When is the debtor’s consent to assign a claim required and how to obtain it

Debt assignment agreement - what is it?

A creditor under a monetary or other obligation may transfer his rights to another person.
Such a transfer is formalized by an assignment of rights agreement, which in legal language is called an assignment agreement. The original creditor transferring rights is called the assignor, and the new creditor is called the assignee. Assignment agreements can be concluded by both individuals and organizations. The need to transfer the debt to another creditor may be caused by various reasons (for example, reluctance to collect the debt through the court). A typical example of an assignment is the transfer of debt under a loan agreement to a collection agency.

As a rule, the assignment of the right to claim a debt is compensated, that is, the new creditor pays the original creditor a fee, the amount of which is specified by agreement between them. The amount of such payment is most often less than the amount of the transferred debt, because otherwise the new creditor will have no reason to purchase the debt. At the same time, the law does not prohibit the gratuitous assignment of the right of claim to a new creditor.

Risks

The assignee risks the following:

• Failure by the borrower to fulfill its direct obligations - violation of the terms of repayment of funds is most often associated with the difficult financial situation of the defendant or his unreliability. Another common reason for non-repayment is simple ignorance that the creditor and, accordingly, his details have changed. To avoid such problems, the party acquiring the right to claim the debt must make sure that the debtor is aware of the assignment procedure. If inaccuracies were made during the execution of the initial papers, the borrower can challenge the current agreement.
• Features of taxation - everything is relatively simple here. If the collection fee exceeds the amount of the debt obligation, then the collector is obliged to pay income tax. When the assignment payment is less than the debt, the assignment is written off as a loss. When preparing such documents, it is important to take into account the deadlines - if an overdue debt is reissued, then the process of writing it off will be much more difficult.
• Invalidation of the contract. Such a decision is made by the court when the transaction is fictitious or carried out in violation of current legislation.

Read How to return loan insurance: returning the amount of money

In legal practice, there are also cases when the original agreement clearly stated a ban on the sale of obligations or the debtor simply does not agree to change the credit institution. Many nuances may arise with the registration of a cession for property that is pledged. Such precedents are resolved with the help of highly qualified lawyers in the manner prescribed by law. You can get professional legal assistance at.

When can you transfer a debt?

The law says that debts under any obligations can be assigned to a new creditor, except for cases provided for by law.
In particular, rights of claim cannot be transferred under an assignment agreement if they are inextricably linked with the identity of the creditor (for example, the right to alimony, compensation for moral damage, etc.). As a general rule, the transfer of a debt by way of assignment usually does not require prior consent from the debtor. However, in a number of cases, assignment of rights is possible only with the consent of the obligated person, in particular:

• if an agreement between the creditor and the debtor establishes that the transfer of debt is possible only with the consent of the latter;
• if regulations provide that the transfer of the right of claim is permissible only with the consent of the debtor;
• if the fulfillment of the obligation is closely related to the identity of the creditor.

The rights are transferred to the new creditor to the same extent as they belonged to the previous creditor.
In addition, along with the main debt, the obligations securing it (penalty, etc.) are transferred. Other terms of the agreement under which the debt is transferred to the assignee also remain unchanged. It should be noted that the debt can be transferred even when there is already a court decision to collect the debt in favor of the original creditor. In this case, after drawing up the assignment agreement, you will need to go to court, which will make a ruling on replacing the party in the case. Next, with this definition and the assignment agreement, you need to contact the bailiff service.

Another comment on Article 388 of the Civil Code of the Russian Federation

1. Russian legislation in some cases does not allow assignment, for example, transport charters and codes prohibit the transfer of rights to make claims, with the exception of the persons specified in them. Article 383 of the Civil Code (see commentary to it) also establishes certain restrictions on the assignment. This means that any agreement between the parties that contradicts these conditions will be considered invalid.

2. Paragraph 2 of the commented article can be considered as a special case of Art. 383 of the Civil Code, regulating the prohibition of assignment. However, in this case, the possibility or impossibility of assignment is made dependent on the consent of the debtor. If in Art. 383 of the Civil Code establishes a ban on the assignment of claims related to the identity of the creditor, then in the commented article the question of how closely and inextricably the claim is connected with the identity of the creditor is left to the discretion of the debtor. This flexible rule is very important, since no enumeration in legislation can cover the entire range of situations that arise in real life, but, on the other hand, this provision can lead to certain complications for the parties, for example, when a creditor decides to transfer his claim to another person.

According to the general rule (clause 2 of Article 382 of the Civil Code), the debtor’s consent is not required for this. However, the debtor may believe that the identity of the creditor is of significant importance to him and that his consent is necessary to make the assignment. But this problem may arise after the claim is transferred to a new creditor, and the debtor will apparently have to defend his position in court. To avoid these complications, if the debtor believes that the identity of the creditor is decisive for him, it is necessary to include appropriate provisions in the contract between the debtor and the creditor.

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An example from judicial practice illustrates possible disputes between the parties to an assignment agreement in connection with assessing the identity of the creditor for the debtor. The claim was filed to invalidate the assignment agreement in accordance with paragraph 2 of the commented article. The plaintiff argued that in the targeted loan agreement concluded by him with the creditor, the identity of the latter was essential for him and therefore the creditor could not assign the right of claim under this agreement to a third party without the consent of the debtor. The cassation court in its ruling noted that the debtor had to present to the court evidence of the existence between him and the defendant of such special legal relations related to or arising on the basis of a targeted loan agreement that would indicate the essential importance for the plaintiff of the creditor’s identity. In this case, the plaintiff was unable to prove the fact that the identity of the creditor was of significant importance to him, and the claim was denied. The wording of paragraph 2 of the commented article indicates that the court decides this issue based on the specific circumstances of each specific dispute.

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Form and essential terms of the assignment agreement

Sample contract.
The agreement on the assignment of rights should be concluded in the same form as the agreement under which the rights are transferred to the new creditor. That is, if the main agreement is concluded in simple written form, then the assignment agreement must be drawn up in simple written form. If the main agreement is certified by a notary, then the assignment of debt, accordingly, must be notarized. If the transaction, the rights under which are transferred to a new person, is registered in Rosreestr, then the assignment agreement is subject to registration (unless otherwise provided by regulations).

The only essential condition of the assignment agreement is its subject. The subject is the right of claim, which is transferred to the new creditor. The text of the agreement should describe the essence of the transferred right of claim and indicate on the basis of which documents it arose. At the same time, it is not at all necessary to reflect in the contract the reasons and motives for such a transfer.

The agreement or court decision from which the transferred right arises must be attached to the assignment agreement.
If such an agreement has annexes, then they also need to be transferred to the new creditor. All other terms of the agreement on the assignment of rights are considered additional and are included in the text of the agreement at the discretion of the parties. All of the above is presented more clearly in a sample agreement for the assignment of the right to claim a debt, available on our website.

Types of assignment agreement in case of insolvency of an enterprise

In legal practice, there are several types of agreements in case of insolvency of a legal entity:

• Free and compensated - in the first case, cases from one credit organization are transferred to another without compensation, in the second - for a certain fee. According to the norms of the Civil Code, official agreements to change the creditor between legal entities on a free basis are illegal, since they have no economic benefit.
• Tripartite – here it is necessary to obtain the borrower’s consent to resell his debt obligations. A standard agreement has a bilateral nature (between the assignor and the assignee), where the defendant does not influence its signing in any way, but is only notified of the fact of conclusion by a special letter.
• According to writs of execution, a similar situation is allowed by the Civil Code of the Russian Federation, but if the court decision has already gained force, then the court must be notified of this type of transaction.
• Free and paid - often debt obligations are sold for less than the amount of the original debt. This covers the risks and inconveniences of the receiving credit institution.

Read Registered debt in bankruptcy: what does it mean, repayment of current payments

Nuances of the assignment agreement

When concluding an assignment agreement, you need to take into account a number of nuances:

1. It is advisable to reflect in the text of the agreement a condition regarding which of the parties and within what period of time informs the debtor about the transfer of the right of claim to the assignee. It is more logical to assign this responsibility to the new creditor, since by virtue of the law it is he who bears the risk of the consequences of failure to notify the debtor.
2. If the debtor, who has not been notified of the transfer of debt, fulfills the obligation to the original creditor, then he is considered to have fulfilled his obligation. And in this case, the new creditor will have to recover from the previous creditor the amount of debt that he unreasonably received.
3. The transfer of the right of claim can be formalized not only by a bilateral, but also by a tripartite agreement (with the participation of the debtor).
4. The compensation agreement should specify the amount and procedure for payment of the remuneration paid by the assignee. If the parties enter into a gratuitous agreement, it is best to explicitly state in the agreement that the new creditor has no obligation to pay remuneration.
5. The former creditor is not responsible for the fulfillment of the obligation by the debtor. An exception will be the situation when he acts as a guarantor of the obligated person to a new creditor.

Assignment of the right to claim under alimony obligations is possible

The fifth section of the Family Code of the Russian Federation provides for the grounds for the emergence of alimony obligations. Thus, the legislation clearly establishes that alimony obligations arise in relation to persons who are disabled and in need of material support.

By the way, it is possible to demand the fulfillment of this kind of obligation only in the case when the person obliged to pay the funds lives separately from the person who needs these funds.

As a rule, alimony is collected either from minor children or from disabled parents; in some cases, the ex-spouse may also be required to pay alimony.

Hello! So that the former spouses do not have problems in the future, and if there is mutual consent, the property rights of the spouses in relation to the property belonging to them can be formalized by a marriage contract (Article 42 of the RF IC). In the prenuptial agreement, you can indicate which property will belong to which of the spouses after the divorce. A prenuptial agreement is concluded during the period of marriage. After a divorce, you will not be able to enter into a prenuptial agreement.

What is an assignment of a claim, and in what cases is it allowed?

In everyday life, there are situations when there is a change in creditor. This situation can only occur if there are no third parties involved in the obligation.

Such cases are called a change of persons in an obligation. Replacing a creditor is an assignment of claim or assignment.

When a creditor transfers his claim, he is called the assignor, and the party who assumes the claim is called the assignee.

Taking into account the assignment agreement, the creditor has the right to transfer his right of claim to another person (the assignee) in the event of his bankruptcy.

All rights of the original creditor that existed at the time of assignment of the claim are transferred to the assignee.

In this case, the creditor undertakes to transfer all documentation to the assignee, as well as provide certificates that would confirm his ability to claim the debt for the creditor.

Agreement on assignment of claim rights

Before acquiring a debt, a new creditor must carefully study all the circumstances surrounding it.

It is often necessary to fully trace the history of the relationship between the original creditor and the debtor, because it may turn out that the debtor justifiably applied offset or that the original creditor itself did not fulfill all of its obligations under the transaction. For example, he did not replace the goods or did not provide all the necessary services, did not provide any documents, etc.

All actions taken by the original creditor to fulfill its obligations under the agreement must be documented (for example, acts of acceptance of goods or work signed by an authorized representative of the debtor, acts of reconciliation of payments, etc.).

Example: The buyer company owed the seller company 100 thousand rubles. The seller (the original creditor) entered into a deal with a third party to assign this debt. By agreement of the parties, the new creditor acquired the debt for 50 thousand rubles.

However, the buyer was not notified of the transaction and transferred the entire amount of the debt to the account of his original creditor. The buyer has fulfilled his obligation, and according to the law, the new creditor is deprived of the right to demand payment of the debt from him.

Now the new creditor has another task: how to force the original creditor to pay him the full amount that he had the right to expect. And the original creditor faces a dilemma: transfer the entire 100 thousand rubles to the new creditor.

or try to challenge the assignment of the claim in court and return only 50 thousand rubles.

Grounds for the inadmissibility of assignment of the right of claim

The plaintiff based the significance of the original creditor in this case on the fact that both the assignor and the debtor are clients of Komirbank OJSC, whose license to conduct banking and other operations carried out by banks was revoked at the time of filing the claim. Can this fact be considered a basis for the invalidity of this transaction? In our opinion, no.

It does not exclude the possibility of, for example, offsetting mutual claims between the parties. Also, debt collection can be directed against the property of the plaintiff-debtor.

It should also be noted that in accordance with Chapter 4 of the Rules for the issuance, suspension and revocation of licenses for banking and other operations carried out by banks, approved by the Resolution of the Board of the Agency of the Republic of Kazakhstan for Regulation and Supervision of the Financial Market and Financial Organizations dated July 12, 2004 No. 197, the revocation of a license may serve as a basis for forced liquidation of the bank.

In this case, the plaintiff and defendant become creditors of this bank and in accordance with paragraphs. g) clause 3 of Art. 74-2 of the Law of the Republic of Kazakhstan “On Banks and Banking Activities in the Republic of Kazakhstan” dated August 31, 1995, have the right to repay their claims in the eighth place.

To conclude the consideration of this category, I would like to cite what, in our opinion, is a successful quote from “Fundamentals of Contract Law” by Samond and Williams: “At present, rights from a contract are, as a rule, transferable.

But even now this rule cannot be considered unshakable.

There are many cases when assignment is not allowed, because a distinction must be made between contracts from which obligations of a personal nature arise, and contracts from which obligations of a non-personal nature arise" [49].

Also read: When to give money when buying an apartment in cash

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I pointed out the necessity of having a dismissed employee for the validity of the original debt. Thus, the requirement of the Civil Code for the transfer of obligations in full is fulfilled. There is no other connection between the employee and the employer other than the actual obligation to pay wages.

So, as I indicated above, I generally believe that the obligation to pay wages is an ordinary obligation even without connection with the termination of the employment contract. However, this judicial act says the opposite.

Alas, I don’t see the logic, I don’t see the motive for applying such legal regulation. It turns out that the entire “protection” of the employee’s rights comes down to receiving money from the cash register, and then he does whatever he wants with it.

I don’t understand why the right to receive money cannot be transferred immediately.

According to Art. 410 of the Civil Code of the Russian Federation, the obligation is terminated in whole or in part by offsetting a counterclaim of the same type, the term of which has come or the term of which has not been specified or is determined by the moment of demand. For offset, a statement from one party is sufficient.

Remuneration of the assignment agreement . The legislation does not directly provide for rules on the remuneration of an agreement for the assignment of the right of claim (cession). Therefore, when concluding an assignment agreement between individuals, the agreement can be either compensated or gratuitous (a gratuitous assignment agreement can be qualified as a gift agreement).

Civil Code of the Russian Federation (Civil Code of the Russian Federation)

The third part comes into force on March 1, 2002. It concerns inheritance, as well as private international law. The order of inheritance by will and by law is determined. It has been established which law applies when one of the parties is a foreign person or the property is located abroad.

The Civil Code of the Russian Federation determines the legal status of participants in civil transactions, the grounds for the emergence and procedure for the exercise of real and intellectual rights. In addition, it regulates contractual and other relations based on equality, autonomy of will and property independence of the participants. This act consists of 4 parts.

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Sample form of an agreement for the assignment of the right to claim a debt

In the event that an agreement on the assignment of the right of claim is required, a sample form for it will look something like this:

Assignment of the right to claim under alimony obligations

Cession is understood as a procedure during which the creditor transfers to another institution its right to demand funds, property and valuables from the debtor. A document establishing the legal relationship between the three parties is drawn up in the form of an agreement. It reflects the obligations of the participants, conditions, terms of conclusion, measures of responsibility.

The interaction between banks and payers under such agreements is distinguished: First of all, under an assignment agreement it is prohibited to transfer rights of claim that are inextricably linked with the identity of the creditor.

These are, for example, obligations such as alimony and claims for compensation for harm caused to life or health (Article 383 of the Civil Code of the Russian Federation).

Usually, under an assignment agreement, a monetary claim is transferred - this can be accounts receivable or debt on a loan.

Rights to securities can also be transferred under the assignment option. Do not confuse an assignment agreement with an agreement for the transfer of rights and obligations under an equity participation agreement in construction from one shareholder to another.

The difference here is that under the assignment agreement only the rights of the creditor (to receive the debt) are transferred, and under the agreement of shareholders, responsibilities are also transferred, in particular, to continue making payments for housing under construction.

An agreement under which the creditor has a right of claim against the debtor (for example, a loan or supply agreement) may contain a clause prohibiting the replacement of the creditor.

If there is no such clause, then the debtor’s consent to the transfer of the right of claim under the assignment agreement is not required (Article 382 of the Civil Code of the Russian Federation). A ban on the transfer of the right of claim in certain situations can also be established by law.

An assignment agreement differs from an assignment of rights in several respects: The parties choose which agreement is more appropriate to conclude independently, depending on the current situation and the availability of conditions for a compromise resolution.

The agreement is concluded in writing and contains several mandatory points: If the tenant of a land plot wants to assign his rights to another person, then you only need to draw up an assignment agreement, and then there is no need to draw up a new lease agreement with another tenant.

This option is simpler - using an assignment agreement allows you to avoid negotiations with the landlord and breaking the old lease agreement. Moreover, all terms of the lease remain in force, the lessor cannot even change the amount of the rent. And the old tenant does not bear any responsibility for the early termination of the lease.

Assignment of the right to claim debt between

It is only necessary to notify the lessor of the conclusion of the assignment agreement. An assignment agreement regarding the transfer of the rights of a tenant of a land plot is also permitted in cases where such a plot is in state or municipal ownership. But here the initial lease agreement must be concluded for more than 5 years. Under an assignment agreement the creditor assigns his rights to a third party.

In rental legal relations, thanks to an assignment agreement, you can avoid the procedure for early termination with one tenant and the conclusion of a new lease agreement with another person. Within a month from the date of filing the statement of claim, the court makes a decision. If the defendant disagrees with the court decision, he can file an appeal to reconsider the case .

To do this, the defendant sends a claim to the court indicating good reasons for maintaining the validity of the agreement. Upon termination of the assignment agreement, all obligations of its accomplices are released.

Consequences may occur if they directly depend on the facts that served as the basis for termination of the transaction.

If the second party fails to fulfill the terms of the contract, the defendant is obliged to compensate the plaintiff’s lost funds paid during the execution of the contract in the absence of circumstances beyond the control of the parties.

If there are any, the parties reimburse each other for the funds spent and the contract is considered cancelled.

As noted earlier, assignment refers to legal relations concerning a change of persons in an obligation. An assignment of rights presupposes a situation where a transaction was concluded between persons, the result of which was the failure of one of the parties to fulfill a monetary obligation.

Assignment of the right of claim. How is it

In this case, the creditor, not being able to independently influence the debtor, has the right to transfer his debt to a third party for a certain fee or without it. Thus, the assignment agreement is characterized by the replacement of one creditor with another.

Regulatory regulation of the assignment of rights of claim comes down mainly to the provisions of the Civil Code of Russia (Chapter 24), as well as in some part of the Tax Code of Russia (Article. As you can see, the list of acts is not so large, but they provide for a significant amount of nuances associated with the conclusion of an agreement on cessions.

24 of the Civil Code of Russia allows us to distinguish the following types of this agreement: The first thing that needs to be addressed here is possible unfavorable nuances for the assignee.

This is a case where the debtor, who does not have reliable information about the assignment of rights, further fulfills his obligations to the original creditor. The conclusion of an agreement for the assignment of rights of claim is carried out using an individual approach, since each situation entails certain consequences.

Agreements are divided into the following types: Individuals, along with organizations, have the right to enter into assignment agreements, with the exception of a court decision to collect debts from a citizen (for example, for alimony obligations, payments for moral damage). Discussions about assignment should be made using accepted terms. The parties in the assignment agreement are: The agreement is not subject to mandatory certification by a notary, it is concluded in writing in 3 copies, each of which remains with the participants.

A bilateral transaction has become more widespread in Russian practice. It involves the participation of only creditors (new and old).

The concept of alimony obligations in Russian

Since the entire responsibility for notifying the person who has the obligations lies with him. The most common area of ​​application of assignment agreements is lending. The result of such communication should be the full repayment by the borrower of his obligations.

Tripartite assignment agreements can be concluded between individuals and between legal entities. One of the parties to the transaction can be individual entrepreneurs, and the contract itself can be paid or free, compensated or gratuitous. According to the legislation of the Russian Federation, assignment does not apply to all types of obligations.

383 of the Civil Code of Russia): alimony; compensation for moral damage; compensation for damage to health and life; debts to employees of the organization during liquidation or reorganization of the enterprise.

An agreement on the assignment of rights with the participation of 3 parties is drawn up and signed in three copies, one for each participant.

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An assignment agreement with the participation of 3 parties is drawn up and signed in three copies, one for each participant. As a rule, a tripartite assignment agreement does not require notarization; to obtain legal force, the signatures of all parties to the transaction are sufficient. If drafted incorrectly, the agreement may be recognized invalid.

It enters into legal force from the moment of signing, unless otherwise provided by its content. In order for a tripartite assignment agreement to have legal force, it must be correctly drawn up and filled out.

The main feature of registering an assignment with the participation of three parties is the presence of the debtor in the transaction. There is no possibility of disagreements with the debtor, because he is involved in the process of transferring rights, which means he is familiar with the changed conditions and accepts them.

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If this norm is violated, the assignment agreement will be considered not concluded. Lawyers can prepare a document that must contain the following sections: If this is provided for in the agreement, the transfer of the object of assignment occurs according to the act. So, in simple words, the assignment agreement provides for the transfer of property rights.

Assignment is used in various areas of economic activity and even in international relations. Chapter 24 of the Civil Code reflects the rule of law that the parties transferring the obligation to collect debt notify the person of the change of creditor.

His consent to this procedure is not required, but he must know about the current situation in order to know to whom to transfer funds and address any questions that arise. 3 of Article 382 of the Civil Code of the Russian Federation, if a citizen or enterprise is not notified of the sale of a debt, the assignee bears the risk that entails failure to fulfill obligations by the debtor.

If this procedure is not carried out in a timely manner, the person has the right to stop paying debts to the original creditor and relieve himself of the obligation to fulfill the contract.

Although the debtor is not actually a party to the assignment agreement, he participates in legal relations when transferring the right of claim, and therefore he must be notified of the replacement of the creditor. Sometimes another change of persons in the obligation is confused with the assignment agreement - the replacement of the debtor. Such a transaction also called transfer of debt (Article 391 of the Civil Code of the Russian Federation).

How to formalize the debtor’s consent to assign a claim

The rules for formalizing consent are the same for the assignment of monetary and non-monetary claims.

The form of consent is not established by law, so the debtor can express it in any way. For example:

• draw up a letter, permission, application;
• sign an agreement with the original creditor (assignor);
• include consent in the text of a tripartite assignment agreement concluded with the participation of the debtor.

The consent must indicate (clause 3 of Article 157.1 of the Civil Code of the Russian Federation):

• for preliminary consent - information allowing to determine the claim to which the debtor agrees to assign. These include the basis for the emergence of the claim (for example, details of the agreement between the debtor and the assignor), its type (delivery of goods, performance of work, etc.), volume (size).

Please note that in the preliminary consent the debtor may indicate the conditions under which he agrees to the assignment. If consent is required by law, then in the event of a violation of these conditions, the debtor will be able to challenge the assignment agreement (clause 56 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 23, 2015 N 25);

• for subsequent consent (approval) - details of the assignment agreement being approved.

It is important to know! How to concede a claim