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The procedure for transferring debt to a third party is regulated by Articles 391 and 392 of the Civil Code of the Russian Federation. This procedure is possible only with the consent of the creditor and upon concluding an agreement on the transfer of debt (Article 389 of the Civil Code of the Russian Federation).
Features of document preparation
- Completed sample contract
- Contract form
- Contents of the debt transfer agreement
- Nuances of drawing up a debt transfer agreement
Contract form
There are no specific instructions for drawing up a money transfer agreement in legislative documents. However, there are well-established rules that it must meet.
The debt transfer agreement is drawn up in writing and must be in the same form as the main document stipulating the debt obligations. So, if this document was registered with the state registration service, then the agreement is subject to this procedure.
Important! If the contract is free of charge, this must be indicated in its terms. Otherwise, it will be considered remunerative (Article 423 of the Civil Code of the Russian Federation).
The agreement is drawn up in an official style without any emotional overtones. All data provided must be reliable and correspond to the information contained in the primary documents.
Contents of the debt transfer agreement
Like all formal contracts, this document should consist of several separate sections. Their number will be determined directly by its participants and depends on each individual situation.
Contract structure:
- a cap;
- subject of the contract;
- liability of the parties;
- dispute resolution;
- final provisions;
- legal addresses and details of the parties;
- signatures.
The header indicates the name of the agreement, the city and date of its conclusion, as well as the name and details of the parties who concluded it. It must be clearly stated who is the original debtor, who is the new debtor, and who is the creditor. If these are individuals, you must enter their names and passport information; if these are legal entities, you should also enter the positions of their representatives and indicate the documents on the basis of which they act.
Important! The names and titles mentioned in the contract must be written in full without abbreviations.
Basic information regarding the amount of debt and the procedure for transferring it to a third party is entered in the “Subject of the agreement” section. The amount of debt must be stated in both numerical and verbal format. The amount of interest on the debt, which is also payable, must also be included. This also confirms the fact of transfer of the main loan agreement to the new debtor.
Important! The amount of debt in the agreement is indicated as it was at the time of signing this document, and not the original loan amount.
The responsibility of the parties for non-fulfillment or improper fulfillment of the terms of the contract is determined directly by the participants in the procedure. Circumstances beyond the control of the parties, but which may lead to a violation of the terms (force majeure factors), must also be specified. It would be useful to determine the course of action of the parties in the event of the occurrence of this force majeure.
When determining how to resolve disputes, special emphasis should be placed on peaceful negotiations. And only if it is impossible to carry out such actions, the possibility of recourse to court should be provided.
In the final provisions, in accordance with the rules for drawing up official documents, the number of copies of the signed agreement is indicated.
Nuances of drawing up a debt transfer agreement
None of the sections of the agreement can contradict the norms of current legislation or infringe on the legitimate rights and interests of the parties. According to Article 392 of the Civil Code of the Russian Federation, a contract cannot include a condition prohibiting the debtor from raising objections to the creditor’s claims.
Important! An agreement drawn up in violation of the rights of one of the parties is considered initially void.
In addition to these sections, it is possible to include others. Thus, the possibility of changing the payment procedure, debt repayment schedule, etc. can be determined.
Compilation rules
The collection of the following documents will become an obligation when making debt transfer transactions:
Parties to the agreement
- written consent from the lender himself
- the translation agreement itself
The type of transaction under which the agreement is concluded determines the need for notarization.
The subject of this document is the transfer of existing responsibilities to another person. The main thing is to provide the most detailed description of this obligation, because of which the transferred debt arose. The following few points need to be taken into account:
- To prove the very fact of the existence of a debt, you can use not only the main agreement, but also any other documentation.
- Even an agreement in which the parties have determined the obligation, but forgot to indicate the total amount of the debt, will receive the status of a valid agreement from the courts.
- But mentioning only one size of obligations is not enough to recognize the validity of the agreement.
Judicial practice suggests that agreements on the transfer of debt are of a compensated nature. Especially if it is concluded between two organizations. And if they are commercial. Registration of a simple gift becomes a violation of the law in this case. In this case, the contract is not considered gratuitous if it does not indicate the cost of the obligation. The debtor must prove that he is not making a gift.
AGREEMENT No. __________ on debt transfer
_____________ "___"___________ 20___
___________________________________, hereinafter referred to as " Organization 1 ", represented by ____________________________________________________________, acting on the basis of ___________, on the one hand, ___________________________________________, hereinafter referred to as " Organization 2 ", represented by _____________________________________, acting on the basis ________, and ______________________________________________, hereinafter referred to as the “ Lender ”, represented by __________________________________________, acting on the basis of ___________________, hereinafter referred to as the Parties, have entered into this agreement as follows:
Subject of the agreement
1.1. “Organization 1” assumes the obligations of “Organization 2” under loan agreement No. ________ dated “___”___________ 20___, concluded between “Organization 2” and the “Lender”. The amount of debt at the time of signing this agreement is ___________.00 rubles. (_______________________________________________ rubles 00 kopecks), of which the amount of the principal debt is _________________.00 rubles. (______________________________ rubles 00 kopecks), the amount of interest due under the specified agreement is _______________.00 (______________________________ rubles 00 kopecks).
1.2. “Organization 2”, at the time of signing this agreement by the parties, transfers to “Organization 1” loan agreement No. ____________ dated “___”___________ 20___.
Responsibility of the parties
2.1. Each party is responsible for damage caused to the other party if it arose through its fault, as a result of non-fulfillment or improper fulfillment of contractual obligations.
2.2. The parties are released from liability if the damage is caused regardless of their will, i.e. due to force majeure.
2.3. Force majeure circumstances include such events as: war and hostilities, epidemics, fire, disasters, acts of government and management authorities affecting the fulfillment of obligations under the agreement, issued after the conclusion of this agreement, as well as other events recognized as indefinite force by law and business customs turnover.
Dispute Resolution
3.1. All disputes and disagreements that may arise in connection with the fulfillment by the parties of their obligations under this agreement will, if possible, be resolved through negotiations.
3.2. If the parties cannot reach agreement on a controversial issue, then the disagreements that arise are resolved in court.
Final provisions
4.1. This agreement comes into force from the moment it is signed by the parties.
4.2. This agreement is drawn up in 3 copies, one for each party, and each of them has equal legal force.
Legal addresses and details of the parties
Organization 1:
Organization 2:
Creditor
Signatures of the parties:
Download the document “Debt Transfer Agreement (tripartite)”
About the specifics of agreements
Trilateral agreements are considered before bilateral ones, even if the latter types were concluded earlier. Bilateral transactions do not have any influence on obligations under trilateral transactions.
Agreements between three parties are regulated in such a way that an agreement is only allowed between two parties, bypassing the third. Even if the original conditions undergo a major change.
Under normal conditions, termination of a contract is also only available if all parties have given their consent. In the energy supply sector, such documents are particularly common. The agreement is concluded between those who supply utilities, as well as subscribers and public authorities, to whom a number of functions are transferred.
Then the obligations under the contract are imposed on only one of the parties, which is the subscribers. The city administration has no such obligations. Therefore, utility services cannot involve her in the performance of duties and joint payment of debts incurred by the subscriber. But the other party is not exempt from fulfilling its duty, even if a third party takes part in the agreement. And if this third party agrees to assume part of the monetary obligations, the creditor can make claims against any of the debtors, the sequence is chosen by mutual agreement.
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What postings will the debtor need to make?
In the case of changes in debt, the original debtor's obligations, by agreement with the creditor, are completely terminated.
Now the unpaid amount belongs to the new debtor.
When the first debtor ships the goods to a new one, VAT obligations arise.
The following is a list of accounting entries:
- upon receipt of products from the creditor - Debit 41 Credit 60;
- VAT upon receipt of products – Debit 19 Credit 60;
- transfer of debt by a subsequent debtor – Debit 60 Credit 62;
- sending to a subsequent debtor – Debit 62 Credit 90;
- VAT on the day of dispatch of products – Debit 90 Credit 68;
- transfer of cost - Debit 90 Credit 41;
- profit – Debit 90 Credit 99;
- deduction of VAT on goods that were sent by the creditor – Debit 68 Credit 19.
The following are the postings for the second debtor:
- taking on a debt in relation to the creditor – Debit 60 Credit 76;
- debt payment – Debit 76 Credit 51;
- receipt of products from the first debtor – Debit 10 Credit 60;
- VAT on delivery – Debit 19 Credit 60;
- deduction of VAT on cargo delivered by the first debtor – Debit 68 Credit 19.
The agreement is drawn up according to the rules specified in the Civil Code for the transfer of debt between companies.
There is no detailed example of how to draw up a document. But from regulations and judicial practice one can draw conclusions about what points must be contained in the text in order for it to be considered valid.
Current debts in relation to the creditor are transferred to the subsequent debtor.
To properly formalize the agreement, it is necessary to obtain the consent of the lender.
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Debt transfer agreement
Comments on the document “Debt transfer agreement (tripartite)”
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Information about the parties to the agreement
The agreement specifies detailed information about the parties: full names of organizations, actual and legal addresses, OGRN, INN, KPP, as well as bank details in the case of non-cash debt repayment.
The parties must attach the necessary documents about the enterprise, incl. licenses and certificates.
Article 389 of the Civil Code of the Russian Federation states that it is necessary to adhere to the same form of agreement as in the initial transaction. If, when signing the initial agreement, the agreement was notarized, then the agreement on the transfer of debt must also be concluded with the involvement of a notary.
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