The price of the claim that is transferred under the assignment agreement is determined by the parties themselves.

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An assignment agreement (assignment of the right of claim) is an agreement according to which the right belonging to the creditor (assignor) is transferred to another person (assignee). The procedure and conditions for its preparation are determined by Chapter 24 of the Civil Code of the Russian Federation.

Features of document preparation

1. Completed sample contract
2. Form of the contract and rules for its preparation
3. Structure of an assignment agreement (assignment of a claim)

Form of the contract and rules for its preparation

At its core, an assignment is a substitution of a creditor, according to which the original creditor renounces its rights, and another acquires them. The legislation does not provide for any restrictions regarding the legal status of the parties entering into it. These can be both individuals and legal entities.

Important! This agreement can be concluded both on a paid and gratuitous basis. The cost is determined by agreement of the parties.

The specifics of concluding an agreement for the assignment of the right of claim do not provide for the need to notify the debtor about this. If a restriction on the assignment of rights was determined between the creditor and the debtor in the main document, it will be impossible to carry out this procedure without his knowledge.

The assignment of the claim must be formalized in exactly the same form as the loan agreement. As a rule, the form of the assignment agreement is simple in writing. If the loan agreement was notarized, then the assignment agreement must also be notarized (Article 389 of the Civil Code of the Russian Federation).

Structure of an assignment agreement (assignment of a claim)

The agreement for the assignment of the right of claim comes into full force from the moment it is signed by both parties and provided that all the information specified in it is complete and reliable, that is, corresponds to the text specified in the main loan agreement.

Structure of an assignment agreement:

• the name of the agreement, the name of the city in which it was concluded, as well as the date of its signing;
• information about the assignor, assignee, and also about the debtor. If the parties are individuals, their passport details are indicated, if legal entities - details and registration information;
• subject of the contract. The details of the main loan agreement are indicated here, as well as the amount that is unpaid at the time of drawing up the assignment agreement. The amount must be written down in numbers and words;
• obligations and rights of the parties. In this paragraph, the assignor undertakes to transfer all documents under the loan agreement to the assignee and, if necessary, provide all relevant information in this matter. Until the debtor receives documentary evidence of the transfer of the right of claim, he may not transfer his obligations towards the new creditor;
• the amount of the deal. The amount must be indicated clearly without any errors. The procedure for making payments, as well as their currency, is also determined here. According to the norms of current legislation, the fee can be set as a fixed amount, as well as as a percentage of the amount of the loan debt;
• liability of the parties in case of violation of the conditions specified in the assignment agreement;
• final provisions. Here the period for which the contract is drawn up may be indicated, the procedure for resolving disputes, etc. may be determined;
• details of the parties, including the debtor, and their signatures.

Important! In case of violation of the terms of the contract, it is possible to cancel it with mandatory compensation for losses incurred (Article 390 of the Civil Code of the Russian Federation).

The legislation of the Russian Federation provides for the possibility of drawing up an assignment agreement (assignment of the right of claim), both for the entire amount of the loan debt, and for a certain part of it. All these conditions must be strictly determined by the parties. The reliability of the information specified in the document must be documented.

How to correctly draw up an assignment agreement in 2021

Since the transfer of rights relates to a legal transaction, in order to correctly draw up a transaction agreement, it is necessary to comply with the established rules and regulations.

1. First of all, a contract transfers rights between persons with different legal status.
2. This transaction is a paid transaction, that is, the assignment of rights is carried out after the transfer of funds from one participant to another.
3. A gratuitous transaction is allowed, but it is rare, as it affects the amount of taxes (if one of the participants becomes a legal entity).
4. Most often, such a transaction relates to real estate rights. This means that it is permissible to sell the right to claim from the developer the fulfillment of obligations assumed by him.
5. In legal language, assignment is a DC, where the following parties become participants:

• The seller of the right is the assignor.
• The buyer of the right is the assignee.

1. The assignment is accompanied by the signing of a written agreement, with mandatory certification by a notary.
2. The DC must display an item that is designated either as a right of claim or as a debt obligation. The assignment of rights under a trust agreement is accompanied by the transfer of debt.
3. If, when registering an assignment, the debt for real estate is also transferred, then written permission from the construction company is required, otherwise the transaction will be declared invalid.

When drawing up a DC between individuals, the following must be done:

• The parties to the transaction meet to agree on the terms of the transaction.
• Then the type of assignment is determined. Typically, individuals choose a paid assignment.
• The preparation of the DU is carried out on the basis of Art. 388.1 of the Civil Code of the Russian Federation, allowing the transfer of rights, both existing and future.
• The document contains information indicating the source of the assigned right. The circumstances that caused the assignment of the right are also spelled out in detail. Other documents confirming the existence of such a right are noted and the size of the transferred claim is displayed.
• To avoid discrepancies, a list of transferred rights is compiled.
• The final stage of the process is the signing of the transaction contract and notification of its conclusion to the debtor.

Contents of the agreement

The deed of right of claim receives legal status after it is signed by both parties to the transaction and provided that all information displayed in the agreement is complete and reliable.
The DC must contain the following information:

1. Title of the document.
2. Place and date of registration.
3. Preamble, which displays information about the assignor, assignee, and also about the borrower. If the parties to the transaction are individuals, their passport details are displayed, if legal entities. persons – details and registration data.
4. Subject of the agreement. The details of the original contract are displayed here, as well as the amount of debt displayed in numbers and words.
5. Rights and obligations of the parties. In this block, the assignor undertakes to provide all materials under the agreement to the assignee and notify him of significant details.
6. The amount of the deal. The price must be indicated clearly without errors. The order of calculations is also displayed here.
7. Responsibility of the parties. The type of sanctions for non-fulfillment of the terms of the agreement by the parties to the agreement is displayed here.
8. Final provisions. The validity period of the contract, as well as the procedure for resolving conflict situations, can be displayed here.
9. Details of the parties, including the borrower, and signatures of the parties to the transaction.

Note. If the terms of the DC are violated, it can be canceled with compensation for the costs incurred (Article 390 of the Civil Code of the Russian Federation).

AGREEMENT of assignment (assignment of the right of claim)

______________ "__" _____ 20__
LLC "Yur. person-1”, hereinafter referred to as “Assignor” , ​​represented by __________________________, acting on the basis of ________, LLC “Yur. person-2”, hereinafter referred to as “Assignee” , represented by _________________________, acting on the basis of __________, LLC “Yur. person-3", hereinafter referred to as the "Debtor" , represented by _________________________, acting on the basis of ___________, collectively referred to as the Parties, have entered into this Agreement as follows:

SUBJECT OF THE AGREEMENT

1.1. The Assignor assigns, and the Assignee accepts the rights of claim under the agreement ___________dated “___”________ 20__ No. ____, concluded between the Assignor and the Debtor.

1.2. The amount of the right of claim assigned in accordance with clause 1.1 of this Agreement is _____________________ rubles (___________________________).

OBLIGATIONS AND RIGHTS OF THE PARTIES

2.1. The assignor is obliged:

2.1.1. Transfer to the Assignee, within 10 (ten) days from the date of signing this Agreement, all the necessary documents certifying the rights of claim, namely: the Agreement specified in clause 1.1 of this Agreement, with all appendices, additional agreements and other documents that are an integral part thereof.

2.1.2. Inform the Assignee within the same period of time all other information relevant for the Assignee to exercise its rights under clause 1.1 of the Agreement dated ___________ dated “___”________ 20__ No. _____.

2.2. In exchange for the assigned rights of claim in the amount specified in clause 1.2. of this agreement, the Assignee waives his right to claim against the Assignor under the Agreement dated "__" ________ 20__ No. ____, concluded between the Assignee (LLC "Legal Entity-2") and the Assignor (LLC "Legal Entity-1"), on the amount of ____________ rubles (________________________________________________).

2.3. The Debtor is obliged to pay the debt under the agreement ____________ specified in clause 1.1 of this Agreement to the Assignee in the following order: in a one-time payment to the Assignee’s bank account by 03/10/2009.

THE AMOUNT OF THE DEAL

3.1. The amount of this agreement is 41,854.61 rubles (forty one thousand eight hundred fifty-four rubles 61 kopecks).

3.2. Payment of the amount specified in clause 3.1 of this Agreement is made in the following order: in a lump sum payment due before “__” _____ 20__.

RESPONSIBILITY OF THE PARTIES

4.1. For non-fulfillment or improper fulfillment of this Agreement, the parties are liable in accordance with the current legislation of the Russian Federation.

4.2. The Assignor is responsible for the accuracy of the documents and information transferred in accordance with this Agreement; guarantees the availability and transfer of all rights of claim assigned to the Assignee.

FINAL PROVISIONS

5.1. In all other respects that are not provided for by the terms of this Agreement, the parties are guided by the current legislation of the Russian Federation.

5.2. This Agreement comes into force on the date of its signing by the parties and is valid until the parties’ obligations under this agreement are fully fulfilled.

5.3. This Agreement is drawn up in 3 (three) copies having equal legal force, one for each of the parties.

DETAILS OF THE PARTIES

ASSIGNOR: LLC “Yur. face – 1"

Address:_____________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

ASSIGNEE: LLC “Yur. face – 2"

Address: _____________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

.

DEBTOR: LLC “Yur. face – 3"

Address:_____________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

SIGNATURES OF THE PARTIES

"ASSIGNOR" "ASSIGNEE" "DEBTOR"

___________ ___________ ___________

_____________ /__________/ _____________ /__________/ _____________ /__________/

M.P. M.P. M.P.

Download the document “Assignment Agreement (assignment of the right of claim)”

Grounds for transferring the creditor's rights to another person

The concept of “assignment of a claim” in civil law refers to the institution of the law of obligations and is regulated by Chapter 24 of the Civil Code of the Russian Federation “Change of persons in an obligation.”

Paragraph 1 of Article 382 of the Civil Code of the Russian Federation establishes the basic requirements for the procedure for the creditor to transfer his rights to another person.

The transfer of the creditor's rights to another person can be carried out on two grounds:

- on the basis of the law (Article 387 of the Civil Code of the Russian Federation: the rights of the creditor under the obligation are transferred to another person on the basis of the law upon the occurrence of the circumstances specified in it:

• as a result of universal succession in the rights of a creditor;
• by a court decision to transfer the creditor's rights to another person, if the possibility of such a transfer is provided for by law;
• as a result of the fulfillment of an obligation by the guarantor of the debtor or by a pledgor who is not a debtor under this obligation;
• when the insurer subrogates the creditor's rights to the debtor responsible for the occurrence of the insured event;
• in other cases provided by law).

- on the basis of a transaction (Article 388 of the Civil Code of the Russian Federation). In this case, the assignor enters into an assignment agreement (assignment of rights (claims)) with the assignee. In this case, the assignee becomes a new creditor.

The subjects of relations arising regarding the transfer of rights under a transaction are the assignor and the assignee.

• Assignor is a person (original creditor) who assigns claims to another person (new creditor).
• Assignee is a person (new creditor) to whom the claim is assigned by the original creditor.

Assignment of a claim (cession). Definition of the concept

Assignment (from the Latin cessio - assignment, transfer) is a transfer of rights by virtue of a transaction concluded between the former creditor (assignor) and the new creditor (assignee) or on the basis of other legal facts directly provided for by law, leading to the replacement of the creditor in the obligation.

In cases where the basis for the creditor’s change in obligation is precisely the transaction, the legislator calls such an assignment “assignment of the claim.” In the literature, the concept of “assignment of a claim” based on a transaction is usually identified with the concepts of “assignment of a claim”, “assignment of a right”, “cession”.

Assignment of the right of claim (cession) is a transaction in which one party (assignor) transfers to the other party (assignee) the right of claim arising on the basis of an obligation.

An assignment agreement is an agreement on the assignment of the right of claim (the right to receive performance) of debt obligations from the assignor to the assignee (clause 1 of Article 382, ​​Article 388, 388.1 of the Civil Code of the Russian Federation, clause 1 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 30, 2007 N 120 “Review of the practice of application by arbitration courts of the provisions of Chapter 24 of the Civil Code of the Russian Federation”).

Conditions for assignment of claims (prohibition, consent of the debtor)

Paragraph 1 of Article 388 of the Civil Code of the Russian Federation names one absolute obstacle to the assignment of a claim - a contradiction to the law. The ban on assignment, as a rule, is established in the interests of third parties (the debtor or other entities), therefore an assignment that violates such a ban will be a void transaction (Clause 2 of Article 168 of the Civil Code of the Russian Federation).

If the assignment is not prohibited by law, but it is only necessary to obtain the consent of the debtor (for example, according to paragraph 4 of Article 388 of the Civil Code of the Russian Federation), in the absence of such consent, the assignment by virtue of Art. 173.1 of the Civil Code of the Russian Federation will be contestable and can be declared invalid if it is proven that the assignee knew or should have known about the need to obtain the debtor’s consent and about its absence.

Explanations on the consequences of making an assignment without the consent of the debtor are contained in paragraphs. 15-18 Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 21, 2017 N 54 “On some issues of application of the provisions of Chapter 24 of the Civil Code of the Russian Federation on the change of persons in an obligation on the basis of a transaction”

Cases of admissibility of assignment of rights (requirements)

Clause 13 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 21, 2017 N 54 states that the assignment of claims is allowed:

• on compensation for losses caused by breach of obligation, including those that may occur in the future,
• on the return of what was received under an invalid transaction,
• on the return of property acquired or saved unjustifiably (clauses 2 and 3 of Article 307.1, clause 1 of Article 388 of the Civil Code of the Russian Federation).

Assignment of a right obtained by subrogation . The assignment by an insurer under a property insurance contract of a right (claim) received by way of subrogation (Article 965 of the Civil Code of the Russian Federation) to a person who does not have a license to carry out insurance activities does not contradict the law (clause 3 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 30, 2007 N 120 ). Unless otherwise established by law, the absence of a license for the assignee to carry out insurance or banking activities is not the basis for the invalidity of the assignment of a claim received by the insurer by way of subrogation or arising from the bank from a loan agreement (clause 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 21, 2017 N 54 ).

Assignment of a “disputed” right (claim) . The admissibility of an assignment of a right (claim) does not depend on whether it is indisputable and whether the possibility of its implementation is conditional on the counter-fulfillment by the assignor of his obligations to the debtor (clause 11 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 21, 2017 N 54, clause 8 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 30, 2007 N 120).

Assignments of the right (claim) to pay a penalty, including those payable in the future . As a general rule, the assignment of a claim for payment of penalty amounts accrued in connection with a violation of an obligation, including those payable in the future, is allowed both simultaneously with the assignment of the main claim, and separately from it (clause 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 21 .2017 N 54). The legislation does not contain a prohibition regarding the assignment of the right (claim) to pay a penalty, due to which this assignment does not contradict the law. The possibility of a court reducing the amount of the penalty on the basis of Article 333 of the Code does not deprive the original creditor of the right to assign the specified right (claim) (clause 16 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 30, 2007 N 120).

The essential importance of the identity of the creditor for the debtor

The assignment of a claim under an obligation in which the identity of the creditor is of significant importance for the debtor is not permitted without the consent of the debtor (clause 2 of Article 388 of the Civil Code of the Russian Federation).

The concept of “material importance of the identity of the creditor” has an evaluative nature, which can create problems for the parties to the transaction. So, for example, the assignor and the assignee, when concluding an agreement for the assignment of a claim, may quite reasonably assume that the identity of the creditor is not significant for the debtor, but the court in the event of a dispute may come to a different conclusion, since any criteria to determine the presence or absence The identity of the creditor for the debtor is not clearly defined either in law or in judicial practice.

If a dispute arises, it is up to the debtor to prove the “materiality of the identity of the creditor.”

Clause 10 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 21, 2017 N 54 contains the following explanations:

“When assessing whether the identity of the creditor in an obligation is of significant importance for the debtor, for the purposes of applying paragraph 2 of Article 388 of the Civil Code of the Russian Federation, it is necessary to proceed from the essence of the obligation.

If the parties have established in an agreement that the identity of the creditor is of significant importance for the debtor, but this does not follow from the essence of the obligation arising on the basis of this agreement, then such conditions should be qualified as a prohibition on the assignment of rights under the agreement without the consent of the debtor (clause 2 of Article 382 of the Civil Code of the Russian Federation )".

The above risks are mitigated by obtaining the debtor’s consent to make the assignment. Such consent may be obtained before, simultaneously with, or after the assignment. Preliminary consent can also be enshrined in the agreement between the debtor and the creditor.

Some issues concerning the significance of the identity of the creditor (examples from judicial practice) were also covered in the article “Procedural succession in civil proceedings upon assignment of the right of claim (cession).”

The prohibition of assignment of a claim under a monetary obligation does not invalidate such assignment.

Clause 3 of Article 388 of the Civil Code of the Russian Federation establishes that the assignment of a monetary claim prohibited by agreement between the debtor and the creditor is valid, such a claim is transferred contrary to the contractual prohibition, but the assignor is liable to the debtor for violation of the contractual prohibition (this liability can be expressed in both losses and in a penalty, and can also be secured by a surety, pledge, etc.).

Assignment of non-monetary claim. Significance of encumbrances for the debtor

Paragraph 4 of Article 388 of the Civil Code of the Russian Federation establishes that the assignment of a non-monetary claim is permissible without the consent of the debtor in limited cases, namely, any transaction for the assignment of a non-monetary claim must be made with the consent of the debtor, if as a result of the assignment, performance becomes significantly more burdensome for the debtor.

Additional encumbrances should be understood as:

• the debtor's obligation to perform additional actions;
• the need to fulfill an obligation in a different way from the original one;
• the need to incur additional costs when fulfilling an obligation.

In accordance with paragraph 14 of the information letter of the Supreme Arbitration Court of the Russian Federation dated October 30, 2007 N 120, the debtor is obliged to prove how the assignment violates his rights and legitimate interests. Since additional encumbrances imposed on the debtor by assignment are a special case of violation of the debtor’s legitimate interests, the debtor is obliged to prove both the very existence of these encumbrances and their significance.

Paragraph 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 21, 2017 N 54 contains the following explanations:

“In the case where an assignment of a non-monetary claim, including a partial assignment of a divisible obligation, made without the consent of the debtor, makes the fulfillment of his obligation much more burdensome for the debtor, the debtor has the right to fulfill the obligation to the assignor (clause 3 of Article 384, clause 4 of Article 388 of the Civil Code of the Russian Federation) .

If the transfer of the said claim cannot be considered significantly more burdensome for the debtor, but requires additional efforts or expenses from the debtor, the assignor and assignee are obliged to compensate the debtor for the corresponding expenses. Until the assignor and (or) assignee fulfill this obligation, the debtor, as a general rule, is not considered to be in default (Articles 405, 406 of the Civil Code of the Russian Federation).”

Assignment of a future claim

A claim for an obligation that will arise in the future (future claim) can be transferred under an assignment agreement.

Legal positions regarding the assignment of a future claim are formed in the decisions of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation:

Clause 4 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 30, 2007 N 120:

An agreement on the assignment of a right (claim), the subject of which is a right that has not arisen at the time of conclusion of this agreement, does not contradict the law

Clause 6 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 21, 2017 N 54 “On some issues of application of the provisions of Chapter 24 of the Civil Code of the Russian Federation on the change of persons in an obligation on the basis of a transaction”:

According to the interrelated provisions of Article 388.1, paragraph 5 of Article 454 and paragraph 2 of Article 455 of the Civil Code of the Russian Federation, the agreement on the basis of which the assignment is made can be concluded not only in relation to the claim belonging to the assignor at the time of conclusion of the agreement, but also in relation to the claim that arises in future or will be acquired by the assignor from a third party (future claim). Unless otherwise provided by law, the future claim passes to the assignee, respectively, immediately after the moment of its occurrence or its acquisition by the assignor. An agreement between the parties may provide that a future claim is transferred later (clause 2 of Article 388.1 of the Civil Code of the Russian Federation).

A claim that already belongs to the assignor, the deadline for fulfillment of which has not arrived at the time of concluding the agreement on the basis of which the assignment is made, for example, the lender’s demand to return the amount of the transferred loan before the deadline for its repayment, is not considered future. Such a claim passes to the assignee according to the rule established by paragraph 2 of Article 389.1 of the Civil Code of the Russian Federation.

Clause 9 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 21, 2016 N 1 “On some issues of application of legislation on reimbursement of costs associated with the consideration of the case”:

The assignment of the right to compensation for legal costs as such is permitted not only after they have been awarded to a person participating in the case, but also during the period of consideration of the case by the court (Articles 382, ​​383, 388.1 of the Civil Code of the Russian Federation). The conclusion of the said agreement before the award of legal costs does not entail a procedural replacement of the person participating in the case and who has ceded the right to reimbursement of legal costs by his legal successor, since such a right arises and passes to the legal successor only at the time of awarding legal costs in favor of the legal predecessor (clause 2 of Article 388.1 of the Civil Code RF).

Form of assignment of claim

The form of assignment of a claim depends on the form of the transaction on the basis of which the assignment occurs.

In accordance with paragraph 1 of Article 389 of the Civil Code of the Russian Federation, an assignment transaction must be completed in the same form as the transaction (most often an agreement) from which the assigned claim arose. So, if the seller’s monetary claim from a purchase and sale agreement, which was certified by a notary, is assigned, then the assignment of the claim itself is subject to notarization.

Accordingly, if the assignment of a right (claim) must be certified by a notary, then violation of this requirement will entail the nullity of the assignment (clause 3 of Article 163 of the Civil Code of the Russian Federation).

An agreement on the assignment of a claim under a transaction requiring state registration must also be registered. For example, in the case of an assignment of a claim under a registered real estate lease agreement, the agreement on the assignment of such a claim is subject to state registration. Agreements on the assignment of any claims arising from registered agreements are subject to registration.

Samples of assignment agreement (assignment of claims):

An assignment agreement (assignment of a claim), concluded by a creditor with any person (for example, with a person engaged in collection activities).

Assignment agreement concluded between legal entities

Agreement on assignment of rights (claims). An individual cedes to the HOA a right (claim) that arose on the basis of a court ruling obliging the LLC to demolish the unauthorized building. Based on this agreement, at the request of the interested party, the court replaces the party in enforcement proceedings. See below for more details on this case.

Replacement of a claimant in enforcement proceedings upon assignment of a right (claim) arising on the basis of a court decision

In accordance with Article 52 of the Law “On Enforcement Proceedings”, in the event of the retirement of one of the parties to enforcement proceedings (death of a citizen, reorganization of an organization, assignment of the right of claim, transfer of debt), the bailiff replaces this party to the enforcement proceedings with its legal successor... on the basis a judicial act on replacing a party to enforcement proceedings with a legal successor under an executive document...

Thus, the law allows for the replacement of a claimant in enforcement proceedings on the basis of an agreement for the assignment of claims after the issuance of a writ of execution, but before the actual execution of the court decision. Example:

• An application to the court for procedural succession under an assignment agreement (for more information about this case, see the publication “Challenging an assignment of a claim. From judicial practice”, objections to a statement of claim for invalidating an assignment agreement.
• Application for succession to the arbitration court in enforcement proceedings. Sample (procedural succession based on an assignment of rights agreement).

Sample notice of assignment of rights (claims)

According to paragraph 3 of Article 382 of the Civil Code of the Russian Federation, if the debtor was not notified in writing about the transfer of the creditor's rights to another person, the new creditor bears the risk of the resulting adverse consequences for him. Such a notice to the debtor may look like this:

Notification of assignment of rights (claims) under the loan agreement.

Differences between assignment, subrogation and recourse

We recommend the following publications on the similarities and differences between the concepts of “cession”, “subrogation” and “regression”:

• Subrogation is .. Concept, examples of subrogation. Differences from assignment and recourse
• Regression under the Civil Code of the Russian Federation is .. Concept. Collection by way of recourse. Examples of regression. Subrogation

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    contract (hereinafter referred to as the customer) represented by the director, acting on the basis of, on the one hand, and the citizen (full name) (hereinafter referred to as the executive...

Is it possible to transfer the right of claim without the consent of the debtor?

Rights are transferred under an assignment agreement, which is also an agreement for the assignment of claims. The agreement is concluded by the creditor - the one to whom the debt is owed, and the new creditor - the one to whom the debtor will owe money after the paperwork is completed.

For example, the owner of a cafe entered into a contract for the supply of craft paper for burgers. Then I was unable to transfer the payment on time and owed the supplier 50,000 rubles, and on top of that a penalty of 2,000 rubles. The supplier is the cafe owner's creditor, and he is his debtor. The supplier does not have time to deal with the debts, so he sells the debt to a law firm - a new creditor. In the same way, banks sell loan debts to collectors.

We wrote in detail about how the transfer of rights and debts is formalized in a separate article.

To assign the right to claim money, the consent of the debtor is not required. The logic is this: the debtor doesn’t care who to pay. The creditor can sell the right of claim, even if the contract contains a prohibition clause or the obligatory consent of the debtor. In our example, the supplier does not have to ask the cafe owner’s consent to sell the craft debt to lawyers. The clauses of the supply agreement do not change the matter.

As a general rule, it is also possible to assign a non-monetary right of claim But there is a condition: the assignment should not complicate the debtor’s obligation. Let’s imagine that in our example, the owner of a burger shop, in addition to paying for the craft, is obliged to return the reusable container. The supplier can safely cede the right to claim money. But the demand to return the containers can be ceded only if the buyer does not have to spend significantly more money or time, for example, transporting the boxes to a warehouse in a neighboring city.

If there is a clause in the contract that prohibits assigning a non-monetary claim , then this cannot be done.

The debtor is obliged to pay the new creditor and forget about the old one only when he has been notified in writing of the assignment of rights. We’ll return to the notification below.

It is also important to know that the creditor can sell the debt at any time:

- while the contract is being fulfilled and payment is awaiting,

- when there was a delay,

- at the stage of pre-trial claims,

- in a court,

- in enforcement proceedings - when the creditor has received a writ of execution and is working with the bailiffs or the bank.

Now to the main thing: what rights does the debtor have before the new creditor?

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Assignment of rights as a way to pay for legal services

An individual entrepreneur applied to the Arbitration Court of the Astrakhan Region with an application to recover the costs of paying for the services of a representative in the amount of 20,000 rubles.

To support their arguments for the collection of legal costs, they were presented with an agreement for the provision of legal services with a law firm for 15,000 rubles, as well as an additional agreement to it, the cost of services for which amounted to 5,000 rubles. The fact that the contractor provided legal services both under the contract and under the additional agreement was confirmed by acts of performance (work) of services. The applicant made payment for the services provided in cash in the amount of 5,000 rubles. In this regard, the court came to the conclusion to recover from the defendant in favor of the entrepreneur legal expenses in the amount of only these 5,000 rubles, explaining the refusal of the rest of the claims by the fact that the applicant did not incur material expenses to pay for the services of a representative under the contract for the provision of legal services in the amount of the rest of the requirements.

At the same time, the court did not take into account that in confirmation of payment 15,000 rubles. The applicant presented an agreement for the assignment of claims. The agreement provided that the entrepreneur assigns to the law firm the right to claim a sum of money in the amount of 25,000 rubles. to the defendant on the basis of a judicial act in another case. According to the assignment agreement, the price of the rights of claim assigned to the assignee was 30,000 rubles, which was payment for legal services under contracts for the provision of legal services concluded between the entrepreneur and the law firm, including in the case under consideration.

However, the court considered that legal expenses in the amount of 25,000 rubles. were incurred by the applicant in another case, in connection with which he came to the conclusion that evidence of expenses incurred by the entrepreneur in the amount of 15,000 rubles. not included in the case file.

As a result, the court partially satisfied the stated demands, collecting legal costs from the defendant in the amount of 5,000 rubles; the rest of the stated demands were denied to him. The appeal upheld the decision.

The entrepreneur appealed to the Volga District Court with a cassation appeal, in which he asked to cancel the court decision regarding the refusal to reimburse expenses in the amount of 15,000 rubles, and to adopt a new judicial act in the case to collect the full amount from the defendant - 20,000 rubles.

Having studied the case materials and the arguments of the complaint, the court considered the cassation appeal to be satisfied.

The Arbitration Court of the Volga District indicated that, while refusing to reimburse legal expenses in the amount of 15,000 rubles, the courts did not substantiate “on what grounds the agreement of assignment of claims stated as the basis for incurring these expenses was not taken into account, and did not assess it for compliance requirements of the law, did not analyze the conditions for the transfer of the right of claim, did not consider the question of whether there is a real connection between the costs incurred by the entrepreneur and the case being considered in court with his participation.”

Thus, the cassation court found that the arbitration courts did not fully examine the circumstances essential for the correct resolution of the dispute and the conclusions of the courts do not correspond to the evidence presented. Based on the foregoing, the court overturned previous decisions regarding the refusal to satisfy the application for the recovery of 15,000 rubles. court costs and in this part sent the case to the court of first instance for a new trial.

The lawyer of the Kaluga Specialized Bar Association, Alexander Redkin, called the court ruling in question atypical: “The story itself is unusual in that the entrepreneur settled with the law firm by assigning the right of claim,” the lawyer explained. “And the fact that the cassation court understood the situation and recognized this form of payment as acceptable and provided for by the Civil Code of the Russian Federation is a good sign; it speaks of the courts’ desire to meet the plaintiffs halfway.”

However, according to Kirill Saskov, partner, head of corporate and arbitration practice at Kachkin and Partners, despite the availability of clarifications from the highest courts, the issue of collecting legal costs from the losing party continues to remain relevant, since the courts maintain different approaches when considering such claims. This is precisely the main problem for the parties to the dispute, he noted.

In addition, recently the Supreme Court, expressing positions on different categories of cases, often points out that courts often base their decisions on some evidence, without giving reasons for ignoring others, said Taras Khizhnyak, senior lawyer at BMS Law Firm.

Alexander Redkin also noted that the decision made is one of the few decisions of higher courts that cancel acts of lower courts due to insufficiently collected amounts of expenses for representatives, while in most cases decisions are canceled due to the collection of excessively large amounts. “Expenses incurred by clients in civil cases are “cut” by the courts at their own discretion and are not motivated in any way, except for the phrase about the excessiveness and unreasonableness of the amounts,” explained Alexander Redkin. A joint opinion was expressed by Taras Khizhnyak, who added that courts often underestimate the amount of collection even if there are documents confirming the fact of payment.

According to Alexander Redkin, this problem could be solved by establishing minimum thresholds for amounts that must be paid to lawyers and attorneys, and the parties should be required to prove the expediency of amounts exceeding the minimum value.