Additional agreement on replacing the customer in the municipal contract. Agreement to replace a Party to the Agreement (for organizations) Methods of ensuring contractual obligations

At the same time, according to clause 13 of Rules No. 72, it is not allowed to change the bank’s monetary obligations expressed in Belarusian rubles to monetary obligations expressed in foreign currency. Taking into account the above, since in the first case of the bank to provide a loan, the borrower’s obligation to repay the loan has already been fulfilled, but the borrower’s obligation to repay the loan has not been fulfilled, the currency of the borrower’s obligation in the unfulfilled part can be changed with the conclusion of an additional agreement to the loan agreement, providing for a specific date and rate for transferring the debt in Belarusian rubles for debt in foreign currency.

The law does not contain specific requirements for the structure of a contract or agreement to replace a party, so it is necessary to rely on General requirements to drawing up contracts. The subject in such a situation will be an indication of what obligation is being transferred.

You also need to indicate the details of the initial agreement (decision of the City Court).

Moscow dated August 28, 2015 in case No. A40-79001/15).

Agreement on replacement of obligations (novations)

1.2.

Hereby the Parties in accordance with paragraph 1 of Article 414 Civil Code Russian Federation agree to replace the Debtor's obligations arising from the agreement specified in clause 1.1 of this Agreement with the following obligation of the Debtor: ________________________________________________________________________ 1.3. The Debtor's obligations to pay funds arising from the agreement specified in clause 1.1 of this Agreement terminate from the moment of signing this Agreement.

Agreement to replace a party in a contract with signs of assignment of claims and transfer of debt

When transferring a debt under an obligation related to its implementation by the parties entrepreneurial activity, in the case provided for in paragraph two of paragraph 1 of this article. the original debtor and the new debtor are jointly and severally liable to the creditor, unless the agreement on the transfer of debt provides for the subsidiary liability of the original debtor or the original debtor is not released from fulfilling the obligation.

The original debtor has the right to refuse release from execution. The rights of the creditor under this obligation are transferred to the new debtor, who has fulfilled the obligation related to the implementation of entrepreneurial activities by its parties, unless otherwise provided by the agreement between the original debtor and the new debtor or does not follow from the essence of their relationship.

Problems of changing persons in obligations in M&A transactions

The formal differences between an assignment and a debt transfer lie in the procedure for obtaining consent to each of the transaction options.

Based on the requirements of the law, in order to transfer the creditor’s rights, the debtor’s consent is not required, but he must be notified of the transfer of rights (clauses 2, 3 of Article 382 of the Civil Code of the Russian Federation). If a party to a transaction is both a debtor and a creditor, then the conclusion of an agreement to change the persons in the obligation (to replace a party) will require the consent of the other party to the agreement, with simultaneous notification that part of the rights has transferred to the new person.

Additional agreement to the agreement on replacing a party to the agreement (general form)

The amount specified in clause 4 of this Additional Agreement, Party-2 transfers to the settlement account of Party-1 within _______ banking days from the date of signing this Additional Agreement.

Statement of claim acceding party to the arbitration court for termination of the adhesion agreement due to the fact that the agreement deprives the acceding party of the rights usually provided under contracts of this type, excludes or limits the liability of the other party for violation of obligations, or contains other conditions that are clearly burdensome for the acceding party, which it does not would accept, if it had the opportunity to participate in determining the terms of the contract

The demand of the acceding party to terminate the contract of adhesion due to the fact that the contract deprives this party of the rights usually provided under contracts of this type, excludes or limits the liability of the other party for violation of obligations, or contains other conditions that are clearly burdensome for the acceding party that it would not accept if she has the opportunity to participate in determining the terms of the contract

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) or transferred to another person on the basis of law. The rules on the transfer of the creditor's rights to another person do not apply to recourse claims. 2. To transfer the rights of a creditor to another person, the consent of the debtor is not required, unless otherwise provided by law or agreement. 3.

In some situations, one of the parties to the transaction cannot or considers it inappropriate to fulfill its obligations or exercise existing rights. In this case, the contractual relationship requires adjustment, which can be done by drawing up an agreement to replace a party to the contract.

Such a document should contain the following points:

• Document details. The number and date of the agreement are indicated;
• Title of the document. The main subject of the agreement should be indicated, as well as the number and date of acceptance of the main agreement;
• Name of the parties. It should be noted that the document is signed by representatives of three persons: the two original participants in the legal relationship and the new one. The official name and full name are indicated. and positions of persons authorized to sign the agreement;
• The essence of the document. It is necessary to indicate to whom and from whom the set of powers is transferred, and to what extent (for example, rights and obligations);
• It is advisable to refer to the agreement previously signed between the person transferring obligations and the new party to the transaction;
• Statement that the new participant voluntarily enters into legal relations, undertakes to conscientiously use his rights and fulfill his obligations;
• Description current state business For example, the creditor fulfilled the delivery of goods. It follows from this that the debtor must transfer a certain amount to the creditor’s account in fixed time. It should be indicated exactly what rights or obligations in this regard will be transferred to the new party;
• The procedure for transferring documents or property, if necessary to fulfill the terms of the transaction. Often such manipulations accompany the replacement of persons in contract agreements;
• Establishing the date from which the replacement of a party is considered completed and the agreement becomes valid legal force. The parties also agree that all previously existing agreements, including those reached as a result of negotiations, are no longer valid.

In all other respects, the parties are guided by the norms of current legislation.

• Statement new edition agreement. Preparing a modified version of the contract is an important part of the transfer of rights. It is necessary to replace the name of the party, bank details, addresses of warehouses and representative offices, and so on;
• Specifying the number of copies. There are 3 of them - one for each party to the agreement;
• Surnames, initials and signatures of persons authorized to represent the interests of the parties.

How does the transfer of rights take place?

When drawing up a document, the parties should take into account the provisions of Chapter 24 of the Civil Code of the Russian Federation. It contains rules that regulate the procedure for transferring the rights of a creditor or the obligations of a debtor to another person.

Note! When transferring the entire set of rights and obligations provided for by the agreement (transfer of the agreement), the transaction must comply with the norms of both the 1st paragraph and the 2nd.

The rights of the creditor can be freely transferred without the consent of the debtor. This provision does not apply in cases where the obligation is closely related to the identity of the person. The right to receive alimony payments or compensation for damage caused to human life or health is not transferred.

The transfer of obligations can be carried out only with the consent of the creditor, except in cases expressly established by law.

A party can be replaced at various stages of execution of the contract:

1. At the initial stage, when the parties have not begun to fulfill their obligations. The person transfers the entire range of rights and obligations to the new participant in the transaction.

A similar situation occurs when it comes to long-term relationships. For example, when executing a supply contract with periodic shipments of goods, when the characteristics of the batch are agreed upon in a separate specification. After delivery and payment, the contract is in “pending mode”.

Before signing an agreement, the parties must reach tripartite agreements;

1. After a party to the contract has fulfilled its obligations. If a creditor wishes to transfer his right, for example, to receive payment for goods delivered, he can only notify his debtor. There is no need to obtain consent. This procedure is established in Article 382 of the Civil Code of the Russian Federation.

Note! The contract may prohibit such transfer of rights. In this case, a full agreement will be required.

The assignment of a claim without the consent of the debtor is most often made in cases of problems with the fulfillment of obligations.

1. The other party to the transaction can be notified either by the previous participant in the legal relationship or by the current one. In this case, it is necessary to provide evidence of the transfer of rights, for example, a copy of the relevant agreement;

If it is impossible to fulfill your obligation. For example, after payment has been made, the organization, for technical reasons, cannot deliver the goods, and offers another supplier with similar products. An alternative in such a situation is to terminate the contract with the return of advance payments, if any. In this case, it is necessary to obtain the consent of the creditor.

An agreement to replace a person in a contract should be signed in any case, even if the transfer of rights does not require the mandatory consent of the other party. This will avoid misunderstandings between partners and possible litigation.

Drawing up an agreement to replace a party in a contract Considering that it is necessary to notify the second party about the transfer of obligations and that each party is simultaneously both authorized and obligated, it seems logical to conclude an agreement in one act, in which one party will transfer its rights to the person entering into the contract and obligations, and the other party will express its consent with such a transfer. An agreement to replace one of the parties to the contract must be made in the same form as was established for the main contract. The subject of the concluded agreement on a one-time transfer of rights and obligations to a new person will be just such a transfer, that is, after the parties enter into an agreement, it will be necessary to make changes to the original agreement, which is usually formalized by an additional agreement.

Change of party to the contract

After the conclusion of the agreement After the agreement is signed, all rights, powers and obligations regarding the execution of the terms of the agreement, as well as responsibility for their violation, pass to the organization that assumed them. The original party is completely released from all obligations in the amount specified in the agreement. Further interaction under the agreement occurs only between established entities

. How and for how long to store the document The agreement to replace a party to the contract should be kept together with the contract itself in a separate folder in a place closed from access to unauthorized persons.

of the Charter, from the third party, hereinafter collectively referred to as the “Parties”, have entered into this Agreement as follows: 1. The Initial Supplier, with the consent of the Consumer, transfers, and the New Supplier assumes the rights and obligations of the Initial Supplier and becomes a party to the energy supply/purchase agreement ( supply) of electricity No. 14/046-F dated 01.
01. 201Zg (hereinafter referred to as the Agreement). 2. The rights and obligations of the Initial Supplier under the Agreement are transferred to the New Supplier to the extent and on the terms existing at the time of entry into force of this Agreement, with the exception of rights of claim for unfulfilled and (or) improperly executed property obligations Initial Supplier to Consumer and (or) Consumer to Initial Supplier, arising before the entry into force of this Agreement. 3.

Please enable javascript

S.S. The period for consideration of the dispute shall be calculated from May 22, 2013.” installed by: S.S. appealed to the court with an application to replace the party S.P. on S.S. By civil case No. 2-8796/12 according to the claim of S.P. to Ya.D. on the collection of funds based on the agreement dated April 29, 2010, interest for the use of others in cash. In support, he indicated that on 02/01/2013 between S.P. and S.S.

an agreement was concluded on the assignment of claims to Ya.D. Representative S.P. — S.A.N. supported the statement. Representative Ya.D. - ME AND. left the issue of replacing a party to the discretion of the court.
S.P., Ya.D. participation in court hearing were not accepted. The court made the above determination. In a private complaint from representative Ya.D.
—

Important

ME AND. asks the court's ruling to be quashed based on the arguments private complaint. After checking the case materials and discussing the arguments of the private complaint, the judicial panel comes to the following conclusion.

In accordance with Art.

Agreement to replace a party in a contract sample form

Attention

However, there are conditions (they are called essential) that any sales contract must contain and without which the contract is considered not concluded. The essential terms of the sales contract include the condition on the name of the goods (clause

3 tbsp. 455 of the Civil Code), condition on the quantity of goods (clause 2. “Payment of rent is carried out by the Tenant no later than the 5th (fifth) day of the paid month, by transfer to the Lessor’s bank account, unless other details for payment of rent are specified in the written notification of the Lessor , without issuing invoices from the Lessor." 3. "The Parties are obliged to immediately notify each other about all changes in payment and postal details. So who should enter into the agreement on the part of the lender? Quote (Mikhail @ 14.2.2012, 20:03) Dear colleagues, I ask you to join in the discussion of the real issue that has arisen.

Basic information:

It is not allowed to change persons in agreements involving compensation for harm caused to human life or health or concerning the payment of alimony. Transfer of rights and transfer of responsibilities obligatory relations The transfer of rights to another person is carried out in two ways:

• assignment of a claim, that is, transfer of rights to another person by agreement between the person who was previously a party to the main agreement and the new person;
• transfer of rights to another person on the basis of law. This provision will come into force, for example, if there is a case of universal succession of rights or there is a corresponding court decision.

The second party to the contract must be notified of the transfer of rights. The transfer of the duties of one person to another is accomplished through the transfer of debt; however, it is mandatory to obtain the written consent of the creditor with such a transfer.

Essence of the document The main objective of the agreement: complete transfer of powers, rights and obligations from one party to the agreement to a third party. Thus, the agreement is a priori tripartite in nature.

In this case, the transferring party is obliged to notify its counterparty of the proposed replacement in advance and obtain written consent to this, which can be drawn up in a separate document or in the form of a resolution in the agreement. A party can be replaced at any stage of the contract.

When it is impossible to make a replacement The legislation of the Russian Federation regulates situations in which it is impossible to replace one of the parties to the contract. In particular, these include cases related to compensation for damage to health (both moral and material), as well as issues related to alimony.

Agreement on replacing parties in a real estate purchase and sale agreement

A considerable number of cases: the death of a person, the cessation of the activities of an organization, or simply the desire of a party to the contract to transfer its obligations - can become the reason for replacing a party to the contract. Legal regulation changes to the parties to the contract Civil legislation directly regulated such actions by establishing a rule according to which the parties to the contract are both obligated and authorized persons in relation to each other, and also determining that when one-time transfer rights and obligations to another person, the contract is transferred.

To change a party to a contract, the general rules for replacing persons in an obligation apply, except in cases where such a change is impossible due to the law. At the same time, the duality of the position of the parties determines the duality of the agreement to replace a party in the contract.
Document execution Just like the text of the agreement, its execution can be done in free form: it can be printed on a computer or written by hand, on a regular sheet of paper of any convenient format or on the letterhead of one of the companies. It is only necessary that the document be signed by all parties to the transaction, including a representative of the unchanged party to the contract (in this case, the use of facsimile autographs, i.e. printed in any way, is excluded). In cases where in normative legal acts enterprises participating in the agreement have a registered requirement to certify papers using seals; the form must be stamped. The agreement should be made in three copies identical in text and equivalent in law - one for each of the interested parties and must be registered in the logbook of contractual documentation.

• Agreement to replace a party to an obligation under a sales contract

To a previously concluded agreement construction contract a tripartite agreement was drawn up to change parties to the contract. The contractor changes. All rights, obligations and responsibilities under the contract are transferred to the new contractor in full. Should the customer conclude new agreement construction contract with a new contractor for the remaining amount of work or will the customer’s relationship with the new contractor take place within the framework of the previous contract (old)?

There is no need to enter into a new independent contract with the contractor, because when replacing a party to an agreement, the legal relations of the parties will be regulated by the original agreement.

It should be noted that from July 1, 2014, an article appeared in the Civil Code of the Russian Federation that establishes the rules for the transfer of a contract (Article 392.3 of the Civil Code of the Russian Federation). Transfer of a contract means the transfer by a party to a transaction of all its rights and obligations under this transaction to another person. In this case, the rules on the transfer of debt and the assignment of claims in the relevant part are simultaneously applied.

The rationale for this position is given below in the materials of the “Lawyer System”

1.How to transfer your debt to a third party

“One of the ways you can avoid fulfilling an obligation is to transfer your debt to a third party. It does not matter why the third party agreed to such a transfer: due to affiliation, the presence of a debt to the debtor, or any other reason. The main thing is that such a transfer is approved by the lender.

Transfer of debt is one of the types of change of persons in an obligation. As a result, the former debtor (assignor) replaces the new debtor (assignee), but the obligation remains the same and does not terminate.

131.79332 (11,17)

What is the difference between transferring a debt and fulfilling an obligation for a third party?

When transferring a debt, the assignor is replaced by the assignee. That is, there is a change of persons in the obligation. Therefore, the creditor will make claims for execution to the new debtor, and not to the previous debtor.

In contrast to the transfer of debt, the law divides the execution for a third party:

• monetary and
• non-monetary obligation.

So, if the debtor assigned performance monetary obligations to a third party, then it is not liable to the creditor for this obligation. This means that if there are claims for execution under a monetary obligation, the creditor needs to present them to the debtor, and not to a third party (performer).

If a third party fulfilled the debtor’s obligation, which is not monetary, then it is liable for defects in performance instead of the debtor. That is, in the case of a non-monetary obligation, liability to the creditor passes from the debtor to the executor. This follows from paragraph 6 of Article 313 of the Civil Code of the Russian Federation. And, accordingly, the creditor will make claims related to the execution against the executor.

Such rules have been in effect since June 1, 2015 in connection with amendments to the Civil Code of the Russian Federation.

For more details, see Fulfillment of an obligation by a third party: how to protect the interests of the executor, debtor and creditor.

When transferring debt, it is important to follow all the rules to avoid adverse consequences. For the assignor, this may include recognition of the debt transfer agreement as invalid or unconcluded and, as a consequence, the requirement to fulfill the untransferred debt. For the assignee, the risk lies in the incorrect assessment of the amount of the transferred debt. The new debtor may mistakenly believe that as a result of the transfer he is only obligated to pay the principal amount. However, unless the transfer agreement expressly provides otherwise, the debt is transferred to the assignee in full, that is, including penalties, sanctions, etc.

How to enter into a debt transfer agreement

Secondly, the law introduces the following provision: in obligations that are associated with the implementation of entrepreneurial activities by their parties, an agreement on the transfer of debt can be concluded between the creditor and the new debtor. Under such an agreement, the new debtor assumes the obligation of the original debtor.

Thirdly, in business relations original and new debtors general rule bear joint liability to the creditor. However, in an agreement on the transfer of debt, the parties may provide for the subsidiary liability of the original debtor.

At the same time, the original debtor may be released from fulfilling the obligation. Moreover, the original debtor has the right to refuse such exemption from fulfillment of the obligation (clause 3 of Article 391 of the Civil Code of the Russian Federation).

Thus, when transferring a debt under an obligation related to the implementation of entrepreneurial activities by its parties, the original debtor may bear both joint and subsidiary liability, unless the creditor releases him from fulfilling the obligation.

Fourthly, if during the transfer of the debt the original debtor was released from the obligation, then the security for the fulfillment of the obligation provided by the third party is terminated. The exception is cases where such a person has agreed to be responsible for a new debtor. The release of the original debtor from the obligation applies to any security provided by him, unless he transferred the property that is the subject of the security to the new debtor (Clause , Article 392.1 of the Civil Code of the Russian Federation).

167.3880 (11,17)

Attention! From July 1, 2014, offset against the claims of the previous debtor is not allowed

Agreement form

The same rules apply to the form of an agreement on the transfer of debt as to the form of an agreement on the assignment of rights (clause 4 of Article 391 of the Civil Code of the Russian Federation).

This means that the agreement on the transfer of debt must be made in the same form as the main agreement. If the main agreement is concluded in simple written or notarial form, then the translation must be made in the appropriate writing(Clause 1 of Article 389 of the Civil Code of the Russian Federation).

If the main contract requires state registration, then the transfer of debt must be registered in the manner established for the registration of this agreement. The exception is cases provided for by law (clause 2 of article 389 of the Civil Code of the Russian Federation).

As a general rule, failure to comply with the simple written form of a transaction entails a prohibition to refer to witness testimony in support of its conclusion (clause 1 of Article 162 of the Civil Code of the Russian Federation). If the law establishes a mandatory written form under penalty of invalidity of the transaction, then failure to comply with the written form of the contract will entail its invalidity (clause 2 of Article 162 of the Civil Code). Failure to comply with the notarial form will also entail the invalidity (nullity) of the agreement (clause 3 of Article 163 of the Civil Code of the Russian Federation), and failure to comply with the requirement for state registration will result in its non-conclusion.

Subject of the agreement

When transferring a debt, it is necessary to accurately determine the subject of the agreement. IN in this case it will be an obligation that the assignor transfers to the assignee. In this case, you can transfer not only a monetary obligation, but also any other. For example, the obligation to supply goods, provide services, perform work, etc.

It is impossible to transfer a debt to a third party in cases where this is contrary to the law, agreement of the parties or the essence this method termination of obligations. Thus, transfer of debt under rental agreements is not allowed (clause 2 of Article 631 of the Civil Code of the Russian Federation). Transferring debt to minors is not allowed (). The transfer of a part of the debt arising from obligations with an indivisible object, as well as the transfer of debt under an obligation to refrain from certain actions, contradicts the essence of debt transfer. A debt cannot be transferred to a person who, due to the specifics of the obligation, does not have the legal personality necessary to fulfill the debt (for example, transfer of a debt to a person who does not have the appropriate license to perform work under the contract). In addition, the parties may, by agreement, prohibit the transfer of debt under a specific obligation by including a corresponding clause in the agreement.

In the debt transfer agreement, all characteristics of the transferred obligation (subject, details, amount of debt, etc.) must be specified in as much detail as possible. If it is impossible to determine from the text of the agreement which specific obligation the transferred debt arose from, then such an agreement will be considered not concluded.

If the parties indicated only the amount of the transferred debt, but did not describe all the characteristics of the obligation, then in most cases the subject of the transfer agreement is considered inconsistent.

Practical example: a transfer agreement was recognized as not concluded because the parties did not agree on the subject

LLC "M." (creditor), LLC "A." (debtor) and individual entrepreneur g. (new debtor) signed an agreement to transfer the debt. The amount of the transferred debt amounted to 3.9 million rubles, which is confirmed by the issued invoices reflected in Appendix 1 to the agreement. Since the entrepreneur did not fulfill his obligations, LLC "M." went to court.

The claim was denied. Argumentation: from the terms of the agreement it is impossible to establish specific obligations between LLC "M." and LLC "A." The text of the agreement does not indicate the basis for the debt (agreements, invoices, etc.) and the period of its occurrence. Appendix 1, containing the list of invoices referred to in the agreement, is not presented in the case materials. Evidence of the transfer to the defendant in pursuance of the agreement to transfer the debt of invoices in the amount of 3.9 million rubles. LLC "M." did not present. There is no other evidence in the case materials that would confirm the will of the defendant and a third party to replace the debtor in a specific obligation (resolution of the Seventeenth Arbitration Court of Appeal dated October 4, 2010 No. 17AP-9508/2010-GK in case No. A71-3427/2010 ).

If the parties did the opposite (i.e., described the obligation, but did not indicate the amount of the debt), this cannot serve as a basis for recognizing the agreement as not concluded. Argumentation: transfer of debt implies a complete replacement of the debtor in the obligation. The amount of debt is not an essential condition of the agreement. Consequently, the amount of the debt can be determined upon its repayment (determination of the Supreme Arbitration Court of the Russian Federation dated October 17, 2007 No. 13459/07, decisions of the Federal Antimonopoly Service of the North-Western District dated August 13, 2009 in case No. A21-8719/2008, Second Arbitration Court of Appeal dated December 13, 2010 in case No. A31-4185/2010).

Example from practice: discrepancy between the amount of the transferred debt and the price of the main contract cannot lead to the recognition of the agreement on the transfer of debt as not concluded

Recognizing the agreement as concluded, the court motivated its position as follows. The debt transfer agreement must contain an indication of the transaction giving rise to the obligation. The disputed debt transfer agreement contains an indication of the transaction, that is, it certainly allows us to establish the source of the obligation from which the debt arose - the debt under the agreement dated July 8, 2008 No. 08/07/2008 for subcontract work. From the foregoing it follows that the parties to the agreement, in full compliance with the requirements of the law (clause 1 of article 432, art., Civil Code of the Russian Federation) agreed on the essential terms.

The amount of debt is not an essential condition of the debt transfer agreement, which is confirmed by the position of the Supreme Arbitration Court of the Russian Federation (determination dated October 17, 2007 No. 13459/07). According to the opinion of the highest court, the amount of debt is not an essential condition of such an agreement. Since the disputed agreement allows us to determine the source of the obligation (agreement), the discrepancy between the amount of the transferred debt and the price of the agreement cannot lead to the recognition of the agreement on the transfer of debt as not concluded (ruling of the Tenth Arbitration Court of Appeal dated April 22, 2011 in case No. A41-41680/10).

However, in some cases, the subject of the transfer may be considered agreed upon, even if the agreement does not indicate the obligation from which the debt is transferred ("Review of the practice of application by arbitration courts of the provisions of Chapter 24 of the Civil Code of the Russian Federation"; hereinafter referred to as information letter No. 120). Although this clarification concerns the assignment of rights, the Supreme Arbitration Court of the Russian Federation applies it by analogy to the transfer of debt. At the same time, from the evidence presented to the court it should be obvious that the parties know exactly and can confirm which debt they transferred from. This can be evidenced not only by the text of the agreement, but also by other documents, if there are no other relations between the parties. For example, the court considered the subject of translation agreed upon, based on the totality following documents: debt assignment agreement, main contract, work acceptance certificates, invoices, reconciliation report of mutual settlements (resolution of the Federal Antimonopoly Service of the Central District dated August 15, 2011 in case No. A08-6397/2010-15, determination of the Supreme Arbitration Court of the Russian Federation dated October 3, 2011 No. VAS-12263/11 refused to transfer the case to the Presidium of the Supreme Arbitration Court of the Russian Federation for review in the manner of supervision).

If the agreement transfers part of the debt that arose from a continuing obligation (for example, a lease), then in addition to the basis for its occurrence, it is necessary to indicate the specific period for which it is transferred. IN otherwise the agreement may be recognized as not concluded ().

Example from practice: the court refused to collect a debt from a new tenant, since the agreement between the old and new tenants did not indicate the amount of the transferred debt and the period for which it arose

LLC "Sh." and Main Directorate property relations Altai Territory signed a lease agreement. According to the agreement of LLC "Sh." was a tenant land plot for the operation of the garage building. Later, LLC "Sh." sold the garage to M LLC.

Between LLC "Sh.", LLC "M." and the Main Directorate entered into an agreement to replace the party under the lease agreement, in accordance with which all rights and obligations of the tenant were assumed by M LLC.

Considering the landlord's claim against LLC "M." regarding the collection of rent and accrued penalties, the court came to the following conclusions. The agreement concluded between the parties is an agreement on the transfer of debt. It does not contain information about the amount of transferred debt for rent and the period for which the debt arose. Consequently, the essential terms of the agreement regarding the transfer of debt were not agreed upon by the parties. No other evidence of the volume of the transferred debt was presented to the court (determination of the Supreme Arbitration Court of the Russian Federation dated December 29, 2010 No. VAS-17655/10).

The court came to similar conclusions regarding the long-term supply agreement in the decision of the Federal Antimonopoly Service of the Volga-Vyatka District dated April 28, 2011 in case No. A79-5106/2010 (determined by the Supreme Arbitration Court of the Russian Federation dated June 30, 2011 No. VAS-7858/11 refusal to transfer the case to the Presidium for supervisory review).

Volume of transferred debt

Unless otherwise provided by the agreement, it is considered that the assignor has transferred his debt to the assignee in full. This means that the assignee is obliged to fulfill the obligation to the extent and on the conditions that existed at the time the obligation was transferred. Additionally, the assignee must pay the creditor all sanctions provided for in the main agreement, if appropriate grounds arise.

Practical example: the court collected from the new debtor not only the amount of the principal debt, but also a penalty

Having collected from the defendant the amount of the principal debt and penalties for late fulfillment of the obligation, the court justified its decision as follows. From the meaning of the articles of the Civil Code of the Russian Federation it is clear that the transfer of debt involves the transfer of responsibilities from the debtor to another person with the consent of the creditor. As a result, there is a change of persons in the obligation while maintaining the content of the obligation itself. In this case, the new debtor assumes the debt of the original debtor to the extent that this debt lay with the original debtor, including the payment of interest, penalties and other sanctions ().

The law does not prohibit the parties from specifying exactly the extent of the debt being transferred. This means that the agreement may provide for the translation of:

• only the principal debt. Such an agreement must obviously and clearly follow from the text of the agreement. In all other cases, the court will consider that all obligations of the assignor have been transferred to the assignee (resolution of the Federal Antimonopoly Service of the Ural District dated May 12, 2010 No. F09-3253/10-C3 in case No. A60-41720/2009-C5;
• parts of the principal debt;
• interest, penalties or fines without transfer of principal (clause 21 of information letter No. 120).

The law also provides that the creditor can exercise all rights under the obligation in relation to the new debtor, unless otherwise provided by law, contract or follows from the essence of the obligation (Clause 1 of Article 392.1 of the Civil Code of the Russian Federation).

Creditor's consent

Creditor's consent – required condition agreement on the transfer of debt (clause 1 of Article 391 of the Civil Code of the Russian Federation), since in this case the identity of the debtor is of significant importance for the creditor. The law does not establish requirements for the form of consent of the creditor. Typically, in practice, such consent is formalized as follows:

• the assignor, assignee and creditor enter into a tripartite agreement on the transfer of debt (resolution of the FAS Moscow District dated November 27, 2009 No. KG-A40/11228-09 in case No. A40-40368/09-157-309, FAS Volga District dated August 31, 2011 in case No. A65-29631/2010);
• authorized person The creditor puts the “agreed” stamp on copies of the debt transfer agreement and certifies the stamp with his signature and seal (resolution of the Eighth Arbitration Court of Appeal dated October 7, 2008 in case No. A70-2282/32-2008, FAS Ural District dated June 28, 2010 . No. F09-4706/10-S3 in case No. A71-14427/2009-A18);
• the creditor sends to the assignor or assignee written document, from which the consent of the creditor obviously follows (resolution of the FAS Far Eastern District dated August 19, 2011 No. F03-3892/2011 in case No. A16-1407/2010, FAS North Caucasus District dated October 7, 2011 in case No. A61-2113 /2010).

In some cases, the court may recognize an agreement on the transfer of debt as agreed upon on the basis of a body of evidence that indirectly confirms that the creditor has no objections to the payment of the debt by another person (Resolution of the Federal Antimonopoly Service of the Moscow District dated February 2, 2006 No. KG-A40/14142-05).

131.79333 (11,17)

Is it necessary to obtain the consent of the creditor if the debt is transferred to a legal entity that arose as a result of the reorganization of the original debtor

No no need. This can be justified as follows.

At universal succession as a result of reorganization by separation, the rights and obligations of the debtor are transferred to the newly created legal entity on the basis of law. Consequently, the creditor’s consent to such a transition is not required (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 17, 2011 No. 16555/10). It is logical to assume that this clarification will apply not only to the separation, but also to reorganization through division.

131.79334 (11,17)

Transfer of a contract means the transfer by a party to a transaction of all its rights and obligations under this transaction to another person. In this case, the rules on the transfer of debt and the assignment of claims in the relevant part are simultaneously applied.”

2.How to assign a right (demand)

“At any time, at its discretion, the creditor has the right to assign to another person the right (claim) that belongs to the creditor on the basis of any obligation (). In addition, the right (claim) can be transferred to another person on the basis of law ().

To assign a right to a creditor (assignor), it is necessary to conclude an assignment agreement with the person to whom he assigns his rights under the original agreement (assignee). To avoid negative consequences(in particular, recognition of the assignment as void or a dispute about which rights were transferred to the assignee and which remained with the assignor), during the assignment a number of conditions must be met.

Conditions for the assignment of the right of claim

The assignment must not contradict the law (clause 1 of Article 388 of the Civil Code of the Russian Federation). This means that if there are such contradictions, the assignment agreement may be declared invalid.

131.79326 (11,17)

Do the parties have the right to prohibit or limit the assignment of rights (claims)

Yes, the parties have the right to provide in the contract for a prohibition or restriction of the assignment of rights (claims).

Moreover, from July 1, 2014, the consequences of violating the contractual prohibition (restriction) on the assignment of claims are regulated in a more complex manner.

Such consequences vary depending on a number of circumstances.

As a general rule, at the request of the debtor, the court can invalidate the assignment only if it is proven that the second party to the assignment transaction (the assignee) knew or should have known about the existence of a prohibition on the assignment (paragraph 2, paragraph 2, article 382 of the Civil Code of the Russian Federation) .

However, violation of the agreement between the creditor and the debtor on the restriction or prohibition of assignment (clause 3 of Article 388 of the Civil Code of the Russian Federation):

• does not invalidate such concession;
• cannot serve as a basis for termination of the main contract.

In this case, the assignor (creditor) is not released from liability to the debtor for such a violation ().

Therefore, this does not mean that an agreement that prohibits or restricts the assignment of a right has no effect at all. It applies to the responsibility of the assignor for violating the prohibition or restriction on the assignment.

At the same time, the law establishes that the prohibition of the transfer of the creditor’s rights to another person, which the parties agreed upon in the agreement, does not prevent the sale of such rights in the manner established by law (clause 2 of Article 382 of the Civil Code of the Russian Federation):

• about enforcement proceedings;
• about insolvency (bankruptcy).

Also in the contract, by agreement of the parties, it is possible to prohibit or limit the assignment of the right to receive non-monetary performance (clause 4 of Article 388 of the Civil Code of the Russian Federation).

Thus, the parties to the main agreement have the right to prohibit the assignment in general, limit it (allow the assignment of only certain rights arising from the agreement) or link it with the mandatory prior written consent of the other party to the agreement.

166.2608 (11,17)

If the parties want to limit the assignment of rights (claims) in any way, it is necessary to use clear and unambiguous language.

Otherwise, all words and expressions of the agreement will be interpreted literally by the court (). As a result, he may decide that in fact there are no restrictions in the contract.

An example of the wording of a clause prohibiting assignment without the written consent of the other party to the contract

“The assignment of rights (claims) arising from this agreement to third parties is prohibited without the prior written consent of the other party.”

Practical example: the court decided that the prohibition on transferring “obligations under a contract” to others does not mean a prohibition on transferring the right to claim a debt

As part of a complex dispute regarding the collection of debt under a supply agreement, the court had to assess the validity of the assignment agreement. Applicants cassation appeals referred to the fact that clause 11.3 of the main agreement provided for a ban on the transfer of obligations under this agreement to third parties without the written consent of the other party. However, the court rejected this argument and refused to satisfy the complaints. The court noted: from the literal interpretation of the content of the contract, it follows that it contains a ban on the transfer of obligations. However, the contract does not prohibit the transfer of the right to claim the debt. Therefore, the assignment agreement was concluded without any violations of the law (resolution of the Federal Antimonopoly Service of the North-Western District dated June 15, 2011 in case No. A21-1692/2010).

167.3868 (11,17)

Attention! Since July 1, 2014, the Civil Code of the Russian Federation in the new edition has established the requirements that the assignment of rights (claims) must comply with.

An assignment is possible only if the following conditions are met (clause 2 of Article 390 of the Civil Code of the Russian Federation):

• the assigned claim exists at the time of assignment (this requirement does not apply to the assignment of future rights);
• the creditor (assignor) is entitled to make an assignment;
• the assignor has not previously assigned the assigned claim to another person;
• the assignor has not committed and will not commit actions that serve as the basis for the debtor’s objections to the assigned claim;
• other requirements for assignment by law or contract.

If these conditions are violated, the assignee has the right to demand from the assignor ():

• return of everything that the assignee transferred under the assignment agreement;
• compensation for losses.

A joint creditor has the right to assign a claim to a third party only with the consent of other creditors, unless otherwise provided by an agreement between them (clause 5 of Article 388 of the Civil Code of the Russian Federation).

Form of agreement for assignment of claim (cession)

The assignment agreement must be made in the same form as the main agreement. If the main agreement is concluded in simple written or notarial form, then the assignment must be made in the appropriate written form (clause 1 of Article 389 of the Civil Code of the Russian Federation).

A written agreement can be concluded by drawing up one document signed by the parties, as well as by exchanging:

• letters,
• telegrams,
• by telex,
• telefaxes and
• other documents, including electronic documents, transmitted through communication channels, allowing one to reliably establish that the document comes from a party to the contract.

An electronic document transmitted via communication channels is information prepared, sent, received or stored using electronic, magnetic, optical or similar means, including the exchange of information in electronic form And email ().

If the main agreement requires state registration, then the assignment must be registered in the manner established for the registration of this agreement. The exception is cases provided for by law (clause 2 of article 389 of the Civil Code of the Russian Federation).

If the assignment is made on an order security, then it must be carried out by endorsement on this security (clause 3 of Article 389, clause 3 of Article 146 of the Civil Code of the Russian Federation).

As a general rule, failure to comply with the notarial form entails the invalidity (nullity) of the agreement (clause 3 of Article 163 of the Civil Code of the Russian Federation), and failure to comply with the requirement for state registration means that the agreement will not be considered concluded for third parties until the moment of its registration, unless otherwise established law (clause 3 of article 433 of the Civil Code of the Russian Federation).

Description of the subject of the agreement for the assignment of the right of claim (cession)

When assigning a claim, first of all, it is necessary to accurately determine the obligation from which the right or claim transferred by the assignor to the assignee arises. The contract must indicate in as much detail as possible all the characteristics of such an obligation (details of the contract, etc.). If it is impossible to establish under which obligation the claim is being assigned, then such assignment agreement may be recognized as not concluded.

Example from practice: the court rejected the assignee’s claim, since the assignment agreement did not say under what obligation the right of claim was transferred

The court pointed out: the assignment agreement does not indicate under what obligation (insurance agreement, insurance policy) the assignor transferred to the assignee the right to claim compensation for damage from the debtor. In accordance with the articles of the Civil Code of the Russian Federation, the subject of the assignment agreement includes a specific obligation in which the creditor is replaced. In the absence of an indication of the agreement that served as the basis for the occurrence of the obligation, it is impossible to determine the right transferred by the creditor, and the subject of the assignment agreement cannot be considered agreed (resolution of the Federal Antimonopoly Service of the North-Western District of March 18, 2011 in case No. A56-27312/2010).

When agreeing on the subject of the agreement for the assignment of the right of claim for ongoing obligations (rent, storage, supply of electricity, water, heat, etc.), in addition to indicating the basis for the emergence of the assigned right, it is also necessary to indicate the specific periods for which it is assigned (). Otherwise, the subject of the agreement for the assignment of the right of claim will not be agreed upon by the parties.

In some cases, the subject of the assignment may be considered agreed upon, even if the contract does not indicate the obligation that included the assigned right (clause 12 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 30, 2007 No. 120 “Review of the practice of application by arbitration courts of the provisions of Chapter 24 Civil Code of the Russian Federation"; hereinafter referred to as information letter No. 120). In such a situation, the following circumstances may serve as evidence of the agreement of the subject of the assignment:

• between the assignor and the debtor there are relations arising from one contract;
• the debtor has been notified of the assignment;
• the text of the notification by the assignor to the debtor about the assignment, as well as other documents indicate the existence of certainty between the assignor and the assignee regarding the subject of the agreement.

Types of rights (claims) that can be assigned to another person

If there were no restrictions on the assignment of the claim in the main agreement, then the assignee, debtor or other interested party may try to challenge the assignment citing that the assignment was made in violation of the law. In this case, the assignor must keep in mind that he can assign any right (claim) to the assignee, unless this contradicts the law, the essence of the obligation or the agreement of the parties. IN judicial practice this rule is specified as follows.

1. Under an assignment agreement, you can transfer a right that does not exist at the time of the transaction (and clause 1 of Article 826 of the Civil Code of the Russian Federation; clause 4 of information letter No. 120). This means that it is possible to transfer a claim under an obligation that is planned to be concluded in the future.

Case study: the court refused to recognize void contract assignment of a right that should have arisen from a work contract that has not yet been concluded

LLC "G." filed a claim against OJSC "P." on invalidation due to the nullity of the agreement of assignment of the right of claim. The claim was denied. The court indicated that an assignment agreement, the subject of which is a right that did not arise at the time of conclusion of the agreement, does not contradict the law. Consequently, the assignment agreement dated October 15, 2010 cannot be considered void, although it transferred the right that should have arisen from the contract concluded on October 19, 2010 (Resolution of the Federal Antimonopoly Service of the Ural District dated March 2, 2011 No. F09-645/11- S5 in case No. A50-15008/2010).

Moreover, the law directly established the possibility of assigning a claim that will arise in the future, including from an agreement that will be concluded in the future (). From July 1, 2014, the assignment of a future claim was possible only if it was made on the basis of a transaction related to the implementation of business activities by its parties. And from June 1, 2015, this is already possible in any relationship, regardless of whether they are related to the implementation of entrepreneurship or not.

In the contract, the future claim must be defined in a way that allows it to be identified at the time of its occurrence or transfer to the assignee (new creditor).

The future claim passes to the assignee from the moment it arises. In the contract, the parties can agree on a later date for the transfer of a future claim.

2. Under an assignment agreement, you can transfer a right in relation to which there is a dispute ().

Practical example: the court refused to invalidate the agreement for the assignment of a claim for unjust enrichment, despite the fact that the debtor objected to this claim

Between JSC "V." (bank) and LLC "O." (client) a bank account agreement was concluded. Subsequently, a writ of execution was presented to the bank district court, according to which funds were to be recovered from the client in favor of citizen M. The bank prepared a collection order and debited the stated amount from the client's account. At the same time, the bank withheld its remuneration from the client’s account.

Considering that the bank illegally withheld a commission for written-off funds, the client entered into a contract with CJSC “A.” contract of assignment of claims. In accordance with the agreement, the client transferred to CJSC "A." the right to claim unjust enrichment resulting from the bank’s unlawful withholding of the amount of remuneration.

The bank, considering its actions lawful, went to court with a demand to recognize the assignment agreement as not concluded. The court rejected the claim, citing the fact that the subject of the assignment agreement was determined by the parties, and the law does not prohibit the assignment of a claim in relation to which there is a dispute (resolution of the Federal Antimonopoly Service of the North-Western District dated December 28, 2009 in case No. A56-11103/2009) .

3. Under an assignment agreement, a right can be transferred, which the assignee will be able to exercise only when the assignor fulfills his obligation to the debtor (clause 8 of information letter No. 120).

Practical example: the court refused to invalidate the assignment of a payment claim under a work contract, despite the fact that the assignment was made before the assignor (contractor) completed the work

LLC "Yu." (customer) and E Corporation (general contractor) entered into a contract for the construction of Thermal Complex No. 17. Later, the contractor assigned his right to demand payment to M LLC.

Believing that the assignment agreement was contrary to the law, the customer filed a lawsuit. He considered that the subject of the assignment was a non-existent right of claim, since the transaction was completed before the contractor completed the work and accepted the result by the customer, that is, before the obligation to pay arose. In addition, the plaintiff referred to the termination of the contract and the presence significant shortcomings contractor under a contract.

The court rejected the claim, motivating its decision as follows. The law does not prohibit the transfer under an assignment agreement of the right to demand payment, the implementation of which is conditional on the contractor’s performance of his duties. At the same time, the customer has the right to raise objections to the new creditor in accordance with the Civil Code of the Russian Federation (resolution of the Federal Antimonopoly Service of the West Siberian District dated June 29, 2011 in case No. A75-10132/2010).

4. Under an assignment agreement, the right to claim a penalty or other measure of liability can be transferred. At the same time, the certainty of its size at the time of the assignment does not matter (clause 16 of information letter No. 120). This means that the specific amount of the penalty will be determined either by the assignee at the time the claim is presented to the debtor, or by the court when filing the corresponding claim. Moreover, this explanation by analogy can be applied not only to a penalty, but also to any assigned right.

Example from practice: at the claim of the assignee, the court collected interest from the debtor for the use of someone else’s money, including for the time elapsed after the assignment of the claim

LLC "M." under the assignment agreement, it received the right to claim the debt for the supplied meat products. LLC "M." filed a lawsuit against the debtor-buyer to collect the principal debt, as well as interest for the use of other people's funds for the period from February 8, 2008 to May 4, 2010 in the amount of 51,953 rubles. 37 kopecks

Among other objections, the defendant referred to the fact that the assignment agreement dated May 22, 2009 provided for the assignment of interest only for the period until May 22, 2009 in the amount of RUB 38,876. 28 kopecks

The court satisfied the assignee's claim against the debtor for the recovery of interest for the use of other people's funds in the amount claimed by the plaintiff. In support of its position, the court referred to paragraph 16 newsletter No. 120, explaining it as follows.

According to the assignment agreement, the assignee received the right to demand payment of the principal debt, as well as interest for the use of other people's funds in the amount of 38,876 rubles. 28 kopecks However, this circumstance does not indicate that the amount of interest payable was finally determined at the time of the assignment. The corresponding right passes to the new creditor to the extent and on the conditions that existed at the time of transfer of the right (). This means that the right to demand the collection of interest for the use of other people's funds has passed to the assignee in an unlimited amount and can be determined by him in accordance with the Civil Code of the Russian Federation (resolution of the Eighteenth Arbitration Court of Appeal dated July 13, 2011 No. 18AP-5905/2011 in case No. A76 -8561/2010, similar conclusions are contained in the determination of the Supreme Arbitration Court of the Russian Federation dated April 7, 2010 No. VAS-3905/10).

5. Under an assignment agreement, you can transfer the right (claim) to compensation for losses (clause 17 of information letter No. 120).

6. Under an assignment agreement, it is possible to transfer the rights acquired by the guarantor as a result of his fulfillment of the debtor’s obligations (clause 18 of information letter No. 120).

Example from practice: the court recognized as justified the claim of the assignee, which he received not from the creditor under the main obligation, but from the guarantor who fulfilled the debtor’s obligation to the counterparty under the main obligation

The guarantor fulfilled the debtor's obligation to the bank by paying him the amount of the principal debt under the loan agreement. After this, the guarantor assigned his right obtained as a result of such execution by concluding an assignment agreement. The court recognized the assignee’s claims against the debtor as justified, and therefore satisfied the claim and included specified requirements to the register of creditors (resolution of the Federal Antimonopoly Service of the Central District dated June 21, 2011 in case No. A08-10540/2009-11B).

167.3869 (11,17)

The law excluded the provision prohibiting the transfer of rights under recourse claims. Until July 1, 2014, the rules on the transfer of a creditor's rights to another person did not apply to recourse claims ().

A recourse is a reverse demand by a person who has paid certain amounts in place of another person to demand reimbursement of those amounts from that person. In particular, the right of recourse arises from one of the debtors under a joint and several obligation that he has fulfilled, and therefore has the right to claim compensation at the expense of the remaining joint and several debtors (). Regression differs from the assignment of rights in that with it a new obligation arises and there is no change in the persons in the obligation. When assigning a right, on the contrary, a new obligation does not arise, but a change of persons in the obligation occurs (that is, the creditor is replaced).

Thus, from July 1, 2014, the rules on the transfer of the creditor’s rights to another person (i.e., the rules of Chapter 24 of the Civil Code of the Russian Federation) also apply to recourse claims. In practice, this means that even when recourse requirements Assignment of rights (claims) is permitted. In other words, the creditor, that is, the person who fulfilled the obligation (paid the amounts) instead of another person, can transfer his rights (claims) under the recourse obligation to another person.

The assignment of a right does not always entail a complete replacement of the creditor in the main obligation. This means that the parties have the right to agree on the assignment of all rights arising from the main agreement, and only some of them. The assignor may assign part of the right under an obligation, the subject of which is divisible (clause 5 of information letter No. 120). The most common example is the assignment of part of a monetary claim.

The laws establish various restrictions on transactions involving the assignment of claims. Thus, rights that are inextricably linked with the identity of the creditor cannot be assigned. The law includes claims for alimony and compensation for harm caused to life and health (). The tenant cannot assign his rights and obligations under the rental agreement to another person (Clause 2 of Article 631 of the Civil Code of the Russian Federation).

Contract price

The parties have the right, at their discretion, to set the price paid by the assignee to the assignor: more, equal to or less than the actual value of the assigned right.

If the parties have agreed on a lower price, then the assignment agreement cannot be considered void for this reason alone ().

Rationale

The assignment of the right of claim is a compensated transaction. It follows from paragraph 1 of Article 572 of the Civil Code of the Russian Federation that the presence of compensation principles in a contractual obligation excludes recognition of the corresponding agreement as a gift agreement. However, specific circumstances of the case may indicate the sham of the assignment agreement, which covers the donation transaction.

To determine the equivalence of the size of the transferred right and the price paid, the court may take into account the following circumstances (clause 10 of information letter No. 120):

• the degree of solvency of the debtor;
• degree of controversy transferred right;
• the nature of the assignor's responsibility to the assignee for the transfer this right(responsibility only for the validity of the right or also for its enforceability by the debtor);
• other circumstances affecting the actual value of the right that is the subject of the assignment.

Even the absence of a price condition is not in itself a basis for recognizing the contract as void (clause 9 of information letter No. 120).

Scope of rights transferred to the assignee

The assignee receives the rights of the assignor to the extent and on the conditions that existed at the time of transfer of the right (claim). The exception is cases when the law or contract provides otherwise ().

As a general rule, all rights related to the claim are transferred to the assignee, including those ensuring the fulfillment of obligations, for example, those arising from the pledge agreement (clause 19 of information letter No. 120). If the parties imply otherwise (for example, that the assignee does not transfer the right to demand payment of interest under the loan agreement, or interest for the use of other people's funds, or penalties), they must directly indicate this in the agreement ().

Example from practice: the court refused to the assignor to collect interest from the debtor, since it decided that the right to claim interest transferred to the assignee, since the assignment agreement did not provide otherwise

JSC "A." (lender) and LLC "T." (borrower) entered into five loan agreements. Before the expiration of each of the five agreements, the lender assigned its rights of claim to LLC X. In the assignment agreement, the parties determined the volume of transferable obligations in the amount of the principal debt under the assigned loan agreements.

The lender, considering that the assignment agreement left him the right to demand payment of interest for the use of the loan, filed a corresponding claim against the borrower.

For the second time, having canceled the acts of the lower courts and sent the case for a new trial, the cassation court indicated the following. The right to interest on a loan is associated with the requirement to repay the loan amount. It is not clear from the assignment agreement that the parties excluded the action general rule, according to which all rights related to the assigned claim are transferred to the assignee.

During the next hearing of the case in the first instance, the court refused to satisfy the lender’s claim against the borrower (resolution of the Federal Antimonopoly Service of the West Siberian District dated December 28, 2009 in case No. A03-5986/2008, decision of the Arbitration Court of the Altai Territory dated May 31, 2010 in the case No. A03-5986/2008).

Unless otherwise agreed by the parties in the agreement, the assignor (original creditor) is obliged to transfer to the assignee (new creditor) everything received from the debtor under the assigned claim (clause 3 of Article 389.1 of the Civil Code of the Russian Federation).

Duties and responsibilities of the assignor

The assignor is obliged to transfer to the assignee documents certifying the right (claims) and provide information relevant for the implementation of the claim (clause 2 of Article 385 of the Civil Code of the Russian Federation). Such documents may include the original or a certified copy of the contract, invoices, acts of work performed, acts of provision of services, acts of debt reconciliation, court decisions on debt collection, writs of execution etc.

Moreover, if an agreement is concluded for the assignment of the right to receive performance under executive document during enforcement proceedings, then the concluded agreement will be the basis for the procedural replacement of the claimant in enforcement proceedings in the manner procedural succession(“On enforcement proceedings”).

However, the assignor’s evasion from transferring documents to the assignee does not in itself indicate that this right has not passed to the assignee. As a general rule, the rights are transferred to the assignee at the time the transaction is concluded. The transfer of documents certifying the right and confirming its validity is carried out on the basis of already completed transaction(clause 11 of information letter No. 120).

The assignor is responsible to the assignee for the invalidity of the claim transferred to him (). If the main agreement is declared invalid, this will not entail the invalidity of the assignment agreement. In this case, an invalid claim is understood as both a right that would arise from an obligation if the transaction were valid, and a non-existent one (for example, terminated proper execution) law (clause 1 of information letter No. 120).

167.3870 (11,17)

Attention! If the transferred claim is invalid, the assignee has the right to hold the assignor liable.

The invalidity of a transferred claim is a violation by the assignor of its obligations to the assignee, which arise from the assignment agreement. These obligations consist of transferring to the assignee a right that exists, that is, follows from a valid (existing) contract. Consequently, if the obligation is not fulfilled, the assignee has the right to hold the assignor liable for breach of contract.

Example from practice: the court recovered damages in favor of the assignee, since the assignor transferred to him a claim based on an agreement, which at the time of assignment had already been declared invalid

Individual entrepreneur B. filed a claim against LLC “M.” on termination of the contract of assignment of rights, recovery of damages caused and interest for the use of other people's funds.

The claim for termination of the contract and recovery of damages was satisfied. When considering the case, the courts found that the decision of the district court had entered into legal force invalid contract lease of land for construction. This served as the basis for the conclusion that the agreement on participation in the shared construction, the right of claim for which was the subject of an assignment agreement. Therefore, LLC "M." transferred to the plaintiff a non-existent right, which served as the basis for termination of the contract (subclause 1, clause 2, Article 450 of the Civil Code of the Russian Federation) and recovery of damages caused (resolution of the Federal Antimonopoly Service of the North-Western District dated December 27, 2010 in case No. A21-198/2009) .

The assignor is not liable to the assignee for the debtor’s failure to fulfill the assigned right (claim), except in cases where the assignor has assumed guarantee for the debtor to the assignee (). Such a guarantee must be in writing ().

Practical example: the court indicated that the law does not prohibit the assignor from accepting a guarantee for the fulfillment of an obligation by the debtor

When assigning rights, the parties agreed that the assignor is obliged to pay the assignee the value of the assigned claim if the debtor fails to fulfill the obligation or objects to it. In addition, the parties established the joint liability of the assignor along with the debtor to the assignee in the event of failure by the debtor to fulfill the assigned claim. Courts of the First and appellate court recognized such a condition of the assignment agreement as contrary to the provisions of the Civil Code of the Russian Federation.

The Court of Cassation did not agree with this conclusion. Argumentation: the named condition of the contract contains an element of guarantee, which is allowed by the Civil Code of the Russian Federation (resolution of the Federal Antimonopoly Service of the Volga District of September 7, 2011 in case No. A65-15225/2010).

167.3871 (11,17)

Attention! Since July 1, 2014, the following rule has been established: if the assignor has assigned the same right of claim to several persons, then the right of claim is recognized as having been transferred to the one in whose favor he made the transfer earlier.

The risk that the debtor will fulfill the obligation not to him, but to another person, is borne in this case by the assignor or assignee himself, who knew or should have known about the assignment that took place earlier (clause 4 of Article 390 of the Civil Code of the Russian Federation).

Cases when it is necessary to obtain the debtor's consent

As a general rule, when assigning a right (claim), the consent of the debtor is not required. The exception is cases when otherwise follows from the law or contract. This means that the parties, when concluding the main agreement, can provide that the assignment of rights by the creditor is impossible without the prior consent of the debtor.

If the need for the debtor's consent is established by law, then the absence of such consent makes the assignment agreement, as a general rule, voidable. According to the Civil Code of the Russian Federation (as amended by Federal Law No. 100-FZ of May 7, 2013), transactions that violate the requirements of the law, as a general rule, are not void, but voidable. In addition, it is voidable transaction, committed without the consent of a third party, the need to obtain which is provided for by law (). Currently, courts, when applying these rules, indicate that the absence provided by law consent entails not the nullity of the assignment agreement, but its voidability. So, the court, taking into account the articles). The court came to the same conclusion in the resolution of the Federal Antimonopoly Service of the Moscow District dated February 26, 2015 No. F05-542/2015 in case No. A40-94447/14).

An exception to the general rule (according to which it is not necessary to obtain the debtor's consent) is when the identity of the creditor is of significant importance to the debtor. In this case, the debtor’s consent to the assignment of rights is mandatory (clause 2 of Article 388 of the Civil Code of the Russian Federation). Such cases include, for example, requirements for the provision of property for use, for the provision of personal services (in particular, for the execution of an order, the requirements of the principal to the commission agent or the principal to the agent), etc.

167.3872 (11,17)

Attention! With regard to the assignment of non-monetary execution rights, from July 1, 2014, the law established a rule: for an assignment, it is necessary to obtain the consent of the debtor if the assignment of the right makes the fulfillment of obligations significantly more burdensome for him.

By agreement, the debtor and the assignor can prohibit or limit the assignment of the right to receive non-monetary performance (clause 4 of Article 388 of the Civil Code of the Russian Federation).

Thus, even if there is no such agreement between the debtor and the creditor, the creditor can assign this right without the consent of the debtor only if the assignment does not make the fulfillment of the obligation too burdensome for the debtor.

In addition, assignment of claims to to an individual without his consent entails the obligation of the former and new creditors to jointly and severally reimburse him for the costs associated with the assignment. Other rules for reimbursement of expenses may be provided in accordance with laws on securities(clause 4 of article 382 of the Civil Code of the Russian Federation).

If the creditor enters into an assignment agreement without the consent of the debtor, then the latter has the right to file a claim in court to apply the consequences of the invalidity of a void transaction (Clause 3 of Article 166 of the Civil Code of the Russian Federation).

The debtor has the right to written notification of the transfer of rights. If such notice is not given, the assignee bears the resulting risk of adverse consequences, and the performance of the debtor to the assignor will be considered proper. The debtor's obligation is terminated by its fulfillment to the original creditor, carried out before receiving notification of the transfer of rights to another person (clause 3 of Article 382 of the Civil Code of the Russian Federation).

167.3873 (11,17)

Attention! From July 1, 2014, the procedure for notifying the debtor about the transfer of rights and the assignment of claims has changed

Both the original creditor and the debtor may notify the debtor of the assignment of rights. new creditor. In this case, the debtor may not fulfill the obligations to the assignee until he is provided with evidence of the transfer of rights to him. The exception is cases if he received notification of the transfer of rights from the assignor. In other words, when the notification is sent by the original creditor, the debtor has no right to demand that he be provided with other evidence of the assignment besides the notification itself (Clause 1 of Article 385 of the Civil Code of the Russian Federation).

At the same time, the law does not specify how much information the assignee must send to the debtor. Therefore, it is better for the assignee if the assignor is the one who notifies the debtor.

If the debtor has received notification of one or several subsequent transfers of rights, then he is considered to have fulfilled the obligation to the proper creditor upon fulfillment of the obligation in accordance with the notification of the last of these transfers of rights (Clause 2 of Article 385 of the Civil Code of the Russian Federation).

131.79327 (11,17)

What is transfer of a contract?

From July 1, 2014, it is possible to transfer the contract. An article has appeared in the Civil Code of the Russian Federation that establishes rules for the transfer of a contract ().

Transfer of a contract means the transfer by a party to a transaction of all its rights and obligations under this transaction to another person.

In this case, the rules on the transfer of debt and the assignment of claims in the relevant part are simultaneously applied.”

3. Agreement on the transfer of rights and obligations under the contract

« AGREEMENT on the transfer of rights and obligations under the contract G. Moscow« 28 » November 2014 G. LLC "Vostok", we call oh hereinafter referred to as “Assignor”, ​​represented by general director A.S. Glebova, acting on the basis charter, on the one hand and Alpha LLC, we call oh hereinafter “Assignee”, represented by General Director A.V. Lvov, acting on basis charter, on the other hand, have entered into this agreement as follows. 1. THE SUBJECT OF THE AGREEMENT The condition of the obligation, under which the original creditor assigns the claim to the new creditor, is an essential condition of the assignment agreement. Therefore, an agreement of this type must necessarily contain a reference to the obligation from which the assigned right arose. 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). A transfer of debt based on a transaction made in simple written or notarial form must be completed in the appropriate written form. This follows from paragraph 4 of Article 391 and the Civil Code of the Russian Federation. As essential condition For a debt transfer agreement, the law determined the condition of the obligation from which the transferred debt arose. Therefore, the parties to the agreement must indicate the specific obligation from which the debt arose (agreements, invoices, etc.), indicating the parties to the obligation, the date of its conclusion, the amount of debt for each of the obligations (if there are several of them). The subject of the debt transfer agreement is considered agreed upon if the terms of the agreement make it possible to establish the specific obligation from which the debt arose and the creditor’s consent to such a transfer is obtained. An agreement on the transfer of debt can be concluded between the original debtor and the new debtor. In this case, it is necessary to obtain the consent of the creditor. In the absence of such consent, the transfer of debt will be void. The creditor's consent may be preliminary. If the creditor gives prior consent to the transfer of debt, such transfer is considered to have taken place at the time the creditor receives notice of the transfer of debt. At the same time, from July 1, 2014, the law introduced a new provision: in obligations that are related to the implementation of business activities by their parties, the creditor and the new debtor can enter into an agreement between themselves on the transfer of debt. Under such an agreement, the new debtor assumes the obligation of the original debtor (). To transfer the creditor's rights to another person, the consent of the debtor is not required, unless otherwise provided by law or agreement. 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 the adverse consequences caused by this for him. In this case, the fulfillment of the obligation to the original creditor is recognized as fulfillment to the proper creditor. For more information about this, see How to assign a right (claim) and What a debtor needs to check if a creditor has assigned a right (claim) to a third party. The list of documents necessary for the transfer can be included in the text of the agreement on the assignment of rights (claims) as a separate clause. For more information about what you need to consider when transferring a debt, see How to transfer your debt to a third party and What to do if a counterparty wants to transfer its debt to a third party." Best regards, Alexander Kobzarev, System expert Lawyer Answer approved by Valentina Yakovleva, leading expert of the Lawyer System

Drawing up an agreement to replace a party to a contract occurs in cases where, for some reason, one of the parties contractual relations is unable to fulfill its obligations.

FILES

When does a change of side most often occur?

The circumstances under which it may be necessary to replace one of the parties can be very different:

• financial problems or bankruptcy of the enterprise;
• production difficulties;
• "relocation" of the company;
• change of company management, etc.

Who can participate in the agreement

Enterprises and organizations may participate in the replacement agreement of the parties to the contract, legal entities, and ordinary citizens who have reached the age of majority.

The essence of the document

The main objective of the agreement: complete transfer of powers, rights and obligations from one party to the agreement to a third party. Thus, the agreement is a priori tripartite in nature.

In this case, the transferring party is obliged to notify its counterparty of the proposed replacement in advance and obtain written consent to this, which can be drawn up in a separate document or in the form of a resolution in the agreement.

A party can be replaced at any stage of the contract.

When not to make a replacement

The legislation of the Russian Federation regulates situations in which it is impossible to replace one of the parties to the contract. In particular, these include cases related to compensation for damage to health (both moral and material), as well as issues related to alimony.

Ways to replace sides

There are two ways to transfer rights and obligations under a contract to a third party:

1. using an agreement between an entity that was previously a party to the main contract and a new person (the so-called assignment of a claim);
2. using the law (for example, based on a court decision).

Who should draft the agreement?

The function of directly forming an agreement is assigned to a representative of the organization that initiates the replacement. As a rule, this is a legal adviser or manager structural unit, who is in charge of the contract under which the party is being changed. In any case, this should be a person who has an idea of ​​how to correctly write such documents and is familiar with the legislation of the Russian Federation in this regard.

What to pay attention to when drawing up an agreement, sample

United unified form There is currently no agreement on replacing a party to a contract, so representatives of organizations and enterprises can create it in any form, or, if the enterprise has a developed and approved template for this document, based on its sample.

The main condition is that the structure of the agreement meets certain standards of office work, and the text contains a number of mandatory information:

• place, date of document preparation;
• full names of the organizations between which the agreement is concluded, as well as the name of the company that remains an unchanged party to the agreement, indicating their constituent data, positions, last names, first names and patronymics of managers or their legal representatives.

The main part of the agreement should include:

• a link to the agreement (number, date of conclusion) under which the replacement takes place;
• information about the set of rights and obligations that are transferred;
• if some of the obligations have already been fulfilled - information about them;
• if replacing a party to the contract entails a change in some of its clauses, this must also be noted;
• record the voluntary consent of the organization accepting the rights and obligations under the contract, as well as the fact that from now on all responsibility passes to it.

All other clauses of the agreement are left to the drafters of the document and depend on the specific circumstances of a particular case.

Document preparation

Just like the text of the agreement, its execution can be done in free form: it can be printed on a computer or written by hand, on a regular sheet of paper of any convenient format or on the letterhead of one of the companies.

It is only necessary that the document be signed by all parties to the transaction, including a representative of the unchanged party to the contract (in this case, the use of facsimile autographs, i.e. printed in any way, is excluded).

In cases where the regulations of the enterprises participating in the agreement include a requirement to certify papers using seals, the form must be stamped.

The agreement should be made in three copies identical in text and equivalent in law - one for each of the interested parties and must be registered in the logbook of contractual documentation.

After the agreement is concluded

After the agreement is signed, all rights, powers and obligations regarding the execution of the terms of the agreement, as well as responsibility for their violation, pass to the organization that assumed them. The original party is completely released from all obligations in the amount specified in the agreement. Further interaction under the agreement occurs only between newly established entities.

How and for how long to store a document

The agreement to replace a party to the contract should be kept together with the contract itself in a separate folder in a place closed from access to unauthorized persons. The duration of storage is determined by the standards established by the legislation of the Russian Federation or internal regulations of the company (but not less than three years).