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The Latin word "cession" means assignment or transfer to another person of a right or claimowned by the lender. The parties to the assignment agreement are the assignor and the assignee. Another person appearing in these legal relations will be the debtor.
The assignment agreement is also called the replacement of the creditor. The assignor of the contract is the original creditor and the assignee is the new creditor. As a result of this transaction, the assignor transfers his right of debt to the assignee, to whom the debtor owes.
The simplest real-life example of a cession agreement is the sale by a bank of its client's debt to a collection agency. The bank receives a certain amount (less than the client owes) for its right to demand the return of the loan, but the collectors do not make any discount to the debtor. Their methods of work, which are often very cruel and violate not only civil, but even criminal legislation, are well known from sharp media reports. In 2012, the Supreme Court stood up for bank debtors, indicating that the transfer of debt by a bank to organizations that do not have a banking license (in this case, collection agencies) is allowed only with the consent of the debtor.
But let us return to the assignment agreement as such. In fact, this is a convenient tool that allows the creditor to immediately receive the funds he needs in a situation where the debtor is not going to repay the debt. Yes, the amount that the creditor will receive from the person to whom he transferred his right of claim is in most cases less than the amount that is attributed to the debtor, but this money will be received here and now. The difference in the amount will also be a payment for the risk that the debtor will never settle the bills, but this will already be a problem for the new creditor.
What rights can be transferred under an assignment agreement?
First of all, under an assignment agreement it is forbidden to transfer the rights of claim that are inextricably linked with the personality of the creditor... These are, for example, such obligations as alimony and claims for compensation for harm caused to life or health (Article 383 of the Civil Code of the Russian Federation). This also includes the right to claim compensation for moral damage, the execution of a testamentary refusal, the requirement of lifelong maintenance under an annuity agreement.
Usually under an assignment agreement they transfer monetary claim - it can be a receivable or a loan debt. Rights to securities can also be transferred under the cession option.
The cession agreement should not be confused with the agreement on the transfer of rights and obligations under the agreement of equity participation in construction from one shareholder to another. The difference here is that under the cession agreement, only the rights of the creditor (to receive the debt) are transferred, and under the agreement of equity holders, obligations are also transferred, in particular, to continue paying for the housing under construction.
The contract under which the creditor has a right of claim against the debtor (for example, a loan or a supply contract) may contain a clause prohibiting the replacement of the creditor. If there is no such clause, then the consent of the debtor to transfer the right of claim under the cession agreement is not required (Article 382 of the Civil Code of the Russian Federation). The prohibition on the transfer of the right of claim in certain situations may be established by law.
Assignment agreement form
The replacement of the creditor must be made in the same form as the contract under which the creditor received the right to claim. If this agreement was concluded in notarial form, then the assignment of the right of claim must also be registered by a notary. Failure to comply with the notarial form will entail the recognition of the cession agreement as invalid (null and void).
The same applies to the main agreement that has passed state registration - in this case, the assignment will also need to be registered. If this rule is violated, the assignment agreement will be considered not concluded.
Conditions of the assignment agreement
The subject of the assignment agreement will be transfer of the assignor's claim to the assignee... It is necessary to describe in detail in the contract not only the content of the right of claim, but also the basis for its occurrence. This may be a court decision, an act of reconciliation of calculations, a writ of execution, an agreement concluded between the original creditor and the debtor. You must also indicate the details of these documents. If from the subject of the assignment agreement it is impossible to unequivocally establish on what obligation of the debtor the claim is assigned, then this agreement may be recognized as not concluded.
To be able to transfer a claim under an assignment agreement, the following conditions must be met:
- the creditor's claim against the debtor exists at the time of the assignment (here it is meant that the debtor has not really settled with the creditor yet);
- the original creditor has not previously transferred the corresponding right of claim to another person;
- the original creditor did not take any action that would make the debtor's obligation satisfied (for example, offsetting claims).
The assignor is only liable to the assignee for the invalidity of the transferred claim. The assignor shall not be liable for whether the debtor will settle accounts with the new creditor, unless he has taken on the guarantee for the debtor.
Interestingly, under an assignment agreement, it is possible to transfer not only the existing claim of the creditor, but also the future, including under an agreement that has not yet been concluded (Article 388.1 of the Civil Code of the Russian Federation). The transition of a future claim to the assignee is possible from the moment of its occurrence, i.e. after the original creditor and the debtor have signed the contract under which this claim arises. The parties to the assignment agreement may agree on a later date for the transfer of the claim.
Concerning volume of transferred claims, then the assignee receives them in the same volumes and on the same terms as the assignor received them. If the subject of the assignment agreement is divisible (monetary obligation), then you can transfer it in whole or in part. In the event that, in addition to the amount of the principal debt, the debtor is obliged to pay a penalty or interest, the parties to the assignment agreement may agree on whether these obligations are transferred to the new creditor.
The cession agreement between commercial organizations must necessarily be compensated, although the norms of the Civil Code of the Russian Federation do not directly indicate this. The fact is that if the creditor transfers his right of claim free of charge, it will qualify as a donation agreement, which is prohibited between such entities (Article 575 of the Civil Code of the Russian Federation). For the assigned claim, the assignee can pay the assignor not only in money, but also in other counter-provision, for example, the transfer of property or goods.
Another important nuance for the assignor and assignee who are business entities is the change in the tax base of the transferred obligation. In most cases, the assignor receives from the assignee less than the debtor owed. The difference in the amounts is classified as a loss for the assignor and recorded accordingly. But for a new creditor, i.e. the assignee, this difference will be additional taxable income, because he bought the debt for less than he received from the debtor.
By the way, the original creditor should not transfer his right of claim much cheaper than he could receive from the debtor. Here there is a risk of receiving claims from the tax authorities in the economic inexpediency of the cession agreement. To avoid these claims, the assignor must be prepared to prove that the costs of collecting the debt are disproportionately high or that his financial condition requires the immediate receipt of at least some amount of money.
An important condition of the assignment agreement will be agreement the moment of transfer of the right of claim from the assignor to the assignee, from which he is already entitled to claim a debt from the debtor. This could be:
- date of conclusion of the contract;
- the date of the transfer by the assignor to the assignee of the documents confirming the claim;
- date of full payment by the assignee of the assigned right.
In addition, the parties can prescribe other usual contractual conditions: responsibility of the parties, terms of termination of the contract, resolution of disputes.
Notification of the debtor of the replacement of the creditor
Although the debtor is not actually a party to the assignment agreement, he participates in legal relations when the right of claim is transferred, in connection with which he must must be notified of the replacement of the creditor... The main risk for the debtor will be the fulfillment of the obligation to the previous creditor, while the latter has already transferred his right of claim to another person.
The Civil Code regulates this issue as follows:
- the debtor must be notified in writing of the transfer of the right of claim to him to another person, and both the original creditor and the new one can report this;
- if the debtor has not received such notification, the new creditor bears the risk of default on the obligation to the proper person;
- the debtor has the right not to fulfill the obligation to the new creditor until he receives proof of the transfer of the claim (in particular, the assignment agreement) from him, however, if the corresponding notification is transmitted from the original creditor, the debtor has no right to demand documents from the assignee.
Debtor replacement or debt transfer
Sometimes another change of persons in the obligation is confused with the assignment agreement - the replacement of the debtor. This deal is also called debt transfer (Article 391 of the Civil Code of the Russian Federation). When transferring a debt, you can transfer not only a monetary, but also another obligation. This may be the obligation to provide services, supply goods, perform work.
The transfer of debt is drawn up with another agreement, which is called a debt transfer agreement, and its subjects are the original debtor, the new debtor and the creditor. Transfer of debt from the original debtor to another person is possible only with the consent of the creditor, with the exception of situations provided by law. In particular, no such consent is required when reorganizing the debtor.
If obligations during the transfer of debt arose in a business relationship, then such an agreement can be concluded directly between the new debtor and the creditor. At the same time, both debtors - both the original and the new - are liable to the creditor (jointly or subsidiary).
The contract may provide that the original debtor is released from the performance of the obligation. Before agreeing to such a condition, the creditor is advised to make sure of the solvency of the new debtor, for which you can request documents from him about his financial condition and post a standard one.
Since 2014, the Civil Code has provided another opportunity to change persons in obligations - transfer of a contract (Article 392.3 of the Civil Code of the Russian Federation). In this case, one of the parties to the transaction transfers to another person all its rights and obligations under this transaction. In this case, the provisions of the assignment agreement and the debt transfer agreement in the relevant part apply simultaneously.
Assignment agreement (agreement of assignment of rights of claim) refers to special contracts - in most cases, by concluding an assignment agreement, the claim is assigned. The types of contracts under which the rights under the transaction are transferred are not defined, their scope is quite extensive. Typically, samples of an assignment agreement are needed if the parties need the fact of transfer of rights as a result.
According to the model of an assignment agreement, the right (claim) belonging to the creditor (assignor) on the basis of an obligation is transferred to another person (assignee).
Assignment Agreement is onerous, consensual and bilateral
Object and parties to the assignment agreement
So, the assignment agreement results in the replacement of the obligee in the obligation. An assignment transaction is an act by the original creditor to relinquish its rights against the debtor and transfer them to a new creditor.
By the parties to the assignment agreement are the assignor (the creditor who assigns the right of claim) and the assignee (the creditor who acquires the right of claim under the assignment agreement). The legislation does not establish any restrictions on the legal status of the parties.
Essential terms of the assignment agreement
Russian legislation does not determine which conditions are essential for the cash and validity of the assignment agreement. It follows from this that the only essential (from the point of view of the law) condition of the cession agreement is the condition on its subject matter (part 2, clause 1, article 432 of the Civil Code of the Russian Federation).
Subject of the cession agreement there can be a subjective law of obligation or a right of claim, and if the subject of the obligation is divisible - both in full (in relation to the entire subject of the obligation) and in part.
Assignment agreement price
Assignment agreement can be both paid and free. Since the law does not establish mandatory requirements for the price under the cession agreement, the amount of payment for the assigned right of claim will be determined by agreement of the parties.
Assignment agreement form
The law contains special requirements for the form of the assignment agreement. In accordance with Article 389 of the Civil Code of the Russian Federation, an assignment agreement based on a transaction made in a simple written or notarial form must be concluded in an appropriate written form.
The assignment of a claim under a transaction requiring state registration must be registered in the manner prescribed for the registration of this transaction, unless otherwise provided by law (clause 2 of article 389 of the Civil Code of the Russian Federation).
Additional terms of the cession agreement
The assignment can be made for various purposes and on the basis of various transactions. The absence in the assignment agreement of indications of the purpose (grounds) of its commission does not indicate its invalidity. The current civil legislation does not contain a requirement to include information on the basis of the transaction in the assignment agreement.
According to the Civil Code, the consent of the debtor to conclude the cession agreement is not a prerequisite, except in cases where the identity of the creditor is of significant importance to the debtor. In addition, the law does not oblige to notify the debtor about the conclusion of the cession agreement, warning only that if the debtor was not notified in writing of the transfer of the creditor's rights to another person, the new creditor bears the risk of adverse consequences for him.
Recognizing, as a general rule, the possibility of assignment of a claim, the law nevertheless sets a number of restrictions. Firstly, the transfer to another person of rights inextricably linked with the identity of the creditor is not allowed (Article 383 of the Civil Code of the Russian Federation). This group includes claims for the payment of alimony, pensions, social benefits, etc. Changing the creditor in such obligations is contrary to their nature. Secondly, the current civil legislation (clause 1 of article 388 of the Civil Code of the Russian Federation) establishes the inadmissibility of the assignment of a claim by a creditor to another person if it contradicts the law, other legal acts or an agreement.
Accounting under an assignment agreement
Accounting with the assignor
To reflect transactions on the assignment of the right of claim, the general rules and principles of accounting are applied, taking into account the specifics of the contract. The assignor organization, for which the implementation of property rights is not a regular activity, reflects the assignment of the right to claim receivables on credit Debit Credit - Products shipped
Debit 90 Credit s / account "VAT" - VAT charged
Debit 90 Credit (,) - The cost of goods shipped is written off
Debit 90 Credit - The financial result of the sale is reflected
Debit 76 Credit 91 - The assignment of the right of claim is reflected
Debit 91 Credit 62 - The cost of the right of claim was written off
Debit 91 Credit 76 s / account "VAT" - VAT charged on the positive difference received from the assignment of the right to claim
Debit 99 (91) Credit 91 (99) - The financial result from the assignment of the right of claim is reflected
Debit 76 s / account "VAT" Credit - VAT accrued to be paid to the budget on the initial transaction
Credit 76 - Cash received from the assignee to the current account
Debit 76 s / account “VAT Credit 68 - VAT charged on a positive difference payable to the budget.
Usually, the sale of the right to claim a debt occurs at a loss, this loss is always formed on the date of signing the assignment deed. And the procedure for its recognition of expenses depends on when exactly the right to claim passed from the seller to a third party.
The assignment occurred before the due date
If the right of claim was transferred before the moment of payment, which was provided for by the original contract, then the loss can be written off immediately after the signing of the act with a third party. But in order to determine the amount of the loss to be written off, it is necessary to calculate the amount of interest that the company would pay if it took out a loan equal to the income from the assignment of the claim. The amount of interest is calculated taking into account the requirements of Article 269 of the Tax Code of the Russian Federation. Moreover, interest is taken for the period from the date of the assignment to the date of payment stipulated by the contract. Then you need to compare these percentages with the actual loss received. The smaller amount is included in the expenses.
The assignment took place after the due date
And if the right of claim is transferred after the term of payment for the goods under the contract has expired, then the loss can be written off in full, but in two stages. 50 percent of the amount can be taken into account in the expenses on the day of the assignment, and the remaining 50 percent - after 45 calendar days from this date (Article 279 of the Tax Code of the Russian Federation).
Accounting with the assignee
In the accounting records of the new creditor, the receivables acquired by way of assignment of the right of claim will be reflected in accordance with the requirements of PBU 19/02 "Accounting for financial investments" as financial investments in the actual amount of expenses for its acquisition.
Credit 76 - Acquired the right to claim
Debit 58 Credit 76 - Reflected the cost of acquiring the right of claim
Debit 51 Credit 91 - The debt is repaid by the original debtor
Debit 91 Credit 58 - Written off the right of claim
Debit 91 Credit 68 - VAT charged on a positive difference
Debit 91 (99) Credit 99 (91) - The financial result is reflected
In accordance with the Tax Code of the Russian Federation, if the receivables are sold at a higher cost, then the excess amount must be additionally paid VAT in the period in which this amount was received.
Attachments to the assignment agreement
The assignment agreement contains annexes:
Payment schedule. (The payment schedule is an appendix to the agreement, which clearly regulates the terms, conditions and amounts of payments. The schedule is applied on the basis and in accordance with the agreement to which it is attached; the amounts of payments and the terms of their payment are determined individually in each case).
Related documents to the assignment agreement:
Acceptance and transfer of title documents (The act of acceptance and transfer of documentation is an official document that has legal force and is an integral part of the contract. This is a protocol in which the parties determine the list of documents to be transferred - name, number of copies, original or copy, etc. In accordance with the act, technical documentation, documents of title, etc. The act is applied on the basis and in accordance with the contract to which it is attached; the number of copies of the act and the list of technical documentation is determined in each specific case) .;
Supplementary agreement (Very often, after the conclusion of a contract, at the time of its validity and execution, certain circumstances arise, in accordance with which certain clauses of such an agreement must be canceled, changed or added new terms of the contract. These changes are formalized by an additional agreement. An additional agreement to an agreement is the same agreement, and accordingly, its signing is possible and legal with the mutual consent of both parties to the agreement. A supplementary agreement to a contract, in essence, modifies or terminates the main contract. All new conditions established by additional agreements cancel and invalidate the previous conditions established in the contract. In this connection, the supplementary agreement to the agreement is part of the main agreement, and an integral part. As part of the main contract, the supplementary agreement to the contract must meet all the requirements for the main contract. When concluding an additional agreement to the contract, the rules used when concluding the main contract are applied. The supplementary agreement to the contract must indicate the place and time of conclusion, as well as the parties to the supplementary agreement to the contract. It should be noted that the terms of the supplementary agreement come into force from the moment of concluding the supplementary agreement to the contract (unless otherwise provided by law or contract). Still, it is necessary to indicate which contract is a part of the supplementary agreement, as well as all those conditions on which the agreement must be reached. When concluding an additional agreement to the agreement, it should be borne in mind that the additional agreement is made in the same form as the main agreement (Article 452 of the Civil Code of the Russian Federation). Since most real estate transactions require state registration, the supplementary agreement to the contract also requires state registration. Thus, an additional agreement is a document that changes or terminates the main agreement, which is signed with the mutual consent of both parties.
Used in all contracts .);
Disagreement protocol(A protocol of disagreements is a document in which the parties record their disagreements under the terms of the agreement being concluded. The protocol of disagreements can be drawn up both after the conclusion of the agreement (then its terms are accepted in the same order as the terms of the agreement itself), and at the stage of developing the draft agreement The existence of such an addition means only the existence of some disagreements on certain issues. It is these disputable issues that are fixed by the protocol of disagreements. Usually, such a protocol is drawn up in the form of a table containing the clauses of the agreement that were not agreed by the parties and the wording of these clauses proposed by both parties. The protocol of disagreements is a full-fledged part of the agreement, and its terms have the same force as the terms of the agreement itself.The protocol of disagreements must be signed, sealed and attached to the agreement.Otherwise, the signed agreement cannot be considered valid. disagreements a postscript is made: "Signed with the protocol of disagreements No. ... dated ... day ... month ... year." The party that drew up the protocol of disagreements submits it together with the prepared and signed agreement for signing to the other party. If the other party accepts the protocol of disagreements, then the protocol of disagreements is included in the contract as an additional condition. In case of disagreement of the first party with the protocol of disagreements, the first party has the right to refuse to sign the contract. Either refuse the protocol of disagreements and accept the terms of the agreement for signing, or draw up a protocol for agreeing disagreements. Used in all contracts except labor contracts ).;
Dispute Reconciliation Protocol (In case of disagreement of the first party with the protocol of disagreements, the first party has the right to draw up a protocol of agreement of disagreements. In addition to the information contained in the protocol of disagreements, this document determines either a new, agreed version of the controversial clauses of the contract, or an indication that the controversial clauses of the contract were adopted in the wording of one or another party. At the same time, a postscript is made in the protocol of disagreements: "Signed with the protocol for agreeing disagreements No. ... from ... day ... month ... year." After signing the protocol for agreeing disagreements, the parties can also draw up a new version of the agreement to be concluded, including the clauses agreed by the parties, or conclude an additional agreement to the agreement. The signed protocol for reconciliation of disagreements can be equated to an additional agreement that changes some of the terms of the agreement. Used in all contracts except labor contracts ).
CONTRACT OF ASSIGNMENT OF RIGHTS (CESSION)
Being ______ the legal successor of ___________________________________, represented by __________________________________________, acting ___ on the basis of the Charter, hereinafter referred to as the "Assignor" on the one hand, and ___________________________________________________, represented by _____________________________________________________________, acting ___ on the basis of the Charter, hereinafter referred to as the "Assignee" on the other hand ...
1. THE SUBJECT OF THE AGREEMENT
1.1. The Assignor assigns, and the Assignee accepts in full the rights and obligations under the agreement __________________________ concluded between the Assignor and __________________________________.
1.2. For the assigned rights and obligations under the agreement ______________ the Assignee pays compensation to the Assignor equal to the amount spent by the Assignor under the specified agreement (hereinafter referred to as the contractual amount).
2. TRANSFER OF RIGHTS AND OBLIGATIONS
2.1. The Assignor is obliged to transfer to the Assignee within three days from the date of signing of this Agreement all the necessary documents certifying the rights and obligations under the agreement ________________ concluded with ____________________________, namely:
The agreement ______________ specified in clause 1.1 of this agreement, with all annexes, additional agreements and other documents that are an integral part of the specified agreement.
2.2. The Assignor is obliged to inform the Assignee of all other information relevant to the exercise by the Assignee of his rights under the contract _______________.
3. RIGHTS AND OBLIGATIONS OF THE PARTIES
3.1. On account of the assigned rights and obligations, the Assignee shall pay the Assignor __________ _______________________________________. Payment of the specified amount is made in accordance with the schedule of monthly payments, which is part of the Agreement on the transfer of rights and the procedure for settlements (hereinafter the Agreement). The agreement is signed by the authorized persons of the parties and is an annex to this cession agreement.
3.2. The Assignee has the right to pay the agreed amount ahead of schedule, of which he must notify the Assignor in writing.
4. LIABILITY OF THE PARTIES
4.1. The Assignor is responsible for the accuracy of the documents and information transferred in accordance with this agreement, and also guarantees the availability and transferability of all rights assigned to the Assignee.
4.2. The assignor is responsible for the validity of the rights and obligations transferred under this agreement.
4.3. The responsibility of the Assignee in case of delay in payment of the contractual amount is specified in the Agreement.
4.4. For other non-performance or improper performance of this agreement, the parties shall be held liable in accordance with the current legislation of the Russian Federation.
5. FINAL PROVISIONS
5.1. This agreement comes into force from the date of its signing by the Assignor and the Assignee and is valid until the full fulfillment of obligations under the agreement ___________________________.
5.2. The assignor undertakes to notify ___________________________ (party to the main agreement) and all interested third parties of the assignment of their rights and obligations under the agreement to ________________ within three days after signing this agreement.
5.3. This agreement is made in 3 copies, one for each of the parties. Instance No. 3 is sent to _______________________ (to the party to the main contract).
Addresses and details and signatures of the parties:
CEDENT: CESSIONARY:
Appendix No. 1
to the assignment agreement from "___" ____________
AGREEMENT ABOUT TRANSFER OF RIGHTS AND PAYMENT PROCEDURE
______________ "__" ________ ____
Being ______ the legal successor of ___________________________________, represented by __________________________________________, acting ___ on the basis of the Charter, hereinafter referred to as the "Assignor" on the one hand, and ___________________________________________________, represented by _____________________________________________________________, acting ___ on the basis of the Charter, hereinafter referred to as the "Assignee" on the other hand, have entered into this agreement ...
1. The Assignor, in accordance with the assignment agreement dated "__" _________ ____, transfers to the Assignee all his rights and obligations under the agreement _____________________ concluded between the Assignor and ___________________ _____________ (party to the main agreement). The transfer of rights under an assignment agreement from "__" _________ _____, occurs at the time of signing this agreement.
2. The Assignee shall pay the Assignor _________________________________________________.
3. According to clause 3, the assignment agreement dated "__" _________ _____ year, the parties establish the following payment schedule:
- _______________ - _________ (_______________) rubles;
- _______________ - _________ (_______________) rubles.
4. For late payment, the Assignee shall pay the Assignor a penalty in the amount of ___% of the amount owed for each day of delay.
5. Payment is made by bank transfer. Upon completion of the payment of the contractual amount, the parties reconcile the calculations.
6. This agreement is valid from the moment of signing and is an integral part of the assignment agreement dated "__" _______ ____.
Assignor: Assignee:
__________________________ ________________________
Assignment of the right to lease a land plot is the transfer of the rights and obligations of the lessee in favor of another person, in the same volume as in the main agreement. Consequently, the lessee cannot extend the lease term or change the terms of land use. A tenant who is "tired" of using land obtained under a land lease agreement has two options.
The first is to terminate this agreement. To do this, you need to come to the owner of the land plot (lessor) and go with him to the registering authority and terminate the contract by mutual agreement of the parties. If the landlord is an individual, then the termination process will take from 3 to 10 working days, but if the state, the subject of the Russian Federation or the administration represented by local government, then the process will take from 1 to 3 months.
Under the assignment agreement, rights and obligations are transferred
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The moment of transfer of the right of claim to the assignee under the assignment agreement
Meanwhile, the aforementioned conditions of an assignment agreement do not affect its validity, since they are consistent with the principle of freedom of contract (Article 421 of the Code) and do not contradict paragraph 1 of Chapter 24 of the Code, which does not contain provisions excluding the possibility of inclusion in the agreement on the basis of which the assignment of rights is made. , provisions stipulating the moment of transfer of the assigned rights from the assignor to the assignee by the performance by the latter of its obligations to pay for the acquired right. Thus, the legal position in this case provides that the condition of the contract for the assignment of the right of claim, providing for the transfer of the right after its payment, cannot be the basis for recognizing this transaction as null and void. The stated position seems logical and reasonable.
The parties provided in the agreement for the advance payment of the assigned right of claim (such a conclusion of the cassation instance contradicts the above conclusion that the assignor transferred the claim to the assignee at the time of the conclusion of the assignment agreement). According to the Civil Code of the Russian Federation, in case of non-fulfillment by the buyer of the obligation to pay in advance for the goods, the rules of the article on counter-fulfillment of the obligation apply. The consequences of failure to fulfill the obligation to pay in advance are regulated by the norms of the Civil Code of the Russian Federation, which exclude the possibility of its compulsory reclamation, therefore the assignor's claims are not based on the law.
Under the assignment agreement, the right to forfeit can be transferred to the new creditor
The right to forfeit is a related right to the transferred claim. This right should be considered as transferred to the assignee together with the requirement to pay the principal amount, unless the scope of the assigned rights is specifically limited by law or by agreement of the parties.
The right of the original creditor is transferred to the new creditor in the volume and on the conditions that existed at the time of the transfer of the right. In particular, the rights securing the fulfillment of the obligation, as well as other rights related to the claim, including the right to unpaid interest, pass to the new creditor.
Agreement on assignment of claim (cession) under a writ of execution
1.2 The rights to claim the debt and the execution of judicial acts are transferred to the Assignee to the extent and on the conditions that existed with the Assignor at the time of the transfer of rights. In particular, the Assignee shall transfer the rights securing the performance of obligations by the debtors, as well as other rights related to the claim.
LTD "_____" represented by ____________________, acting on the basis of _______________________, hereinafter referred to as "Assignor", on the one hand, and __________ , valid __________________________________________, hereinafter referred to as "Assignee", on the other hand, guided by Art. 382-390 of the Civil Code of the Russian Federation, entered into this agreement as follows:
Assignment Agreement - Sample
- The subject of the agreement is that which is transferred, for example, “LLC“ First Creditor ”cedes to LLC“ New Creditor ”the right to claim under the agreement from“ today ”concluded between LLC“ First Creditor ”and LLC“ Debtor ”, in volumes and on terms, established by the agreement between LLC "First Creditor" and LLC "Debtor".
- The second is the price, for example, "the price of the contract is so many rubles."
- Rights and obligations of the parties. As a rule, the original creditor is obliged to transfer to the new one all documents, contracts related to claims against the debtor. In addition, a notice of assignment of the right of claim is prescribed. This lies with the original creditor, and the new one must be notified of all objections.
- Responsibility of the parties.
- Final provisions. They prescribe the moments when the assignment agreement comes into force, how many copies were drawn up and other aspects significant for the parties.
- Dispute Resolution Procedure.
- Requisites and addresses.
In Russian practice, the most common case of such an agreement is the provision of a loan, a loan, that is, a certain amount of money that one person, both natural and legal, transfers to another on certain conditions. A similar agreement is the transfer of housing from a construction company to a buyer as a result of shared construction, when settlement is expected after a certain time.
Assignment of the right to claim for a loan (Assignment Agreement)
In the Law "On Banks and Banking Activities", the definition of a bank is spelled out directly in Article 1: "A bank is a credit institution that has the exclusive right to carry out in aggregate the following banking operations: attracting funds from individuals and legal entities in deposits, placing these funds on its own behalf and at its own expense on terms of repayment, payment, urgency, opening and maintaining bank accounts individuals and legal entities. " To become a bank, you must obtain a license from the Central Bank of Russia. This business is troublesome, not fast, and not cheap. A loan was given to you by not a simple legal entity, although the bank is naturally such, but a specially licensed entity.
The borrower must remember that the bank's lawyers draw up an agreement only in the interests of the bank, and therefore, in accordance with part 2 of article 382 of the Civil Code of Russia: "For the transfer of the creditor's rights to another person, the consent of the debtor is not required, unless otherwise provided by law or agreement." your consent will not be required to approve this agreement. The next moment, which often happens in practice, is the impossibility or difficulty of providing an assignment agreement on the part of a collection agency. Sometimes even in court they cannot provide it. For the borrower, this is just a fairy tale, because in order to demand any amount, it must be confirmed by some document. You as a borrower, a bank, or a collection agency MUST. notify that there has been an assignment of the right of claim for your loan. Otherwise, in accordance with part 3 of article 382 of the Civil Code of the Russian Federation: “If the debtor has not been notified in writing of the transfer of the creditor's rights to another person, the new creditor bears the risk of adverse consequences for him. In this case, the performance of the obligation to the original creditor is recognized as performance to the proper creditor " collectors bear all the risks associated with this, and you have every right to fulfill your obligation directly to the bank. The due notice must be in writing and a copy of the assignment agreement must be attached to it. If there is no copy of the contract, then you have every right not to pay a collection agency or other legal entity. Moreover, even if a proper copy is provided to you, you still have the absolute and complete right to resolve the issue in court, which will be the best option for you as a borrower, since collectors always have more inaccuracies in court than banks, because this sometimes individual entrepreneurs or newly created LLCs, which have a staff of one and a half working units.
How to draw up a cession agreement correctly
The need to apply an assignment arises if the debtor, for a certain period of time, does not fulfill its obligations to the creditor. And he, due to the circumstances, cannot collect the debt from the borrower on his own.
It is worth saying that the object to be claimed is different. The most common are: the developer's obligation to the buyer of real estate and the debt under the loan agreement. The second most popular assignment is under a loan agreement. Typically, such an assignment agreement is concluded between legal entities. The assignment of the right to claim under a loan agreement, with or without collateral, does not differ from similar agreements, and does not contain special conditions. The requirements for registration and drafting are also identical, often a tripartite assignment agreement can be concluded.
Assignment of the right of claim to several new creditors
The assignment of the rights under the preliminary contract of purchase and sale of real estate can be made by the buyer to two or more future buyers. The parties must agree among themselves to what extent the rights under the agreement are transferred to each of the new creditors. If there are many new creditors, it will be burdensome for the seller and he has the right to challenge the assignment agreement on the basis of Part 3 of Article 384 of the Civil Code of the Russian Federation
And it must be borne in mind that the assignment of rights of claim is often contested, because it leads to a change in the original contract, and according to Article 451 of the Civil Code of the Russian Federation, a change to the contract can be made only with a significant change in circumstances that the parties could not foresee when concluding the contract.
Content of the contract of assignment of the right of claim
The notification form must be in writing. If this does not happen, the performance to the original creditor is considered performance to the proper creditor. Under the adverse consequences referred to in paragraph 3 of Art. 382 of the Civil Code of the Russian Federation, it is understood that the burden of a recourse claim imposed on the assignee against the assignor, who received performance after the transfer of rights to them.
So, 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 for losses if the claim assigned to him turns out to be invalid for some reason; to be responsible for the impossibility of fulfilling the obligation corresponding to the ceded claim by virtue of the guarantee he accepted for the assignee.
26 Jul 2018 595The contract of assignment of claims as its subject determines the right of claim or the law of obligations. The assignment agreement can be either gratuitous or reimbursable. If this requirement is not met, the new creditor will bear all risks arising from the lack of this notice. The debtor can fulfill his obligations to the original creditor - the Assignor. The rights of the Assignor pass to the Assignee in the same volume and on the same conditions that existed at the time of the transfer of rights. For which the Assignor is obliged to transfer to the Assignee all documents existing before the assignment of the right of claim. Agreement on assignment of rights of claim for contract work SUBJECT OF THE CONTRACT 1.1. The Assignor assigns to the Assignee the totality of rights and obligations arising from the construction contract No. from "" 2018 concluded between the Assignor and the Contractor for the construction located at the address. 2.
The agreement on the assignment of the right to claim and transfer of debt under the work contract No. g. "" G. Represented by a person acting on the basis, hereinafter referred to as "Party 1", on the one hand, and a citizen, passport (series, number, issued), residing to the address, hereinafter referred to as "Party 2", on the other hand, hereinafter referred to as the "Parties", have entered into this agreement, hereinafter referred to as the "Agreement", on the following: 1. SUBJECT OF THE CONTRACT 1.1. Under this agreement, Party 1 assigns, and Party 2 accepts in full the rights (claims) belonging to Party 1 as the Customer of the construction under Construction Contract No. from "" year. 1.2.
Agreement on assignment of rights of claim and transfer of debt under a work contract
The Assignor assigns, and the Assignee accepts in full the right of claim under the agreement No. of the year concluded between the Assignor and the hereinafter referred to as the Debtor. 2. Duration of the agreement 2.1. The contract comes into force from and is valid until. 3. Rights and obligations of the parties 3.1. The assignor is obliged: The debtor is not a party to the assignment agreement, although he participates in further calculations.
Attention
The form of the cession agreement The cession agreement is concluded in the same form as the agreement under which the company sells debts (clause 1 of article 389 of the Civil Code of the Russian Federation). That is, in most cases, it is about simple writing. But there are exceptions. For example, the sale of debt under a real estate lease agreement, which was concluded for a period of one year or more.
Agreement on assignment of rights and transfer of debt under a work contract SUBJECT OF THE CONTRACT 1.1.
Agreement on assignment of the right of claim under a work contract
Party 2 has the right to require the Contractor to fulfill the following obligations under the Work Contract:. 4. LIABILITY OF THE PARTIES 4.1. A party that has not fulfilled or improperly fulfilled its obligations under this agreement is obliged to compensate the other party for the losses caused by such failure. If the party that violated the contract received income as a result, the party whose rights were violated has the right to demand compensation, along with other losses, for lost profits in an amount not less than such income.
4.2. Party 1 is liable to Party 2 for the invalidity of the rights transferred to it, but is not responsible for the failure of the Contractor to fulfill the Contract Agreement. 4.3. Party 2 is responsible to Party 1 for the timeliness of payment under this agreement.
Construction contract assignment
Important
TERMS OF ASSIGNMENT OF CLAIMS 2.1. The Assignee accepts the work from the Contractor and pays for them, including the accounts payable available on the date of signing this Agreement. Essential terms of the cession agreement Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 30, 2007 N 120 The court, referring to the provisions of paragraph 1 of Article 382 and paragraph 1 of Article 432 of the Code, recognized that an essential condition of the agreement on the assignment of rights (claims) is an indication of a specific obligation, from which the corresponding right arose. In this case, the parties did not indicate in the agreement on the assignment of the right (claim) to such an obligation, therefore, in accordance with Article 432 of the Civil Code of the Russian Federation, it was recognized by the court as not concluded.
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Party 2 is responsible to Party 1 for the timeliness of payment under this agreement. In the event of a delay in any of the payments, in terms of its obligations, Party 2 is obliged to pay to Party 1 a penalty in the amount of% of the amount unpaid on time for each day of delay. 4.4. In cases not provided for by this agreement, property liability is determined in accordance with the current legislation of the Russian Federation.
5. CONFIDENTIALITY 5.1. The terms of this agreement and additional agreements to it are confidential and not subject to disclosure. 6. RESOLUTION OF DISPUTES 6.1. All disputes and disagreements that may arise between the Parties on issues that have not been resolved in the text of this agreement will be resolved through negotiations on the basis of current legislation and business customs. 6.2.
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Agreement of Assignment of Claims The purpose of the conclusion of this agreement is the refusal of the creditor from his rights in relation to the debtor and their transfer to another person. The legislation does not provide for any restrictions on the legal status of the parties to the cession agreement.
Assignment of rights and obligations under a work contract
The following are the rights and obligations under the Participation Agreement that exist as of the date of the conclusion of this Agreement: 3.1.1. Party 2 is obliged: to pay the costs for the transfer of rights in an amount equal to the price of the Work Contract. 3.1.2. Party 2 has the right to require the Contractor to fulfill the following obligations under the Work Contract:.
4. LIABILITY OF THE PARTIES 4.1. A party that has not fulfilled or improperly fulfilled its obligations under this agreement is obliged to compensate the other party for the losses caused by such failure. If the party that violated the contract received income as a result, the party whose rights were violated has the right to demand compensation, along with other losses, for lost profits in an amount not less than such income. 4.2. Party 1 is liable to Party 2 for the invalidity of the rights transferred to it, but is not responsible for the failure of the Contractor to fulfill the Contract Agreement.
4.3.
Assignment of rights and obligations under a work contract
The work contract specified in clause 1.1 of this contract (hereinafter referred to as the work contract) was concluded between Party 1 and, hereinafter referred to as the Contractor, on the construction of an individual residential house (hereinafter referred to as the House, Object) located on the land plot, cadastral (or conventional number) : at the address: belonging to Party 2 on the right, which is confirmed. 1.3. According to clause of the Contract Agreement, the Contractor is obliged, after receiving permission to put the Facility into operation, to transfer to Party 1 the following facility:. 1.4. Along with the assignment of rights, Party 1 transfers, and Party 2 fully assumes the obligations of Party 1 under the Contract.
1.5. Under the Construction Contract, Party 1 is obliged to pay the Contractor for the Object in the amount of rubles. At the time of the conclusion of this agreement, the obligation to pay the specified amount has been fulfilled by Party 1 in full. 2. RIGHTS AND OBLIGATIONS OF THE PARTIES 2.1.
Assignment of obligations under a work contract
In the event of a delay in any of the payments, in terms of its obligations, Party 2 is obliged to pay to Party 1 a penalty in the amount of% of the amount unpaid on time for each day of delay. 4.4. In cases not provided for by this agreement, property liability is determined in accordance with the current legislation of the Russian Federation. 5. CONFIDENTIALITY 5.1. The terms of this agreement and additional agreements to it are confidential and not subject to disclosure. 6. RESOLUTION OF DISPUTES 6.1. All disputes and disagreements that may arise between the Parties on issues that have not been resolved in the text of this agreement will be resolved through negotiations on the basis of current legislation and business customs. 6.2. If not settled in the negotiation process, disputes are resolved in court in the manner prescribed by the current legislation of the Russian Federation. 7. FINAL PROVISIONS 7.1.
Moreover, if the main obligation under the loan agreement is secured by a mortgage agreement (hereinafter referred to as CI) and both agreements are independent documents (i.e., CI is not included in the loan agreement), then:
- PP, resulting from CI, is subject to state registration;
- The PP resulting from the loan agreement should not be registered (see the resolution of the Federal Antimonopoly Service of the North-West District of January 22, 2010 in case No. A21-403 / 2009).
In another situation, when an agreement on real estate pledge is included in an agreement containing an obligation secured by such a pledge, the requirements for registration and state registration of such an agreement must be met (clause 3 of Article 10 of the Federal Law "On Mortgage (Pledge of Real Estate)" dated July 16, 1998 No. 102-FZ). From the date of assignment of the right to claim under such a mortgage-backed obligation, the new creditor receives the rights of the pledgee under the ID.
Assignment agreement of the right of claim - sample
Of the Civil Code of the Russian Federation, the presence of compensatory principles in the contractual obligation completely excludes the recognition of the corresponding contract as a donation contract (clause 9, clause 10 of the Review of the Presidium of the Supreme Arbitration Court of the Russian Federation of October 30, 2007 No. 120).
- The former creditor answers:
- - for the invalidity of the claim transferred to him;
- - for the performance of the obligation by the debtor if he acts as the surety of the obliged person to the new creditor;
- - and other clauses of article 390 of the Civil Code of the Russian Federation "Liability of the assignor".
- Based on the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 30.10.2007 No. 120, it is permissible to assign not the entire claim, but only part of it.
Agreement on assignment of the right of claim
The assignment can be either paid or gratuitous (PP between commercial organizations - only compensated) The absence in the PP agreement between commercial organizations of an indication of the price of the transfer right (claim) in itself is not considered a basis for qualifying such an agreement as void in accordance with Art. 575, part 2 of the Civil Code of the Russian Federation (clause 9 of letter No. 120). The situation when the price must necessarily be included in the PP contract is considered in the resolution of the Federal Antimonopoly Service of the West Siberian District dated 01.07.2008 No. F04-4131 / 2008 (7689-A46-13).
- Settlement regulations.
- Procedure for the transfer of assignable rights and claims.
- Responsibility of the parties.
- Terms of termination of the contract.
- Dispute resolution procedure.
- Other provisions.
Discrepancies in the terms of the ROA agreement are irrelevant if the parties consider them to be agreed (see para.
Assignment agreement
The Assignor is obliged to transfer to the Assignee within a day after signing this Agreement all the necessary documents certifying the rights (claims), namely:
- The Agreement specified in clause 1.1 of this Agreement;
- Annexes to the Agreement from "" Mr. N;
- additional agreements to the Agreement from ""
- other documents that are an integral part of the Agreement from "" Mr. N.
2.2. The Assignor is obliged to inform the Assignee within the same period of time all other information relevant to the Assignee's exercise of his rights under this Agreement.
2.3. The Assignor undertakes to notify the Debtor of the assignment of his rights and obligations under the Agreement to the Assignee by registered mail with notification within-days after the signing of this Agreement. 2.4.
Assignment agreement (assignment of rights)
The assignment of a claim under a transaction requiring state registration must be registered in the manner prescribed for the registration of this transaction. The assignment of a claim for an order security is made by endorsement (transfer inscription) on this security (clause 3 of article 146 and clause 3 of article 389 of the Civil Code of the Russian Federation).
- If the creditor assigns future interest and the right to losses, then proceeding from Art. 384 of the Civil Code of the Russian Federation and clause 17 of the Review of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 30, 2007 No. 120, there is no need to prescribe the transfer of the right of interest, since the rights to receive them are transferred to the acquirer automatically.
- If the transaction on the assignment of the right (claim) is large (more than 25% of the balance sheet currency as of the last reporting date), it must be concluded in compliance with the requirements established by Article 78 of the Federal Law No. 208 dated 26.12.1995. "On Joint Stock Companies" and Art. 46 ФЗ No. 14 of 08.02.1998.
Debt Assignment Agreement - Sample and Features of Conclusion
In the event of the occurrence of the circumstances specified in clause 5.1 of this Agreement, each party must immediately notify the other party about them in writing. The notice must contain data on the nature of the circumstances, as well as official documents certifying the existence of these circumstances and, if possible, assessing their impact on the party's ability to fulfill its obligations under this Agreement.
5.3. If the party fails to send or does not timely send the notice provided for in clause 5.2 of this Agreement, then it is obliged to compensate the other party for the losses it incurred. 5.4. In the event of the occurrence of the circumstances provided for in cl.
5.1 of this Agreement, the deadline for the fulfillment by the party of obligations under this Agreement shall be postponed in proportion to the time during which these circumstances and their consequences operate. 5.5. If the circumstances listed in cl.
Assignment agreement: sample
Attention
Therefore, you need to carefully study and understand the assignment agreement, to what extent the rights are assigned.
- It is forbidden to assign the right of claim if it is expressly stated in the agreement with the creditor, with the exception of cases established by the legislation on enforcement proceedings and the legislation on insolvency (bankruptcy) (clause 2, article 382 of the Civil Code of the Russian Federation).
- As a general rule, the debtor's consent to such a transaction is not required, except in cases where:
- - the agreement provides that the consent of the debtor is required
- - the identity of the creditor is essential for the debtor (Article 388 of the Civil Code of the Russian Federation). For example, the right to alimony, compensation for moral damage, an agreement on joint activities, etc.
- The assignment of the right to claim under a joint venture agreement without the consent of all participants is impossible, since this contradicts Article 388 of the Civil Code of the Russian Federation.
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Important
The right (claim) belonging to the creditor on the basis of an obligation may be transferred by him to another person under a transaction (assignment of the claim). The assignment of the claim by the creditor (assignor) to another person (assignee) is allowed if it does not contradict the law.
(Download: A sample assignment agreement, as well as other assignment agreements at the end of the page). The agreement on the assignment of the claim must be made in the same form (simple written or notarized) as the original agreement with the debtor.
An agreement on the assignment of a claim under a transaction requiring state registration must be registered in the manner prescribed for the registration of this transaction, unless otherwise provided by law (Article 389 of the Civil Code of the Russian Federation). Unless otherwise provided by an agreement or law, the consent of the debtor is not required for the transfer of the rights of the creditor to another person.
The Assignor is obliged to inform the Assignee within the same period of time all other information relevant to the exercise by the Assignee of his rights under the Agreement No. 134 dated October 10, 2015. 2.3. The Assignor undertakes, within 3 days after the signing of this Agreement, to notify the Debtor of the assignment of his rights and obligations under the Agreement No. 134 of October 10, 2015 to the Assignee by registered mail with notification. 2.4. For the assigned rights (claims) under the Agreement of October 10, 2015 No. 134, the Assignee is obliged to pay the Assignor funds in the amount specified in clause 3.1 of this Agreement. 3. The amount of the contract 3.1. For the assigned rights (claims) under the Agreement of October 10, 2015 No. 134, the Assignee pays the Assignor cash in the amount of 1,000,000 (one million) rubles. 3.2. Payment specified in p.