Civil Code: assignment of the right of claim. The model of the contract of assignment of the right of claim (Civil Code of the Russian Federation)

In the Civil Code of the Russian Federation, the assignment of the right to claim a debt is regarded as an agreement between the assignor and the assignee. Under his terms, the transfer of legal opportunities is carried out to the extent that they existed on the basis of the original relationship.

General characteristic of the obligation

It is given in art. 307 Civil Code of the Russian Federation. The assignment of rights of claim by the creditor to another person is possible in the presence of a liability relationship. They are such interaction of subjects, in which one participant performs certain activities in favor of the second. Such actions, for example, include the production of works, the transfer of wealth, the payment of money, etc. At the same time, the obligation can also presuppose the abstention from carrying out any operations. An active participant in the relationship - the creditor - has the right to demand fulfillment of the agreed terms.

Cession

So in the legal literature referred to the assignment of the right of claim. The Civil Code of the Russian Federation does not contain a definition of the specific type of agreement that should be concluded in such a situation. Judicial practice is based on the fact that it can become an act of buying and selling. According to the Civil Code of the Russian Federation, the assignment of the right of demand implies not only the provision of legal possibilities in full from the original active participant to a new one. Legislation establishes the obligation to transfer to the assignee all documents that are relevant to the exercise of his powers.

Nuances

There are two forms in which a contract of assignment of the right of claim may be concluded. The Civil Code of the RF provides for a reimbursable and free of charge agreement. Relatively different in the legal literature there are several different opinions. In particular, a number of experts note that the legislation establishes a ban on donating property to one commercial structure of another company. At the same time? Such organizations are permitted forgiveness, transfer and assignment of the right to claim a debt. The Civil Code of the Russian Federation, thus, makes it possible to circumvent the ban, defined by Article 575. Some experts generally do not recognize the independence of the cession.

Contract of assignment of rights: a sample

The Civil Code of the Russian Federation sets general requirements for agreements concluded between entities. As for the assignment, the document should prescribe:

1. The legal status of the participants.
2. The scope of the opportunities transferred to the assignee.
3. VAT.
4. Calculation and payment under the original agreement.
5. Responsibility of the participants in the transaction.

These items must comply with the terms of the original agreement.

VAT Specification

Operations for this tax are taken into account when concluding an agreement. As a rule, the assignor draws up a deal on unfavorable terms. This means that the amount that it receives is less than the profit reflected in the accounting. The loss that occurs when a cession, reduces the base. However, the rules for its precise definition apply in accordance with the time of signing the agreement - before or after the payment date. The Tax Code regulates the rules for determining the bases for cession for enterprises that sell services and products. The provisions of the Code do not apply to other companies.

The procedure for determining the tax

It is envisaged by Article 155 of the Tax Code. The VAT can be established:

1. In the general order. It is used when assigning the right of claim under the sales contract.
2. By determining the difference between the profit received from the obligated entity, and the cost of acquiring obligations.

This rule regulates the taxation of a cession with the participation of third parties. VAT is determined in the same way as in the last case above.

Accounting transactions

The assignment of the right of claim, stipulated by the Civil Code of the Russian Federation (Article 382) is reflected in the accounting as follows:

• Db cc. 76, sub. Assignee Cd. 91.1.
• Db cc. 91.2 Cd. Sc. 62.

When completing the reporting, information on transactions related to the assignment is reflected in the f. No. 2 on lines 100 and 090.

Documentation

Regulated by the Civil Code of the Russian Federation, the assignment of the right of claim is formalized in accordance with the established procedure, which provides for the registration of the transaction. For its implementation it is necessary to provide:

1. Statement.
2. Original passport.
3. Paper certifying the powers of the parties to the transaction.
4. Receipt for payment of fee.
5. Treaty of cession. It is presented in at least 2 copies.
6. Other documents related to the original transaction.

Additional conditions

The agreement should specify the procedure for resolving disputes. In case of conflict situations, this document will be the evidence for the parties to the transaction. According to the Civil Code, the assignment of the right of claim can be notarized. This condition is not mandatory, but carrying out this procedure will confirm the consistency of the conditions, the correctness of the document. Also, the law does not oblige to specify the period for the adoption of the powers by the assignee. It can be determined by the parties themselves. In the absence of instructions for the term, the right of claim will be deemed transferred from the date of signing the contract.

An Important Moment

As stated above, the original creditor must transfer to the assignee all the materials relating to the transaction. Together with this, in fact, the competences are transferred to a new participant in the relationship. At the same time, according to the Civil Code of the Russian Federation, the assignment of rights of demand implies the transfer of legal opportunities to the same extent that they were provided for under the initial agreement. The powers of the new participant are made dependent on the characteristics of the subject matter of the transaction. In particular, we are talking about its divisibility. It is worth noting that different views are expressed on this issue. According to a number of authors, the right can be transferred completely or partially, depending on the subject. Judicial practice goes on other way. When considering cases, as a rule, only those agreements are accepted, in which the subject composition is changed. According to the Civil Code of the Russian Federation, the assignment of the right of demand presupposes unconditional replacement of the person in the transaction. This means that its legal capabilities are transferred exclusively to the assignee in full.

Cession in construction

Currently, the real estate market uses a special relationship model. In accordance with the scheme, the developer enters into an agreement on equity participation with his affiliated company. Interest in such cases is an organization that formally has no relation to the company. Together with this, the developer manages the legal entity through the institution of nominal directors. This organization is usually referred to as the investor. The subject of the agreement are either all the living spaces in the house or a large part of them. In practice, there are also several agreements for all apartments. After the contract is registered, the company starts selling the premises. At the same time, the assignment on the equity participation agreement is applied. This scheme is legitimate. However, here you need to know a few important nuances. One of them, in particular, deals directly with the content of the agreement between the developer and the investor. Some firms set a ban on the cession. In addition, the agreement often provides procedures for obtaining the preliminary consent of the developer for the change of persons.

Notification

According to the Civil Code, the assignment of the right of claim is carried out without obtaining the consent of the obligated person. At the same time, the law prescribes to notify the participant of the change of persons. The notice shall be sent to the subject in writing. Notification is necessary to ensure proper performance of obligations by the debtor. If it is not sent, accordingly, the subject will not know about the transaction made and that the active participant in the relationship has changed. In this regard, he can continue to fulfill obligations in favor of the former creditor. In doing so, it will be deemed properly performed. Having received the notice, the debtor has the right to request from the new creditor the supporting documents. At the same time, the assignee must provide them. After transferring the rights of the demand, the assignor loses all of its legal capabilities on the initial transaction. This means that he can not claim to fulfill the obligation in his favor. All actions aimed at deriving benefits from the debtor will be deemed illegal.

Recommendations

To avoid problems and conflicts, experts advise you to require a copy of the agreement with the investor when entering into a transaction with an immovable property. It is necessary to carefully study its content and the rules on which an assignment is made. Count on the fact that the nuances of the transaction will deal with an employee of the registration chamber, it is meaningless. If the cession was formalized by the authorized authority if there is a direct ban on it in the agreement without obtaining a prior consent from the developer (which is given in writing), then it will be considered invalid. From the point of view of accounting, the conduct of transactions associated with a concession is often accompanied by certain difficulties. The specialist will need special attention when reflecting the assignment in the accounting. Experts recommend that accountants immediately understand all possible nuances of the transaction. If the company has an expert with the necessary knowledge and experience, it is advisable to contact an outside company that provides the relevant services.

Conclusion

In practice, the assignment of rights is used quite often. As was said above, it has become widespread today in real estate transactions. Some developers, fearing possible difficulties in the future, set a ban on cession. Assignment of rights is used in a variety of cases. The most common are situations where the person taking the borrowed funds evades their return. In such cases, the creditor transfers his rights to the collection agency. At the same time, he receives a part of unpaid funds, minus interest and other payments provided for in the agreement with the firm. Assignment is also used when the creditor urgently needs money, and the maturity of the obligation has not yet come up. When concluding a cession agreement, it is necessary to pay careful attention to the formulation of conditions and observance of the procedure established in the law.