Assignment of debt between legal entities: grounds for registration and consequences

What are the differences between a transfer agreement and an assignment of the right to claim a debt?

Every obligation has two parties - the creditor and the debtor. These concepts may be formal. For example, a debtor may be considered a citizen or legal entity whose obligation to pay the agreed amount has not yet occurred under the terms of an agreement or transaction. Even such debt, actually confirmed only by a future obligation, can be assigned to third parties.

In civil law, there are two options for transferring obligations to third parties - transfer of debt and assignment of the right of claim. In the first case, the debtor changes in the obligation, while under the assignment agreement (assignment) the creditor is replaced. Let us explain the difference between these legal terms using the example of a loan:

under the lending agreement, the borrower-organization incurred a debt to the bank;
due to the reorganization or liquidation of a legal entity, the banking institution may agree to replace the debtor, i.e. there will be a transfer of debt to another enterprise;
The bank, which has the right of claim against the borrower, can assign (sell) it to other persons, which is formalized in an agreement.

The difference between a transfer and an assignment lies in the procedure for giving consent to such an agreement. When assigning, the debtor's consent is not required unless this is expressly stated in the original agreement. In the case of a debt transfer, the creditor is not only notified of such a transaction, but must also give written consent.

There will also be differences in the procedure for drawing up contracts. When transferring a debt, the bank will indicate its consent in the form of a separate document, or will be included by the participant in a tripartite agreement. When assigning, the bank will always be a party to the assignment agreement, while the borrower does not take part in its signing.

General requirements for transactions

The main thing is that any transaction must meet the requirements of the legislation of the Russian Federation. Basic rules:

The assignment of rights must be formalized in the form of an agreement. It can be multilateral, but in most cases it is concluded between two persons: the creditor and the assignee.
It is recommended that the agreement be accompanied by an act of acceptance and transfer of certificates and papers for the debt. It is important to think about the form of notification to the debtor in advance. As a rule, such responsibility falls on the shoulders of the new creditor.
You can sell future debts. But here it is important to correctly define the subject of the agreement so that it can be identified later.
You can assign part of the debt. If this concerns monetary debt, then there are no restrictions. In other situations, this is possible if the debt can be divided between the parties, and this will not additionally burden the defaulter.
A joint creditor can sell debt only with the permission of the remaining creditors, unless otherwise provided in the agreement.
There is no need to ask the debtor's consent to enter into an agreement. But the new contract should not worsen the situation of the defaulter. In addition, if the debtor incurred expenses during the assignment, then he has the authority to claim them from both creditors.
The assignment of rights is a paid transaction. It is very important to specify in the agreement the amount and procedure for payment of remuneration. To prevent the tax service from accepting such an agreement as a gift, we recommend that you include this information in it.
From June 1, 2021, new introductions have appeared: now the ban on the sale of debt will not be grounds for declaring the transaction invalid. But if we are talking about a non-monetary debt and the agreement provides for a ban on the assignment of rights, then the agreement may be declared invalid. However, it is important to prove that the new creditor knew about such a prohibition.
From the same year, the debtor, after receiving notification of the transaction, must inform the new creditor of the reasons for objecting to the claims. Otherwise, he cannot plead such reasons. Previously, only the debtor had this right.
From the same year, it was allowed to regulate unconditional liability for the sold debt of the first creditor. But the following conditions must be met:

The debt must relate to the business activity.
The invalidity of a debt claim may be caused by circumstances of which the first creditor was unaware.

agreements on the assignment of rights you can here

Application and terms of the assignment agreement

The right of claim can be assigned under an assignment agreement. The procedure and conditions for making such transactions are regulated by Articles 388-390 of the Civil Code of the Russian Federation. Here are the mandatory requirements the law provides for the preparation of a debt assignment agreement:

if the original transaction was in simple or notarial form, the assignment agreement must be made in the same format;
if the main obligation has been registered, the assignment agreement will also have to be registered;
the debtor will receive notice of the assignment, but will not be able to object unless the transaction is contrary to law or the terms of the original contract.

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It is understood that the issue of assignment of debt is of a compensatory nature. The creditor (assignor) will not receive the entire amount due under the transaction or claim to the obligated person. Another person (assignee) receiving the right to claim will bear the risk of non-repayment of the debt. For this reason, the assignment is usually of a compensatory nature, i.e. the creditor will receive less than he could claim or collect later. Due to this difference, the assignee will receive income if he is able to return the money upon the request received.

In a number of cases, the law provides direct prohibitions or restrictions on assignment:

it is impossible to assign a debt without the consent of the obligated person if his identity is important for proper performance;
a joint and several (share) creditor has the right to assign his claims only with the consent of the remaining participants in the transaction on his part;
a future obligation may be the subject of an assignment if it can be accurately and unambiguously identified from the terms of the transaction, the text of the agreement or other forms.

When concluding an assignment agreement, the assignor will be responsible for the invalidity of the obligation. If the assignment is subsequently revoked for these reasons, the assignee will be able to recover not only the entire amount of the assignment, but also his losses .

After the transfer of the right of claim, the previous procedure for the execution or repayment of the debt remains. Otherwise, it can only be provided for by a tripartite agreement in which the debtor took part. It is impossible to change the procedure and method of execution, or the deadline for payment of the debt, unless the obligated person gives consent to this.

What does the legislation say about agreeing on a transfer and the need to pay for it?

The first thing that is clearly stated in the Russian law on the protection of consumer rights is that the construction company is not endowed with any rights to impose any additional services on its shareholders. And since there is no right to impose services, there is no right to put forward a requirement to pay for the assignment of rights . And if the developer tries to argue with this, then it will be very useful for the shareholder to know: the courts also think so and make appropriate decisions in such cases.

What does the key law for shared construction say - FZ-214? Among its provisions, there are only two grounds on which the assignment can, in principle, be declared invalid:

— if the assigned DDU agreement was partially or completely unpaid;
- if the assignment was made outside the deadlines provided for by law.

And that’s all - neither Law 214 itself, nor the law on registration of rights to real estate, nor Rosreestr, which registers the assignments themselves, provide a single mention of the fact that the developer has at least some right to prohibit someone from doing something. And the Russian Supreme Court looks at this in exactly the same way.

Tripartite agreement on the assignment of the right to claim a debt

In most cases, there will be only two parties to the assignment, i.e. original creditor and assignee. The obligation to notify the debtor about the transfer of rights may be assigned to any of them (this is indicated in the agreement). The law also allows for the execution of tripartite agreements, which may be due to the following reasons:

if such a condition is expressly stated in the original agreement or other document;
if such a decision was made by the assignor and assignee, and the debtor agrees to be a party to the transaction;
if the terms of repayment of the obligation change, the timing of debt payments, or other provisions of the original contract are shifted.

A tripartite agreement is drawn up according to the same rules as a bilateral document. However, three participants will have to agree on all the terms of the contract at once. If at least one party to the assignment refuses to sign the document, it will not enter into force.

To simplify the process of agreeing on the terms of the assignment, instead of a tripartite agreement, it is better to use the following algorithm of actions:

the creditor and the assignee enter into a standard agreement with two participants and send a notice to the debtor company;
after the transfer of the right of claim, at the initiative of the obligated entity or assignee, a bilateral agreement can be drawn up to change the terms of the obligation;
the original lender will no longer be involved in subsequent transactions, which will simplify the approval process.

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Under a tripartite contract, it is also more difficult to comply with the requirement for notarization or registration (if required by law). You can use the services of a representative who will act in the interests of the parties at a notary office, Rosreestr, and other departments. You can clarify the nuances of concluding tripartite agreements on the assignment or transfer of debt during a consultation with our lawyers. We will prepare a conclusion on the legality of actions, help draw up documents, and explain the rules of the law.

Who benefits from a debt assignment agreement?

For the debtor, a change in creditor practically does not change the procedure for repaying the debt or fulfilling obligations. The notification and other documents about the completed transaction will indicate a new account for payments, bank details, and contact information for correspondence. It is not difficult to change previously completed payment slips or invoices for the delivery of goods, so the interests of the debtor will not be violated.

For the original creditor, the assignment provides the following benefits:

you can quickly receive the money owed, and the difference in amounts will be covered by the turnover of funds and goods;
you will not have to make claims, go to court with a statement of claim, or seek forced collection through the FSSP;
You can save on bank interest if the amount of debt was planned to repay the loan.

The only disadvantage of the assignment for the assignor is the loss of part of the money. However, having received fulfillment of the obligation ahead of schedule, even if not in full, you can use the funds to purchase goods or other current purposes. With a competent approach, this will allow you to reimburse all expenses for the paid nature of the assignment transaction.

For the assignee, obtaining the right to claim the debt may also be beneficial:

if the transferred obligation is properly confirmed, you can make a significant profit due to the difference (discount);
if the debtor is a company with a long history and positive reputation, the risk of non-repayment will be minimal;
if the right of claim was secured by a pledge, the assignee will always be able to foreclose on such property.

The basis for the assignment of rights will only be the mutual consent of the original creditor and the assignee. It is impossible to force a person to enter into such an agreement or to force a transaction in any other way. Therefore, you can calculate in advance all the benefits and disadvantages of the assignment, check the solvency and reliability of the debtor, and then make an informed decision.

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Analysis of the situation

The main reason for transferring debt is the lack of hope for repayment of funds. It should be understood that when assigning the right of claim, the legal entity will lose a significant part of the funds issued earlier. Typically, the cost of the assignment agreement is several times less than the total amount of debt, which leads to losses.

On the other hand, if you do not complete the transaction on time, you may lose the opportunity to return even part of the funds. Therefore, when deciding to resell, you should focus on the debtor’s solvency.

You also need to pay attention to the amount of debt. If the debt is large, it would be more advisable to initiate a lawsuit and forcefully collect the debt rather than sell it “for pennies.”

The party wishing to repurchase the debt must also assess the likelihood of its repayment, as well as the extent to which the assignor can be trusted. In some cases, fictitious, fraudulent transactions are concluded that may be canceled in the future.

Responsibility and consequences

The law does not prohibit the use of the principle of gratuitousness in an assignment transaction. When concluding an agreement only between citizens, this can be used without any consequences. However, for legal entities the possibility of making gratuitous transactions is practically excluded. If such a fact is revealed by the Federal Tax Service, an extraordinary or scheduled inspection will be ordered against the parties. This can result in large fines and other liability for deliberate understatement of profits and non-payment of taxes.

The following consequences may also occur:

if the transferred obligation was initially invalid, all losses and lost profits can be recovered from the assignor;
if the original document indicated a prohibition on assignment, or required the obligatory consent of the debtor, violation of these rules will entail the cancellation of the transaction with the return of all funds received;
if participants make a profit under an assignment transaction, they are required to pay taxes (in accordance with the chosen taxation scheme).

The debtor's liability for breach of obligations will not change. You can collect from him not only the principal amount of the debt, but also penalties, penalties, and fines. The exact amount of sanctions will be specified in the original agreement or in a tripartite agreement. The assignee who has received the right to claim under the assignment will be able to hold the debtor accountable. Read about how penalties are collected under contracts in our material at the link.

Legality - or imposition?

How does a construction company draw up a DDU agreement? Its lawyers include in it all possible points so that the developer’s life is as comfortable as possible and unencumbered by problems and obligations, so that shareholders are limited in everything they can be limited in, and in order to receive money on everything they do. You can at least earn something.

Based on such premises, a construction company often includes in the DDU a clause stating that in order to assign its right of claim, the shareholder must come to the developer and obtain permission from the construction company for such a step. And not only to obtain formal consent, but also to pay for the assignment of rights .

Developers arrange the need to pay in different ways. For example, the DDU itself stipulates the need to pay for the assignment of rights, but does not specify specific amounts. And then, when the shareholder needs a transfer, he is offered to enter into another, additional agreement for the developer to provide the shareholder with the service of registering the transfer and its state registration. And the service, of course, will not be free: as market statistics show, construction companies demand from thirty thousand to a quarter of a million rubles for this - depending on the level of their own greed. And if the shareholder, dumbfounded by such figures, refuses to pay, the developer denies him the opportunity to make a transfer.

Unfortunately, one often hears the opinion that such a situation is absolutely legal. It is not surprising that developers insist on this legality - after all, with the help of the described scheme, they can make very good money on practically nothing. It is surprising that some lawyers insist on legality. Because in reality everything is different - the requirement of the developer included in the DDU to coordinate the assignment of rights with him is invalid.

What about payment? After all, some DDUs require not only approval, but also the need to pay for the assignment of rights . And with payment it’s the same: this requirement of the contract is also invalid.

Let's find out what is actually legal.