Assignment of responsibilities under the Service Treaty. How to use the contract of the assignment of the rights of claim. Agreement assignment obligations under the contract sample

Is it possible to make assignment of rights and responsibilities under the trust management agreement (one confidence manager comes out, the other enters the contract and becomes instead of it)? The consent of the owner of the property is available.

Answer

Yes it is possible. For this, it is most advisable to conclude a tripartite agreement on the replacement of the part of the contract.

"From July 1, 2014, amendments to the aforementioned in the new way, many questions about the assignment of rights (requirements), as well as the transfer of debt on another person, entered into force.

A dispositive rule appeared about when the requirement passes to the cessionary. This happens at the time of the conclusion of the contract, but the law or agreement may be provided otherwise.

The procedure for the concession of the future requirement, as well as non-cash requirements, is settled.

The law for the first time described in detail, which consequences will come, if you establish a ban in the main contract or restriction on the assignment of the claim.

Finally, there was special regulation for concessions the requirements and translation of debt in business relations. For example, in this case, the transfer of debt can be issued without an agreement between the old and new debtor, but by the agreement between the lender and the new debtor. And besides, only in business relationships are possible a concession of future requirements.

New rules for concessions of rights (requirements)

Now the law specifies the conditions when the assignment of rights (requirements) is possible.

As from July 1, 2014, the order of notification of the debtor about the transition of the right and the assignment of the requirements has changed

Does the consent of the debtor required for concessions

The Solidarity Lender has the right to give way to a third party with the consent of other lenders, unless otherwise provided by agreement between them ().

Attention! If the cedent lost the same demand to several persons, then the right of claim is recognized by which it has passed the transfer earlier.

Is it possible to establish a ban or restriction on assignment

Is it possible to give up the future requirement

Attention! The possibility of assignment of rights on regressing requirements has been introduced

The law excluded the Regulations on the ban on the transition of the rights on regressing requirements. Prior to these changes, it was provided that the rules on the transition of the rights of the lender to another person do not apply to regressive requirements ().

Regress is the opposite claim of the person who paid certain amounts instead of another person to demand from this person to compensation for these amounts. In particular, the right of regression arises from one of the debtors on a solidarity obligation, which he executed, and therefore has the right to claim compensation at the expense of other solidarity debtors (). Regress differs from the assignment of the right to be:

a new commitment arises;

there is no change of persons in the obligation.

With the assignment of law, on the contrary, the new commitment does not arise, but there is a change of persons in the obligation (i.e., the creditor is replaced).

Now, in connection with the amendments to the Civil Code of the Russian Federation, the rules on the transition of the rights of the lender to another person (i.e. the rules of the Civil Code of the Russian Federation) apply to regressive requirements.

In practice, this means that from July 1, 2014, a concession of the requirement is allowed with regressive requirements. In other words, the lender, that is, a person who fulfilled the obligation (paid amounts) instead of another person, can transfer its rights to the regressive commitment to another person.

If other parties did not agree in the contract, the cedent (the initial creditor) is obliged to convey the cessionary (new lender) everything received from the debtor on the defendant requirement ().

New Rules Translation Rules

The lender can carry out all rights on the obligation regarding the new debtor, unless otherwise provided by law, the contract or does not follow the obligations ().

How to conclude a debt translating agreement

If, when transferring a debt, the initial debtor is released from the obligation, then ensuring the fulfillment of the obligation provided by the third person ceases. The exceptions are cases when such a person agreed to respond to the new debtor.

The liberation of the initial debtor from the obligation applies to any provision provided by him, if only the property that is the subject of the provision, he did not transfer the new debtor (paragraph. 392.1 of the Civil Code of the Russian Federation).

Attention! Offset according to the requirements of the previous debtor is not allowed

New Legal Institute - Treaty Transfer

The transfer of the contract is understood as the transfer of the transaction of all its rights and obligations on this transaction to another person.

In this case, the rules on the transfer of debt and the assignment of the requirements in the relevant part are applied. * "

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Obligations are the connection of the parties, which obliges each of them to do something or refrain from something. In pure form Such a scheme is a rarityAs a rule, there are both parties and rights and obligations.

Obligations may appear for various reasons, but the main thing is arrangement decorated in accordance with the laws.

As a general rule, the relations of the parties to agreements cannot stop by the will of only one of them. But there is a separate reservation about such an opportunity.:

If the law gives it;
If it is provided for by the sides of the individual.

But, at the same time, the obligation may remain, but may change the parties.

For example, persons who have become heirs replace the testatorwho had credit money.

It may also be inherited the right to demand money given to the loan.

The lender or the one who must have the right to exchange its right. For example, there is an exchange, bidding on which only public debts.

But this is possible not only with states, but with any companies, people.

For example, can be sold right to rent. The contract only changes the tenant, the second side does not change, its responsibilities do not change. But again the transfer of obligations under the contract may envy on the conditions prescribed in the contract initially. It may indicate that the tenant has no right to transfer property to anyone to anyone.

There are serious restrictions on this regard regarding state and municipal property or enterprises that are owned by the state or municipalities.

Representation of obligations

Change the part in the contract, in particular the creditor fixed by a separate agreement.

If initially the agreement concerned the rights to real estate or was required to undergo a notarial certificate, change must be appropriately.

It is important that the debtor was a normally aware of what he should another face. It is necessary that this was done in writing. Depending on the circumstances, you need to fix the message to send (the letter sent to the notification and (or) describing invested.

The debtor has the right to ignore any messages about the change of creditor, taken orally, or, for example, by telephone.

If you take cases related to banks. Often banks sell debts that they will most likely be returned to special firms.

However, there is a violation of the set of legislation. After all, only having a license from the Central Bank can be issued loans. According to the sense of legislation, only the bank can buy such a loan, but again, there are restrictions on the disclosure of the client secrets of the outsider. therefore in the case of credit cases, it is impossible to change the creditor.

At the same time, if someone outsider decides to pay someone else's debt or to fulfill someone else's duty, the right of claim proceeds to such a person or organization. This case on banks does not apply.

But the assignment of obligations, when the obligations in front of the lender are transferred to a third party, it is possible only if the creditor agrees for this. Although this ban can be circumvented, for example, with money. You can pay debt at the expense of third-person fundswhich in turn can be in exchange for money receipt.

The transfer of obligations under the Agreement implies their concession to the other party, which has not previously concluded a contract. It is believed that when making a loan assignment of rights makes it possible to replace the lender, here the responsibilities of the old lender are moving to a new one, he also receives those rights that were previously obtained by an old lender on the basis of the contract.

The initial creditor is only required to find a new lender, transfer their duties. For this purpose is the agreement assignment to the other party. As for the debtor, the consent to the assignment is not required to the new lender. Any requirements may be defended, the rights of real estate rental, the rights of shareholders on the basis of participation in equity construction are inferior.

Can be transferred on the basis of an agreement on the assignment of obligations to fulfill work, transfer of funds and the supply of any goods. However, real estate property rights can only be inflicted on the basis of an alienation agreement, for example, a contract for the purchase or transfer of property to inheritance. In some situations, the rights and obligations of the creditor can not be transmitted. It is impossible to render the rights and obligations to reimburse moral damage or other damage caused to the other party. A new lender When concluding an agreement on the assignment of obligations, all rights provided for by the Treaty, which was the initial lender. Here, the rights and obligations of the initial lender are invalid. Thus, a new lender receives the opportunity to use the rights of an old lender, the old lender after signing the assignment agreement is not responsible for whether the obligations of the debtor will be fulfilled.

The right right may be transferred at any stage of the agreement on the consent of the parties. The assignment of obligations is made on the basis of the contract and the transfer of all documents signed previously between the parties to the transaction. In this case, a new lender can be transferred to the main contract and application, estimates for work and inventory documentation. When signing a concession agreement, an inventory of all transmitted documents can be compiled. The act must be certified by both sides with signatures, it can be compiled in an arbitrary form. Based on the contract, the transmission of original documents with seals, signatures.

Despite the fact that the assignment of rights is often happening without the consent of the debtor, he needs to send a notice that the new lender receives rights and obligations on the basis of the concession contract. The debtor should receive written evidence that the new lender has the right to request debt. Until that, the debtor will not receive these certificates and documents, he has the opportunity to refuse to fulfill obligations to the new lender, can make payments in favor of the previous lender. The volume of obligations and rights at the conclusion of the assignment agreement remains in the same volume, which one meant a prisoner agreement. If the other is not established by law, the lender does not have the right to change the subject of the contract and require the fulfillment of the obligations that are not provided for by the previously concluded contract.

If the assignment of obligations is carried out by legal entities, should be made the decision of the Constituent Assembly that the obligations are moving a new party. To conclude a contract of concession of the right to an apartment, provided that the contract price is fully paid or then when debt obligations are simultaneously transferred to another person. In the DUS's contract for transferring rights, there should be a point that there is no prohibition to make transactions. In addition, to conclude an agreement of the assignment on the basis of the DUS's contract, it is necessary when he passed the State Registration. The contract of assignment of law after also must be transferred to the State Registration.

In order to register a contract of assignment of law, it is necessary to prepare the assignment agreement itself, the DUS's agreement, the consent of the spouse, if the transaction is planned to be carried out in relation to property acquired during the marriage. At the first impression it may seem that the assignment agreement is transparent and understandable, in fact, disputes often arise between the parties. In order to protect their interests regarding violated rights, it is recommended to find a competent lawyer. Trusting the decision of a controversial issue by a professional lawyer, you will be able to understand the question, recognize a prisoner contract concession invalid and prove the fact of violating your rights. Note that the concluded concession contract should not violate the interests of the parties to the transaction, all the actions of the new lender regarding the debtor must be legitimate and must comply with the provisions of the previously concluded lending agreement.

Transfer of rights and obligations under the contract is governed by the rules of ch. 24 GK on the change of persons in the obligation. We are talking about the transfer of the right of claim by the lender (ie, the party in favor of which the obligation should be fulfilled) and the debt transfer to the debtor (that is, the transfer of its third-party obligations). Both also assumes that the initial side of the contract ceases to be a party to the contract, and its place is ranked third with the rights or obligations.

With regard to the transfer of the rights of the creditor, the GC provides for the following rules that need to be borne in mind when drawing up the contract:

The right of the claim of the lender can go to a third party on the transaction between it and the lender (assignment of the requirement) or on the basis of the law;
For the transfer of the creditor's rights, the debtor's consent is required, unless otherwise provided by law or contract;
If the debtor is not notified of the transition of the rights of the lender to a third party, he has the right to fulfill the obligations to the initial lender;
Not allowed without the consent of the debtor assignment to the obligation, in which the personality of the lender is essential for the debtor.

The debt translation is allowed only with the consent of the lender (Article 391 of the Civil Code).

At first glance, it may seem that the contract's side in whose favor must be fulfilled by the obligation, maybe easier to convey its right to demand without the consent of the other party. However, in reality, it is typical of only contracts in the financial sphere (a loan agreement, a loan agreement, a financing contract for the assignment of a monetary requirement). In this case, the debtor's obligations are to return funds to the bank or other lender, who has already fulfilled its loan obligations and can convey its right to require another person without the consent of the debtor.

In most of the same contracts, the right of the requirement of each part is due to its obligations under the contract. In other words, each party is both the debtor and the lender. Therefore, its replacement in the contract by another person means not only the transfer of the right of claim, but also the transfer of debt. And this can not be done without the consent of the other party. That is why entrepreneurial contracts (with the exception of the above-mentioned contracts in the field of finance) usually provide that the parties are not entitled to convey their rights and obligations under the contract to a third party without the written consent of the other Party of the Treaty. In a special way, the law also regulates the relations of the parties under the Agreement, if one of them carries out the sale of its company (Art. 562 of the Civil Code).

From transmission of the right, the requirements should be distinguished by often occurring cases when the contract's side gives an indication to execute not to it, but a third-chief. For example, the supplier gives an indication to the buyer to pay for the delivered goods not to him, but some third organization, in front of which the supplier has debt. For monetary obligations, such execution does not cause problems and the consent of the buyer does not require. If the indication of the execution of a third-party concerns other obligations, this may lead to the need to change the terms of the contract.

Suppose, under the contract, the supplier must ship the goods to the buyer from Tula to Moscow. The buyer gives an indication to shipping the goods not to Moscow, but a third party in Vladivostok. Obviously, the cost of transporting goods increases significantly, increasing the cost of the supplier, which he did not take into account when determining the price of the goods. In this case, the supplier has the right to argue against the execution by a third party without prior approval by the parties to the issue of additional costs in the manner prescribed to add and change the terms of the contract.

To prevent disputes that may arise in a similar situation, the following condition may be included in the treaty.

Each parties are entitled to give the other Party to an indication of the fulfillment of the obligation under the Treaty of the Tenimlitz, provided that

such execution does not entail additional expenses and does not create additional obligations for the part of the acting commitment. Otherwise, the indication of the execution by a third party requires written consent to the parties on which the fulfillment of the obligation is.

Change of contract

After the contract is signed by the parties, it becomes the only document regulating their relationship. The entire preceding correspondence, negotiations and agreements lose force if they do not have a special reference in the contract as its integral part. This position should be directly included in the contract.

Any subsequent additions and contract changes are a new contract between the parties and therefore should be made in the same form as the initial contract. Despite some differences in the wording, in fact, the treaties usually provide that any additions and changes in the contract must be made in writing and signed by authorized representatives of the parties.

If the initial contract requires the law or by agreement of the parties of a notarial certificate or state registration, then supplements or changes to it must be made in the same form. Accordingly, these additional form requirements should be reflected in the provisions on the completion and change of the contract.

Applications to the contract and the number of copies of the contract

Annexes to the Agreement are an integral part, and this provision must be directly provided by the contract.

References to applications are usually scattered in the text of the contract. If there are several of them, then there is no need to list in the final provisions. If there are many applications, then for the convenience of using the contract, it is advisable to give them a complete list in the final provisions.

Usually the contract is signed in the number of copies equal to the number of its parties. This is reflected in the contract with the standard wording.

Details of Party

Details of the Parties to the Treaty include:

Name of each side;
The identification number of each Party (INN) in the tax authorities database specified in the certificate of tax accounting;
the partition code for accounting (CAT), if it is registered with several tax inspectorates (also specified in the certificate of registration);
Legal address of the parties - a legal entity or the address of the residential entity of a private entrepreneur;
mailing address of each side, if it differs from the legal address or address of the residence;
phone numbers, faxes and data on other types of communication (for example, an email address), which the parties intend to use in the execution of the contract;
Bank details of each party;
The enterprise code in the Unified State Register of Enterprises and Organizations (EGRPO) is the code of the All-Russian Classifier of Enterprises and Organizations (OKPO code).

All details must be carefully recovered. If they are changed (especially addresses, data on communications and bank details), the Party must notify the other party in the shortest possible time.

In the contract, the obligation to notify the change in details may be formulated in general form:

The parties are obliged to immediately notify each other in the event of a change in the legal address, banking, postal and other details specified in this Treaty.

A more detailed formulation is possible, which establishes a specific period for the direction of notification of the change in details.

The assignment of land rental rights is the transfer of the rights and obligations of the tenant in favor of another person, in the same amount as in the main contract. Consequently, the tenant cannot increase the timing of the lease or change the conditions for the use of the Earth. For a tenant, "tired" from the use of land obtained under a land lease agreement, there are two options.

The first is to terminate this agreement. To do this, it is necessary to come to the owner of the land plot (lender) and together with it to the registering authority and terminate the agreement on mutual agreement of the parties. If the landlord is an individual, the termination process will take from 3 to 10 working days, if the state, the subject of the Russian Federation or the administration in the person of local self-government, then the process will take from 1 to 3 months.

According to the agreement, the CESSIA is transferred and obligations

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The moment of the transition of the right of claimscence requirements under the CESSIA Treaty

Meanwhile, the above-mentioned concession contract conditions do not affect its validity, as they are consistent with the principle of freedom of the contract (Article 421 of the Code) and do not contradict paragraph 1 of chapter 24 of the Code, which does not contain provisions that exclude the possibility of inclusion in the contract, on the basis of which the assignment of rights is committed , provisions caused by the moment of transition of the transition of the rights from the cents to the cessionary fulfillment by the last responsibilities for paying the right. Thus, the legal position in this case provides that the condition of the contract of assignment of the right of claim, providing for the transition of rights after its payment, cannot be the basis for recognizing this transaction to be insignificant. The stated position seems logical and reasonable.

The parties provided in the contract a preliminary payment of the redefined claim (such a conclusion of the cassation instance contradicts the above conclusion that the Cedent transferred the requirement of cessionary at the time of the conclusion of a cessia agreement). According to the Civil Code of the Russian Federation in the event of non-fulfillment by the Buyer, the obligation to pre-pay the goods apply the rules of the article on the counter execution of the obligation. The consequences of non-fulfillment of the obligation to preliminary payment are settled by the norms of the Civil Code of the Russian Federation, which exclude the possibility of its forced demand, so the requirements of the cord are not based on the law.

Under the contract, the right to the penalty can move to a new lender

The right to penalties is related to the right-handedness. This right should be considered to be transferred to the cessionary together with the requirement of payment of the amount of the principal debt, if the volume of inferior rights undergoing rights is specifically limited to the law or agreement of the parties.

The right of the initial lender passes to a new lender in volume and on the conditions that existed by the time of the transition of the right. In particular, it is transferred to a new lender to ensure the fulfillment of the obligation, as well as other rights-related rights, including the right to disqualified interest.

Agreement on the assignment of the requirements (cession) on the executive list

1.2 The rights of the demand of the debt and execution of judicial acts proceeds to the cessionary in the volume and on those conditions that existed from the cant to the moment of the transition of rights. In particular, it is transferred to the provision of fulfillment by debtors of obligations, as well as other related rights.

LTD "_____" In the face of ____________________, acting on the basis of _______________________, hereinafter referred to "Cedent", on the one hand, and __________ , acting (Aya) __________________________________________, referred to as) "Cession", on the other hand, guided by Art. 382-390 of the Civil Code of the Russian Federation, concluded this Agreement on the following:

Treaty Concessions Right Requirements - Sample

The subject of the contract is what is transmitted, for example, LLC "First Lender" is inferior to LLC "New Lender" the right of claim under the contract from "Today" concluded between LLC "First Lender" and LLC "Debtor", in terms of volume and conditions, established by the contract between the first lender LLC and the debtor LLC.
The second is the price, for example, "the contract price is so many rubles."
Rights and obligations of the parties. As a rule, the initial lender is obliged to transfer new documents, agreements related to the requirements for the debtor. In addition, a notification of the assignment of the right of claim is prescribed. It lies on the initial lender, and also need to be notified of new objections.
Responsibility of the parties.
Final provisions. They are prescribed the moments when the cessia agreement enters into force how many copies was composed and other aspects for the parties.
The procedure for consideration of disputes.
Details and addresses.

In Russian practice, the most common case of such a contract is to provide a loan, loan, that is, a certain amount of money, which one person, both physical and legal, transmits to another under certain conditions. Such an agreement is the transfer of housing from the construction company to the buyer as a result of equity construction, when settlement is expected after a certain time.

The assignment of the rights of the loan claim (cession agreement)

In the Law "On Banks and Banking Activities" directly in 1 article defined the determination of the bank: "The Bank is a credit institution that has the exceptional right to exercise the following banking operations: attracting funds to the deposits of funds from individuals and legal entities, posting these funds from its own behalf and at its own expense on the terms of repayment, pay, urgency, opening and maintenance of bank accounts individuals and legal entities. " To become a bank you need to get a license of the Central Bank of Russia. This is troublesome, not fast, and not cheap. A loan made you a simple legal entity, although the Bank is such naturally, and a specially licensed subject.

The borrower must be remembered that the Bank's lawyers make up an agreement only only in the interests of the bank, and therefore according to part 2 of Article 382 of the Civil Code of Russia: "To go to another person, the creditor's rights does not require the consent of the debtor, unless otherwise provided by law or contract." Your consent will not require the approval of this contract. The next moment, which often happens in practice, this is the impossibility or complexity of the provision of a CESSIA agreement on the part of the collector agency. Sometimes even in court they cannot provide it. For the borrower, it's just a fairy tale, because to demand any amount, it must be confirmed by any document. You like a borrower, bank, or a collector agency are obliged. Notify that the assignment has occurred right to claim your loan. Otherwise, according to part 3 of article 382 of the Civil Code of the Russian Federation: "If the debtor was not written in writing about the transition of the creditor's rights to another person, the new lender carries the risk of adverse consequences for him. In this case, the fulfillment of the obligation to the initial lender is recognized by the fulfillment of the proper lender. " Collectors carry all risks associated with this, and you have the full right to fulfill your obligation directly to the bank. Proper notification must be written and a copy of the CESSIA agreement should be applied to it. If there are no copies of the contract, then you have the full right not to pay a collector agency or other legal entity. Moreover, even if the proper copy is provided to you, you still have an absolute and complete right to solve the issue in court, that for you how the borrower will be the best option, since the collectors in court are always more inaccuracies than banks, because it is Sometimes IP or newly created LLC, which have a staff in one and a half working units.

How to make a cessia agreement

The need for the application of Cessia occurs if the debtor, during a certain time does not fulfill obligations assigned to him. And he, due to the circumstances, cannot recover the debt from the borrower independently.

It is worth saying that the object that should be exterminated. The most common are: the obligation of the developer to the buyer of real estate and debt under the loan agreement. The second in popularity of CESSIA under the loan agreement. Usually such a cessia agreement is between legal entities. The assignment of the right claim for a loan agreement, with the application of the pledge, or without any, does not differ from similar contracts, and does not contain special conditions. Requirements for design and compilation are also identical, often a trilateral contract of cessia can be concluded.

Concession right demands to several new lenders

The assignment of rights to rights under the prior contract of sale of real estate sales can be made by the Buyer to two or more future buyers. The parties should agree among themselves in which volume are transferred to the contract to each of the new lenders. If there are many new lenders, it will be burdensome for the seller and it has the right to challenge the agreement of the assignment on the basis of Part 3 of Article 384 of the Civil Code of the Russian Federation

And it should be borne in mind that the assignment of the rights of the requirements is often challenged, because it leads to a change in the initial contract, and according to Article 451 of the Civil Code of the Russian Federation, a change in the agreement can be made only with a significant change in the circumstances that the parties could not foresee at the conclusion of the contract.

Contents of the assignment of the claim

The form of notification must be written. If this did not happen, the execution of the initial lender is recognized by the fulfillment of the proper lender. Under the unfavorable consequences mentioned in paragraph 3 of Art. 382 of the Civil Code of the Russian Federation is implied by the burden of a regressive claim for the provision, who received execution after the transfer of rights.

So, the cents have the following duties: to transfer documents certifying the defended law; report information based on this requirement; Remove the losses of the Cessionaria, if the required requirement will be for some reason invalid; Responsible for the non-execution of the obligation corresponding to the cited requirement due to the guarantee adopted by the Cessionar.

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