under Law 64/1995, with subsequent amendments.*)
(2) The provisions of the previous paragraph also apply to the liquidator appointed under the Company Law 31/1990**), republished, if the Lessee is undergoing dissolution and/or winding-up.
CHAPTER 4
Responsibilities of the Parties
Art 14
(1) If the Lessee refuses to receive the good on the term stipulated in the lease contract, or if he is undergoing judicial restructuring and/or bankruptcy, the leasing company is entitled to unilaterally cancel the lease contract with damages.
(2) The Lessor shall not be liable if the good which is the object of the lease contract is not delivered to the Lessee.
Art. 15
If the Lessee fails to fulfil his payment obligation of the Lease Rate for two consecutive months, the Lessor shall be entitled to cancel the lease contract, the Lessee being compelled to return the good and pay the due rates with damages, unless otherwise provided in the contract.
Art 16
If the Lessor fails to observe the Lesseens option right, he shall owe damages in an amount equal to the residual value of the good or to its market value, computed on the date of expiry of the lease contract.
Art 17
If during the development of the lease contract, the Lessor sells the good, which is the object of the lease contract, to another Lessor, the new Lessor shall be bound by the same contractual liabilities as the vendor, who remains the guarantor for the fulfilling the obligations towards the Lessee.
Art 18
From the moment of concluding the lease contract and until its expiry and regaining the possession upon the good, the Lessor is exonerated from any responsibility towards third parties, for prejudices caused by the Lesseens using the goods.
CHAPTER 5
The organisation and operation of leasing companies
Art 19
(1) Leasing companies, Romanian legal entities, shall be set up and shall operate according to Law no. 31/1990 as republished.
(2) Leasing companies shall be trade companies whose activity object includes the carrying out of leasing operations and have a minimum share capital, subscribed and fully paid up on incorporation, of ROL 500 million.
CHAPTER 6
Publicity of leasing operations
Art 20
(1) Trade companies performing leasing operations, as well as trade companies using movable or immovable goods under a leasing system must record in their books the following data:
a) the entry value of the goods at the moment of concluding the lease contract;
b) the total amount of Leasing Rates related to the contract in a financial year, including their indexed quantum, if the parties have provided in the contract the periodic updating of the rates:
- for financial leasing, the Leasing Rate shall be computed considering the entry value and the related leasing interest value, spaced-out during the period of carrying out the contract; purchases of fixed assets are treated as investments, being subjected to depreciation in compliance with the normative documents in force;
- for operational leasing, the Leasing Rate shall be computed by considering the entry value of the good, the benefit established by the parties and the depreciation of a part from its entry value; the depreciation regime shall be established by the parties on mutual agreement, in compliance with the provisions of Law no. 15/1994*) on the depreciation of the capital in tangible and intangible assets, as republished;
c) the computation and registration of the depreciation of the good which is object of the contract shall be performed in case of operational leasing by the Lessor and in case of financial leasing, by the Lessee;
d) the valuation on closing the balance sheet of the rates remaining to be reimbursed.
(2) The operations shall be registered distinctly according to the nature of the leased good.
----------------
Art 21
(1) Lease contracts having as an object the use of immovable goods shall be registered in the Land Ledger - 3rd part, from the Cadastre Registry for real estate publicity from the office of the law court in whose territorial range of activity the concerned good is located.
(2) If any modifications occur regarding the head office of the Lessee or the Lessor, or changes regarding the legal status of the good, the Lessor and the Lessee must proceed to rectify in the Land Ledger and the Trade Registry Office.
CHAPTER 7
Final and Transitory Provisions
Art 22
The provisions of the present Ordinance are also applied for the situation when a legal entity sells its industrial equipment to a leasing company, to use it under a leasing system, with a redemption obligation.
Art 23
Leased industrial equipment or constructions may be used under a leasing system by several companies, if they concluded a contract between them in order to make an investment or for joint use.
Art 24
Leasing companies which conclude lease contracts with the object of using a construction or accomplishing and using a construction, may gain:
a) the right to use or to purchase the land whereon the contractor performs the work.
b) the irrevocable purchase right of the construction on the termination of the lease contract.
Art. 25
Income of non-residents from interest or royalty (Leasing Rate) established by the contracting parties, in case of contracts of financial or operational leasing, shall be taxed in Romania by withholding, according to the provisions from the double tax treaties or from the domestic legislation, as the case may be. In case of contracts of operational leasing concluded with non-resident persons, the royalty shall mean the benefit established by the parties or the entire leasing quota (Leasing Rate), if the benefit part is not identified in the contract.
Art. 26
Expenses with the insurance of the good which is the object of a lease contract shall be deductible for tax purposes by the party obliged in the contract to pay the insurance premiums.
Art 27
(1) Movable goods which are introduced in the country by the Lessees, Romanian individuals or legal entities, based on certain lease contracts concluded with leasing companies, foreign legal persons, shall be included under the customs regime of temporary import during the entire duration of the lease contract, with full relief from paying the amounts related to import duties, including customs guarantees.
(2) Movable goods which are introduced in the country by leasing companies, Romanian legal entities, on basis of lease contracts concluded with the Lessees, Romanian individuals or legal entities, shall be placed under the customs import regime with exemption from the payment of all amounts related to import rights.
(3) If the Lessee has not exerted his option right stipulated in the contract in regard to the renewal of the leasing term or purchase of the good due to the cause of the leasing company or of the supplier and the good has not been returned, the Lessee must pay the customs duties at the residual value of the good, which cannot be less than 20% from the entry value of the good.
(4) In case of purchasing the goods introduced in the country under the conditions of paragraphs (1) and (2), the Lessor must pay the customs duty computed at the residual value of the good from the moment of concluding the selling-buying contract, which cannot be less than 20% from the entry value of the good.
(5)The term when the respective goods are to be returned or receive a new customs destination shall be the one agreed upon by the parties in the lease contract, but it shall not exceed 7 years after the date of introducing the good in the country.
(6) Sub-assemblies and components introduced in the country by leasing companies for the purpose of manufacturing goods, that are to be the object of lease contracts, shall be excepted from the payment of customs duties and VAT.
Ordinance 51/1997, republished
CURRENT TEXT
CHAPTER I
General Provisions
Art 1
(1) This Ordinance shall apply to leasing operations where one party, called Lessor/Financier transmits for a limited period the usage right upon a good, whose owner he is, to the other party, called Lessee, on his request, against a periodic payment, called Leasing Rate and at the end of the leasing period, the Lessor/Financier undertakes to observe the option right of the Lessee to purchase the good, to renew the lease contract or to terminate the contractual relations. The Lessee may choose to purchase the good before the end of the leasing period, if the parties agree so and if the Lessee pays all liabilities undertaken by contract.
(2) Leasing operations may have as an object immovable goods, as well as movable goods of long usage, which are in the civil circuit, except recordings on audio or video tape, theatre plays, manuscripts, patents and copyrights.
Art. 2
For the purpose of the present Ordinance, the terms and expressions below shall have the following meaning:
a) the entry value represents the value at which the good was purchased by the Lessor, respectively the purchasing cost;
b) total value represents the total value of the leasing rates whereto the residual value is added;
c) residual value represents the value at which the ownership right upon the good is transferred to the Lessee, on the termination of the contract;
d) Leasing Rate represents:
- in case of financial leasing, the share-quota from the entry value of the good and of the leasing interest. The leasing interest represents the average rate of the bank interest on the Romanian market;
- in case of operational leasing, the depreciation quota computed according to the normative documents in force and a benefit established by the contracting parties;
e) financial leasing is the leasing operation which fulfils one or more from the following conditions:
1. the risks and benefits related to the ownership right shall be transferred to the Lessee from the moment of concluding the lease contract;
2. the parties have expressly stipulated that on the termination of the contract, the ownership right of the good is transferred to the Lessee;
3. the Lessee may chose to purchase the good and the purchasing price shall represent maximum 50% from the entry value (market value) it has on the date when the option may be exerted;
4. the usage period of the good under the leasing system covers at least 75% from the normal (standardised) lifetime of the good, even if on the termination of the lease contract, the ownership right is not transferred;
f) operational leasing is the leasing operation which does not fulfil any of the conditions stipulated at letter e).
Art. 3
(1) Within a leasing operation, the Lessor may be a leasing company, Romanian or foreign legal entity.
(2) The Lessee may be Romanian or foreign individual or legal entity.
Art 4
In order to perform a leasing operation, any individual or legal entity shall address a firm offer to a leasing company, accompanied by the list of goods intended to be the object of the lease contract, as well as by documents proving its financial standing.
Art 5
During leasing operations, the Lessee is entitled to choose his supplier, as well as the company which will insure the good, with the consent of the leasing company.
Chapter 2
The lease contract
Art. 6
(1) The lease contract must include at least the following elements:
a) the parties in the lease contract:
- the Lessor/Financier;
- the Lessee;
b) the precise description of the good which is the object of the lease contract;
c) the total value of the lease contract;
d) the value of the Leasing Rates and their related payment term;
e) the period of using the good under a leasing system;
f) the clause regarding the obligation to insure the good.
(2) The financial lease contract must include, besides the elements stipulated at paragraph (1), the following:
a) the initial value of the good;
b) the clause regarding the option right of the Lessee in respect of purchasing the good and the conditions under which it may be exerted.
(3) The parties may agree upon other clauses as well.
Art. 7
The lease contract shall not be concluded for a term shorter than one year.
Art. 8
Lease contracts shall be writs of execution, if the Lessee does not return the good in the following situations:
- at the end of the leasing period, if the Lessee has not expressed the option to purchase the good or renew the contract;
- in case of cancelling the contract due to the exclusive cause of the Lessee.
CHAPTER 3
Obligations of parties in a lease operation
Art 9
The Lessor/Financier undertakes:
a) to observe the Lesseens right to choose the supplier according to the necessities;
b) to conclude a selling-buying contract with the supplier designated by the Lessee, under the conditions expressly formulated by him;
c) to conclude a lease contract with the Lessee and transfer to him by virtue of the lease contract all rights deriving from the selling-buying contract except the right of disposal;
d) to observe the option right of the Lessee, which means the possibility to choose the renewal of the contract or the purchase or the return of the good;
e) to guarantee to the Lessee the peaceful usage of the good, provided he has observed all contractual clauses;
f) to insure through an insurance company the goods offered in the leasing system.
Art 10
The Lessee undertakes:
a) to perform the reception of and receive the goods within the term stipulated in the lease contract;
b) to operate the good according to the instructions issued by the supplier and to ensure the training of the personnel appointed to operate it;
c) not to burden the good which is the object of the lease contract without the consent of the Lessor;
d) to perform payments of Leasing Rates at the established value and on the terms stipulated in the lease contract;
e) to bear the maintenance expenses and other expenses which arise from the lease contract;
f) to assume for the entire period of the contract, in the absence of a contrary provision, all liabilities which arise from the usage of the good, directly or through his representatives, including the risk of losing, destroying or damaging the used good due to fortuitous causes, and the continuity of the payments of Leasing Rates until the full payment of the value of the lease contract;
g) to allow the Lessor to periodically control the condition and the exploitation method of the good which is the object of the lease contract;
h) to notify the Lessor in due time about any disturbance of the ownership right by a third party;
i) not to modify the good without the consent of the Lessor;
j) to return the good in compliance with the provisions of the lease contract.
Art. 11
The rights and obligations of the parties within a leasing operation shall be stipulated in the contract and shall not be limited to the provisions of Art. 9 and 10.
Art 12
The Lessee shall have the following rights based on the lease contract:
a) direct action against the supplier, in case of complaints about the delivery, quality, technical assistance, service necessary during the guarantee and post-guarantee period;
b) to exert ownership actions against third parties.
Art 13
(1) The real rights of the Lessor upon the goods used on the basis of the lease contract are binding to the syndic judge, when the Lessee is undergoing judicial restructuring and/or bankruptcy, under Law 64/1995, with subsequent amendments.*)
(2) The provisions of the previous paragraph also apply to the liquidator appointed under the Company Law 31/1990**), republished, if the Lessee is undergoing dissolution and/or winding-up.
CHAPTER 4
Responsibilities of the Parties
Art 14
(1) If the Lessee refuses to receive the good on the term stipulated in the lease contract, or if he is undergoing judicial restructuring and/or bankruptcy, the leasing company is entitled to unilaterally cancel the lease contract with damages.
(2) The Lessor shall not be liable if the good which is the object of the lease contract is not delivered to the Lessee.
Art. 15
If the Lessee fails to fulfil his payment obligation of the Lease Rate for two consecutive months, the Lessor shall be entitled to cancel the lease contract, the Lessee being compelled to return the good and pay the due rates with damages, unless otherwise provided in the contract.
Art 16
If the Lessor fails to observe the Lesseens option right, he shall owe damages in an amount equal to the residual value of the good or to its market value, computed on the date of expiry of the lease contract.
Art 17
If during the development of the lease contract, the Lessor sells the good, which is the object of the lease contract, to another Lessor, the new Lessor shall be bound by the same contractual liabilities as the vendor, who remains the guarantor for the fulfilling the obligations towards the Lessee.
Art 18
From the moment of concluding the lease contract and until its expiry and regaining the possession upon the good, the Lessor is exonerated from any responsibility towards third parties, for prejudices caused by the Lesseens using the goods.
CHAPTER 5
The organisation and operation of leasing companies
Art 19
(1) Leasing companies, Romanian legal entities, shall be set up and shall operate according to Law no. 31/1990 as republished.
(2) Leasing companies shall be trade companies whose activity object includes the carrying out of leasing operations and have a minimum share capital, subscribed and fully paid up on incorporation, of ROL 500 million.
CHAPTER 6
Publicity of leasing operations
Art 20
(1) Trade companies performing leasing operations, as well as trade companies using movable or immovable goods under a leasing system must record in their books the following data:
a) the entry value of the goods at the moment of concluding the lease contract;
b) the total amount of Leasing Rates related to the contract in a financial year, including their indexed quantum, if the parties have provided in the contract the periodic updating of the rates:
- for financial leasing, the Leasing Rate shall be computed considering the entry value and the related leasing interest value, spaced-out during the period of carrying out the contract; purchases of fixed assets are treated as investments, being subjected to depreciation in compliance with the normative documents in force;
- for operational leasing, the Leasing Rate shall be computed by considering the entry value of the good, the benefit established by the parties and the depreciation of a part from its entry value; the depreciation regime shall be established by the parties on mutual agreement, in compliance with the provisions of Law no. 15/1994*) on the depreciation of the capital in tangible and intangible assets, as republished;
c) the computation and registration of the depreciation of the good which is object of the contract shall be performed in case of operational leasing by the Lessor and in case of financial leasing, by the Lessee;
d) the valuation on closing the balance sheet of the rates remaining to be reimbursed.
(2) The operations shall be registered distinctly according to the nature of the leased good.
----------------
Art 21
(1) Lease contracts having as an object the use of immovable goods shall be registered in the Land Ledger - 3rd part, from the Cadastre Registry for real estate publicity from the office of the law court in whose territorial range of activity the concerned good is located.
(2) If any modifications occur regarding the head office of the Lessee or the Lessor, or changes regarding the legal status of the good, the Lessor and the Lessee must proceed to rectify in the Land Ledger and the Trade Registry Office.
CHAPTER 7
Final and Transitory Provisions
Art 22
The provisions of the present Ordinance are also applied for the situation when a legal entity sells its industrial equipment to a leasing company, to use it under a leasing system, with a redemption obligation.
Art 23
Leased industrial equipment or constructions may be used under a leasing system by several companies, if they concluded a contract between them in order to make an investment or for joint use.
Art 24
Leasing companies which conclude lease contracts with the object of using a construction or accomplishing and using a construction, may gain:
a) the right to use or to purchase the land whereon the contractor performs the work.
b) the irrevocable purchase right of the construction on the termination of the lease contract.
Art. 25
Income of non-residents from interest or royalty (Leasing Rate) established by the contracting parties, in case of contracts of financial or operational leasing, shall be taxed in Romania by withholding, according to the provisions from the double tax treaties or from the domestic legislation, as the case may be. In case of contracts of operational leasing concluded with non-resident persons, the royalty shall mean the benefit established by the parties or the entire leasing quota (Leasing Rate), if the benefit part is not identified in the contract.
Art. 26
Expenses with the insurance of the good which is the object of a lease contract shall be deductible for tax purposes by the party obliged in the contract to pay the insurance premiums.
Art 27
(1) Movable goods which are introduced in the country by the Lessees, Romanian individuals or legal entities, based on certain lease contracts concluded with leasing companies, foreign legal persons, shall be included under the customs regime of temporary import during the entire duration of the lease contract, with full relief from paying the amounts related to import duties, including customs guarantees.
(2) Movable goods which are introduced in the country by leasing companies, Romanian legal entities, on basis of lease contracts concluded with the Lessees, Romanian individuals or legal entities, shall be placed under the customs import regime with exemption from the payment of all amounts related to import rights.
(3) If the Lessee has not exerted his option right stipulated in the contract in regard to the renewal of the leasing term or purchase of the good due to the cause of the leasing company or of the supplier and the good has not been returned, the Lessee must pay the customs duties at the residual value of the good, which cannot be less than 20% from the entry value of the good.
(4) In case of purchasing the goods introduced in the country under the conditions of paragraphs (1) and (2), the Lessor must pay the customs duty computed at the residual value of the good from the moment of concluding the selling-buying contract, which cannot be less than 20% from the entry value of the good.
(5)The term when the respective goods are to be returned or receive a new customs destination shall be the one agreed upon by the parties in the lease contract, but it shall not exceed 7 years after the date of introducing the good in the country.
(6) Sub-assemblies and components introduced in the country by leasing companies for the purpose of manufacturing goods, that are to be the object of lease contracts, shall be excepted from the payment of customs duties and VAT.
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