Debt transfer and its features

In economic and legal practice, there are situations where an organization can not repay the debt for only one reason: it must also, but do not pay. Sometimes, in such circumstances, the use of debt transfer is used - a rare and complex procedure that is associated with a lender with the advent of an additional risk of non-fulfillment of circumstances.

The Civil Code regulates this sphere in a very small degree, therefore all the features of relations here follow from practice. Let's review them briefly.

Who participates in the transaction and their responsibility

So, in the contracts that make up the transfer of debt, three parties are involved:

- the creditor;

- The original debtor;

- the person assuming the obligation to repay the debt.

Naturally, the main thing in the formalized relations is the creditor's consent to such a transaction. Usually his signature under the contract already means that. But sometimes a separate document is prepared in the form of an application, which is subsequently appended to the document.

Naturally, the transfer of debt implies that the new debtor has the necessary resources and legal capabilities to fulfill the obligations in place of its predecessor. And the nature of the transferred values can be both material and non-material. Performing a certain amount of services or works is also counted. The main thing is the wishes of the lender.

A responsibility

In addition, taking over the burden of debts, the new debtor, as a rule, also takes full responsibility for non-fulfillment of obligations, including sanctions. This point, I must admit, is very subtle and depends heavily on the circumstances. In this case, the follower sometimes manages to negotiate more favorable terms. To do this, usually refer to the articles of the Civil Code (Article 356, paragraph 2 of Article 367 and Article 372), which state that no pledge, no guarantee, no guarantee for a new debtor does not apply.

However, at the stage of preliminary negotiations, the creditor is not heavily pressed; Do not forget that there is also a debt assignment - a rather rigid version of such relations, when the creditor gives all the rights to claims to other persons for a fee. The consent of the former debtor is not asked for this action. Example: memorial collection agencies, which spoiled a lot of nerves for ordinary citizens.

Amount of liabilities transferred

It is known from practice that the majority of such contracts are concluded throughout the scope of obligations. Especially it is characteristic, when the object of the agreement is debts on loans. The fact is that creditors are in every way opposed to the fragmentation of obligations, not wanting to trouble themselves with additional control. Moreover, arbitration courts strongly support this trend. At the same time, nowhere in the legislative acts does not contain a ban on partial repayment. And if the parties to the deal still decide to apply it, then it will be justified: it is easier to solve the problems of debt.

Security measures when transferring a debt

The transfer of debt for understandable reasons requires compliance with certain security measures.

First, all parties should check the registration documents, as well as the powers of the persons who will sign the agreement.

Secondly, the creditor needs to make sure that the new debtor is solvent, decent and has no problems with the law. The slightest suspicion of belonging to one-day firms should serve as a reason for refusing to cooperate.

Thirdly, the accepting party must make sure that the obligation really exists, and the transfer of debt is not someone's intention to create problems now to another entity. Here, you can even conduct some examination of the contract, and in its text provide for the item on the transfer of all debt-supporting primary documents.