Assignment of rights and obligations under the contract

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Citizens often sell, buy, or borrow something. Obligatory legal relations constantly occur in society.

The development of property relations presupposes the need to replace participants in the legal relationship. Sometimes a contract under an obligation must have the opportunity to resolve problems that arise during its execution.

How is an agreement for the assignment of rights to claim a debt concluded?

A right (claim) is transferred to another person as a result of a transaction. This type of relationship is called a concession to the demand. The court has the right to make a decision to transfer the claim to another person.

The main basis for the legal assignment of debt is an agreement by consent between the one who transfers the rights (assignor) and the one who receives the rights (assignee). The contract must comply with the rules of the law.

The assignee is advised to ensure that the obligation will be fulfilled, that the assignment is valid and will not cause him losses.

The contract for the assignment of the right of claim is bilateral. The debtor, who must pay the debt under the original agreement, in this case is only a participant, but not a party to this type of agreement.

What is this deal?

An assignment in real estate is, in essence, a purchase and sale transaction, but it is concluded by drawing up an assignment agreement in accordance with the requirements of the Civil Code of the Russian Federation.
In accordance with such an agreement, the person who is the seller of an apartment in a newly built building (shareholder) transfers to the other party to the agreement (assignee) all his rights and obligations to the developer as an equity participant.

The relationship between the shareholder and the company that is the developer is usually formalized by a share participation agreement.

The general rules for concluding an assignment agreement (or otherwise formalizing the assignment of the right of claim) are outlined in Articles 382-390 of the Civil Code of the Russian Federation .

With regard to shared participation in the construction of real estate, such transactions are described in Article 11 of Federal Law No. 214-FZ “On participation in shared construction of apartment buildings...”.

The meaning of the assignment agreement is that the new owner of the apartment, who received it as a result of the assignment agreement, fully bears all the rights and obligations to the developer company specified in the original share participation agreement.

A sample agreement for the assignment of the right of claim (assignment) to an apartment can be downloaded here.

The essence of legal relations

If the obligation is preserved, then replacing participants does not present any particular difficulties from a legal point of view.

The creditor cannot demand repayment of the debt ahead of schedule. He may assign the rights to the debt obligation to another person. This transaction, called the assignment of the right of claim, can be gratuitous or compensated, and a percentage may be paid for the transaction.

The assignee, in the case of a paid assignment, is obliged to provide some equivalent - money, things or another type of property.

The assignment agreement is concluded without the consent of the debtor. The debt should not be associated with the identity of the creditor.

The debtor may not know anything about the change of creditor. A situation is possible when the debtor will fulfill obligations to the previous creditor, without providing documents confirming the right of claim.

A debtor who has not received notice of a change in creditor will try to challenge this in court. A change of debtor is not possible without the permission of the creditor. It is also possible to replace both participants in the legal relationship.

If any of the participants leaves the obligation, the rights and obligations of the departing participant are transferred to the new participant. Fundamental here is the succession of creditor or debtor.

There are many very complicated legal proceedings associated with the assignment of rights. Especially when it comes to organizations and banks.

The monetary claim can be divided when registering an assignment. The new creditor will have the right to collect the penalty, and the first creditor will retain the right to claim under the main obligation.

One of the nuances may include the assignor’s obligation to compensate losses to the new creditor if the assignment is declared invalid.

Assignment of the right of claim on a sheet. Algorithm of actions

Sometimes, after the court has made a decision on the debt and a sheet has been formed, the creditor decides to sell the debt. However, when assigning rights of claim under a writ of execution, many questions arise. In particular, is it necessary to obtain a new sheet, how does this happen, and who should take the documents to change the creditor: to the bailiffs or to the court? Let's try to figure it out.

If a client who has issued a loan on a card instantly, 24/7, without refusal, does not pay his debts, then the creditor will sooner or later go to court, win the case and receive a letter in his hands.

Another issue is that the creditor may decide to transfer the right to the debt to another person. The reasons may be different: there is no time to collect the debt or the creditor understands that the prospects for returning the money are very vague.

Collection agencies are often interested in purchasing debts under writs of execution. Read more about prices in our material “Is it possible to sell debts to collectors?”

So, if the parties have agreed on the cost, then an agreement on the assignment of claims is concluded. Samples of such documents are presented in huge quantities on the World Wide Web. At least if you sell debt to collectors, then they definitely have templates for the necessary documents.

Should I ask the debtor?

According to Art.
382 of the Civil Code of the Russian Federation, the creditor does not need to obtain the consent of the debtor in order to resell the debt to another person. In some situations, assignment is prohibited if the debt is closely related to the creditor, for example, in the case of alimony or compensation for personal injury, but this does not apply to debts on credit or loans. Sometimes controversial situations arise in which debtors try to prove that the identity of the creditor was of significant importance to them, so it was impossible to change the creditor without their consent, however, as practice shows, the courts come to the conclusion that returning an online loan to a card without refusal and urgently needed in any case, regardless of the identity of the creditor, therefore in such situations the identity of the creditor does not play a significant role.

Preparing an application

The question of replacing a party to enforcement proceedings often arises.
Let us remind you that in accordance with Article 52 of the law on enforcement proceedings, the bailiff has the right to replace the party who left the process. This can be done, for example, in the event of a debt sale to a new creditor, reformatting of an organization, death of a citizen, etc. Replacement of the creditor is allowed only until the execution of the court decision. In other words, if a citizen has repaid his debt by fulfilling his obligations imposed by the court, then changing the creditor no longer makes sense.

Changes cannot be made to the sheet itself or to the court decision, therefore, in the event of an assignment of claims, the parties will have to act as follows. It is necessary to prepare an application to the court to replace the party.

In the application, the interested person indicates that on such and such a date a court decision was made in case N to recover the following amount from citizen A. Next, you should indicate the number of the proceedings that were initiated within the framework of this case, as well as explain the extent to which the requirements were fulfilled.

The applicant also informs about the conclusion of an agreement for the assignment of the right of claim under the writ of execution. Referring to Article 52 of the law, which

regulates collection issues, the applicant asks the court to replace the party in the proceedings.

The application will need to be accompanied by a copy of the court decision on the debt and a copy of the agreement on the assignment of the right of claim.

To the bailiff

The court delivers its verdict. In this case, a new sheet is not formed. With the received court decision, the applicant turns to the bailiff, who, on the basis of the law, prepares a resolution to replace the party.

A copy of the delivery is sent to the creditor, debtor, and also to the court no later than one day after the delivery.

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Contract form

The assignment agreement (cession) is concluded in written or notarized form. This transaction is subject to state registration. The registration period is 30 days from the date of submission of documents.

It must fully comply with the original agreement.

Agreement on assignment of claim rights

It would be correct to include the following points in the assignment agreement:

• Indication of the place, date, parties to the contract.
• One of the main points is a clear indication of the subject of the transaction.
• Duties of the parties.
• Responsibility of the parties.
• The price of the contract or the amount of payment for the transaction must be indicated, which are determined independently.
• By agreement, force majeure circumstances can be taken into account.
• This is followed by the final provisions, including clauses on making additions, considering controversial issues, etc.
• The conclusion contains the details of the parties and signatures.

Essential terms of the assignment agreement

According to the Civil Code of the Russian Federation, if the agreement does not reflect the essential circumstances of the transaction, it may be declared invalid in court. This section will look in more detail at the various situations that may arise.

Agreement on assignment of rights in real estate

According to the law, in any transaction that ever involves ownership of real estate, the transaction is subject to registration in the Unified Register of Property Rights to Real Estate.

Without this registration, the transaction will be invalid, regardless of the fact that the assignment agreement may have already been signed at that time.

It will work after such registration is completed.

Assignment of claims under a supply agreement

There are no formal rules that relate to exactly how the assignment agreement should be written in the case at hand.

However, based on what circumstances can be considered significant for such a transaction, the sample must necessarily contain the following information:

1. Information about both parties to the agreement must be provided in full.
2. In this part it is necessary to indicate information about the supply agreement that is the basis for the existence of a debt. You need the date and number of the relevant document, as well as all the basic information about it.
3. If the agreement is paid, this document will need to determine the terms and procedure for payment for the transfer of claims.
4. It is necessary to accurately formulate the rights and obligations of the parties, as well as liability for their violation.
5. In this section, it is advisable to foresee what controversial situations may arise, as well as define the rules for resolving conflicts.

Assignment in insurance

In the insurance industry, this type of transaction is common and is called reinsurance. The procedure for conducting them is regulated by law.

Please note: the law does not allow individuals to enter into such agreements when it comes to compulsory motor liability insurance.

Assignment under a contract

In this situation, the rules for concluding agreements have been changed.

When assigning the right of claim from a construction contractor, it is impossible to do so not only without notification, but also without the consent of the latter.

This is due to the fact that not only the assignment of the right of claim occurs here.

When transferring a debt, the creditor acquires not only rights, but also obligations.

Assignment in credit banking operations

When concluding this type of transaction in civil law, it is necessary that the assignee has the legal right to work in the credit sector. If he does not have such permission, the assignment transaction under the loan agreement may be declared invalid.

Assignment in bankruptcy

In a case where a company is facing bankruptcy, an assignment agreement is a means that can alleviate the situation by receiving at least part of the debt.

Until bankruptcy occurs, such an agreement may be declared invalid by the tax office.

This is due to possible suspicions that there is an attempt to evade taxes due to the low income of the assignor in the case under consideration. In this case, an explanatory note may help, which will provide an economic justification for the price used.

What does a lender need to remember?

The law confirms the obligatory consent of the creditor to replace the debtor. This is understandable because the creditor must be convinced of the new debtor’s ability to fulfill his obligations. Only then can written permission for a replacement be provided.

It is important to notify (in writing, officially) the debtor of a change of creditor.

You should be aware that the transfer of all documents under the obligation from the assignor to the assignee does not relate to the act of assignment itself. The transfer of documents serves the interests of the assignee only and is a consequence of the transaction for the assignment of rights.

Meanwhile, since the new debtor is a legal successor, he can raise objections to the creditor that were previously raised by the former debtor.

Transfer of an apartment

Statistics show that every third real estate transaction in new buildings is carried out for the purpose of investing money.

While the house is still under construction, the transfer of rights is in low demand. But when the house is built and many apartments are sold, the demand for such a commitment increases.

In the future, such apartments will be sold at a profit. And yet, the cost of real estate with the transfer of ownership is lower than the cost from the developer and with a registered title.

It happens that the apartment is under construction, but a buyer has already been found. In this case, an assignment of rights of claim is formalized. This is possible until the property is officially handed over.

Is it possible to pay off with the lender by assigning the right of claim (assignment)

If you have a situation when the loan is due for repayment, and you have no money, but you have your own borrower who owes you money. Will you be able to pay off with your lender by assigning to him your right to claim the debt from a third party? You can find out this if you understand what general rules for the assignment of claims are established by law.

Such rules are contained in the civil code of the Republic of Kazakhstan (Articles 339-347), according to which an assignment of a claim (cession) is a transaction in which a right (claim) belonging to the creditor on the basis of an obligation is transferred. A person who is a creditor in a transaction when assigning the right to claim a debt is called an assignor. The new creditor - the person to whom the right to claim the debt is transferred - is called the assignee. The debtor, the right to claim the debt to whom is transferred to the new creditor, is called the assignee. When assigning the right of claim, a change of persons in the obligation occurs.

In other words, under such a transaction, you transfer to another person your right to demand the fulfillment of an obligation from your debtor, and your debtor will have a new creditor. At the same time, there is only one limitation - it is impossible to assign the right of claim inextricably linked with the identity of the creditor (claims for alimony, compensation for harm caused to life and health).

Thus, in the situation indicated at the beginning, when you are a debtor under a loan agreement with one person (your creditor) and at the same time a creditor under a loan agreement with another person (your debtor), then you can enter into an agreement with your creditor under which, instead of paying your debt, assign your right to claim the debt to your debtor.

When formalizing such relations, you should be more attentive to the essence of the transaction, the subject, and the scope of the transferred right. If you and your lender have come to an agreement on the assignment of the right to claim the debt from your debtor (debtor), then take note of the following:

• You can only assign the entire debt;
• As a general rule, it is not necessary to obtain the debtor’s consent to change the creditor. But nevertheless, it is necessary to inform the assignee that he has a new creditor;
• the assignor (the "old" creditor) must guarantee the assignee (the new creditor) that the transferred debt is valid. To do this, it is necessary to prepare and submit all available documentation regarding the debt (loan agreement, receipts, etc.);
• the form of the agreement on the assignment of the right of claim must coincide with the form of the loan agreement on which this assignment is based. If the agreement was certified by a notary, then in order for the assignment of the rights of claim to be valid, the transaction on the assignment of the right of claim must also be certified by a notary;
• if the right to claim receivables is assigned, then it may be assigned at a loss for the assignor, i.e. for such an operation a negative difference arises. Therefore, it would be a good idea to consult with a specialist on how transactions on the assignment of the right of claim are reflected in accounting. The resulting negative difference on transactions of assignment of the right of claim is recognized as an expense in accounting.

Dear users! The information in the article complies with the legislation of the Republic of Kazakhstan in force at the time (date) of publication.

How to make a deal?

If the agreement with the developers does not specifically indicate the prohibition of assignment, then it is possible to conclude an assignment for the apartment. Sometimes the developer prescribes the need for his consent to the assignment.

The agreement is concluded in writing. It is better to have it certified by a notary.

The contract must specify the procedure and terms, as well as the exact amount of payments. Without specifying these conditions, the first buyer (your seller) has the opportunity to challenge this agreement.

An agreement on the assignment of rights to claim an apartment is subject to registration. Within 10 days from the date of registration, you must notify the developer of a change in the copyright holder in any case. If this is not done, the developer may refuse to transfer the finished object to the assignee.

What it is?

The assignment of rights to real estate is a transaction at the end of which the rights and obligations of the shareholder are transferred to the buyer.

Consequently, he receives the right to demand from the developer the delivery of housing within the time period specified in the share participation agreement and in accordance with the listed requirements.

If the equity holder has not fully paid the funds for the property, then the buyer has additional responsibilities - payment of sums of money at a certain time and in a specific amount.

Legislation

The issue regarding the assignment of the right to claim an apartment is carefully regulated by law. Federal Law No. 214 of 2004 regulates the rights and obligations of equity holders and developers.

This is an important legal act, since the agreement for the assignment of the right of claim will be concluded on the basis of the DDU.

The provisions of the latter document directly depend on the mentioned Federal Law.

It is important to take into account the Civil Code of the Russian Federation, in particular Article 164. In accordance with it, the assignment agreement must be registered in accordance with the general procedure.

Chapter 2 of this code includes provisions regarding the content and execution of the contract. The Tax Code of the Russian Federation must be taken into account when resolving financial issues.

Advantages and disadvantages

Assignment of the right of claim is a procedure that has its advantages and disadvantages.

The inherent advantages of its conclusion include:

1. Possibility of purchasing housing in a new building in which all apartments have already been sold by the developer. If buyers liked a particular house for certain reasons (for example, developed infrastructure, etc.), but the property was sold to a construction company, you can contact the shareholders themselves.
2. Significant economic benefits for both parties. The buyer receives an apartment cheaper than it would cost to purchase a ready-made property; the shareholder also sells it at a higher cost than he bought it for.

The only drawback of the deal is the high risks. However, if all requirements are met, they can be avoided.

Organizational aspects

Necessities include:

• The presence of a main agreement under which this right is actually assigned.
• Draw up and sign a document confirming settlements between the parties.
• Confirm in writing the consent of a third party (developer, bank, if the property was purchased on credit).
• To register the assignment agreement, all encumbrances (for example, a pledge of real estate in a bank) must be removed.
• Draw up and conclude an assignment agreement.
• Activate the transfer of all documents.

The tax from the transaction is borne by the first investor, but can be divided by mutual agreement.

When concluding an agreement for the assignment of rights under a share participation agreement in construction, it is necessary to remember the existence of risks during its termination.

The final buyer cannot count on receiving the amount paid under the assignment agreement. Only the amount specified in the share participation agreement will be returned to him.

Assignment of rights

As mentioned above, this approach is most used in the banking industry, but the concept of assignment is much broader. For example, we may be talking about shared construction, when an apartment is purchased under an agreement on the assignment of the right to claim. When constructing residential real estate, developers attract apartment buyers already at the construction stage.

In this case, the developer enters into an equity participation agreement (DPA) with the buyer, which is registered in the Unified State Register of Real Estate. Based on the DDU, the shareholder subsequently registers ownership of the apartment after the object is completed and put into operation. Despite the fact that the property is not owned, the shareholder can at any time assign rights under the purchase and sale agreement.

Thus, the right to register the ownership of the apartment is actually transferred to another person after completion of construction. It is worth paying attention to the differences between an assignment and an assignment of rights under DDU agreements - in the second case, as a result of such a transaction, obligations are transferred along with the rights, therefore such types of agreements, although they are a type of assignment of rights, cannot be classified as an assignment.

Important! When the original participant in shared construction has not made payments of the share in full, before the agreement for the assignment of the right to claim the apartment is drawn up, consent from the developer is required.

Read: what risks are possible when buying an apartment through assignment of rights.

Assignment of debt

Assignment (transfer) of debt is a change of debtor under an existing obligation. This is a voluntary way to resolve your debt and avoid litigation.

The debt transfer agreement, as a multilateral transaction, requires the expression of will from all parties (old and new debtor and creditor).

When assigning a debt, it is necessary to obtain permission from the creditor. Once the new debtor is approved, the creditor confirms this in writing.

Important points

1. It is imperative to indicate the original obligations in full.
2. Separately indicate the amount of debt.
3. Record complete data about the old and new debtors.
4. The creditor cannot change the requirements of the obligation when the debtor changes.

How to draw up a debt assignment agreement?

The debt transfer agreement is drawn up in a similar way to the assignment. All disagreements between the parties involved must be resolved.

The document drawn up must contain a detailed reference to the underlying (initial) agreement. The amount of debt, obligations and conditions imposed on the new debtor are stated. It is necessary to indicate the details and contact information of the parties.

The debt assignment agreement may be supplemented by agreements. They may contain conditions, certificates, etc. that are not included.