In the process of conducting financial and economic activities, companies sometimes face situations of lack of available funds to pay off their current obligations. As a solution to the problem, you can use a method of non-monetary repayment of obligations - transfer of debt between legal entities. In this case, debt obligations are transferred from one partner to another, but the creditor and the subject of the debt remain unchanged. Let's consider the basic rules for drawing up such agreements and their possible consequences.
Classification
According to the subject composition, contracts can be divided into bilateral, trilateral, quadrilateral, etc. Naturally, the most common is the first variety. But trilateral agreements are not uncommon these days.
Legislative requirements for the form of such an agreement, as a type of standard agreement, are established in paragraph 4 of Art. 391, art. 389 part 1 of the Civil Code of the Russian Federation.
Of course, in some cases it may be difficult for three parties to reach a compromise at once. But in a number of situations, transferring debt obligations from one company to another is the most optimal solution for everyone.
Moreover, it is important to keep in mind that the transfer of debt is regulated by Article 391 of the Civil Code of the Russian Federation, and the change of creditor is regulated by Article 382.
WHAT'S IN ADDITION?
The subject of a debt transfer agreement can be the entire debt arising from a specific obligation, or part of it (Resolution of the Federal Antimonopoly Service of the Eastern Military District dated April 28, 2011 in case No. A79-5106/2010).
When transferring a debt, the debtor changes not only in the obligation itself, but also in all accessory obligations that are associated with it, including unpaid or subject to penalty interest under Art. 395 of the Civil Code of the Russian Federation (Resolution of the Federal Antimonopoly Service of the Russian Federation dated 04/09/2003 in case No. F09-718/03-GK), as well as a penalty that ensures the fulfillment of the debt (clause 21 of the Review of the practice of application by arbitration courts of the provisions of Chapter 24 of the Civil Code of the Russian Federation, approved by the information letter dated October 30, 2007 N 120), since the obligation must be transferred in its entire legal integrity while preserving the security and objections that may be associated with the debt (Resolution of the Arbitration Court ZSO dated February 16, 2015 N F04-15129/2015).
In some judicial acts one can find a ban on the transfer of debts that have not yet arisen at the time of concluding the agreement on the transfer of debt, since the transfer of a non-existent debt is impossible (Resolution of the Federal Antimonopoly Service of the North-West District dated 02.28.2006 in case No. A42-14639/04-30). However, the principle of freedom of contract (Article 421 of the Civil Code of the Russian Federation) presupposes the right of the parties to enter into any contracts and determine any conditions in them at their own discretion. The rules of § 2 of Chapter 24 of the Civil Code of the Russian Federation on the transfer of debt do not exclude the possibility of concluding an agreement on the transfer of debt that will arise in the future, as well as including in the main agreement a condition on the creditor giving preliminary consent to a possible transfer of debt in a specific obligation.
The law does not exclude the possibility of assigning future rights of claim (immature rights of claim), the due date for which at the time of assignment has not yet arrived (clause 4 of Information Letter No. 120), therefore there are no obstacles to the transfer of debts under an obligation, the due date for which has not yet come, provided that the parties can identify with reasonable certainty such obligation and indicate the period of occurrence of the obligation under which the debt is transferred or the exact date for its fulfillment.
An agreement on the transfer of future debt in itself does not contradict the law, since the possibility of transfer of future debt is not excluded by law. Moreover, the law contains a number of contractual structures that mediate the performance of future transactions with objects of civil circulation that do not exist at the time of conclusion of the contract (preliminary agreement, framework agreement, purchase and sale agreement for a future item). At the time of concluding an agreement on the transfer of debt, the debt may not yet exist, but at the time of the operation for its transfer it must objectively exist, since it is impossible to transfer a non-existent debt (Resolution of the AS ZSO of November 19, 2014 in case No. A03-2235/2012).
The lender should be careful and carefully study the terms of the contracts proposed for conclusion. It is possible that the debtor will provide for the possibility of transferring debt on any terms in advance in the contract, indicating that the creditor gives his consent to this, and subsequently, when the creditor decides to sue, will transfer his debt to a company that either has no assets at all or all of them will be illiquid and of low quality. This will make it difficult to collect debts from the original debtor, since the creditor will first have to try to collect debts from the new debtor and only then from the original debtor, whose liability is subsidiary.
Creditor's consent
Debt from one debtor to another cannot be transferred without the consent of the creditor. This is clearly stated in existing legislation. The creditor risks increasing his risk of non-payment of the debt, so he has the right to know who will owe him at any given time.
When concluding such documents, banking organizations in most cases agree to all the conditions announced by the debtor. After all, their reputation and possible legal costs are at stake. The debtor's rights cannot be ignored.
Dispute Resolution
In this section, the parties must determine the procedure for resolving potential disagreements, establishing the deadlines for submitting and considering claims and the procedure for performing these actions. This chapter should also determine the jurisdiction of disputes that arise.
It must be taken into account that in the contract the original and new debtors determine the jurisdiction of only their internal disputes. For disputes arising between a new debtor and a creditor, the general rules on jurisdiction established by law or the rules that were agreed upon by the parties at the conclusion of the transaction apply.
Elements of an agreement
The transaction is made only if all three parties agree to its provisions. The paper consists of several parts. This:
- Document details. The date of signing, number, and full name are indicated.
- Ascertaining part. List of parties.
- Subject of the agreement. The general aspects of the contract are revealed point by point.
- Rights and obligations of the parties to the agreement.
- Responsibility.
- Duration of the agreement.
- Dispute resolution.
- Legal addresses and signatures of each of the three parties.
Each part is explained in detail, all possible scenarios for the development of events are described. If necessary, each party engages competent lawyers to insure the fulfillment of its own interests. When listing the parties, the full name of the representative of each party is indicated. It is also necessary to indicate documentation according to which each employee has the right to sign such agreements.
Document structure
The creditor has the right to transfer the debt at any time during the term of the agreement before the expiration of the limitation period. The subject of an assignment transaction can be monetary and non-monetary claims. The most common assignment of rights is the sale of credit debts to collection agencies. You can assign debt for utilities, promissory notes, loans, and mortgages.
The cession participants discuss the details of the transaction in a personal meeting and agree in advance on the procedure for notifying the borrower. It is allowed to draw up a sample written notice to the debtor about the assignment (transfer) of the right of claim and attach it to the agreement. The counterparties, by mutual agreement, decide who will send the letter to the defendant and within what time frame.
The notification is filled out in accordance with existing templates
The parties to the relationship can independently draw up a notification to the debtor about a change of creditor or instruct another person to prepare a sample. For example, an organization gives a lawyer the right to prepare documents to support a transaction. An individual may contact a practicing lawyer with a request to assist in drawing up the form. You will have to pay for the services of a specialist, but the template will be drawn up in accordance with civil law.
You can obtain a sample notification of the debtor about the assignment that has taken place from a state law office. Remote legal portals provide users with access to sample documents. You can download the required form in a matter of minutes and absolutely free. All that remains is to enter the necessary information on the letter sheet and affix your signature and seal.
If a notice of assignment or transfer of the right of claim is sent to the debtor by a new creditor, then the addressee has the right to demand from the sender confirmation of the legality of the actions under the Civil Code of the Russian Federation. The assignee is obliged to provide the assignment agreement for review at the request of the borrower.
Contents of the form
The creditor is obliged to notify the defaulter about the replacement of persons under the obligation in writing in accordance with Art. 382 of the Civil Code of the Russian Federation. The assignor can hand over the form or write a letter and send it by mail, through a courier service. It is important to have confirmation of the fact of sending and delivery.
Let's look at the procedure for filling out the notification itself. At the beginning of the form, the full name of the claimant and contact information must be indicated. For individuals, fill out your full name and passport details, for companies - information from the constituent documents. Next, the sample letter on the assignment of an outstanding debt contains information about the original transaction: date, agreement number, subject of the agreement.
The descriptive part of the form contains information about the assignment that took place: terms, participants, amount of the transferred arrears. It is important for the debtor to obtain comprehensive information about the assignee: payment details, name, contact address, telephone number. The information sheet is signed by the new creditor or a person authorized to do this by power of attorney.
The notice may be given either personally or by letter
If the document is sent by mail, it is necessary to make an inventory of the contents in the envelope. The letter is sent as registered mail with notification. As a result, the sender receives a receipt with the addressee's signature or a return mark if the debtor did not receive the letter. It is precisely such actions that will be recognized by the court as appropriate. To facilitate the filling out process, you can use a ready-made sample notice of assignment of loan debt between legal entities.
Rights and obligations
The attached sample paper lists:
- The old debtor is obligated to transfer all documentation that evidences the existence of the debt to the new debtor.
- The deadline for the new debtor to pay the specified amount.
- The rights of the new debtor regarding making claims to the creditor under the terms of the agreement.
Is it possible to transfer debt free of charge?
The gratuitous transfer of debt between legal entities is unacceptable: this follows from the provisions of paragraph 3 of Article 423 of the Civil Code: every contract is initially considered compensated. The absence of a payment condition in such an agreement always attracts the attention of tax authorities during an audit, which means that the claimed VAT deduction may be disputed. Therefore, it is important to immediately state the terms of payment in the agreement: it is clear that no one will simply take on someone else’s obligations. It is not necessary to indicate monetary amounts in exact amounts as payment. The option of mutual settlements is possible:
- The amount of existing debts to the old debtor is written off to the new debtor;
- The former debtor undertakes to supply products and perform work in return. services;
- Payment for the transferred debt will occur in installments over a certain period.
Shelf life
The tripartite agreement on the transfer of debt is drawn up in at least three copies. They remain in the custody of each party. This will allow the interests of each party to be respected and the existence of the document to be proven in possible legal proceedings.
The storage time of this paper will depend on the date on which the debt obligation was repaid, that is, when the agreement ceased to be relevant. And from this number it is necessary to count three years. For example, if payments were made over 5 years and the debt was completely closed, then the document can be destroyed after 8 years. Naturally, this process must be accompanied by the creation of a commission and the drawing up of a destruction act. The minimum storage time is 5 years.
