Assignment of the right of claim: the nature of the conclusion

Today, many enterprises have to lack cash. Often this leads them to resort to the conclusion of treaties, under which the assignment of rights of claim is made. It is important to correctly draw up the conclusion of these agreements in order to avoid situations in which such actions will be illegal.

Legislation gives a definition whereby a concession of a claim is an agreement between business entities that allows one party (the original creditor) to give the new creditor (the other party) the right to demand fulfillment of obligations under the contract from a third party. As a rule, the transferred rights are represented as a debt in the form of a certain property or monetary sums.

The assignment of the right of claim is formalized in a written agreement between the new and old creditors. This document contains information about rights to third party defaulted assignments. The contract should also contain information on the reasons for the occurrence of the debt.

The prevalence of contracts of assignment of a claim is caused by the fact that creditor enterprises often feel the need for money to pay their debts, and they do not have time to conduct judicial, claim and judicial-executive activities.

Therefore, the conclusion of such agreements allows the organization not only to get rid of problems, but also to receive some reward from the new creditor. Usually, this bonus is expressed in monetary or commodity form. Essentially, the assignment of the right of claim is the sale of receivables, which do not require the consent of the debtor.

However, in practice, there are often many questions about the legality and correctness of drawing up and processing contracts of this type. Disputes arise when the concession of a claim is made on continuing contracts. These types of agreements include agreements for the maintenance of equipment, the provision of utilities, the supply of electricity, some contracts for the supply, as well as others, the implementation of which requires a long time and is multi-stage. Typically, such transactions are concluded for a period of more than one year.

Often many erroneously link the cession of a claim only with the transfer of the right to demand a debt. But this rule does not apply to continuing treaties. Despite the fact that many arbitration courts recognize the legality of concluding contracts of concessions 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 agreements is invalid upon their termination and resumed detention.

Organizations have only two possibilities to conclude an assignment of a claim and to fully transfer all obligations. This is permissible if the continuing contract has completely ceased its operation, and has not been renewed again. And also for one-time contracts, which imply a one-stage fulfillment of a specific obligation.

Often enterprises on a discontinued contract make concession to several people at once through equity allocation. There is also an option where the amount of the principal debt and accrued fines and penalties is assigned to different organizations or the basic debt is divided equally between the two sides.

The legitimacy of these transactions is questionable and, most likely, these share assignments will be recognized by the arbitration as illegal, since the assignment of the right of claim by its definition implies in the undertaking a complete change of the person. And with the concession of only the amount of penalties, the fact of transfer of the principal debt is absent, from which it follows that the obligation does not have a complete change in the person, and, hence, the concession itself. For the same reason, the distribution of the principal debt is illegal.