Entering into the debt of a third party: a new approach in the practice of the RF Armed Forces

Situation in which the Debt Transfer Agreement is applicable:

You have an unfulfilled obligation to the creditor (for example, you did not pay for the goods delivered to you under a supply agreement, etc.), and you want to transfer the obligation to fulfill the specified obligation (transfer the debt) to another person, or you want to assume the fulfillment of the obligation from another person, that is:

the transfer of debt is carried out under a 2-party agreement between the original debtor and the new debtor, or under a 3-party agreement between the original debtor, the new debtor and the creditor;

transfer of debt from the original debtor to a new one requires the obligatory consent of the creditor.

It should be noted that the specifics of debt transfer are established by the Civil Code of the Russian Federation in relation to transactions encumbered with a pledge, surety or guarantee. If there are relevant agreements concluded within the framework of the agreement under which the obligation is transferred, before concluding the debt transfer agreement it is necessary to obtain the appropriate consents of the Pledgor, the Guarantor and the Guarantor to extend the validity of the agreements within the framework of the concluded agreement, otherwise such agreements will terminate.

Verification of documents

If the transfer consent form is a separate document, it must indicate the full amount of the debt. You also need to indicate your current account and other bank details to transfer funds.

The conclusion of an assignment agreement leads to the termination of all obligations of the original debtor to the creditor. The new debtor acquires these obligations and makes payments to the creditor on his own behalf.

Parties to the Debt Transfer Agreement:

The original debtor is a person (individual or legal) or an individual entrepreneur who is obliged to fulfill an obligation and intends to transfer the fulfillment of the specified obligation (transfer the debt) or transfers the fulfillment of the specified obligation to another person.

A new debtor is a person (individual or legal) or an individual entrepreneur who intends to accept or assumes the obligation to fulfill the obligation of another person;

Creditor - in a 3-party agreement, a party to the obligation (individual, legal entity or individual entrepreneur) who has the right to demand fulfillment of the obligation from the debtor (initially from the original debtor, and subsequently from the new one).

Please note that only the Creditor and the New Debtor can be parties to the Debt Transfer Agreement, but only in cases related to the implementation of business activities by these parties.

Court findings

The plaintiff bought the right of claim from the company. The transaction price was 2,862,100 rubles.
The parties completed the transaction in compliance with the requirements of the law. The defendant did not build the house. Violated the deadline for delivery of the object.
The plaintiff requested a penalty in the amount of 1,784,000 rubles. The court reduces the penalty according to the rules of Article 333 of the Civil Code. Since the plaintiff will not fulfill his obligation if he pays the penalty in full.

Conclusion: the defendant must pay a penalty of 280,000 rubles, compensate for moral damages, moral damages and a fine, and collect a fee.

Comments

The plaintiff bought the right to claim in the amount of 2,862,100 rubles. The court recovered 427,500 rubles from the debtor. The buyer of the debt did not receive the expected profit. The court reduced the amount of claims submitted by the creditor. There remains a chance to challenge the decision on appeal and recoup the costs.

4 cases when buying debt will not bring income:

the debtor is declared bankrupt;
the company has ceased operations;
the assignee is not working. Has no property;
the assignee is not listed in the Unified State Register of Legal Entities or Unified State Register. Information is checked on the Federal Tax Service website: www.n46.ru/rf/egrul

Please note that the debt buyer is interested in notifying the debtor.

There are two reasons to notify the debtor of a change of creditor:

receive a debt. If the notice is not sent, the debtor will fulfill the obligations to the old creditor;
avoid a decrease in income. The assignee may set off his counterclaims against the first creditor. The buyer will protect himself from a reduction in the size of the claim.

Debt transfer agreement between legal entities (sample)

The agreement is drawn up taking into account the requirements of Chapter 24 of the Civil Code of the Russian Federation.

Agreement form.

The form of the agreement depends on the form of the contract:

written form;
certification by a notary;
registration with the territorial department of Rosreestr.

They specify the essence of the transaction and the subject of the agreement.

Essential terms of the Debt Transfer Agreement

(conditions without which, by virtue of legal requirements, the Debt Transfer Agreement is not considered concluded):

compliance with the established form of the agreement, that is, the transfer of debt based on a transaction made in written (simple or notarial) form must be completed in the appropriate written form (clause 1 of Article 389 of the Civil Code of the Russian Federation); transfer of debt under a transaction requiring state registration must be registered in the manner established for registration of this transaction (clause 2 of Article 389 of the Civil Code of the Russian Federation);

condition on the subject of the contract, i.e. transfer of debt of any specific obligation (indicating the name of the agreement (other documents) confirming the existence of the transferred obligation, the date of its conclusion and number).

transfer by the debtor of his debt to another person is allowed only with the consent of the creditor (clause 2 of article 391 of the Civil Code of the Russian Federation)

Features of a debt transfer transaction

The main feature and essential condition of the transfer is the consent of the creditor. The Law does not provide direct guidance on the form of this document.

It is best, of course, if the form is in writing. Otherwise, the contract will most likely be considered invalid. The Russian Supreme Arbitration Court recently clarified that the sample consent to assignment must:

Be a separate document
Be in visa form upon request.
Become a separate contractual clause.
Be a separate agreement between the creditor and the debtors.

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Regular terms and conditions of the Debt Transfer Agreement

(conditions that the parties, in order to prevent possible risks and disagreements, by virtue of the law granted by law and (or) business customs, independently determine in the Debt Transfer Agreement:

rights and obligations of the parties;

guarantees of the parties to the contract;

payment (compensation for accepting a debt) under the contract;

liability of the parties;

settlement of disputes;

procedure for changing or terminating the contract;

other conditions that the parties, by virtue of the right granted by law and (or) business customs and (or) agreement of the parties, can independently determine in the contract.

Tripartite debt transfer agreement. Sample, form

A tripartite debt transfer agreement is a document confirming the fact that debt payment obligations are transferred from one organization to another. In this case, three parties will sign the agreement: the creditor, the former debtor and the organization that assumes responsibility for paying off the debt.

Download the document for free

FILES Download a blank form of a trilateral debt transfer agreement .docDownload a sample trilateral debt transfer agreement .doc

Classification

According to the subject composition, contracts can be divided into bilateral, trilateral, quadrilateral, etc. Naturally, the most common is the first variety. But trilateral agreements are not uncommon these days.

Legislative requirements for the form of such an agreement, as a type of standard agreement, are established in paragraph 4 of Art. 391, art. 389 part 1 of the Civil Code of the Russian Federation.

Of course, in some cases it may be difficult for three parties to reach a compromise at once. But in a number of situations, transferring debt obligations from one company to another is the most optimal solution for everyone.

Moreover, it is important to keep in mind that the transfer of debt is regulated by Article 391 of the Civil Code of the Russian Federation, and the change of creditor is regulated by Article 382.

Features of replacing a debtor in an obligation

Transfer of debt is the transfer of debt under an obligation by the debtor to another person.

This case of a change of face in an obligation is the opposite of an assignment. There the creditor changed, here the debtor changes.

The transfer of debt can be carried out both by force of law, for example, in the case of reorganization of the debtor, and on the basis of a transaction.

The identity of the debtor is usually important to the creditor. What if the new debtor turns out to be less solvent than the original? Therefore, to transfer a debt, it is necessary to obtain the consent of the creditor (clause 1 of Article 391 of the Civil Code of the Russian Federation).

Of course, this does not apply to cases of transfer of debt by force of law.

In practice, a written tripartite agreement on the transfer of debt is usually concluded, in which, in addition to the original and new debtors, the creditor of the main obligation signs.

If there is no consent of the creditor, then the agreement on the transfer of debt is void (paragraph 1, paragraph 2, article 391 of the Civil Code of the Russian Federation). The lender's consent can be obtained in advance, even before the agreement is concluded. Later, when it is concluded, it is enough to send a notice to the lender. From the moment it is received, the transfer is considered completed (paragraph 2, paragraph 2, article 392 of the Civil Code of the Russian Federation).

The requirements for the form of the agreement are the same as for the assignment of the right of claim. A similar rule applies: the form of the debt transfer agreement follows the form of the transaction in which the debtor changes.

Typically, when transferring a debt, an agreement is made between the old and new debtor, subject to the agreement of the creditor to replace it.

If the obligation is related to the implementation of business activities by its parties, paragraph. 2 p. 1 art. 391 of the Civil Code of the Russian Federation allows for the possibility of concluding an agreement on the transfer of debt between the creditor and the new debtor.

In the Resolution of the Plenum of the Armed Forces of the Russian Federation dated December 21, 2017 No. 54, only 3 points are devoted to debt transfer. But they are very, very important.

How is mortgage debt transferred?

But there is still interest in this option, and quite significant. The bank avoids possible litigation with an unreliable and undisciplined borrower, receiving a client who is willing to pay. The borrower himself, of course, loses his mortgaged home, but without any problems he gets out of the loan agreement that is beyond his budget.

As a rule, the person to whom the mortgage debt is transferred also benefits. This happens, say, in a situation where prices are rising on the real estate market, but the cost of the collateral apartment remains unchanged, that is, cheaper. Or a new borrower needs housing in the exact area and building where the mortgaged apartment is located.

The transfer process itself is quite clearly regulated. Mortgage housing is usually pledged to the bank, and therefore it is he who dictates the terms and conditions.

First of all, of course, you need to find a person who is ready to assume obligations under the mortgage agreement. Then a corresponding application about this is sent to the bank. If the financial institution is satisfied with the candidacy of the new client, then it gives consent and a tripartite agreement on the transfer of mortgage debt is drawn up.

Next comes the registration of changes directly in the status of mortgage housing. A purchase and sale agreement for this real estate is signed with the buyer (new borrower), after which the bank provides in writing its consent to register the transfer of ownership of it in the territorial department of Rosreestr. A housing purchase and sale agreement with a mark on state registration of the transfer of ownership of an apartment or house is transferred to the new owner.

This is a much simpler scheme than drawing up your own separate mortgage agreement. Even taking into account the fact that the new borrower may have some additional expenses - for example, payment for the work of an appraiser or insurance.

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