Today, many enterprises have to run out of cash. Often this forces them to resort to the conclusion of contracts for the cession of claim rights. It is important to correctly conclude the conclusion of these agreements in order to avoid a situation in which such actions will be illegal.
The legislation provides a definition whereby the assignment of a claim is an agreement between business entities that allows one party (the original creditor) to cede to the new creditor (the other party) the right to demand the fulfillment of contractual obligations from a third party. As a rule, the transferred rights are presented in the form of a debt in the form of a certain property or monetary amounts.
The assignment of the right of claim is executed in a written agreement between the new and old creditors. This document contains information about the rights to non-fulfilled third-party assignable obligations. The contract should also contain information on the causes of the debt.
The prevalence of assignment agreements is due to the fact that creditor enterprises often need money to pay off their debts, and they do not have time to conduct judicial, claim and judicial enforcement activities.
Therefore, the conclusion of such agreements allows the organization not only to get rid of problems, but also to get some reward from the new lender. Usually this bonus is expressed in monetary or commodity form. In essence, the assignment of the right of claim is the sale of receivables, which does not require the consent of the debtor.
However, in practice, many questions often arise regarding the legality and correctness of the drafting and execution of contracts of this type. Controversial issues arise in cases when the conclusion of the assignment of a claim is made under ongoing contracts. These types of agreements include equipment maintenance, utility services, electricity supply contracts, some supply contracts, as well as others, the implementation of which requires a long time and is multi-stage in nature. Typically, such transactions are concluded for a period of more than one year.
Often, many mistakenly associate the cession of a claim only with the transfer of the right to demand debt. But this rule does not apply to continuing contracts. Despite the fact that many arbitration courts recognize the legality of concluding contracts of assignment of claims for continuing contracts, the highest arbitration court most often cancels such decisions. His position is that the assignment of the right of claim under these contracts is not valid at their termination and renewed conclusion.
Organizations have only two options to make an assignment of a claim and transfer all obligations in full. This is permissible if the lasting contract is completely terminated and has not been renegotiated again. And also for one-time contracts, which imply one-stage fulfillment of a specific obligation.
Often, enterprises under a terminated contract make a concession to several persons at once by means of shared distribution. There is also such an option when the sum of the main debt and accrued fines and penalties are assigned to various organizations or the main debt is divided equally between the two parties.
The legality of these operations is in doubt and, most likely, these equity concessions will be recognized by the arbitration as unlawful, since the assignment of the right of claim by definition implies a complete change of face in the obligation. And with the assignment of only the amount of interest, the fact of transfer of the principal debt is absent, which implies that the obligation does not completely change the person, and, therefore, the assignment itself. For the same reason, the shared distribution of the main debt is also illegal.