Of the Civil Code of the Russian Federation: assignment of the right of claim. Sample of the assignment agreement
The law of obligations holds a special place in civil matters. A fairly large and common transaction in this system is the assignment of the right of claim. According to the Civil Code of the Russian Federation, such an agreement is referred to as a cession. It is used because of the change of persons in the obligation. For example, a bank represented by a creditor concedes a claim to another, interested person. The debtor remains the same. What are the features of the system under consideration? In what cases is the assignment of the claim applicable? The Civil Code of the Russian Federation, namely its provisions on the system of obligations, will be discussed in detail in this article.
Notion of cession
It is very simple to characterize the procedure for the assignment of the right of claim under the Civil Code of the Russian Federation: there is one participant, a subject of relations who performs a number of activities in favor of the second participant. What character can be events? As a rule, this is the production of works, the performance of services, the transfer of material values, but more often it is the payment of money.It is important to note that the subject of the cession is not just an action, but an act - that is, an event that may or may not be implemented. For example, parties to an agreement may sign an agreement to refrain from any operations.
According to the Civil Code of the Russian Federation, the contract of assignment of the right of claim may be paid and gratuitous. The onerous agreement involves the payment by the interested person of funds to the lender. In fact, there is a purchase of rights. In the case of a gratuitous contract, everything is a little more complicated. Some experts note that such agreements may be illegal. They can be regarded as a bribe, bribery, the creation of a cartel system, etc. Moreover, the law prohibits the gift of property from one commercial enterprise to another. On the other hand, so far, no one has canceled the procedures of transfer, forgiveness or cession of rights.
Parties to the cession
According to the Civil Code of the Russian Federation, the assignment of the right of claim is a transaction with two main persons: the assignor and the assignee. The assignor is the lender who transfers part of his rights to the interested party - the assignee.
Article 388 of the Civil Code provides two basic conditions under which the cession procedure must be implemented. The first condition is the compliance of the procedure with the current legislation. It is unacceptable to transfer the right of demand without formal documentation, in a hidden form, in certain areas of activity, etc. The second condition concerns the debtor. Oddly enough, it also plays a significant role in the assignment of the right of claim. According to the Civil Code of the Russian Federation, it is impossible to carry out the cession procedure if the identity of the creditor is of particular importance for the debtor. However, there are several nuances.
The interest of the debtor in the creditor must be proved. It should be about a specific financial gain, and not about personal sympathies. In court practice there are many cases where assignors tried to prove that the debtor prevented the realization of the right of assignment. For example, one bank is subject to reorganization, reorganization, liquidation or any other procedure, due to which it will lose some of its rights. Representatives of the credit institution notify the debtors of the need to interact with the new bank.Some citizens agree, while others protest. They do not like the new payment system. If the majority are dissatisfied, the assignor undertakes to reconsider the issue of choosing the assignee. So the issue will be settled peacefully and according to the law. However, there are other, much more difficult situations. For example, the debtor is only one - and this is a legal entity. Wanting to delay the payment of the debt, he in every way impedes the realization of the right of cession. Such actions will become illegal in nature, which will be proved by the court.
Terms of an agreement
According to Art. 382 of the Civil Code of the Russian Federation, the assignment of the right of claim can be realized only at the initiative of the creditor, but taking into account the wishes of the debtor and in accordance with the applicable provisions of the law. If the assignor does something wrong, then the initiator may become the state - in the person of the court or the relevant authority. For example, article 383 says that it is not permissible to transfer certain rights to other persons. It is impossible to transfer the right to claim alimony (only if the obligated person has not died), the claim for compensation for harm that was caused to the health or life of a person.Simply put, the duty to bear responsibility must be strictly individual: any transfer of it is considered illegal and unacceptable.
Article 384 of the Russian Civil Code states the right to assign future interest and the right to loss. According to the law, the assignor’s right to the assignee must proceed to the extent and with the interest that exists at the time of the assignment procedure. The transfer of such a power is possible only if the corresponding obligation is of a divisible nature and has a partial concession. Moreover, the transfer of law should not be at least somewhat burdensome for the debtor.
Free form of cession
On the non-commercial type of agreement of the cession should be told a little more. As already mentioned, legal entities are not allowed to implement the donation procedure, but forgiveness, assignment, transfer and other similar forms are allowed. Organizations will have to hire high-quality legal headquarters in order to legally resolve all issues. A bit easier is the case with individuals. If we are not talking about judicial liability and alimony, then the gratuitous right of assignment between citizens is quite possible. However, there can not do without problems.
Any lawyer will say that the signing of a gratuitous assignment between individuals does not violate the laws of Russia. Moreover, if one of the parties makes a corresponding application to the state body, the court is more likely to give a refusal. What is the matter? The problem lies in the risk of financial defaults. And this risk, to put it mildly, is big. That is why so many experts advise not to enter into a free cession. The assignment of the right of claim under the Civil Code of the Russian Federation must be supported by something. The lack of guarantees, although not considered illegal, can create many problems. The kinship ties between the subjects can in no way be attributed to the system of guarantees.
Value Added Tax
It has already been mentioned above that legal entities are obliged to pay VAT when concluding an assignment agreement. What is there to know? First of all, all tax transactions are calculated depending on the specifics of the agreement being concluded. If the assignor makes a transaction on unfavorable terms, the tax rises. As a rule, the amount received by the assignor is much less than the profit that is recorded. The loss of the cession reduces the base.
In the Tax Code, you can find a list of rules according to which bases are determined for assignments for various enterprises. At the same time, the enterprises themselves must produce products or provide services - the Tax Code is silent about other organizations.
So, how is the tax set? According to article 155 of the Tax Code, there are two options:
- In general order. It is applied when assigning the right of claim under an implementation agreement.
- In a special order. The difference between the price of the acquired liabilities and the profit received from the obligated subject is determined.
Thus, the form of tax payment depends on the type of enterprise. The conditions of the agreement on the assignment of the right of claim under the Civil Code of the Russian Federation also play a significant role.
According to Art. 382 of the Civil Code, the assignment of the right of claim also implies the assignment of:
- existing rules of the assignor;
- the possibility of a disputed right;
- claiming fines - accrued penalties, damages, interest, etc .;
- recourse rights (if the assignor does not want to waste his time and decided to transfer the right to other persons).
Can a joint creditor sign an agreement in which concessions differing from the norms of the Civil Code will be provided? This possibility is indeed available, but only in some cases. It is about the concept of essential conditions.If the assignee claims the transfer to him of the full package of rights associated with the basic obligations, then the right to conditions of a material nature can be exercised. What it is?
Lawyers urge the parties to the cession to refer to the Information Letter of the Presidium of the Russian EAC of 2007 (No. 120). In it, the Arbitration Committee of the Supreme Court gives a description of chapter 24 of the Civil Code. It is established that under the essential terms of the contract is meant a specific circumstance according to which a separate legal norm cannot be formed. If such circumstances do not violate other norms of law and morality, then they can be easily applied.
An important part of the story about the cession procedure is the problem of drawing up a contract. Features of the formation of the document depend on who exactly concludes the contract and what is its subject. Most often, assignees and assignors are legal entities. Below is a sample contract of assignment of the right of claim under the Civil Code of the Russian Federation.
Organizations should not forget about the mandatory display of the transaction in the accounting department, as well as the need to pay value added tax. It should be noted that the price of the concluded agreement depends on the VAT.At the same time, its subjects should not be outraged if they see excessive VAT. Most likely, this is due to the deliberately low cost of the transaction.
Legal entities before registering the cession agreement must be checked for legality and reliability of constituent documents. It has only one goal: the desire to protect other parties to the agreement from fraudulent acts.
The conclusion by individuals of the contract of assignment of the claim
Of the Civil Code of the Russian Federation, Article 388, establishes that citizens who are not representatives of any companies have the right to sign an assignment agreement as individuals. Based on the provisions of the Civil Code, they will be able to determine the types of transactions and payment periods.
What will have to display a citizen in the contract of assignment of the right of claim on the Civil Code? The Russian Civil Code points to the following points:
- the full amount of monetary tax liabilities;
- rules and responsibilities for each of the parties;
- information from the passport (number, series, by whom and when issued, registration);
- terms and periods of payment.
If the debtor is liable to the court, the assignment agreement cannot be signed.By the decision of the Supreme Court under personal debts, it is considered to be two types of payments:
For an agreement on the assignment of the right of claim under the Civil Code of the Russian Federation, the sample contract is as follows (photo below).
Is it possible to conclude a cession agreement between an individual and a legal entity? Neither the Civil Code, nor any other law prohibits the drawing up of such acts. An individual here can act both as an assignor and as an assignee. For example, an individual entrepreneur went bankrupt and decided to sell part of the remaining rights of a large organization - a legal entity. In this case, he must draw up a contract in which he will indicate the details on his own behalf (as an individual). On the part of the legal entity, it is necessary to indicate the name of the company, the type of activity and the full package of received powers.
Finally, you should talk about the trilateral agreement. Here, too, two subjects of relations stand in the foreground, but the debtor also plays a slightly larger role. We are talking about those cases where the obligated person shows his displeasure. To draw up a tripartite contract, each party submits data about itself, and the legal entity is being tested.
Termination of an agreement
How can I terminate the assignment agreement? Of the Civil Code of the Russian Federation, Article 389.1, fixes the main points, according to which you can competently and legally eliminate the provisions of the concluded contract.
According to the law, a written document can be terminated unilaterally or bilaterally. If the initiator of the liquidation of the act is one party, then there are three legal options for termination:
- According to the agreement. The easiest, most effective and practical way. All that is needed is to specify the conditions of termination in the document in advance. If the parties to the contract have not done this, then everything will be a little more complicated.
- Independent resolution of the situation. If the initiator of the termination of the act can agree with the second party on compensation, then everything will be completed successfully. If the controversy has not faded away, then the third option will have to be applied.
- With the help of the court. The initiator of the liquidation of the act files a lawsuit in arbitration or arbitration, and then waits for the situation to be resolved. Most likely, the second party will demand compensation, and the court will take this requirement into account.
It should be noted that unilateral termination of the contract of assignment of the right of claim (assignment) under the Civil Code of the Russian Federation is not an easy task. To prevent the second party from becoming enraged, the extent of the damage should be considered It must be avoidable - both for the initiator of the termination and for the debtor. The fact is that the conclusion of the contract of cession, and then its termination can not remain without a trace for the obligated person. It is likely that the debtor will also demand compensation. You should also think about the future refinancing rate and other elements that you can learn about using forecasting.
The termination of the cession agreement is fixed by mutual consent of all parties, as well as through the registration of an additional agreement. It contains information about the assignor and the assignee, as well as the details of the original agreement. In addition, the termination agreement must contain:
- levels of responsibility for each party;
- reasons for termination;
- rights and obligations of the parties to the agreement;
- terms of termination.
The signature of the individual and the stamp of the legal organization fixes the final liquidation of the assignment of the right of claim.The order of registration of the Civil Code must be respected, otherwise the document will not receive adequate legal force.
Invalidity of cession
Consider the contract of assignment can be from the position of the debtor. As a rule, it is extremely unprofitable for those under obligation to expect another creditor to enter, enter into new agreements with it, notify about the payment system, etc. Moreover, there are times when the assignee is simply unpleasant and is not needed by the debtor. What should be done in this situation?
Even with the support of the Civil Code of the Russian Federation, it is not so easy to cancel the assignment of the right to claim debt. An obliged person has few options with which to terminate the agreement. The first way is to file a lawsuit in court with a complaint against a new assignee. The statement should be very detailed outlines all the problems that may occur with the change of the lender. The second way is to search for facts of violation in the contract committed by the assignee. It is necessary to notify them either of the creditor (assignor) or the court. You can refer to article 388 of the Civil Code of the Russian Federation on the assignment of the right of claim and the terms of the agreement. In it you can find the most frequent mistakes made by subjects of the assignment:
- complete lack of documentation - that is, the transfer of rights under illegal conditions;
- lack of instructions on terms, names, initials, kind of activity and other general provisions;
- the absence of a license for the implementation of banking or financial transactions;
- violation of the timing of payments and much more.
At least one of these conditions is enough to delay the assignment procedure for a while. However, one should see the line between legitimate offers and illegal intervention in drafting a contract. In addition, the debtor will really have to try: the court rarely takes the side of the carrier of the debt.
The cession procedure takes place quite often. Are there any comments on the assignment of the right of claim under the Civil Code? A large number of citizens and legal entities complete the transfer of authority successfully. Some luck less. Their main complaints are the difficulty of establishing contacts with the court, the debtor and the assignee. This problem can be solved only in one way: carefully study all the rules, norms and requirements for the assignment procedure. You can consult with a lawyer who will tell you the best way to go through the procedure.
A lot of difficulties arise with accounting.Conducting assignment transactions is often accompanied by some difficulties. It is advisable to contact a third-party, higher-quality company that will provide audit services and deal with the available documentation.