The assignor is the key party to the assignment agreement. Who is the assignor and the assignee? The claim of the assignor is executed by the action of the assignee

Civil legal relations between two entities are often the reason on which one of the parties to such relations may have obligations towards the other. Despite the fact that the legal nature of such relations will be quite similar, their specific conditions and circumstances may differ significantly: for example, the parties may be individuals or legal entities, the agreement concluded between them may be a loan, lease or other type of agreement, and the obligation assumed by one of the parties in accordance with it may consist of the transfer of an item or value, the provision of services, the performance of any work or other actions.

Moreover, in all of these cases, it is a written document signed by both parties between whom the agreement is concluded that confirms the fact that both parties agree with the rights and obligations that such a document imposes on them. It is assumed that all specific conditions for fulfilling obligations under the contract and the procedure for recognizing them as fulfilled are also fully reflected in the document signed by the parties.

However, it should be taken into account that the interests of the parties in fulfilling the terms of the agreement reached may change over time. So, for example, at a certain period of time, a banking institution provided a loan to the borrower and signed a loan agreement with him, which specified the terms and procedure for repaying this amount of money. However, subsequently the borrower repeatedly violated the terms and conditions specified in the agreement. In this regard, the banking institution was no longer interested in having a long-term financial relationship with this borrower.

However, it is clear that it is still interested in returning the amount of money transferred to the borrower as a loan. A possible way out of this situation may be the assignment of rights of claim to them under the loan agreement. As a rule, such an assignment implies the involvement of a third party in the relationship between the two parties, in respect of whom the assignment will be made. At the same time, the process of transfer of rights between the parties involved in this transaction, as well as their rights and obligations in relation to the party bound by obligations to the original creditor, should be considered in detail.

Possibility of assignment of rights

In accordance with current legislation, assignment is the transfer of rights of claim under a contract, ownership of a thing, object or value, or other property right, the existence of which is confirmed by the assigning person with relevant documents. Thus, in the case of assignment of the right of claim, a civil law contract can act in this capacity, on the basis of which one of the parties has such a right in relation to the other. If we are talking about the assignment of a property right, such a basis may be a certificate confirming that the subject has ownership rights to a given object, thing or value.

At the same time, in regulations and special literature devoted to the procedure for assignment of rights, special terminology is usually used. This is done in order to ensure a uniform understanding of all terms used in the process of describing a transaction by all its participants and other interested parties. In addition, the generally accepted nature of these terms allows for an unambiguous interpretation of the actions of the parties to the transaction and the relationship between them if legal proceedings in relation to this case are necessary.

Conclusion of an assignment agreement

Thus, the actual assignment of rights is called cession: this term goes back to the Latin word, which means assignment or transfer.

As a rule, the assignment of a claim or property involves the receipt by the party assigning its rights of certain compensation from the party acquiring the right under. In turn, the agreement for the assignment of rights is, accordingly, called an assignment agreement. In accordance with this term, the parties involved in its signing are also named.

In fact, the procedure for assigning rights involves the involvement of three parties: a person who, by virtue of the original civil law contract, has certain obligations to the other party, a person who, by virtue of the same contract, is a party to whom the first person has obligations, and the person to whom the claims are assigned in accordance with the current civil law contract.

Parties participating in concluding an assignment agreement

Thus, persons who have obligations to the other party that arose due to the conclusion of a civil contract between them, for example, a loan agreement, are called debtors. This term, despite its relative narrowness, in accordance with established practice, can mean not only the presence of obligations to repay a monetary debt, but also obligations of another kind, for example, to perform work or provide a service, transfer of ownership, etc.

The person in respect of whom the debtors have outstanding obligations, as part of the consideration of the possibility of carrying out the assignment procedure, is called the assignor, that is, the person who transfers the rights he has. In accordance with current legislation, various types of rights may be subject to such transfer. However, an exception is made for rights that are inextricably linked with the very personality of the assignor: in other words, if the debtors have obligations that are relevant specifically to a specific person, this person cannot transfer them to a third party. For example, such obligations include compensation for damage to health or payment of alimony.

The responsibilities of the assignor within the framework of a transaction carried out using an assignment agreement include confirmation of his right to property, thing, value, service or other transferred object. According to established practice, at the time of signing an assignment agreement between him and the third party in respect of whom the assignment is being made, he must present documents confirming the legitimacy of the transferred right at the time of the transaction.

In addition, it must be taken into account that when concluding an assignment agreement, the assignor must transfer to the third party the full scope of rights that he has in relation to the debtors. In particular, if the terms of the agreement originally concluded between them implied the possibility of collecting any sanctions, for example, penalties or fines if he failed to comply with the terms of the agreement, such sanctions can be applied to him by a third party who acquires his rights on the basis of the conclusion of the agreement cessions.

At the same time, however, according to current legislation, the assignor’s responsibilities do not include ensuring the fulfillment of the debtors’ obligations in the event of their assignment. At the same time, in accordance with established practice, the amount of compensation for the assignment of property rights or claims largely depends on the possibility of recovering the obligation from the debtors. So, for example, if the collection of a monetary debt is difficult due to the need to establish the location of debtors who are evading its payment, then compensation for the assignment of the right of claim for such debt can be slightly reduced compared to the original amount of debts, since it takes into account the efforts that are required will apply to a third party to recover them.

Finally, the third party participating in a transaction to transfer rights of claim or property as a person who assumes the rights and obligations of the assignor as a result of the assignment of their rights is called the assignee. The assignee, in particular, as a result of concluding such a transaction must assume the entire scope of rights and obligations that the assignor transfers to him on the basis of the original agreement. Thus, in fact, the assignee assumes all the functions of the creditor in relation to the debtors.

So, for example, it is the assignee, after concluding an agreement on the assignment of the right of claim or property, who acquires the opportunity to demand the fulfillment of his obligations from the debtors and apply to them the sanctions provided for in the original agreement. At the same time, in order for the assignee to enter into his rights, in accordance with current legislation, the consent of the debtor is not required. It is only necessary to inform them that in the future they must fulfill all obligations under the original agreement in relation to the assignee.

If they were not notified of this, then the fulfillment of obligations to the assignor, who was the creditor under the original agreement, will be recognized as their proper fulfillment.

In the modern world, various organizations and companies in the process of conducting business activities often assign property rights to each other and accumulate “dead” receivables, resulting in controversial situations. To resolve these situations, there is a system of assignment. In this article we will look at, let's look at a few examples and write down definitions to dispel various misconceptions in this regard.

Introduction

The first step is to review the basic terms and concepts so as not to get confused by them. There are three sides to this scheme:

1. Assignor.
2. Assignee.
3. The specific company or person who incurred the receivables (debtor).

Example of who is the assignor, assignee and borrower

The term “cession” refers to the procedure for assigning rights, respectively, the assignor is the party that transfers the existing rights, the assignee is the one who receives the rights, and the debtor remains the same. The contract that confirms the transfer procedure is called “title”.

Attention:A classic example of an assignment is the transfer by a bank of a borrower’s debts to a collection company. The bank is the assignor, the collectors are the assignee, that is, a third party who was not initially in the transaction between the borrower and the financial institution.

The title is signed after the assignor considers working with the lender to return the receivables unreasonable or does not want to spend man-hours and other resources on repaying the loan. In this case, the case is transferred to the assignee for a certain percentage or established remuneration. Moreover, any actions on the part of the assignee before the signing of the official agreement and its entry into force are considered illegal and are subject to administrative and criminal liability. After the document comes into force, the assignee becomes the owner of property rights (in fact, becomes the assignor).

Rights and obligations of the ex-assignor

So we already know that assignor is the original lender who financed the borrower. Next, we will consider what rights and obligations the borrower has after signing the contract. They are described in the Code of Civil Procedure of the Russian Federation, in particular, in Article 388, which states that this form of transaction is legitimate if the requirements of the country’s legislation are met. In this case, the borrower, when signing the contract, is obliged to transfer his rights to collect exclusively the existing receivables, and not related expenses. That is, this does not include compensation for moral damage or harm to health - only the amount of debt (and its servicing, i.e. interest on the loan).

It turns out that the bank transfers the rights to the existing debt to the collection company. However, he cannot change the terms of the contract in force with the borrower under any conditions. That is, if it did not contain requirements for the payment of penalties or interest, then it will no longer be possible to introduce it, since these are additional conditions. The loan is transferred “as is”, without additions or changes.

The assignor is a bank or borrower, the assignee is a “collector”

What is required from the debtor

We have already found out that assignee is a third party to a transaction, which is introduced in extreme cases. Let's look at another important question: is a debtor as such needed when concluding a title? According to the legislation of the Russian Federation, the bank has the right to enter into an assignment agreement without direct contact, approval or signature by the borrower. Formally, the financial institution is obliged to notify the debtor that his case has been transferred to a third party, but in fact no one bears any responsibility for the lack of notification.

The second option is to change the lender. In this case, the consent or notification of the borrower is also not required, but there is one exception: the identity of the borrower should not be key to the debtor. In the case of financial institutions, this does not cause problems, but if a son borrows money from his mother, then a similar situation may arise.

If non-property transactions are considered, the debtor may be encumbered. To do this, they invite him to a meeting and ensure that he agrees to the transfer of rights, i.e., written confirmation is required from the original party to the transaction.

What can the assignee do?

So, assignor and assignee - who are they - using an example we have already considered. Next, we will look at exactly what rights and obligations the “third party” has after signing the contract. She can perform all actions only after it has come into force, and not before. After entry into force, the debt collector can directly contact the debtor, demanding that he fulfill the terms of the agreement. To protect against unscrupulous borrowers, the assignee is recommended to draw up an assignment agreement for a certain part of the debt, and not for the entire amount, i.e. retrocession (division into several “third parties”).

Attention:According to legal requirements, the “collector” must notify his “client” that there have been changes in the agreements. But in fact, there is no liability for the lack of notification and it is impossible to recognize the transaction as void on this basis.

The owner of the debt has the right to use various legal methods to return the receivable, including filing a lawsuit to resolve the issue.

The assignee can act only within the framework of the law and his powers

How does recovery proceed?

Let's consider how in a tripartite agreement proceedings are ongoing with the borrower. WITHOn the part of the bank, the payer becomes not the person with whom the agreement was originally signed, but his successor, that is, the assignee. That is, after signing the agreement, the claim is transferred to the “collector” if he violates the assignment agreements. If the claim is not satisfied, the bank has every right to sue the collector and demand that he fulfill his obligations.

Such situations are actually quite rare, since the borrower is loyal to the collectors, and often works with them for hundreds and thousands of debtors, observing general agreements. If the lending party is replaced, the new creditor sends a letter to the debtor about the changes, warning that the debt must be repaid using the new details. It is noteworthy that this can also be done through the court, prosecuting the borrower for refusing to fulfill their obligations. If he did not receive the notification and transferred part of the debt to the original borrower, then the dispute no longer arises between him and the collector, but between the collector and the bank. According to the law, the one who made the mistake is responsible for such consequences, i.e. in our case, the assignee who did not provide new details.

Appeals to court

Next, we will consider what real and legal methods assignees can use to collect debt from the payer and whether the latter has any rights. Thus, the assignment agreement can be challenged if there are serious reasons for this. One of the most realistic options is to file a consumer protection claim before the borrower receives notice that his debt is being transferred to a third party. But such actions are questionable and can only take place if the original agreement did not have a clause on the possibility of assignment, and the party that transferred the debt does not have a license to carry out “collection” work.

Attention:The absence of a clause in the agreement that the borrower can transfer rights to third parties is not a 100% guarantee that the claim will be considered and accepted. It will be possible to win the case only if the assignee does not have a license, that is, he cannot gain access to bank secrets.

The second option is to try to recognize the concluded transaction as void. The percentage of such decisions in the Russian judicial system is small - only 20-25% of debtors manage to achieve this. To recognize a transaction as void, you need specific arguments that will allow you to prove that the transaction was illegal and violated your rights. But this will not be easy to do, so you should hire competent lawyers (and even better, pay off loans on time so that such situations do not arise at all).

It is always more profitable to restructure debts than to hide from the bank

Afterword

So, above we examined the basic terms and gave examples “from life” to help understand them. Note that in such a transaction all three parties are active participants in the process. There is even liability of the assignee to the assignor - he must transfer the debt to him within the agreed time frame, or proceedings may be initiated against him in court.

In any case, any actions within the framework of the legal process are preferable for the borrower - if the assignee goes beyond the law, begins to threaten or intimidate the debtor, then he has the right to contact law enforcement agencies and draw up an appropriate statement to hold him accountable. But it’s better not to lead to such situations, otherwise the loss of time, nerves and money will be much higher than with regular payments. If you have any difficulties, then it is wiser not to hide from the bank and not refuse to pay according to the agreement, but to come to its branch and explain the situation. Today, almost all banks are happy to make contact, since due to the crisis the number of problem loans has increased significantly - they will offer you either to reduce payments, or make a short deferment, or offer another solution that suits both parties.

In contact with

Currently, people who do not have a legal education, when faced with the concept of “cession”, do not always understand what we are talking about.

Dear readers! The article talks about typical ways to resolve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:

APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.

It's fast and FOR FREE!

An assignment agreement is an agreement to alienate rights to accounts payable to another individual or legal entity on a legal basis. In simple words, this is a transaction for the transfer of any material obligation, or as it is called “assignment of claims,” without the consent of the debtor.

The concept of assignment and its features

This agreement is widely used in many areas. However, based on Russian legislation, not all material requirements can be transferred using this agreement.

Personal obligations, such as alimony, compensation for material damage to life and health, or compensation for moral damage, are not subject to assignment.

The need for operations of this kind arises when the creditor does not have the ability to independently collect the required amount. Individuals, by agreement, share the obligations that arise, for example, in the event of a divorce, or a company undergoes reorganization.

The claim can be sold or transferred free of charge, after which the entity bearing the obligation will be notified of the conclusion of the contract.

Civil legal basis of the debt assignment agreement

The procedure for conducting a transaction for the alienation of accounts payable is carried out in accordance with the first paragraph of Chapter 24 of the Civil Code of the Russian Federation. This chapter reveals the essence of the assignment of rights in articles 382 to 390, and the transfer of debt in art. 391 and 392.

Parties to the agreement on the assignment of rights of claim

There are two parties to the agreement:
Assignor is the original owner who transfers the rights.
Assignee– new claim holder.
Debtor- the entity obligated to pay the debt under the contract.

According to the participants, agreements can be divided into several types.

1. Assignment of debt between legal entities. The most common case of transfer of claims rights is the reorganization of a legal entity. That is, in fact, only the name of the debtor changes, but the enterprise itself remains the same. For example, at the time of change of legal entity. According to the reconciliation report, the company did not have time to reset the existing balances. Based on the agreement and the signed act of mutual settlements, the subaccount, i.e., the counterparty, is replaced in accounting programs. Documents are official and require mandatory seals of both parties.
2. Agreement between individuals. There can be many examples of the assignment of rights and obligations between private individuals: division of property during the divorce of spouses, assistance in obtaining a loan, transfer of obligations for the debt of children to parents who are ready to take responsibility, etc. A mandatory condition for drawing up an agreement is to indicate the passport details of the parties , amount, term and method of refund.
   

   The form of the document differs from the previous one in that it can be signed independently, without notarization and any seals. It is enough to seal the transaction with personal signatures.

3. Transfer of debt between a legal entity and an individual. When it comes to changing the debtor, such an operation is called transfer of debt. In times of crisis, there are often cases when, during the liquidation of enterprises, the former general director assumes obligations for the unpaid debts of his bankrupt company as an individual. The debt is transferred to the new payer in full and under the same conditions.
   The execution of such a document must be certified by the seal of the organization, and the signature of a private person, with his passport data.
4. Tripartite assignment agreement. When sending a notification about the conclusion of an agreement, there is a risk that the subject of financial claims will ignore or not receive the information. Therefore, drawing up a tripartite agreement will guarantee that the debtor is informed of this change and has given his consent.

Documents for concluding an agreement on assignment of claims

The list of necessary documents for concluding an assignment agreement is individual for each case.

The most important basis for the legal assignment of a debt is the contract originally entered into between the assignor and the debtor.

If we are talking about a supplier and a buyer, then the main thing is the supply or purchase contract. An important role is played by the act of reconciliation of mutual settlements, expenditure or receipt documents confirming the debt.

For the assignment of a debt to a bank, the basis will be a credit agreement or an overdraft agreement with a bank account statement. A payment schedule may be attached to the agreement, indicating the terms and amounts of payments.

An additional agreement may be drawn up for the assignment agreement, indicating the conditions not included in the main agreement, and a list of appendices in the form of supporting evidence included in the transfer and acceptance certificate of title documents.

Types of assignment agreements

1. Trilateral. Its peculiarity is that the debtor officially agrees to the transfer of his debt to a new person. The advantage is that the assignee has guarantees from the payer himself, which is important. While a bilateral agreement only requires notification of a change of creditor.
2. Agreement of paid and gratuitous assignment. When the assignor sells obligations for a certain amount, the contract has the status of compensation. The assignment of rights for the company may be forced in order to recover at least part of the outstanding loss, selling it at a lower price than the full amount of the debt.
   The second party to such an agreement may be a collection agency that specializes in debtors. At the same time, the object of financial claims, conditions and amount remain the same as they were originally.
   If there is no payment for the assignment, then this type of document is called gratuitous.
3. Paid and free debt transfer. The debt transfer operation can be undressed in the same way. The debtor can be changed through a no-payment agreement, or by paying a certain amount for this, correspondingly exceeding the initial amount of the debt.
4. Assignment of claims under a writ of execution. Often in judicial practice, the transfer of rights of claim under a writ of execution is transferred to a third party. Rights under a writ of execution can be sold or assigned free of charge. To do this, it is necessary to provide evidence of a change in the claimant, in the form of an assignment agreement, and write an application to the arbitration court.
   

   A court decision may provide for a partial assignment of rights, that is, be divided into several successors.

Essential conditions

Agreement on assignment of rights in real estate

Apartments purchased on credit or a mortgage often become objects of sale, although they are not yet full property and are pledged to the bank. The bank must be notified of the change of borrower under the apartment assignment agreement, check his financial situation, give his written consent and indicate the remaining amount of the debt to the new debtor.

Assignment in insurance

Insurance also implies the possibility of assigning rights. In this area, there is such a thing as risk cession, that is, reinsurance or transfer of risk to another insurance company, which becomes a new lender. Article 965 of the Civil Code of the Russian Federation states that the rights of the policyholder to compensation for material damage provided for by the contract are transferred to the insurer.

This is very relevant, for example, in car insurance, when cars are resold by proxy. However, not all insurance companies agree to this. For example, in MTPL insurance, the state introduced a ban on assignment due to the increasing practice of fraud.

Assignment of claims under a supply agreement

The transfer of claims to another creditor has long become a popular tool in the economic activities of enterprises. One such example is the use of factoring, that is, engaging a bank as an intermediary. This means that it is the bank that makes demands for payment of receivables from the buyer.

The benefit of the financial institution is that commissions are deducted from the transferred funds from the payer, which guarantees the payment of the supplier’s debt on the bank’s loan.

The factoring organization strictly controls the debtor's debt. As a rule, for reconciliation, banks first request copies of primary documents confirming the acceptance of the goods, or a certificate of completion of work confirming the provision of the service.

Assignment of debt under a contract

The customer may transfer responsibilities to the contractor to another person only with his written consent. Considering that each of the parties has its own responsibilities, including the performance of work, the agreement must also include an assignment of demands, since both actors have the right to demand the fulfillment of points, such as payment or provision of services.

Assignment in credit banking operations

The use of this transaction in most cases is associated with a violation of the loan agreement on the part of the borrower, after which the bank has the right to terminate the current contract and collect the full amount of the debt. The assignee becomes a collector who uses his own methods and means of collecting debts.

Currently, the legality of attracting collectors is questioned, since the creditor organization must have the appropriate permission for banking activities, a license. In turn, banks do not have the right to disclose confidential information about their clients.

To avoid such a situation, when concluding a loan agreement, it is necessary to study all its clauses in detail.

Assignment in bankruptcy

Selling debt during bankruptcy is one of the most popular ways to reduce accounts receivable when money is needed urgently, and the debtor company’s deferment will not end soon.

Until the organization officially becomes bankrupt, there is a risk that the tax authorities may invalidate the transaction. Then a memo is drawn up explaining the inability to collect the debt and justifying the price of the claim.

Registration of the agreement in the state register

If the assignment is related to real estate, the transaction must be subject to state registration. The agreement becomes valid only from the moment of registration with a government agency. Otherwise, it may be considered void.

To do this, you must submit copies of notarized documents to the Federal Reserve System. These include an equity participation agreement (previously registered with Rosreestr) and an agreement on the assignment of the right of claim or on the transfer of debt, with all accompanying documents.

The developer or partnership will need a certificate of registration of a legal entity, constituent documents, a new extract from the Unified State Register of Legal Entities, and documents confirming the authority of the person who submits them.

The period for reviewing documents is 30 calendar days from the date of submission.

Registration of transactions with non-residents

Some companies working with import or export are faced with the need to enter into an assignment agreement with non-residents. A transaction by a legal entity with the status of a resident and a non-resident assignee, just like other foreign exchange transactions, must be accompanied by a transaction passport. If the foreign creditor changes to another non-resident, a new passport is opened.

The main thing is that all actions taken comply with the law “On Currency Regulation and Control”.

Accounting and Taxation

When the assignment of rights agreement is paid, accounting and tax accounting must include the calculation of VAT and income tax. The VAT tax base is the difference between the original amount of debt and the sales price.

In the accounting of the assignee when purchasing the right of claim, the following entries are made:
58 – 76 (60) debt acquisition transaction
76 (60) – 51 payment to the assignor
51 – 91.1 debt repaid by the debtor
58 – 91.2 debt written off
91.2 – 68 VAT charged
91.9 – 99 difference between the original debt and the payer’s payment

The entries in the assignor's accounting are as follows:
76 – 91.1 amount paid by the assignee
91.2 – 68 VAT charged
91.2 – 62 debt written off from the debtor

The difference between the original debt and the amount paid by the new creditor is written off as a loss.

Video about netting during assignment

Risks under a debt assignment agreement

What to pay attention to when signing a contract:

• Subject of the agreement. The object of the transaction is taken to be specific information, in the form of the amount of debt, supported by evidence of primary documentation.
• Basis of the agreement. The text of the agreement must contain a reference to the original agreement between the assignee and the payer.
• Consent of the new creditor or debtor. In addition to the usual form of signature or seal on the contract itself, it is allowed to express your approval in a separate document, for example, in an information letter.

When drawing up an agreement between legal entities, a thorough check of the constituent documents is necessary, guaranteeing registration in the Unified State Register of Legal Entities.

Illiterate drafting or incorrect perception of the information specified in the contract can change the desired results, or even contribute to the invalidity of the document.

When creating a preliminary assignment agreement, you need competent specialist advice. Therefore, if you need to formalize an assignment or transfer a debt, you should definitely resort to legal services.

Recognizing the assignment agreement as void and challenging it. Judicial practice of termination

The following cases may be grounds for termination or invalidation of a contract:

1. The obligation belongs to the group of personal ones, such as compensation for damages or alimony;
2. The right is not supported by supporting documents and is invalid;
3. The assignment agreement related to real estate is not registered with Rosreestr;
4. The original agreement did not imply the possibility of assigning rights to third parties;
5. The assignment agreement does not indicate the basis for the relationship of the first creditor with the payer;
6. The assignee failed to pay the fee within the specified time frame;
7. The right to claim under a loan agreement is exercised to a person who does not have a charter of a credit organization.

If violations are identified, a claim is filed with the regional arbitration court to recognize the assignment agreement as not concluded, due to inconsistency with one or another article of the Civil Code when it was drawn up. Or if the basis of this agreement cannot by law be assigned to third parties. In this case, the court may satisfy the claim in whole or in part.

Example:

OJSC “X” filed a claim with the Arbitration Court against CJSC “Y” and LLC “S” to declare the agreement on the assignment of the right of claim invalid due to its nullity as it does not comply with the requirements of Article 382 of the Civil Code of the Russian Federation.

It occupies a special place among other transactions. Let us further consider in detail such concepts as assignor and assignee: who they are, what legal capabilities and obligations they have.

General information

Typically, the assignment of claims involves the payment of certain compensation by the receiving party. In fact, there are three entities involved in the transaction:

• A person who has certain obligations by virtue of an original contract. This participant is called the debtor.
• The entity to whom the obligations arose. He is a creditor.
• The person to whom the right of claim is actually assigned.

Assignor and assignee: who is it?

Entities that have certain obligations are called debtors. This term has a somewhat narrow meaning. Nevertheless, in accordance with existing practice, it can mean not only monetary obligations, but also debts of other kinds. For example, this could be an obligation to perform work/provide a service, transfer ownership, and so on. The entity acting as the creditor is called the assignor in the assignment. This person transfers to a third party the ability to demand payment of the debt. The latter is called the assignee in the transaction. He gets the opportunity to demand payment of the debt in his favor.

Assignee

An individual, as a result of concluding a transaction to transfer the legal ability to demand repayment of a debt, assumes the full scope of powers that the original creditor had. The latter then withdraws from the contract. The assignee is a party to the transaction who, in accordance with the agreement concluded with the original creditor, has the opportunity not only to demand repayment of the debt, but also to apply sanctions to the person who evades this.

Specifics of the transfer of powers

The conclusion of an agreement does not imply obtaining the obligatory consent of the borrower. However, the law stipulates the need to notify the debtor of such a transaction. The notice is necessary so that the assignee begins to receive payments. This will avoid potential problems for both parties to the contract. If the debtor does not know about the change of creditor, he can continue to repay the obligations in favor of the original lender. As a result, he develops debt.

Powers of the new creditor

The rights of the assignee at the conclusion of the transaction have the same scope and the same limits as those of the original lender. For example, the agreement provided for the possibility of repaying obligations by transferring property. The creditor can thus turn it to his advantage. The assignee also has the same opportunity. This will not depend on whether notice of the transaction was sent to the debtor. Payment (repayment of obligation) can be made in any form (cash/in-kind). But in all cases it is necessary to determine the powers that the new creditor has.

Debt repayment

In practice, payments are rarely made in cash. Typically, repayment of obligations is made by crediting to an account held by the assignee. This can also be done by issuing checks and other negotiable documents. In accordance with the principle of autonomy of the will of the participant, the parties to the assignment agreement may differently resolve the issue concerning the rights of the assignee to the amounts of money and property received by the original agreement.

Important point

As stated above, the right of the assignee is preserved regardless of whether the debtor was notified of the conclusion of the assignment agreement. This approach is generally accepted and operates in almost all legal systems. Its use is determined by the need to ensure withholding from payment if it was made before notifying the debtor. If the money arrived to the assignor after the borrower was notified, the assignee becomes entitled to these payments, since the debt under the new agreement has not been repaid.

Conclusion

According to current legislation, different types of rights can be transferred. The only exceptions are those that are directly related to the identity of the original creditor. Obligations of this kind include, for example, alimony payments and health care. That is, the right to demand these payments cannot be transferred. The original creditor, when concluding an assignment agreement, is obliged to provide guarantees to the third party. In particular, he must confirm his rights to property, value, service or other object to be transferred. The original lender thus provides documents proving ownership of the item. They must confirm the legitimacy of the right at the time of the assignment.

Article No. 4768

05.02.2015 CESSION: CALCULATION FEATURES

Are there any obstacles

The need for the assignor to return to the assignee what was received from the debtor is confirmed by clause 10 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 11, 2000 N 49, according to which, if the debtor was not notified in writing about the transfer of the rights of the creditor to another person, the new creditor has the right to claim what was performed by the debtor from the previous creditor as received unjustifiably. At the same time, placing on the new creditor the risk of the consequences of failure to send written notice to the debtor does not mean releasing the former creditor from the obligation to transfer to the new creditor what was received unjustifiably. The new creditor bears the risk of not receiving these funds from the previous creditor due, for example, to the insolvency of the latter. This position is confirmed by judicial practice, namely the Resolutions of the FAS UO dated October 23, 2013 in case No. A07-19952/2012, FAS VSO dated October 30, 2013 in case No. A33-348/2013. Despite this, the assignor does not always willingly agree to transfer such performance from the debtors.
The most common arguments of the assignor about the impossibility of transferring what was received from debtors are arguments about the prohibition of transfer by virtue of the legislation of the Russian Federation regulating the activities of accepting payments from individuals carried out by payment agents, the national payment system, as well as relations arising from a bank account agreement. According to some counterparties, the norms contained in this legislation do not allow the assignor to transfer to the assignee funds received from debtors, the rights to which were transferred by the assignor to the assignee.
In our opinion, this legislation is not an obstacle to the return by the assignor to the assignee of what was performed by such debtors, since in accordance with paragraph 1 of Art. 1102 of the Civil Code of the Russian Federation, a person who, without the grounds established by law, other legal acts or transaction, acquired or saved property (acquirer) at the expense of another person (victim), is obliged to return to the latter the unjustifiably acquired or saved property (unjust enrichment), with the exception of cases provided for in Art. . 1109 of the Civil Code of the Russian Federation.
Thus, according to this norm, the following are not subject to return as unjust enrichment:
- property transferred in fulfillment of an obligation before the due date, unless otherwise provided by the obligation;
- property transferred in fulfillment of an obligation after the expiration of the limitation period;
- wages and payments equivalent to it, pensions, benefits, scholarships, compensation for harm caused to life or health, alimony and other sums of money provided to a citizen as a means of subsistence, in the absence of dishonesty on his part and an accounting error;
- sums of money and other property provided in fulfillment of a non-existent obligation, if the acquirer proves that the person demanding the return of the property knew about the absence of an obligation or provided the property for charity.
Moreover, the legislation regulating the activities of accepting payments from individuals carried out by payment agents, as well as the national payment system, is not applicable to relations arising from an assignment agreement, due to the following.
By virtue of Part 1 of Art. 1 of the Federal Law of 06/03/2009 N 103-FZ "On the activities of accepting payments from individuals carried out by payment agents" this Law regulates the relations arising when the payment agent carries out the activities of accepting funds from the payer aimed at fulfilling the monetary obligations of an individual to supplier for payment for goods (works, services), as well as those sent to state authorities, local governments and institutions under their jurisdiction, within the framework of their performance of functions established by the legislation of the Russian Federation.
At the same time, according to paragraph 1 of Art. 2 of Law N 103-FZ, a supplier is a legal entity, with the exception of a credit organization, or an individual entrepreneur who receives the payer’s funds for goods sold (work performed, services provided) in accordance with this Law, as well as a legal entity or individual entrepreneur who contributes payment for residential premises and utilities in accordance with the Housing Code of the Russian Federation, as well as state authorities and local government bodies, institutions under their jurisdiction, receiving the payer’s funds as part of their performance of functions established by the legislation of the Russian Federation.
The assignee is not a supplier, since it does not sell goods, perform work or provide services to the debtors of the assignor, the rights to which were assigned to it by the assignor. The supplier is the assignor. Under an assignment agreement, the assignor assigns rights to the debtor's unfulfilled obligation to pay for goods sold by the assignor, work performed, services rendered. As a result of the assignment, the assignee does not become a supplier of goods, works and services. Otherwise, the assignee to whom the rights under loan agreements with individuals are assigned by the assignor, which is a bank, would be considered a bank.
Consequently, Law No. 103-FZ does not apply to the relationship between the assignor and the assignee to receive performance from debtors after the transfer of rights to the assignee. Because of this, the assignor is not recognized as the paying agent of the assignee, since only a legal entity or individual entrepreneur subject to this Law can be such.

NPC has nothing to do with it

In accordance with Art. 1 of the Federal Law of June 27, 2011 N 161-FZ “On the National Payment System”, this Law establishes the legal and organizational foundations of the national payment system (NPS), regulates the procedure for the provision of payment services, including the transfer of funds, the use of electronic means of payment, activities of NPS subjects, and also determines the requirements for the organization and functioning of payment systems, the procedure for supervision and monitoring in the national payment system.
According to paragraph 1 of Art. 3 of Law N 161-FZ national payment system - a set of money transfer operators (including electronic money operators), bank payment agents (subagents), payment agents, federal postal organizations when they provide payment services in accordance with the legislation of the Russian Federation, operators payment systems, payment infrastructure service operators (NPS entities).
Payment services - money transfer services, postal transfer services and payment acceptance services (Clause 17, Article 3 of Law No. 161-FZ).
Transfer of funds - the operator’s actions to transfer funds within the framework of the applicable forms of non-cash payments to provide the payer’s funds to the recipient (clause 12 of Article 3 of Law No. 161-FZ). At the same time, by virtue of Part 1 of Art. 11 of Law N 161-FZ, money transfer operators are:
- Bank of Russia;
- credit organizations that have the right to transfer funds;
- state corporation "Bank for Development and Foreign Economic Affairs (Vnesheconombank)".
The postal transfer service is provided by the federal postal service organization in accordance with the requirements of Federal Law No. 176-FZ of July 17, 1999 “On Postal Services” (Part 3, Article 4 of Law No. 161-FZ).
The service for accepting payments is provided by a payment agent in accordance with Law No. 103-FZ (Part 4 of Article 4 of Law No. 161-FZ), and the acceptance of funds must be carried out in order to direct these funds to fulfill the monetary obligations of an individual to the supplier for payment for goods (work, services), as well as their distribution to government bodies, local government bodies and institutions under their jurisdiction, within the framework of their performance of functions established by the legislation of the Russian Federation (Part 1 of Article 1 of Law No. 103-FZ).
Thus, the assignor does not provide payment services, since it does not provide funds transfer services, postal transfer services, or payment acceptance services. In our case, the debtor transfers funds to the assignor not as a money transfer operator or as a paying agent, even if it is a credit organization, for the purpose of their further transfer by the assignor to the assignee as the recipient of the payment, but as a party, including the loan agreement, the right to to which it was transferred to the assignee. In this case, in our opinion, it does not matter for what reason the debtor pays the assignor: due to lack of information about the new creditor or deliberately, not wanting to pay him.
Due to the fact that the assignor does not provide payment services and, as stated above, in accordance with Law N 103-FZ is not recognized as a paying agent in the situation under consideration, the assignor is not a subject of the NPS, and Law N 161-FZ, as well as the Law N 103-FZ, in no way regulates the activity of the assignor in terms of relations arising from concluded assignment agreements, as a result of which the assignor is not prohibited from accepting funds received from the assignor’s debtors after the assignment of rights to them to the assignee, and subsequently transferring them to the assignee.
As for the legislation regulating relations arising from a bank account agreement, due to the fact that the debtor transfers funds to fulfill his obligation to pay for services rendered in the field of lending, while the right to fulfill this obligation is transferred under the assignment agreement by the assignor to the assignee, these funds are subject to return to the assignee as received without the grounds established by law, other legal acts or the transaction. The assignor's reference to the restrictions established by legislation regulating relations arising from a bank account agreement regarding further disposal of such funds without the consent or indication of the owner of such an account does not correspond to reality, since there are other cases excluding the return of unjust enrichment, except for those provided for in Art. 1109 of the Civil Code of the Russian Federation, not established by law.
Thus, the legislation does not provide any grounds for the assignor’s refusal to return to the assignee the performance received from the debtor, whose rights were transferred to the assignee.

Time limit

Until recently, the practice of establishing in an assignment agreement a period during which the assignor is obliged to return to the assignee the funds received from the debtors was inconsistent with the law. The terms could vary from six months to three years, or the assignment agreement contained a condition that the assignor would not transfer such funds.
In our opinion, since the funds received by the assignor from the debtor to fulfill the right transferred by the assignor to the assignee to such a debtor are unjust enrichment, the assignor is obliged to return such funds to the assignee indefinitely, that is, as long as they are received from the debtors.
A different rule appeared on July 1, 2014 in connection with amendments to the Civil Code of the Russian Federation by Federal Law dated December 21, 2013 N 367-FZ “On amendments to part one of the Civil Code of the Russian Federation and the recognition as invalid of certain legislative acts (provisions of legislative acts) of the Russian Federation ". So, from July 2014, in accordance with paragraph 3 of Art. 389.1 of the Civil Code of the Russian Federation, unless otherwise provided by the contract, the assignor will be obliged to transfer to the assignee everything received from the debtor on account of the assigned claim. This clause will also apply to the very possibility of transferring such performance (in whole or in part) to the assignee.
Taking into account the considered nuances, we believe that the transfer by the assignor to the assignee of the funds received by him from the debtors after the assignment of rights is legal and the assignee can use the above arguments to defend his position when agreeing on the terms of the transaction for the assignment of rights, in particular to reduce the price of the assigned rights, since the impossibility of transferring funds received from debtors after the assignment of rights or any restrictions on the transfer of such funds cannot but affect the profitability of the acquired rights.