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Publication date: 05.02.2024
I am studying in the third year of the State University of Economics and Technology.I specialize in contractual, economic and corporate law, in particular, I provide consultations and write articles.
The basis of mandatory law is a legal relationship, according to which one party, acting as a debtor, undertakes to perform a certain action for the benefit of the other party (the creditor), or to refrain from a certain action, and the creditor, in turn, is granted the right to demand that the debtor fulfill his obligation. Therefore, the main parties to any obligation are the creditor and the debtor. Along with this, the civil legislation provides for cases when the creditor or the debtor is replaced, i.e. the scope of rights and obligations of the main participants in the oblivion is transferred to third parties. This procedure is carried out in accordance with the law and has some extremely important legal features, given that many complications and obstacles can be avoided.
Features of replacing the creditor:
The primary aspect that must be taken into account when replacing the creditor in the obligation is the grounds, in the presence of which, it is possible to implement, namely: assignment of the right of claim, legal succession, performance of the debtor's obligation by the mortgagor or guarantor, as well as in the case of performance of the debtor's obligations third person The first reason from the above list is the so-called cession, i.e. the procedure by which an agreement on the assignment of the right of claim is concluded between the assignor and the assignee, according to which the assignor, as a creditor in an obligation, transfers its rights to the assignee, i.e. to a new creditor, and the latter performs, or does not make their payment (depending on the terms stipulated in the contract). Legal succession can concern both natural persons, for example, in the case of inheritance, and legal entities, in the case of their termination or reorganization. The third reason provides for the emergence of creditor's rights from the mortgagor, or guarantor. As for the performance of the debtor's obligation by a third party, after the satisfaction of the creditor's demands, the third party has the right of claim that belonged to the creditor. The listed reasons are not exhaustive, because Part 2 of Art. 512 of the CCU indicates that the implementation of the replacement of the creditor can be carried out on other grounds provided for by law. At the same time, if the obligation is related to compensation for damage caused by mutilation, health damage, or death, that is, when it concerns purely the creditor himself, the creditor is not replaced. Extremely important in the replacement process are documents as evidence of the rights that the original creditor transfers to the new creditor. Current legislation establishes an obligation for the original creditor to hand over such documents. The importance of this step is determined by the fact that, before providing evidence of the transfer of rights from the original creditor to the new one, the debtor is given the right not to fulfill his obligation to the new creditor. When replacing the creditor, it is also important to notify the debtor, because if the debtor fulfills his obligations to the original creditor due to the lack of a written notification of the replacement, this will be considered proper performance. The debtor's consent to the replacement of the creditor is not mandatory, but the contract may stipulate otherwise. It is worth noting that if the claim that the original creditor transferred to the new one is found to be invalid, the original creditor will bear responsibility for it.
The assignment procedure as one of the grounds for replacing the creditor:
1. As already mentioned, the cession is implemented on the basis of the relevant deed. It is extremely important to develop an agreement on the assignment of the right of claim, which provides for the inclusion of all essential conditions and those that will effectively regulate all procedural features. In particular, such a contract includes: provisions regulating the procedure for notifying the debtor, the procedure for transferring documents as evidence of substitution and the procedure for providing them to the debtor, the subject of the contract, its validity period, and the price.
2. The next step is to coordinate the form of the contract on assignment of the right of claim with the contract between the original creditor and the debtor. Current legislation establishes a requirement that the development of an agreement on the replacement of the creditor must correspond to the form of the transaction between the original creditor and the debtor. If the deed, on the basis of which the contract on the replacement of the creditor was concluded, underwent state registration, then the latter will also be subject to registration.
3. The final step, which is implemented already after all the conditions have been agreed, the form has been brought into compliance, is the direct signing of the contract, as well as the implementation of all necessary actions (notification of the debtor, submission of evidence, etc.), in order to avoid complications in the future.
Legal assistance in replacing the creditor in the obligation:
It is extremely important to comply with all the above-mentioned requirements when implementing the replacement of the creditor, and therefore the services of a lawyer may be required. Development of a contract by a lawyer will help to transfer the amount of rights belonging to the creditor in such a way that it does not cause negative consequences for the parties to the obligation in the future. The lawyer will conduct a legal analysis of the situation, develop a draft deed, take into account all the requirements of the law, and if state registration of the concluded contract is necessary, he will ensure registration. Drafting contracts, settlement of disputes arising from non-fulfillment of contractual obligations by the parties. verification of counterparties is the main task of a lawyer.
