Assignment of the right of claim (cession). Discrepancy in the judicial practice of the Supreme Court of the Russian Federation on the assignment agreement Legal nature and essence of the assignment of the right of claim

The assignment of claims, or the so-called assignment, is one of the most common agreements in commercial practice. This agreement is used when the creditor needs to transfer the debt owed to him to someone else. Simply put, Sasha owes Petya, Petya needs the assignment in order for the debt to be paid to his friend Kolya. But this is a very exaggerated example, in life not everything is so simple, professional lawyers have a lot of questions about the assignment of claims, you will find answers to some of them here.

• 1. Is an agreement for the assignment of rights of claim valid if the court invalidates the agreement from which the debt arose?

This question seems very divorced from reality, but this is not entirely true. Let's say there is a purchase and sale agreement for office space on installment or deferment terms. The debt was assigned by the Buyer to a third party under an assignment agreement. After some time, the court recognizes the purchase and sale agreement as invalid (the reason for invalidity in this case does not matter); can a third party hold the Assignor (Buyer) liable? The answer to this question depends on whether the assignment agreement is considered an invalid transaction. At one time, the Presidium of the Supreme Arbitration Court of the Russian Federation, in its information letter dedicated to Chapter 24 of the Civil Code of the Russian Federation, answered this question negatively: the invalidity of the main agreement does not give rise to the invalidity of the assignment agreement. Of course, the Assignee will not be able to recover his debt (assigned debt) from the Seller of the real estate, but he will be able to recover losses from the Assignor. The only problem is: in our Russian realities, the Assignor and the Assignee, as a rule, are interdependent persons.

• 2. Can the Bank assign its rights under the loan agreement to another person, for example, to a collector?

Maybe, if such a possibility is provided for in the loan agreement. In practice, Banks always stipulate in loan agreements their right to transfer the debt.

• 3. Can an insurance company transfer its right to claim damages resulting from subrogation to another person?

Here it is necessary to explain what subrogation is. The fact is that property damage in most cases occurs due to someone else's fault. For example, your neighbor flooded your apartment, which means your neighbor is to blame for the damage to the insured apartment. Under a property insurance contract, you will be paid insurance. The insurance company has the right to demand from your neighbor the funds that you received under the insurance. This is where the question arises: if the neighbor who flooded you owes money to the insurance company, can the insurance company transfer this debt to the same collectors, whom the neighbor fears more than the insurance company? The answer to this question is yes. The insurance company may assign the claim obtained through subrogation to a debt collector or another insurance company.

• 4. Is it possible to transfer a future right of claim that does not exist at the time of concluding the agreement on the assignment of the right of claim?

The Civil Code expressly permits such concessions. For example, you can assign the right to receive money for canned food that the company will produce and sell in the future. But, of course, the contract must be extremely clear, so in our example, it is necessary to indicate how many cans the plant will sell, at what price, to which buyer, when and how the assignment of rights will be documented.

• 5. In what form is the agreement on the assignment of rights concluded?

Same as the main contract. If the main agreement has been notarized, then the assignment agreement must also be notarized. If the agreement was subject to state registration, then the agreement is also subject to state registration.

• 6. Is it possible to assign only part of the debt?

Can. So the Seller in the supply agreement can keep part of the debt for himself and transfer part to another company. In general, a partial assignment is always possible if the subject of the assignment is divisible in principle.

• 7. Does the assignment of debt lead to a change of party to the contract?

No, it doesn't. The assignment of claims is a replacement of a party in an obligation, not in a contract. This is very important to understand, and here's why. If the goods were not delivered to you, then you, as the Buyer, must present to the Seller a demand for additional delivery, as well as a contractual penalty. If you still owe (assuming a deferred payment under the contract - 45 days) and the debt is assigned (you have received the corresponding notification), then who should you file a claim against, the old or the new Lender? It is important to understand that such claims are made against the original creditor. Why? Because the assignment of rights does not lead to the replacement of a party to the contract. This is clearly seen in the example of an energy supply agreement. The energy supply company can transfer the right to collect debt from the subscriber to anyone, but it will still supply energy to the subscriber.

It is also important to emphasize one nuance here. The debtor has the right to raise against the new creditor the objections that he had against the previous creditor at the time the debtor received notice of the transfer of rights. If a new creditor collects a debt under a work contract, the customer may refer to hidden defects in the work and demand a forensic examination, since these hidden defects already existed when the Certificates of Completion were signed. Thus, the Customer can reduce the amount that the court will collect from him, or even prove that due to poor quality work of the contractor, the claims of the new creditor cannot be satisfied. But the Customer does not have the right to demand that the new lender eliminate these shortcomings; the customer must make such demands to the contractor.

• 8. As a rule, the assignment of rights is made on a compensation basis. And if the agreement for the assignment of rights of claim does not contain a condition on remuneration, does this mean that such an assignment of rights of claim is illegal?

No, such assignment of claims rights from the point of view of civil law is legal. As a rule, everyone remembers that donations between organizations are prohibited, and on this basis they believe that such a concession violates the Law. But this opinion is erroneous, since in Russian civil law there is a presumption of compensation for any contract. If the assignment agreement does not indicate remuneration, remuneration is assumed. In general, it can be stated that judicial practice, starting from 2006, recognizes such concessions as legal. Assignments of claims made for symbolic remuneration are also valid.

• 9. An agreement on the assignment of rights of claim was concluded between the Assignor and the Assignee. However, after some time, the Assignor changed his mind and did not transfer to the Assignee the documents confirming the existence of a debt to the Assignor. Has there been an assignment of rights?

The assignment of rights has taken place, since the transfer of supporting documents to the Assignee occurs in the execution of an already concluded agreement on the assignment of rights. The assignment of rights is confirmed either by the Agreement itself, or by the Act of Acceptance and Transfer of Rights, if such an act is provided for by the Agreement. Of course, the Assignee will not be able to collect the debt from the Assignor’s counterparty in court, so he must first go to court against the Assignor himself with a statement of claim to recover documents. And only after receiving all the necessary papers, he will be able to begin collecting the debt itself.

• 10. Can an agreement on the assignment of rights of claim be recognized as not concluded?

Of course, like any agreement, an agreement on the assignment of rights may be considered unconcluded, although in practice this is quite rare. So, for example, it is impossible to recognize an agreement as concluded if the rights of the creditor under an energy supply agreement are transferred and it does not indicate the specific period for which the right is transferred, the amount of debt, or data allowing to calculate the amount of debt. In a word, the subject of the transaction must be agreed upon in the assignment agreement.

• 11. If the agreement on the assignment of rights of claim indicates the assignment of the principal debt, does this automatically mean that the right to collect penalties or interest is transferred to the Assignee?

Yes, if under the assignment agreement only the principal debt is transferred to you, this means that along with it the right to claim the penalties (fines) provided for in the main agreement or the right to collect interest under Art. 395 of the Civil Code of the Russian Federation. A different rule may be established by the assignment agreement. In particular, assignment is possible only in relation to penalties or only in relation to the amount of the principal debt, but these points must be clearly stated in the contract. It is interesting to note that if the obligation is secured by a pledge, then the pledge also passes to the Assignee, that is, it begins to secure the rights of claim of the new creditor. But, of course, in the Unified State Register, if we are talking about a mortgage, it is necessary to make appropriate changes.

• 12. Is it possible to assign claims for damages?

The right to compensation for damages may be assigned to any third party. This follows from paragraph 17 of the information letter of the Supreme Arbitration Court of the Russian Federation dated October 30, 2007 No. 120.

• 13. The guarantor paid the debt to the Bank for the main borrower. Can the guarantor assign to a third party his right to collect the debt from the borrower?

As you know, if the guarantor pays the borrower’s debt, then all the rights of the creditor are transferred to him, including the right to interest and penalties. In turn, the guarantor has the right to assign his right to any third party.

Hello, my husband and I have the same problem. We bought an apartment in a building under construction under an assignment agreement from an LLC, which is not the developer. Now there are problems with the apartment, there are quality complaints, there are violations of deadlines. We have already contacted the developers and threatened them with legal action for consumer protection. And we were told that they did not enter into any agreements with us, but entered into an agreement with an LLC, so there is no protection of consumer rights here. Tell me please, are they right or wrong?

• Question: No. 927 dated: 2014-08-30.

Hello, we can clarify the following regarding the essence of your question.

According to Art. 1 of the Federal Law of December 30, 2004 N 214-FZ “On participation in shared construction of apartment buildings and other real estate objects and on amendments to certain legislative acts of the Russian Federation”, this Federal Law regulates relations related to attracting funds from citizens and legal entities for shared construction of apartment buildings and (or) other real estate (hereinafter referred to as participants in shared construction) and the emergence of the participants in shared construction of the right of ownership of shared construction objects and the right of common shared ownership of common property in an apartment building and (or) other real estate, and also establishes guarantees for the protection of the rights, legitimate interests and property of participants in shared construction.

Thus, if an apartment building is being built and funds from citizens and legal entities are attracted to carry out such construction, no matter in what proportion, then relations between the participants in such transactions are regulated by the Federal Law “On Participation in Shared Construction”.

To facilitate the consideration of disputes arising in shared construction relations, the Presidium of the Supreme Court of the Russian Federation on December 4, 2013 issued a Review of the practice of resolving disputes by courts arising in connection with the participation of citizens in shared construction of apartment buildings and other real estate.

According to the Preamble of the Review of Practice of the Armed Forces of the Russian Federation dated December 4, 2013, when considering cases on disputes arising from legal relations based on transactions related to the transfer by citizens of funds and (or) other property for the purpose of constructing an apartment building (other property) and subsequent transfer residential premises in such an apartment building (other property) in ownership, but committed in violation of the requirements of the Federal Law “On Participation in Shared Construction of Apartment Buildings and Other Real Estate”, regardless of the name of the agreement concluded by the parties, one should proceed from the essence of the transaction and the actual relations sides

That is, it does not matter what the original contract was called, if its terms correspond to the relations of participation in shared construction, then all the norms of the above law apply to these relations.

In accordance with clause 10 of the Review of Practice of the Armed Forces of the Russian Federation dated December 4, 2013, to the relations between the developer and the participant in shared construction - a citizen, which arose when the rights of claims under the agreement for participation in shared construction were assigned by the original participant in shared construction, who entered into the agreement not for personal, family, household and other needs not related to business activities, the legislation of the Russian Federation on the protection of consumer rights is applied in accordance with Part 9 of Article 4 of the Federal Law “On participation in shared construction of apartment buildings and other real estate.”

According to Part 9 of Art. 4 of the Federal Law “On participation in shared construction”, the legislation of the Russian Federation on the protection of consumer rights in terms of not regulated by this Federal Law.

Accordingly, your relationship with the developer is in the nature of a relationship for participation in shared construction and a relationship for the protection of consumer rights.

Consequently, you have all the rights of a consumer under the Law of the Russian Federation “On the Protection of Consumer Rights”, taking into account the provisions of the Federal Law “On Participation in Shared Construction of Apartment Buildings and Other Real Estate”.

For more detailed advice on your personal situation, we recommend that you contact the reception office of lawyer Sergei Sergeevich Ivlev at the address: Orenburg, st. Shevchenko, 20 V, office 414 and by phone 8-912-84-84-805.

Attention! The information provided in the article is current at the time of publication.

Between Region LLC and V.V. Loboda a cession agreement (assignment of the right of claim) was concluded, according to which the right to claim funds in relation to the insured property under the insurance agreement concluded between LLC Region and OJSC IC ROSNO was transferred to her. Subsequently, the assignee went to court to collect the insurance compensation. The courts of the first and appellate instances satisfied the requirements, collecting from the insurer, among other things, a fine of 50% of the awarded amount on the basis of clause 6 of Art. 13 of the Law of the Russian Federation "On the Protection of Consumer Rights".

The panel of judges did not agree with the decision to collect a fine. In the ruling of the RF Armed Forces dated December 3, 2013 No. 18-KG13-110 with reference to Art. 384 of the Civil Code of the Russian Federation according to which, unless otherwise provided by law or agreement, the right of the original creditor passes to the new creditor to the extent and on the conditions that existed at the time of transfer of the right, it was indicated that since the subject of the insurance contract was a vehicle that was used by the previous one creditor for carrying out business activities, and not for any needs of a citizen-consumer, the court’s application of the provisions of the Law of the Russian Federation “On the Protection of Consumer Rights” to controversial legal relations is erroneous.

However, the next day, December 4, 2013, the Presidium of the Supreme Court of the Russian Federation adopted a “Review of the practice of resolving disputes by courts arising in connection with the participation of citizens in the shared construction of apartment buildings and other real estate.” In paragraph 10, the case was considered in which the court of first instance refused to satisfy the claims for compensation for moral damage to the shareholder who acquired the right of claim against the developer on the basis of an assignment agreement, the assignor of which was a legal entity. The appellate court overturned the decision in this part and satisfied the requirements. The Supreme Court of the Russian Federation in its review indicated that the relationship between the developer and the participant in shared construction - a citizen, which arose when the rights of claims under the agreement for participation in shared construction were assigned by the original participant in shared construction, who entered into the agreement not for personal, family, household and other needs not related to with the implementation of business activities, the legislation of the Russian Federation on the protection of consumer rights is applied in accordance with Part 9 of Article 4 of the Federal Law “On participation in shared construction of apartment buildings and other real estate”.

Probably, the first approach would be more correct, which corresponds to the principle - you cannot transfer more rights than you have, and according to the Law of the Russian Federation “On the Protection of Consumer Rights” the insurer has much more rights. At the same time, this approach can significantly limit the rights of a consumer who has entered into an assignment agreement with a shareholder-legal entity, which is a fairly common practice.

I think that in this case, the Supreme Court divided a simple assignment under which the assignee received the right to claim funds in relation to the insured property under the insurance agreement from the agreement of assignment and transfer of debt, which is basically a shared participation. The difference here will be significant.

With a simple assignment, the assignee only has the right to claim; the insured under the contract remains a legal entity. In the case of transfer of debt and assignment of claims, the legal entity actually leaves the legal relationship, i.e. ceases to be a party to the transaction, and a citizen-consumer takes his place. With this approach, both court decisions are absolutely fair. But we can only guess whether this actually happened or whether there is simply inconsistency between the troikas of collegiums of the RF Armed Forces and the Presidium due to the lack of a full-fledged supervisory authority.

Denis Artemov, a leading lawyer at the law firm Via lege, told the website portal about what an agreement for the assignment of rights of claim (assignment) is, how to apply it correctly in the new buildings market and minimize possible risks.

Under an agreement of assignment of rights (in Latin “cession” - “cessio”, “cession”) one person transfers to another the right to demand the fulfillment of an obligation. Under an assignment agreement, the obligations themselves can be transferred - the receiving party must fulfill them in favor of a third party.

In the case of apartments in new buildings, the copyright holder (assignor) transfers to the transferee (assignee) the contractual right to demand the developer transfer the apartment after putting the house into operation.

An assignment of rights agreement is in many ways similar to a purchase and sale agreement, therefore, to make it simpler, we will call the copyright holder the seller and the transferee the buyer.

The assignment agreement is widely used when selling apartments in new buildings. The fact is that, firstly, as construction progresses, the cost of housing in new buildings increases, which makes it possible to invest money in order to further make a profit. Many investors do not wait for the completion of construction and registration of ownership of the apartment, but strive to sell the property earlier. To do this, they use assignment of rights.

Secondly, agreements for participation in shared construction (DDU) can only be concluded while construction is underway - that is, until the house is put into operation. And purchase and sale agreements are valid only if there is a formalized ownership of the apartment. At the same time, quite a lot of time may pass from the moment the object is commissioned to the registration of ownership rights, during which developers fall out of the phase of active sale of apartments. As a result, they enter into a contract agreement for the remaining volume of apartments with one of their structures, which then, without haste, engages in sales under assignment agreements.

It is noteworthy that the use of this type of agreement is beneficial to both parties to the transaction. The seller can receive money for the apartment without going through the procedure of accepting it under the transfer and acceptance certificate and registration of ownership, and also without additional operating costs. The buyer - not to purchase an apartment from scratch, but to track the progress of construction and its pace (and the price of the apartment in this case is lower than after the new building is put into operation and ownership is registered).

Underwater rocks

The assignment agreement must meet certain requirements. Chapter 24 of the Civil Code of the Russian Federation is devoted to the change of persons in obligations and introduces a number of important rules. The most significant laws include the following:

The assignment of rights agreement must be drawn up in writing, and the assignment of rights under the DDU must undergo state registration (in this case, the rights of the new person to the apartment appear precisely from the moment of state registration);

The contract must clearly define the subject of the transaction (apartment), indicate its price, and the payment procedure;

If the agreement for participation in shared construction provides for the mandatory written consent of the developer for the assignment, it is necessary to obtain it - otherwise the transaction may be declared invalid.

Article 11 of the Federal Law “On participation in shared construction...” supplements this list with two more conditions:

The seller can only transfer the fully paid apartment or the buyer must assume the obligation to pay the debt;

Assignment of rights is possible only until the transfer of the apartment under the deed (the rule is based on the essence of the assignment agreement: when the deed is signed, the very right to demand the transfer of the apartment is exercised - there is nothing to concede).

In addition, the following points are important:

In the assignment agreement, the seller must guarantee the legal purity of the apartment (not mortgaged, not seized, third parties have no rights to it, there is no legal dispute);

In accordance with Article 385 of the Civil Code of the Russian Federation, when assigning rights, the seller transfers to the buyer the title documents he has (agreement on participation in shared construction, payment documents). It is important to draw up a separate act about this);

The fact of full settlement between the buyer and the seller, in order to avoid further disagreements, also needs to be confirmed by an act of mutual settlements;

The developer must be notified in writing of the assignment of rights; the buyer is responsible for the lack of notification;

Before concluding an assignment agreement, it is important to ensure the validity of the assigned rights, in particular, that the agreement has not been terminated and has been fully paid.

The easiest way to check this is to request an extract for the apartment from the Unified State Register of Rights. It must confirm the validity of the contract (whether it has been terminated) and the owner of the apartment; there should be no information about the existence of a mortgage, court arrests or other encumbrances.

Also, if possible, it is necessary to come with the seller to the developer’s office: the developer is not interested in unpaid or invalid rights to the apartment being sold to third parties. In addition, the developer has his own copy of the documents that make up the legal history of the apartment, with which you can compare the papers provided by the seller.

After concluding an assignment of rights agreement, the buyer is “left alone” with the developer, so it is also important to familiarize yourself with the main title documents for construction:

Order of the head of the local administration on construction;

Agreement between the administration and the developer on the conditions for the construction of a residential building;

Land lease agreement (certificate of ownership);

Construction permit;

Positive conclusion of the state examination on the construction project.

The developer's manager can also provide other significant information: for example, about new construction completion dates (they may shift); about preliminary measurements of the apartment (if the area has increased, the buyer will be charged an additional payment in the future) and about the approximate cost of operating the apartment (it does not appear in the contract).

When studying the equity participation agreement itself, you need to pay attention to the fact that it must be stitched and have a rectangular stamp from the Federal State Registration Service about the registration.

The seller is also obliged to provide documents confirming the payment made: receipts for cash receipt orders, bank payment orders, settlement reconciliation acts.

If the apartment was purchased with a mortgage, there must be written confirmation that the loan obligations have been fully repaid. In the case of an outstanding mortgage, a bank must be involved in the transaction, which, using the amounts paid by the buyer, covers the seller’s credit obligations and removes the collateral from the apartment.

Organization of settlements under the assignment agreement between the buyer and seller

When concluding an agreement for the assignment of rights of claim, the seller runs the risk of signing the agreement, submitting it for registration, but not receiving payment for the cost of the apartment. For the buyer, the danger is exactly the opposite - he can give the money, but not receive confirmation from Rosreestr of the transfer of rights (for example, due to court arrests).

Therefore, the most optimal form of payment is through a safe deposit box, the condition for access to which is an assignment of rights agreement registered with Rosreestr.

Also, recently they began to use a bank letter of credit for non-cash payments (the principle is similar to renting a locker). But the cost of banking services under a letter of credit is significantly higher, so it has not yet become widespread.

Indication in the assignment agreement of the partial price of the apartment

Article 210 of the Tax Code of the Russian Federation classifies all taxpayer income received in cash as the taxable base for calculating 13% personal income tax. Income from the assignment of rights is no exception. In practice, this leads to attempts to indicate in the contract a reduced price for the apartment, which is often equal to its value under the shared participation agreement.

In this case, in addition to the obvious violation of tax laws, the buyer assumes additional risk, which may be realized in the event of further invalidation of the assignment by a court decision.

According to Article 167 of the Civil Code of the Russian Federation, the consequence of the invalidity of a transaction is the so-called bilateral restitution, when each party is obliged to return to the other everything received under the transaction. And if the seller receives the apartment back, then the buyer receives only the documented cost of the apartment.

Thus, it is advisable to indicate the actual market value of the apartment in the contract. But even if this does not happen, the buyer should take care to confirm that the full amount has been paid (for example, using additional receipts).

Role of the developer

Often the developer takes on the responsibility of formalizing the assignment of rights. He helps the parties prepare the necessary documents, draws up an assignment agreement, and submits it for state registration. In cases provided for by the DDU, the developer acts as a third party to the agreement or gives separate written consent to the assignment. Of course, this is beneficial for the parties to the transaction.

But there is also another side to the coin. As a rule, such developer services are paid. The developer sets their cost independently: there is no government regulation of this issue. There are also no recommendations on who exactly bears the costs - the seller or the buyer.

Therefore, it is important to clarify the cost of the developer’s services in advance so that during the transaction it does not turn into an unpleasant surprise.

When the seller has not fully paid for the apartment (for example, in installments), the involvement of the developer in the transaction becomes mandatory. In this case, the buyer transfers part of the paid funds to the developer to pay off the debt, and the rest to the seller.

However, support of the transaction by the developer does not solve all the difficulties. On the contrary, it is extremely difficult to legally hold a developer accountable for possible errors in the execution of a contract, so the parties should carefully study the documents and discuss all the nuances in detail.

Other nuances

The rights of claim against the developer for an apartment relate to property rights. Thus, the law allows for the assignment of rights in shares, i.e. they can be issued to several persons who are sellers. The situation is similar with buyers, of whom there can also be many.

In addition to the DDU, developers also use other types of contracts for the sale of real estate in new buildings. For example, a PDCP or an agreement on participation in a housing cooperative. Despite the fact that the assignment of rights to an apartment under them differs in many ways from the assignment under the DDU, much of what is discussed in this article is applicable to such types of assignment.

In conclusion, it should be said that the agreement on the assignment of rights of claim, like other types of civil transactions, is aimed at implementing free property and monetary circulation and is designed to assist the parties in achieving mutually beneficial results.

At the same time, it is very important to pay attention to the correct execution of documents (to avoid errors and inaccuracies), to plan in a timely manner and correctly distribute the competencies of the parties to the transaction in the preparation and provision of the necessary documentation.