Issues of assignment of claims. General provisions for the assignment of the right to claim Legal requirements for an assignment agreement

§ 1. Elements of the assignment of the right to claim

The only essential condition for the assignment of a claim is the condition on its subject matter. The subject of a singular succession agreement may be a subjective right of obligation or a right of claim. It must be individually defined.

The individualization of the subject matter of the active assignment agreement is of direct interest to the assignee, and not to the assignor. The assignor parted with the demand, so he is indifferent to its precise and Full description. The assignee, on the other hand, acquires a claim that he will have to fulfill in the future. He will not be able to do this if he does not explain to the debtor and the court what kind of claim he has acquired. As long as the assignee, due to carelessness, illiteracy, or for some other reason, did not insist on the individualization of the claim that is the subject of the contract, there is no reason to force other persons (in particular, the assignor) to take care of the protection of the claim acquired by the assignee. This means that in the event of a dispute between the assignor and the assignee on the issue of which particular claim or in what part was the subject of the assignment, the information provided by the assignor should be assumed to be reliable. It is quite logical to place the burden of rebutting this presumption on the assignee.

The individualization of the subject matter of the assignment agreement may have a different degree of accuracy.

Is it permissible to assign the right of claim, which at the time of the conclusion of the contract has not yet arisen, but must inevitably arise in the future?

In modern Russian civil law this question is the subject of discussion.

Based on the provision of paragraph 1 of Art. 382 of the Civil Code of the Russian Federation, which, as the subject of assignment, indicates the right (claim) belonging to the creditor on the basis of the obligation, as well as on the norms of Art. 384 of the Civil Code of the Russian Federation, M. I. Braginsky concludes that it is impossible to transfer to another the right that will arise in the future, since the scope of transferred rights, as follows from this article, is determined at the time of transfer. As an obstacle to the assignment of future rights, M. I. Braginsky points to its uncertainty at the time of the assignment agreement: “If the right is neither certain nor definable, obviously there is reason to consider the contract on the basis of which the assignment should take place, deprived of the condition on the subject matter recognized as essential for all contracts. Braginsky M.I., Vitryansky V.V. Contract law. M., 1999. S. 470.

It negatively answers the question of the admissibility of the cession of the claim, which. at the time of the contract did not arise, which must inevitably arise in the future, V.A. Belov V.A. Belov The content and effect of the contract of assignment of the claim // Legislation. 2001. S. 14 .. He proceeds from the fact that in the absence of a requirement, there is no obligation legal relationship, which means that both the debtor and the creditor, that is, two of the three participants in the assignment operation, are absent. The absence of a creditor (potential assignor) makes it impossible to conclude an assignment agreement, because "there is no legal relationship in which the replacement of the creditor could occur, and there is no creditor that could be replaced."

According to E.A. Krasheninnikov, based on the works of German authors, the assignment of a future claim, that is, a claim that does not exist at the time of the assignment, is permissible, but such an assignment manifests its effect at the moment the claim arises from the assignor. Krasheninnikov E. Legal Consequences concessions of demand // Economy and law. 2001. No. 11. S. 7-8.

As noted by L.A. Novoselov, the possibility of cession of "immature rights" under an agreement on the cession of rights "in Russian and Soviet civil law was practically not questioned, the absence in Chapter 24 of the Civil Code of the Russian Federation of general rules governing relations on the cession of future claims cannot be an insurmountable obstacle to transactions in relation to "future" assets. Novoselova L.A. Financing against the assignment of a monetary claim // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2001. No. 4. S. 107.

When entering into a contract that gives rise to a claim, the assignee cannot afford to leave open the question of what the claim is. Individualization of the subject is achieved under the condition of individualization of its five components: the subject of the claim, the active party (creditor), the passive party (debtor), the content of the claim (what actions the debtor must perform with the subject of the obligation), the grounds for the claim. Belov V.A. Singular succession in obligation. M., 2000. S. 147.

The absence in the contract of assignment of the right of the subject, the uncertainty of the specific requirement may result in the refusal to satisfy the claim.

Presidium of the Supreme Arbitration Court The Russian Federation considered the protest of the Deputy Chairman of the Supreme Arbitration Court of the Russian Federation against the decision of October 21, 1997 and the decision of the Court of Appeal of December 4, 1997 of the Arbitration Court of the Chelyabinsk Region in case No. A76-4029 / 97-21-187.

Individual entrepreneur S.M. Veretennikov applied to the Arbitration Court of the Chelyabinsk Region with a claim against the Limited Liability Partnership Shop No. 4 Kristall for the recovery of a fine of 768,305 rubles for late payment for goods on the basis of clause 4.1 of the agreement dated May 6, 1996 No. 24 and interest for the use of other people's in cash in the amount of RUB 72,368 in accordance with Article 395 of the Civil Code of the Russian Federation The right to claim is based on the contract of assignment of claim (cession) dated September 15, 1997.

By the decision of the appellate instance of December 4, 1997, the decision was upheld. In addition, the decision indicates the absence of the subject of the contract in the assignment agreement as its essential condition.

The Presidium believes that the appellate court correctly pointed out that the disputed contract does not contain the subject matter of the contract, and the specific claim transferred to the new creditor is not defined.

Under such circumstances, there are no grounds for satisfying the claim Resolution of the Presidium of the Supreme Arbitration Court dated December 29, 1998 No. 1676/98 // Bulletin of the Supreme Arbitration Court. 1999. No. 2..

The parties to the singular succession agreement are the creditor (assignor, former or old creditor) who disposes of the claim belonging to him in the sense that he terminates it under the condition that a claim of identical content arises from the counterparty, and the person who acquires the claim becomes a new creditor and is called the assignee Belov V.A. The subject of the singular succession agreement (assignment of the claim). Jurisprudence. 2000. No. 2. P. 151. Russian civil law does not contain an exhaustive list of rights and obligations in respect of which their assignment is allowed. Bearing in mind that one of the elements of the legal capacity of all subjects of Russian civil law is the right to commit any contrary to the law transactions, it must be concluded that general rule the singular change of every person in every obligation must be considered permissible. This authority is enshrined in the Civil Code of the Russian Federation: for individuals - in Art. 18, for legal entities - in paragraph 1 of Art. 48 (an indication of the ability to acquire and exercise rights on one's own behalf, as well as create and bear obligations) and in paragraph 1 of Art. 49 (obligation to take into account in the process of making transactions by a legal entity the purpose of its activities). Both in the first and in the second case, the participation of subjects in the assignment agreement should not violate the requirements of the law. The situation is somewhat more complicated with state and municipalities. However, for them, the possibility of making a concession can be seen in the current Civil Code of the Russian Federation in the form of the provision of paragraph 1 of Art. 124 that these entities participate in civil circulation on an equal footing with individuals and legal entities.

Some authors put the possibility of participation of one or another subject entrepreneurial activity in a singular succession agreement, depending on whether the assignee has a license. An assignment agreement may be declared null and void on the basis of assignment of a claim to a person who does not have a license to carry out the relevant type of activity, if the claims arose from an agreement concluded in the course of carrying out activities subject to licensing Gabov A. Some problematic issues concessions of rights // Economy and law. 1999. No. 4. S. 56. Consider this problem is possible on the example of the assignment of the right to claim debt under a loan agreement by a bank to another person that is not a bank or other credit institution.

In addressing this issue, modern civilists were divided into two groups. The former are of the opinion that, by virtue of Art. 819 of the Civil Code of the Russian Federation, only a bank or other credit organization can act as a creditor for an obligation arising from a loan agreement. Due to the fact that the subject composition of the loan agreement is established by laws special requirements, the assignment of rights in relation to the debtor under such an agreement can only be made in favor of the relevant specialized legal entities (banks, other credit organizations) Gabov A. Some problematic issues of the assignment of rights // Economy and Law. 1999. No. 4. S. 58. Representatives of the second group believe that after the bank fulfills its obligations to issue a loan legal regime the amount of money issued to the borrower is determined by the rules on the loan, which do not prohibit the lender to dispose of the right to claim the borrower at its discretion Pochuykin V. Some issues of the assignment of the right to claim in modern civil law // Economy and Law. 2000. No. 1. S. 44..

According to Art. 388 of the Civil Code of the Russian Federation, the assignment of a claim by a creditor to another person is allowed if it does not contradict the law.

In accordance with Art. 384 of the Civil Code of the Russian Federation, unless otherwise provided by law or an agreement, the right of the original creditor passes to the new creditor to the extent and on the conditions that existed at the time of transfer of the right.

Based on Art. 819 of the Civil Code of the Russian Federation, under a loan agreement, a bank or other credit organization undertakes to provide a loan to the borrower, and the borrower undertakes to return the amount of money received.

In bank lending relations, there should be a special subject composition (that is, a credit institution always acts as a creditor). When a claim is ceded, it is not the essence of the loan obligation that changes, but the obligation, the right to demand the return of the loan amount.

Thus, a bank (another credit institution) may assign the right to claim against a borrower under a loan agreement to another person who does not have the status credit institution, only to receive Money but not for banking operations.

The Civil Code of the Russian Federation regulates the question of the form in which a transaction for the assignment of the right to claim must be concluded (Article 389). As a general rule, the assignment of a claim based on a transaction made in a simple written or notarial form, must be made in the appropriate writing.

Failure to comply with a simple written form when concluding a transaction of assignment of a claim does not entail its invalidity.

For example, Avtomobilist, an open joint-stock company, applied to the Arbitration Court with a claim against an open joint-stock company"Lyudinovopromstroy" and limited liability company "Start" on the obligation to transfer the apartment.

Before the decision was made, the plaintiff abandoned the claim against OAO Lyudinovopromstroy. The Arbitration Court dismissed the claim against OOO Start, and terminated the proceedings against OAO Lyudinovopromstroy. The Court of Appeal reversed the decision and granted the claim.

The court of cassation annulled the decision, leaving in force the decision of the court of first instance.

It followed from the materials of the case that between Lyudinovopromstroy and LLC Start an agreement was concluded on joint activities for the construction of a certain residential building.

According to the named agreement, OJSC "Lyudinovopromstroy" performs the functions of a customer and contractor, and LLP "Start" - the functions of an investor. "Lyudinovopromstroy" finances the construction of the share allocated to it.

The general meeting of participants in the construction of a residential building determined the numbers of apartments payable by the Lyudinovopromstroy company, which included the disputed apartment.

In the future, taking into account the actual amount of investments of the company "Lyudinovopromstroy" in the construction of a residential building, LLC "Start" informed the customer in a letter about the reduction in the share of apartments allocated to him to three.

Meanwhile, the Lyudinovopromstroy company concluded an agreement with the Avtomobilist company, under which it undertook to provide the latter with the previously mentioned apartment after the construction of the house was completed.

The participants in the said agreement do not deny that the Avtomobilist company fully fulfilled its obligation under the contract and paid the agreed price of the apartment.

JSC "Lyudinovopromstroy" twice informed OOO "Start" in writing about the assignment of the apartment due to it to the company "Avtomobilist".

The Presidium of the Supreme Arbitration Court of the Russian Federation, when considering the case by way of supervision, indicated that in accordance with Article 382 of the Civil Code, the right (claim) belonging to the creditor on the basis of an obligation can be transferred by him to another person under a transaction (assignment of a claim).

Failure by Avtomobilist and Lyudinovopromstroy companies to comply with the form of assignment of a claim does not entail its invalidity.

Under such circumstances, since Start LLC does not deny that it has an obligation to transfer the disputed apartment to the Lyudinovopromstroy company, and the latter confirms the cession of the right to this apartment to the Avtomobilist company with written evidence, the court cassation instance there were no grounds for dismissing the claim.

The reference of the court of cassation to the incompleteness of the construction of a residential building, due to which there are no grounds for transferring the disputed apartment to the plaintiff, is unlawful, since the general construction work has been completed, and the execution of finishing work in accordance with the decision general meeting participants in the construction of this house should be carried out by equity holders individually.

In view of the above, the Presidium of the Supreme Arbitration Court of the Russian Federation annulled the decision and decision of the cassation instance, and left the decision of the appellate instance in force.

Assignment of a claim under a transaction requiring state registration, must be registered in the manner established for the registration of this transaction, unless otherwise provided by law (paragraphs 1 and 2 of article 389 of the Civil Code).

There are no special provisions on the form of assignment of claims arising from oral transactions, and legal facts, which are not transactions (from events, legal actions, administrative acts, etc.). By virtue of general rule paragraph 1 of Art. 159 of the Civil Code of the Russian Federation, it should be concluded: since it is not established for transactions of assignment of the listed claims that they must be concluded in writing, insofar as they can be made orally.

The condition on the term in the assignment agreement is not an essential condition. The parties may provide in the agreement that the transfer will be carried out within a certain period. In the absence of a special condition on such a moment, the right of claim should be considered transferred from the moment the assignment agreement was concluded.

What external manifestation can be taken as transmission? The transfer should be considered the agreement of the parties, in whatever form it was reached - whether in the form of the singular succession agreement itself or in the form of the "acceptance and delivery" act attached to it. Belov V.A. Singular succession in obligation. M., 2000. S. 151.

The condition of mutual satisfaction, the equivalent, which is the immediate reason for the assignment of a claim, is mandatory for a singular succession contract for commercial organizations, since the gratuitous nature of the contract entails its recognition as contrary to law.

§ 2. Rights and Obligations of the parties

In accordance with Art. 385, 390 of the Civil Code of the Russian Federation, the assignor has the following obligations: to transfer documents certifying the assigned right of claim; provide information relevant to the implementation of this requirement; indemnify the assignee if the claim assigned by him turns out to be invalid for some reason; be liable for the impossibility of the obligation corresponding to the ceded claim by virtue of the guarantee he has accepted for the assignee.

The listed obligations correspond to the corresponding rights of the new creditor (assignee), namely the right to claim: the transfer of documents certifying the acquired right; communication of information relevant to the implementation of this requirement; compensation for losses upon recognition of the acquired claim as invalid; compensation for losses caused by the impracticability of the acquired claim.

The transfer of documents certifying the right to claim is accompanied by the transfer of the right. The right of the original creditor is transferred to the extent and on the conditions that existed at the time of the transfer of the right, enshrined in the assignment agreement.

Volume passing rights depend on the divisibility of the subject of the obligation. The question of the divisibility of the subject of the cession gives rise to an ambiguous attitude towards this problem.

A number of authors believe that, depending on the subject, both a part and the entire set of rights of the original creditor can be transferred. In the opinion of the highest judicial instances, only those agreements on the assignment of rights (claims) comply with the law, in which the subject composition of the legal relationship is completely changed (the assignment of the right to claim implies an unconditional replacement of the person in the obligation). The old creditor completely withdraws from the legal relationship and all rights (claims) are transferred to the new creditor. Some authors formulate this as the inadmissibility of "assignment of rights in addition to the change of persons in the obligation" Belov V.A. Singular succession in obligation. M., 2000. S. 151.

The courts make this conclusion, as a rule, on the grounds that the assignment of a claim is one of the forms of changing persons in an obligation (which is enshrined in the title of Chapter 24 of the Civil Code of the Russian Federation). The courts do not recognize the possibility of a plurality of persons (“split of rights”) in an obligation arising from an assignment agreement.

Assignment assumes (unless otherwise provided by law or contract) the transfer of all the same (in terms and scope) rights that belonged to the original creditor. Accordingly, the transferred rights include those that additionally existed at the time of the transfer, expressing certain ways of securing obligations. Almost all civilists adhere to this position. However, they are silent about the possibility of separate transfer of the right to claim for the main and additional obligations. Such a transfer is possible, since the main and additional obligations are two different legal relations and in this case there is no splitting of the obligation.

It should be noted that Art. 382, 384 of the Civil Code of the Russian Federation do not contain restrictions on the possibility of transferring rights under an additional obligation that does not secure the main one, upon assignment of claims on it. Such a transfer can be made both separately for each of them, and for both at the same time. Sviridenko O. Change of persons in obligation. Judicial practice // Russian justice. 1999. No. 9. S. 22.

The arbitration court made a decision in one of the cases, according to which the plaintiff - CJSC "Infrastructure LTD" was denied the claim for the recovery of 1,911,600 rubles. penalties. This claim was based on the assignment of rights under an additional obligation, amounting to the amount of the specified penalty. In dismissing the claim, the trial court referred to Art. 384 of the Civil Code of the Russian Federation, taking into account which the assignment of a claim entails a change in the persons in the obligation to the extent and on the conditions that exist at the time of the transfer of rights. In this regard, the court noted that there was no change of persons in the main obligation, as a result of which it cannot be in the additional one. Therefore, the claim for the recovery of the penalty was found to be unlawful.

The Court of Appeal, overturning the decision, held as follows. A supply contract was concluded between Infrastructure LLP and Alcor LLP, according to which foodstuffs for 23,630,000 rubles. In violation of the contract, the buyer paid for the goods received with a delay of 54 days. The contract provided for a penalty of 15 percent of the total amount for each day of delay. Under the assignment agreement, Infrastructure LLP transferred the right to demand penalties under the agreement to Infrastructure LTD LLP in the amount and on the conditions that existed at the time of transfer,

Court of Appeal, analyzing the conditions of Art. 382, 384, 401, 408 of the Civil Code of the Russian Federation and taking into account the rights to unpaid penalties, concluded that the rights ensuring the fulfillment of the obligation could be transferred to another person without transferring the main obligation Sviridenko O. Change of persons in the obligation. Judicial practice // Russian justice. 1999. No. 9. S. 22..

However, in another case, the position of the highest court turned out to be different. In the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 29, 1996 No. 3172/96 Bulletin of the Supreme Arbitration Court of the Russian Federation. 1997. No. 4. The situation is considered when the claim was filed on the basis of an agreement on the assignment of a fine claim for a specific payment order that was not executed on time. In dismissing the claim, the Presidium pointed out that, since the original creditor did not transfer the rights arising from the bank account agreement, therefore, there was no change in the persons in the obligation. The court stated that the assignment of the right to claim a fine for a specific settlement operation is contrary to Art. 384 of the Civil Code of the Russian Federation. And although the given example seems extraordinary, the Presidium is of the opinion in this situation that splitting the obligation is inadmissible.

Of great interest is the issue of succession in a mutual agreement, where each party is both a creditor and a debtor, since each party has rights and obligations, as well as in the so-called continuing agreements.

The law does not contain a rule making the assignment by a creditor of his rights under an obligation arising from a bilateral agreement dependent on the mandatory transfer of the debt to this third party. On the contrary, from a number of norms it can be concluded that the opposite is true. So, from the content of paragraph 2 of Art. 615 of the Civil Code of the Russian Federation, it is seen that the tenant can transfer the rights arising from the lease agreement to third parties while maintaining liability to the landlord under the lease agreement.

This issue can be considered on the example of a lasting contract, since in both cases the contract is not executed and the parties are burdened with mutual rights and obligations.

Civilian opinions and arbitration and judicial practice diverge. The first argue: "if under the energy supply agreement the consumer has an obligation to pay money to the energy supply organization for a specific billing period, the assignment by the creditor of the right of claim to the debtor involves the replacement of the person (creditor) for this obligation "Anokhin V. The practice of considering arbitration cases related to the assignment of the right to claim. // Economy and Law. 1998. No. 5. P. 137-138 ..

The position of the Presidium of the Supreme Arbitration Court of the Russian Federation is the opposite. "*"

The same position was expressed by the Presidium of the Supreme Arbitration Court of the Russian Federation when considering other similar cases (in decisions dated October 29, 1996 No. 3172/96, dated September 10, 1996 No. 1617/96) Dmitriev A.S. When the assignment of a claim is illegal // Chief Accountant. 2000. No. 24. P. 53.

Based on the foregoing, it can be assumed that the assignment of rights from a bilateral agreement is not allowed. However, a change of person in such an obligation may occur with the simultaneous assignment of the right to claim and transfer of the debt.

However, in this regard, another point of view has the right to exist. The assignment of the right to claim cannot be bound in full contractual obligations. Under an assignment agreement, there is not a change of persons in the contract, but a change of persons in a specific obligation, part of the obligation. And in this obligation, including its parts, there is a complete replacement of persons.

Such an understanding of the change of persons in the obligation seems to correspond to the norms of the Civil Code of the Russian Federation.

Speaking about the obligation to transfer documents certifying the ceded right, it is worth noting that in order to fulfill this obligation, a specific period must be fixed in the contract, because the legislation does not establish such a period. It is necessary that among these documents there is also a document certifying the conclusion of the assignment agreement, that is, a document indicating not only the validity, but also the ownership of the claim (a copy of the agreement signed by the assignor).

Information affecting the exercise of the assigned claim and subject to notification to the assignee by the assignor includes information on: the conditions for the exercise of the assigned claim (time, place, etc.); the existing security for the performance of an obligation, the content of which includes the assigned right; actual and probable objections that the debtor could raise; circumstances refuting these objections (in the form of documents).

The emergence of the assignee's right to claim damages caused by the invalidity of the assigned claim should be closely related to improper performance assignor of any of the two preceding obligations. If the assignor, before signing the assignment agreement, knew that the transaction, which is the basis for the emergence of the assigned claim, was made by the assignee by a person who probably did not have the necessary powers for this, but did not warn the assignee about this or, having the opportunity, did not help in refuting the objections of the debtor he must indemnify the assignee.

In contrast to the invalidity of the assigned claim, its impracticability means the responsibility for the assignor always when he is bound by the condition of guarantee for the assignee.

There is another obligation that can be imposed on both the original creditor and the new one. This is the obligation to notify the debtor of the completed transfer of the rights of the creditor to another person. The notification form must be in writing. If this has not happened, performance to the original creditor shall be recognized as performance to the due creditor. Under the adverse consequences mentioned in paragraph 3 of Art. 382 of the Civil Code of the Russian Federation, the burden of a recourse claim against the assignor, which received execution after the transfer of rights to him, is implied.

In mutual obligations, the change of persons means both the assignment of the right to claim and the transfer of the debt at the same time. Since the subject in a mutual obligation acts as both a creditor and a debtor, in order to replace it, it is necessary to comply with the conditions relating to both the assignment of the right to claim and the transfer of the debt. The provisions of the law regarding the form of the simultaneous assignment of the right to claim and the transfer of debt are the same, since clause 2 of Art. 391 of the Civil Code, which provides for the form of debt transfer, contains a direct reference to paragraphs 1 and 2 of Art. 389 of the Civil Code, containing instructions on the form of assignment of the right to claim. Thus, the creditor, ceding the right to claim under a mutual obligation, must only obtain the consent of the debtor in order for the simultaneous transfer of the debt to take place. Can the assignment of a claim under a mutual obligation be valid if the debtor's consent to the creditor's transfer of the debt has not been obtained? Of course no. It is impossible to divide an obligation and assign only rights, while retaining obligations, just as it is impossible to make an assignment of the right to claim without receiving a negative answer from the debtor or not informing him.

The norms of the law contain rules relating to the commission, as a rule, of a single action, but such obligations are quite rare. Usually, obligations have a complex content, involving their fulfillment by performing several actions. In such obligations, the question is whether the performance of a separate part extinguishes the corresponding obligation of the debtor and the right of the creditor corresponding to it. It seems that the possibility of paying off part of the obligation is quite acceptable. For example, when the buyer performs an action to pay the seller the purchase price, this obligation ceases. On the side of the buyer, there remains only the right to demand the transfer of the thing to him and his obligation to accept the thing. All rights and obligations relating to the payment of the price have been exhausted. Consequently, in the event that the obligation on the obligee has been repaid by proper performance and all other obligations have ceased, the mutual obligation actually becomes unilateral. Then the assignment of the right to claim is possible without its complication by the transfer of the debt.

When considering the issue of changing persons in mutual obligations, the problem of so-called creditor obligations becomes especially acute. One of the main creditor's obligations is to accept the performance offered by the debtor. The essence of the problem is whether the assignment of the right to claim is possible if it includes the obligation to accept performance. This problem has already risen in the pages of legal literature. So, I.V. Eliseev argues that “the obligation to accept performance is, in principle, inseparable from any right of claim. The transfer of this (and only this!) obligation is not a transfer of debt within the meaning of Articles 391-392 of the Civil Code, because otherwise the cession as such would become impossible: it would always be accompanied by a transfer of debt" Civil law. Textbook / Ed. A.P. Sergeeva, Yu.K. Tolstoy. Part 2. M., 1998. P.12. . Indeed, the obligation of the creditor to accept performance is inseparable from his right to demand the transfer of the thing, but there is no reason to deny that in a number of cases this obligation is of interest not only to the creditor, but also to the debtor. You can point to the obligation of the principal to accept the executed from the attorney, the commission agent, the right of the contractor to demand acceptance of the work performed, etc., when the debtor is interested in relieving the burden of expenses for the maintenance of the thing, transferring the risk of accidental loss of property, compensating his own costs. In such cases, the creditor's obligation to accept performance corresponds to the debtor's right to demand such acceptance. Untimely acceptance of performance entails the responsibility of the creditor (Article 406 of the Civil Code).

Therefore, if we take the point of view of those who deny the independent role of the obligation of the creditor to accept performance, it becomes necessary to distinguish between obligation relations depending on whether this obligation has independent significance or not. Further analysis should lead to the allocation of the main obligations, the transfer of which requires the consent of the creditor, and non-main (optional), which can (and should) be transferred only by virtue of the assignment of the right to claim. So, M.M. Agarkov came to the conclusion that the obligation of the obligee to accept performance (and the corresponding right of the debtor) is not only a relation additional to the main relation in the obligation, but also inseparable from it. It is a purely auxiliary relationship, since its only purpose is aimed at the execution by the debtor of his main obligation. Agarkov M.M. Obligation under Soviet civil law. M., 1940. S. 67. . However, the current legislation does not provide any grounds for such assertions. Yes, Art. 328 of the Civil Code, establishing the rules for fulfillment in counter obligations, does not distinguish between "creditor" and other obligations. In addition, the guarantee obligations, the additional nature of which is not in doubt, in such a case should also be transferred to any person who has received from the seller the right to demand payment of a sum of money under the contract of sale.

The only exception to the general rule may be such a right of claim, in which the law allows the replacement of the obligation to accept performance by another action. We are talking about the fulfillment of financial obligations. The provisions of Art. 327 of the Civil Code provide for such a scenario when the creditor, who has the right to demand the performance of a monetary obligation, is not obliged to accept the performance. Placing money on a notary's or a court's deposit does not require the creditor to take any action to accept the performance, therefore, there is no creditor's obligation. The creditor's refusal to accept the specified amount in the future does not in any way affect the debtor's fulfillment of his obligation to pay for goods, works or services, since the deposit of a sum of money is considered the fulfillment of the obligation (clause 2 of article 327 of the Civil Code), let's add only - proper performance.

This is the power, the content of which is the ability to demand the performance or compliance with a legal obligation. In my own way legal significance the right to demand can be characterized as the right to "foreign" actions; it is a kind of auxiliary means: it is designed to ensure the fulfillment or observance of a legal obligation by another person, to bring to life "foreign" actions.

Although the right of demand does not fully express the positive content of subjective right, it is an obligatory element for it. The legal essence of any subjective right lies in the fact that the objective legal order provides the authorized person with a means by which he can show his will and initiative in order to induce the other party to the legal relationship to fulfill or comply with a legal obligation.

Rights of claim with the corresponding legal obligation forms the "skeleton", "skeleton" of any legal relationship. It is from the right of demand that the “wires” are drawn, through which active legal energy goes to legal obligation.

The rights of claim are divided into two main varieties: a) the right to demand the performance of an active obligation (it can be called positive). The positive right to claim one's own

directly legal relations of the active type;

b) the right to demand observance by the subjects of the passive duties assigned to them (it can be called negative). The negative right of demand is characteristic of legal relations of a passive type.

Contract of assignment of the right to claim: obligations of the new creditor

The way out of this situation, which can suit both the debtor and the creditor, is the execution of an agreement on the assignment of the right to claim.

In fact, the assignment of the right to claim is the transfer of the right from the original creditor to the person who, as a result of such an assignment, acquires his rights in relation to the debtor.

At the same time, the new creditor, in relation to which the assignment was made, acquires the entire scope of the rights and obligations that its status imposed on the previous lender. For example, if the terms of the loan require the borrower to provide the borrower with a monthly receipt confirming that they have repaid part of the money, the new lender will also be required to do so.

It is important, however, to keep in mind that the transfer of the full scope of rights and obligations, which contains a sample agreement concluded between the person who provided the loan and the person who received it, simultaneously excludes the possibility of expanding the range of such rights and obligations. In addition, the transfer of the right to present claims from one person to another should not negative impact to the position of the debtor. So, for example, he cannot be obligated to pay additional interest on a loan upon assignment of rights.

The new owner of the rights under the loan agreement, in accordance with the law, is obliged to notify the payer that now it is he who, as a result of the assignment, is the owner of these rights, therefore he becomes the addressee of obligations related to the execution of the contract. Otherwise, establishes paragraph 3 of Article 382 of the Civil Code Russian Federation, he assumes all risks associated with such failure to notify. For example, if the payer, following established practice, transfers the next payment to the former creditor, such an action will be considered as the proper fulfillment of his obligations.

However, the law requires the use of a written form of such notification. If this condition has not been met or has been improperly fulfilled, for example, in the form of an oral notice, the law takes the side of the debtor. Moreover, Article 385 gives him the right to require the new creditor to provide evidence that he is now the owner of the rights to the loan he received. For example, a document confirming the assignment of the right of claim, which is concluded between the old and new creditor, can serve as evidence of the assignment.

Rights of the new creditor and restrictions related to their implementation

Simultaneously with the obligations, the reseller on the debt will also receive certain rights arising from the transfer to him of all the powers of the previous owner due to the assignment, fixed in the agreement between him and the recipient of the loan. In particular, if the agreement concluded between them provided for the payment of interest for the use of debt, the receipt of such interest is also due to the new creditor. In addition, in accordance with Article 384 of the Civil Code of the Russian Federation, other obligations of the payer, given by him in order to secure the loan received, also pass to him. For example, if his property was pledged to the previous party to the loan agreement, the rights to the pledge would have to pass to the new owner of the rights under this loan.

In accordance with paragraph 2 of Article 382 of the Civil Code of the Russian Federation new owner The debtor has the right to obtain his powers as a result of the assignment of the rights of claim, without asking the debtor's consent to this. However, the same paragraph establishes that this condition is valid only if the document signed by the original lender and the recipient of the loan does not provide for the obligatory informing of the latter about the other person. Then the condition specified in the contract is more significant than the corresponding provision of the law, so the new creditor will be required to obtain the consent of the payer not to transfer the debt to him.

Such an obligation shall also be imposed on him if the identity of the creditor is essential for the debtor. For example, the nature of the services, things or valuables that the payer must transfer to the lender is personal. In such a situation, the new holder of rights under this debt, in order to ensure the legitimacy of the transfer of rights procedure, must obtain the consent of the executor of obligations under this agreement.

Drawing up a contract for the assignment of rights of claim

According to the established Russian practice, the transfer of rights under a debt obligation from one creditor to another should be formalized by an agreement on the assignment of the right to claim, which is called an assignment. Most often, such a transaction is of a compensatory nature: the original lender receives from the person acquiring the right to claim the debt, an amount corresponding to its size. This amount may be reduced depending on the terms of the agreement between the former and the new owner of the rights. For example, such an agreement can be reached between the parties if the debtor evades fulfilling its obligations, and obtaining funds from him for the creditor involves certain difficulties, including establishing his location, going to court and similar events. In this case, the amount by which the size of the original debt was reduced serves as a kind of payment for the inconvenience acquired by the new creditor in the process of assignment of claims.

The model for concluding an agreement on the assignment of rights of claim is quite clearly regulated current legislation. In particular, Article 389 of the Civil Code of the Russian Federation establishes that the parties should conclude in the same form as the original civil law agreement, on the basis of which these relations arose between its participants, whether it be a loan agreement, equity participation or another type of document.

So, if a sample of the original document was concluded between the parties in a simple written form, the execution of the contract for the assignment of the right to claim can be carried out in the same way. If the sample of the original document was notarized, the new creditor should do the same when drawing up a paper confirming the assignment of claims. Finally, if the sample of the original document was subject to state registration, which requirement applies, for example, to equity participation agreements in construction, a document confirming the transfer of claim rights from the previous to the new creditor under this agreement must be registered with the justice authorities.

Non-fulfillment by the debtor of his obligations and possible measures of influence on him by the new creditor

When drawing up such a document, the new owner of the debt should remember that contractual relationship based on the provision of a loan by a previous lender to its recipient, are subject to general requirements legislation regarding the statute of limitations. In accordance with Article 196 of the Civil Code of the Russian Federation general term limitation period used in Russian judicial practice is three years.

This condition does not exclude the possibility for the new owner of the right to claim to apply to the court in order to force the debtor to fulfill his obligations even after the expiration of this period. However, it should be borne in mind that paragraph 2 of Article 199 of the Civil Code of the Russian Federation gives the right to the party participating in the dispute to declare the expiration of the limitation period, if any. On the basis of such an application, the court may issue a decision to refuse claims lender to repay the debt by the borrower. At the same time, it is clear that if such a situation occurs, the probability that the debtor will make such a statement is very high.

In addition, it must be taken into account that, by transferring the rights of claim under a loan agreement or other agreement that stipulates the emergence of debt obligations between the parties, the former creditor is not liable for a possible default by the payer.

An assignment agreement (assignment of the right to claim) under the Civil Code of the Russian Federation in 2020 is drawn up with mandatory accounting established rules and nuances.

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If they are ignored, there is a high probability that the court will recognize the contract as invalid. The legislation of the Russian Federation provides for the possibility of transferring the rights of claim to other persons.

To do this, it is enough to draw up an assignment agreement. At the same time, it is necessary to pay attention to certain subtleties that make it possible to draw up an agreement with ease and at the same time prevent it from being recognized by the judicial authority as invalid.

Important Points

Before proceeding to consider the issue of the rules for drawing up an assignment agreement, it is initially necessary to understand the basic concepts and legislative aspects governing the filling out of the document.

What it is

In order to be able to give a clear definition of the assignment agreement, what is it in simple words, you must refer to .

Based on the specified legislative act, an assignment agreement is an agreement in which one of the parties acts as an assignor (the original creditor under an obligation) and transfers rights to an assignee (a person who acts as a new creditor).

This is possible for the purpose of requiring in full fulfillment of debt obligations by the debtor.

It is important to remember: in the process of transferring the rights of claim, for example, the sale of debt, the new creditor must require the holder of debt obligations to fulfill his obligations under conditions that cannot worsen his situation.

Parties to the agreement

The parties to the agreement are:

It is important to remember: the main package of necessary accompanying documentation is determined on an individual basis.

Legal framework

The change in the composition of the subjects of obligation relations can be initiated both by the direct creditor and by the debtor himself. This is clearly stated in Art. 382 and .

The powers of the creditor can be transferred by means of an agreement or by virtue of certain legislative prescriptions - provided for in Art. 382 of the Civil Code of the Russian Federation.

Modification of the parties of the creditor may be prohibited or limited - displayed in.

At the same time, situations in which it is necessary to obtain the consent of the debtor is established by such legislative acts as:

In addition, it is necessary to pay attention to what clearly indicates that if the creditor has decided to assign future interest and rights to losses, then there is no need to indicate the direct transfer of interest rights.

This is largely due to the fact that it is already implied automatically. All mentioned above legislative acts are not exhaustive, but contain all necessary information on the issue under consideration.

Features of the deal

Under the agreement in question, it is possible to make an assignment:

existing rules;
further right of claim;
possible disputed right;
the right to claim various penalties: accrued forfeit, interest, compensation for damages, and so on;
a possible right to recourse (for example, a citizen does not want to waste his time and decided to transfer the right to other persons).

In particular, it states:

“The judicial body decided to invoke Art. 382 and , which led to the conclusion that the entered particular circumstance by reason of which the relevant law was formed”

Based on case law, it can be concluded that essential conditions It is customary to attribute the amount of financing and the monetary claims themselves, which are bought by certain persons.

How to fill out the form (sample)

Depending on who exactly takes part in the conclusion of the assignment agreement, there are certain features that must always be remembered in order to avoid problems directly related to the risks of invalidating the document.

Between legal entities

An agreement between legal entities can be drawn up for various reasons.
For example, it is often signed by financial institutions for bad debt obligations.

Moreover, not only credit companies can act as a new creditor (based on the decision of the Supreme Court of the Russian Federation of October 2015).

The main nuances of the assignment agreement between legal entities are as follows:

In addition, do not forget about the mandatory display of the transaction in the accounting documentation, as well as the need to pay VAT. For this reason, it is necessary to approach the price of the agreement with extreme caution.

It is important to remember that representatives tax authority they have the right to add if they establish the fact of a deliberate underestimation of the cost.

Between individuals

This agreement can be signed by citizens who are not representatives of any companies. Focusing on the Civil Code of the Russian Federation, it is individuals who determine the type of operation and periods.

In the document itself, it is necessary to reflect the principle of transferring rights to other persons, and this can be both in a paid and in a gratuitous form.

Additionally in without fail need to display:

the full amount of monetary debt obligations;
payment period;
existing rules and obligations for each party;
information from the passport (series, number, by whom and when it was issued, and so on).

It is important to remember that an assignment agreement cannot be signed in situations where the debtor is already under obligations to the judicial authority on the issue of paying personal debt obligations.

and so on.

This nuance must be remembered in order to minimize the risks of various misunderstandings.

Between a legal entity and an individual

Considering the Civil Code of the Russian Federation, certain conclusions arise, which are as follows:

In simple words, everyone indicates their details, which differ slightly from each other. Everything else remains standard.

Trilateral

The tripartite version of the documentation differs from the standard contract only in that in the first situation, the debtor himself also takes part in the transaction.

If we talk about the status of persons who are directly involved in the compilation process, then given fact also plays an important role.

There are some differences in the process of forming an agreement, which are directly related to whether individuals or legal entities take part in the transaction.

In case if we are talking about the tripartite relationship between individuals, then it is enough just to provide the passports of each of the parties.

If we are talking about the idea of the relationship between individuals and legal entities, then the rules are slightly different:

individuals need to provide only a passport;
legal entities must additionally indicate personal information and passport data.

In addition, before signing a document, legal entities are required to undergo a check for the reliability of the constituent documentation.

Verification is necessary only for the purpose of protecting other participants in the transaction from fraudulent activities (for example, it is missing or compiled with errors).

Termination procedure

You can terminate the agreement in several ways:

in unilaterally;
bilaterally.

To be able to terminate the contract unilaterally, the following options are provided:

It is worth noting that the reasons must be weighty for termination, which means:

The legislation of the Russian Federation allows the possibility of terminating the assignment agreement by mutual agreement and securing this decision by signing an additional agreement.

Such an agreement should specify:

full initials of the assignee and assignor;
documents on the basis of which the agreement is valid.

In addition, such an agreement must specify:

the main reason for terminating the agreement;
specific rights and obligations of each of the parties;
level for each of the parties;
general provisions. In other words, it is necessary to indicate the period of entry into legal effect of this agreement.

It is mandatory to put signatures and addresses of the parties at the end of the document.
If it's about legal entities, then if there is a seal, it must be affixed additionally.

Emerging nuances

In the process of transferring the rights of claim to other persons, it is imperative to take into account the emerging nuances. Let's consider the most relevant of them in more detail.

Tax implications of the deal

Value added tax in the process of transfer of rights of claim implies certain features.

It is the grounds on which the need for rights of claim arose that depends on whether there is taxation or not.

VAT can be charged on the types of transactions that debentures were transferred on the basis of the signed (on the basis of).

Video: cession agreement

At the same time, VAT cannot be charged on assignments of rights to claim debt, which was formed as a result of the sale of products or provision, and at the same time they are exempt from taxation at the legislative level.

An example is a transaction for the sale of debt obligations, which were formed on the basis of ignoring obligations under.

It is also worth paying attention to the fact that the person who has the right to claim also plays a special influence, since the rule by which the value added tax is calculated depends on him.

If the debt obligations have decided to sell the creditor himself, which may be, for example, a supplier of any services, then the tax base is determined by the amount of excess income from volume.

Recognition of it as invalid (jurisprudence)

According to the Civil Code of the Russian Federation, debtors have few options to challenge the assignment agreement.

The grounds may be the fact that the agreement has been declared invalid, and in this case only if the assignment of the rights of claim by the contract is identified.

An additional reason for the possibility of recognizing the fact of the contract as invalid may be the revealed fact of violation by the assignee himself of its specified conditions.

At the same time, on the basis of the identified act of non-compliance with the restrictions on assignment, does not deprive the transfer of legal force.

In addition, on the basis of Art. 388 of the Civil Code of the Russian Federation, it is possible to recognize an agreement as invalid on such additional conditions, how:

It is for the above reasons that you can open court proceedings. Despite the fact that in judicial practice in such cases, the judge rarely takes the side of the debt bearer, the presence of at least one of the above grounds can guarantee the recognition of the contract as invalid.

What accounting entries reflect

The implementation of accounting in the issue under consideration for all participants in the cession, without exception, including the bearer of debt obligations, has certain specific features.

The original creditor who became the assignor has several options - the transfer of claims before the period of the required payment and after it.

In the first situation, the basis for making all the necessary calculations is certain costs, which are calculated by the difference between the period of the cession until the closing of debt obligations on the basis of .

Another option implies costs in the form of a negative difference between the sales profit and the resulting cost of goods sold, works or services.

Postings under an assignment agreement with the debtor on the basis of federal law regarding accounting will look like:

For the assignee, the example looks like:

In addition, it is necessary to pay attention to the fact that only the assignment agreement and the bank statement will be documentary evidence. Their will be based Civil Code RF is enough.

Free agreement between relatives

The signing of a cession of a gratuitous form cannot be considered a violation of the legislation of the Russian Federation.

At the same time, if one of the parties (regardless of who exactly) decides to apply to Judicial authority, then the judge with a high degree of probability (practically guaranteed) recognizes such a transaction as failed.

In such a situation, the risk of not returning funds is at least huge.

By the way, this is how financial institutions act in the process of selling arrays of “bad debt obligations” at a discount of up to almost 92% of the nominal cost (the possibility of buying back the debt from the bank is implied).

This kind of mechanism allows you to fully clear the personal balance from arrays.

It is worth noting that many people buy the rights of claims and use them as a business. If we talk about the contract of this form, then there is no sample.

The right to claim is one of the elements that make up the content of the obligation relationship. The obligation itself in the theory of civil law is understood as a relative legal relationship that mediates the commodity movement of material goods, in which one person (debtor), at the request of another person (creditor), is obliged to take actions to provide him with certain material goods See: Civil law: Textbook: B 3 -x vol. T. 1. / Ed. A. P. Sergeev, Yu. K. Tolstoy. 9th ed., revised. and additional M., 2004. S. 476. From this definition it follows that two parties participate in the obligation: active (or authorized) - the creditor (trustor) and passive (or obligated) - the debtor. The party entitled in the legal relationship of obligations is entitled to demand that the obligated party perform certain active actions. Owned by the party entitled to the obligation subjective right commonly referred to as the right to claim. The right of claim is included in the creditor's property as an asset. The debtor is burdened with debt, which is reflected in his property as a liability.

“The essence of obligation,” as E.A. Sukhanov, - is reduced to the obligation of specific persons to certain behavior within the framework of property (civil) turnover, i.e. to certain forms of barter” See: Civil law: In 4 vols. Vol. 3. Law of Obligations. Textbook / Ed. E. A. Sukhanova. 3rd ed., revised. and additional M., 2008. S. 16..

In process of development of a turn the obligation in many respects has lost personal character; the creditor's right to claim began to be regarded as an independent property value. This circumstance was repeatedly pointed out by Russian pre-revolutionary civilists. So, D.I. Meyer noted that “the action of a person, which is the subject of an obligation, is something closely connected with his personality, and it cannot be said that it is all the same for a person in relation to whom to perform this action, but, on the other hand, the right to someone else's action has the character of property, so that the relations of obligations are adjacent to the sphere property relations, these relations require the greatest freedom, and each restriction of it without need adversely affects economic situation Society” Meyer D.I. Russian civil law. At 2 o'clock, Part 2. (according to the ed. 1902). M., 1997. S. 114.

As the economic relations there was a need to include rights to someone else's action (rights to claim on obligations) into circulation, and the legislation began to allow changes in the subject composition of the obligation, including on the side of the creditor. “In countries where highly developed money and credit circulation has become the flesh and blood of the national economy, the main element of its effective functioning, the assignment of claims seems to be something taken for granted. The right to claim today is like a movable and real estate- is considered as a functional property object” Zweigert K., Ketz H. Introduction to comparative law in the field of private law: Contract. unjust enrichment. Tort. In 2 vols. T. 2. Per. with him. M., 1998. S. 160.

Right to claim in modern law viewed from two points of view. On the one hand, this is the connection between the creditor and the debtor, by virtue of which the first has the right to require the second to perform any actions or refrain from them. On the other hand, the right to claim is considered as a property value belonging to the creditor, which, as a general rule, he has the right to freely dispose of, including through alienation on the basis of various transactions. Art. 128 of the Civil Code of the Russian Federation refers property rights(which, as is known, may arise from real or legal relations of obligations) to the number of objects civil rights. Objects of civil rights can be freely alienated or transferred from one person to another in the order universal succession or in any other way (clause 1, article 129 of the Civil Code of the Russian Federation).

Thus, the right of claim is part of the creditor's property, and as such it is transferable, as well as things. However, the procedure for the transfer of things and rights of claim is different due to the difference in their physical essence. Things as objects of the material world are transmitted by simple handing, by tradition. The rights of claim are intangible, therefore they cannot be transferred “from hand to hand”. It is necessary to carry out a special procedure, which may vary in content.

Thus, we can conclude about the so-called "two-facedness" of the right of claim, which determines the need to create special rules to ensure its inclusion in circulation.