Contract of assignment of obligations under the contract. What is an assignment agreement

Denis Artemov, a leading lawyer at the Via lege law firm, told the Novostroy-M portal about what an assignment agreement (cession) is, how to properly apply it in the new building market and minimize possible risks.

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

In the case of apartments in new buildings, the right holder (assignor) transfers to the assignee (assignee) the contractual right to claim the transfer of the apartment to the developer after the building is put into operation.

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

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

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

It is noteworthy that the use of this type of contract is beneficial to both parties to the transaction. The seller can receive money for an apartment without going through the procedure of its acceptance under the act of acceptance and transfer and registration of ownership, as well as without additional operating costs. The buyer - to purchase an apartment not "from scratch", track the progress of construction and its pace (moreover, the price of the apartment in this case is lower than after the commissioning of a new building and registration of ownership).

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 law includes the following:

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

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

If the agreement on participation in shared construction provides for the obligatory written consent of the developer to 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 cede the fully paid apartment or the buyer must assume the obligation to pay the debt;

The assignment of rights is possible only until the transfer of the apartment under the act (the rule proceeds from the essence of the assignment agreement: when the act is signed, the very right to demand the transfer of the apartment is realized - there is nothing to cede).

In addition, the following points are important:

In the contract of assignment of rights, the seller must guarantee the legal purity of the apartment (not mortgaged, not arrested, third parties have no right to it, there is no litigation);

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

The fact of the full settlement of the buyer with the seller in order to avoid further disagreements must also be confirmed by an act - on 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 verify the validity of the rights to be assigned, 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 from the Unified state register rights. It must confirm the validity of the contract (whether it was terminated) and the owner of the apartment, there should be no information about the presence of a mortgage, judicial arrests and other encumbrances.

Also, if possible, it is necessary to come with the seller to the developer's office: the developer is not interested in selling unpaid or invalid rights to the apartment 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 check the papers provided by the seller.

After the conclusion of the contract for the assignment of rights, the buyer "remains 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;

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

Lease contract land plot(certificate of ownership);

Building permit;

Positive conclusion of the state expertise on the construction project.

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

When studying the equity participation agreement itself, it is necessary to pay attention to the fact that it must be stitched and have a rectangular stamp of the Federal State Registration Service confirming the registration.

Also, the seller is obliged to provide documents confirming the payment made: receipts for incoming cash orders, bank payment orders, acts of reconciliation of settlements.

If the apartment was purchased with a mortgage, there must be a 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, at the expense of the amounts paid by the buyer, closes the seller's credit obligations and removes the pledge from the apartment.

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

When concluding an agreement on the assignment of rights of claim, the seller risks signing the agreement, submitting it for registration, but not receiving payment for the cost of the apartment. For the buyer, the danger is just the opposite - he can give the money, but not receive confirmation of the transfer of rights from Rosreestr (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 agreement on the assignment of rights 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 cell). But the cost of banking services under a letter of credit is much higher, so it has not yet become widespread.

Indication in the contract of assignment of the incomplete price of the apartment

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

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

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

Thus, it is desirable 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 the fact of payment of the entire amount (for example, using additional receipts).

The role of the developer

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

But there is also the other side of the coin. As a rule, such services of the developer are paid. The developer sets their cost independently: there is no state regulation of this issue. There are also no recommendations as to 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, the support of the transaction by the developer does not solve all the difficulties. On the contrary, it is extremely difficult to legally hold the developer liable for possible errors in the execution of the contract, so the parties should carefully study the documents and specify all the nuances in detail.

Other nuances

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

In addition to DDU, developers also use other types of contracts for the sale of real estate in new buildings. For example, PDKP 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 respects from the assignment under the DDU, much of what has been discussed in this article is also applicable to such types of cession.

In conclusion, it should be said that the contract of assignment of claims, like other types of civil law transactions, is aimed at the implementation of free property and money 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 competences of the parties to the transaction in preparing and providing the necessary documentation.

At the same time, if the main obligation under the loan agreement is secured by a mortgage agreement (hereinafter referred to as the mortgage agreement) and both agreements are independent documents (i.e. the mortgage agreement is not included in the loan agreement), then:

PP, following from DI, is subject to state registration;
A PP following from a loan agreement should not be registered (see the decision of the Federal Antimonopoly Service of the North-Western District of January 22, 2010 in case No. A21-403 / 2009).

In another situation, when an agreement on the pledge of real estate is included in an agreement containing an obligation secured by such a pledge, the requirements for the execution and state registration of such an agreement must be met (clause 3, article 10 of the Federal Law “On Mortgage (Pledge of Real Estate)” dated 07/16/1998 No. 102-FZ). From the date of assignment of the right to claim under such mortgage-backed obligation, the new creditor acquires the rights of the mortgagee under the MDI.

Contract of assignment of the right to claim - sample

The presence of compensatory principles in the contractual obligation completely excludes the recognition of the corresponding agreement as a donation agreement (clause 9, clause 10 of the Review of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 30, 2007 No. 120) of the Civil Code of the Russian Federation.

The old lender says:

- for the invalidity of the claim transferred to him;
- for the fulfillment of an obligation by the debtor if he acts as a guarantor of the obligated person to a new creditor;
- and other paragraphs of article 390 of the Civil Code of the Russian Federation "Assignor's liability".

Based on the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 30, 2007 No. 120, it is permissible to assign not the entire claim, but only part of it.

Agreement on the assignment of the right to claim

Assignment can be both compensated and gratuitous (PP between commercial organizations - only compensated). The absence of an indication in the PP agreement between commercial organizations of an indication of the price of a transferable right (claim) in itself is not considered a basis for qualifying such an agreement as void in accordance with Art. 575 part 2 of the Civil Code of the Russian Federation (clause 9 of letter No. 120). The situation when the price must be included in the PP agreement is considered in the resolution of the Federal Antimonopoly Service of the West Siberian District dated July 1, 2008 No. Ф04-4131 / 2008 (7689-А46-13).

Settlement rules.
The procedure for the transfer of ceded rights and claims.
Responsibility of the parties.
Terms of termination of the contract.
The procedure for settling disputes.
Other provisions.

Discrepancies in the terms of the PP agreement are irrelevant if the parties consider them to be agreed (see para.

Assignment agreement

The Assignor is obliged to transfer to the Assignee within a day after the signing of this Agreement all the necessary documents certifying the rights (claims), namely:

the Agreement specified in clause 1.1 of this Agreement;
Annexes to the Agreement dated "" Mr. N;
additional agreements to the Agreement dated ""
other documents that are an integral part of the Agreement dated "" Mr. N.

2.2. The Assignor is obliged to inform the Assignee within the same period of time of all other information relevant for the Assignee to exercise his rights under the said Agreement.
2.3. The Assignor undertakes, within a day after signing this Agreement, to notify the Debtor of the assignment of his rights and obligations under the Agreement to the Assignee by registered mail with notification. 2.4.

Assignment agreement (assignment of rights)

Assignment of a claim under a transaction requiring state registration must be registered in accordance with the procedure established for registration of this transaction. Assignment of a claim under an order security is made by endorsement (endorsement) on this security (paragraph 3 of article 146 and paragraph 3 of article 389 of the Civil Code of the Russian Federation).

If the creditor assigns future interest and the right to damages, then on the basis of Art. 384 of the Civil Code of the Russian Federation and clause 17 of the Review of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 30, 2007 No. 120, there is no need to register the transfer of interest rights, since the rights to receive them are automatically transferred to the acquirer.
If the transaction for the assignment of the right (claim) is large (more than 25% of the balance sheet as of the last reporting date), it must be concluded in compliance with the requirements established by Article 78 of the Federal Law No. 208 of 12/26/1995. "On Joint Stock Companies" and Art. 46 Federal Law No. 14 dated 08.02.1998

Debt assignment agreement - sample and features of the conclusion

In the event of the occurrence of the circumstances specified in clause 5.1 of this Agreement, each party must immediately notify the other party about them in writing. The notice must contain data on the nature of the circumstances, as well as official documents certifying the existence of these circumstances and, if possible, assessing their impact on the ability of the party to fulfill its obligations under this Agreement.
5.3. If a party does not send or untimely sends the notice provided for in clause 5.2 of this Agreement, then it is obliged to compensate the other party for the losses incurred by it. 5.4. In the event of the occurrence of the circumstances provided for in par.

5.1 of this Agreement, the term for the fulfillment by the party of obligations under this Agreement is extended in proportion to the time during which these circumstances and their consequences are in force. 5.5. If the circumstances listed in para.

Assignment agreement: sample

Attention

Therefore, it is necessary to carefully study and understand the assignment agreement, to what extent the rights are assigned.

It is forbidden to assign the right to claim if it is expressly stated in the agreement with the creditor, except in cases established by the legislation on enforcement proceedings and the legislation on insolvency (bankruptcy) (clause 2, article 382 of the Civil Code of the Russian Federation).
By general rule Consent from the debtor to such a transaction is not required, unless:

- the contract stipulates that the consent of the debtor is required
- the identity of the creditor is essential for the debtor (Article 388 of the Civil Code of the Russian Federation). For example, the right to alimony, compensation for moral damage, a joint activity agreement, etc.

The assignment of the right to claim under a joint activity agreement without the consent of all participants is impossible, since this contradicts Article 388 of the Civil Code of the Russian Federation.

Blanker.ru

Important

The right (claim) belonging to the creditor on the basis of an obligation may be transferred by him to another person under a transaction (assignment of a claim). Assignment of a claim by a creditor (assignor) to another person (assignee) is allowed if it does not contradict the law.

(Download: Sample assignment agreement, as well as other agreements for the assignment of the right to claim at the end of the page). An agreement on the assignment of a claim must be made in the same form (simple written or notarized) as the original contract with the debtor.

An agreement on the assignment of a claim under a transaction requiring state registration must be registered in the manner established for the registration of this transaction, unless otherwise provided by law (Article 389 of the Civil Code of the Russian Federation). Unless otherwise provided by the agreement or the law, the consent of the debtor is not required for the transfer to another person of the creditor's rights.

The Assignor is obliged to inform the Assignee within the same period of time of all other information relevant for the Assignee to exercise his rights under the said Agreement dated October 10, 2015 No. 134. 2.3. The Assignor undertakes, within 3 days after signing this Agreement, to notify the Debtor of the assignment of his rights and obligations under Agreement No. 134 dated October 10, 2015 to the Assignee by registered mail with notification. 2.4. For the assigned rights (claims) under Agreement No. 134 dated October 10, 2015, the Assignee is obliged to pay the Assignor funds in the amount specified in clause 3.1 of this Agreement. 3. Amount of the contract 3.1. For the assigned rights (claims) under Agreement No. 134 dated October 10, 2015, the Assignee pays the Assignor cash in the amount of 1,000,000 (one million) rubles. 3.2. The payment specified in par.

Contract of assignment of obligations under the contract sample

Assignment agreement (contract of assignment of the right to claim) refers to special contracts - in most cases, by concluding an assignment agreement, the assignment of the claim is carried out. The types of contracts under which the rights are transferred under the transaction are not defined, the scope of their application is quite extensive. As a rule, samples of an assignment agreement are necessary if the parties need exactly the fact of transfer of rights as a result.

According to the model of an assignment agreement, the right (claim) belonging to the creditor (assignor) on the basis of an obligation is transferred by him to another person (assignee).

Contract of assignment of the right to claim is reimbursable, consensual and bilateral

Object and parties of the assignment agreement

So, the assignment agreement results in the replacement of the creditor in the obligation. An assignment transaction is an action by the original creditor to waive its rights against the debtor and transfer them to a new creditor.

Parties under an assignment agreement are the assignor (the creditor ceding the right to claim) and the assignee (the creditor acquiring the right to claim under the assignment agreement). The legislation does not establish any restrictions regarding the legal status of the parties.

Essential terms of the assignment agreement

Russian legislation does not determine which conditions are essential for the existence and validity of the assignment agreement. It follows from this that the only essential (from the point of view of the law) condition of the assignment agreement is the condition on its subject (part 2, clause 1, article 432 of the Civil Code of the Russian Federation).

The subject of the assignment agreement there may be a subjective right of obligation or a right of claim, and if the subject of the obligation is divisible - both in full (in relation to the entire subject of the obligation), and in part.

The price of the cession agreement

Assignment agreement can be both paid and free. Since the law does not establish mandatory requirements for the price under the assignment agreement, the amount of payment for the assigned right of claim will be determined by agreement of the parties.

Assignment contract form

The law contains special requirements for the form of the assignment agreement. In accordance with Article 389 of the Civil Code of the Russian Federation, an assignment agreement based on a transaction made in a simple written or notarial form must be concluded in an appropriate written form.

The assignment of a claim under a transaction requiring state registration must be registered in the manner established for the registration of this transaction, unless otherwise provided by law (clause 2, article 389 of the Civil Code of the Russian Federation).

Additional terms of the assignment agreement

A cession can be made for various purposes and on the basis of various transactions. The absence in the assignment agreement of indications of the purpose (grounds) of its commission does not indicate its invalidity. The current civil legislation does not require the inclusion in the assignment agreement of information on the basis for the transaction.

According to the Civil Code, the consent of the debtor to conclude an assignment agreement is not a prerequisite, except in cases where the identity of the creditor is of significant importance to the debtor. In addition, the law does not oblige to notify the debtor of the conclusion of the assignment agreement, warning only that if the debtor was not notified in writing about the transfer of the rights of the creditor to another person, the new creditor bears the risk of adverse consequences caused by this for him.

Recognizing, as a general rule, the possibility of assignment of a claim, the law, nevertheless, establishes a number of restrictions. Firstly, the transfer to another person of rights that are inextricably linked with the personality of the creditor is not allowed (Article 383 of the Civil Code of the Russian Federation). This group includes claims for the payment of alimony, pensions, social benefits, etc. Changing the creditor in such obligations is contrary to their nature. Secondly, the current civil legislation (clause 1 of article 388 of the Civil Code of the Russian Federation) establishes the inadmissibility of the assignment of a claim by a creditor to another person if it contradicts the law, other legal acts or an agreement.

Accounting under an assignment agreement
Accounting with the assignor

To reflect operations on the assignment of the right to claim, apply general rules and principles accounting taking into account the specifics of the contract. The assigning organization, for which the realization of property rights is not a normal activity, reflects the assignment of the right to claim receivables on credit Debit Credit - Shipped products
Debit 90 Credit s / c "VAT" - VAT charged
Debit 90 Credit (, ) - Written off the cost of shipped products
Debit 90 Credit - Reflected financial results for implementation
Debit 76 Credit 91 - The assignment of the right to claim is reflected
Debit 91 Credit 62 - Written off the cost of the right to claim
Debit 91 Credit 76 s / sch "VAT" - VAT accrued on the positive difference received from the assignment of the right to claim
Debit 99 (91) Credit 91(99) - Reflected the financial result from the assignment of the right to claim
Debit 76 s / sch "VAT" Credit - Accrued VAT payable to the budget for the initial transaction
Credit 76 - Received funds from the assignee to the current account
Debit 76 s / sch “VAT Credit 68 - VAT has been charged on the positive difference payable to the budget.

Usually, the sale of the right to claim a debt occurs at a loss, this loss is always formed on the date of signing the assignment act. And the procedure for its recognition in expenses depends on when exactly the right of claim passed from the seller to a third party.

The assignment occurred before the due date for payment

If the right of claim was transferred before the moment of payment, which was provided for by the original contract, then the loss can be written off immediately after signing the act with a third party. But in order to determine the amount of the write-off loss, it is necessary to calculate the amount of interest that the company would pay if it took out a loan equal to the income from the assignment of the right of claim. The amount of interest is calculated taking into account the requirements of Article 269 of the Tax Code of the Russian Federation. Moreover, interest is taken for the period from the date of assignment to the date of payment stipulated by the contract. Then you need to compare these percentages with the actual loss. The smaller amount is included in the costs.

The assignment occurred after the due date for payment

And if the right of claim is transferred after the term for payment for the goods under the contract has expired, then the loss can be written off in full, but in two stages. 50 percent of the amount can be taken into account in expenses on the day of assignment, and the remaining 50 percent - after 45 calendar days from this date (Article 279 of the Tax Code of the Russian Federation).
Assignee account

In the accounting of a new creditor, acquired by way of assignment of a claim, accounts receivable will be reflected in accordance with the requirements of PBU 19/02 "Accounting for financial investments" as financial investments in the actual amount of costs for its acquisition.
Credit 76 - Acquired the right to claim
Debit 58 Credit 76 - Reflected the costs of acquiring the right to claim
Debit 51 Credit 91 - The debt is repaid by the original debtor
Debit 91 Credit 58 - The right of claim is written off
Debit 91 Credit 68 - VAT accrued from a positive difference
Debit 91 (99) Credit 99 (91) - Reflected financial result

According to the Tax Code Russian Federation If the receivables are sold at a higher value, then additional VAT must be paid on the excess amount in the period in which this amount was received.

Applications of the cession agreement
The assignment agreement contains appendices:
Payment schedule.(The payment schedule is an annex to the agreement, which clearly regulates the terms, conditions and amounts of payments. The schedule is applied on the basis of and in accordance with the agreement to which it is attached; the amounts of payments and the conditions for their payments are determined individually in each case).

Related documents to the assignment agreement:

The act of acceptance and transfer of title documents(Documentation acceptance and transfer certificate is an official document that has legal force and is an integral part of the contract. This is a protocol in which the parties determine the list of documentation to be transferred - the name, number of copies, original or copy, etc. In accordance with the act, technical documentation, title documents, etc. The act is applied on the basis of and in accordance with the contract to which it is attached; the number of copies of the act and the list of technical documentation is determined in each case).;

Additional agreement ( Very often, after the conclusion of an agreement, at the time of its validity and execution, certain circumstances arise, according to which certain clauses of such an agreement must be canceled, amended or added to new terms of the agreement. These changes are formalized by an additional agreement. An additional agreement to the contract is the same contract, and accordingly, its signing is possible and legal with the mutual consent of both parties to the contract. An additional agreement to the contract, in its essence, changes or terminates the main contract. All new conditions established by additional agreements cancel and invalidate the previous conditions established in the agreement. In this connection, the additional agreement to the contract is part of the main contract, and an integral part. Being part of the main contract, the supplementary agreement to the contract must comply with all the requirements for the main contract. When concluding an additional agreement to the contract, the rules used when concluding the main contract are applied. The supplementary agreement to the contract must indicate the place and time of conclusion, as well as the parties to the supplementary agreement to the contract. It should be noted that the terms of the supplementary agreement come into force from the moment the supplementary agreement to the contract is concluded (unless otherwise provided by law or the contract). Also, it is necessary to indicate which contract the supplementary agreement is part of, as well as all the conditions on which agreements must be reached. When concluding an additional agreement to the contract, it should be borne in mind that the additional agreement is made in the same form as the main contract (Article 452 of the Civil Code of the Russian Federation). Since most real estate transactions require state registration, an additional agreement to the contract also requires state registration. Thus, an additional agreement is a document that changes or terminates the main contract, which is signed by mutual agreement of both parties.
Used in all contracts .);

Dispute protocol(A protocol of disagreements is a document in which the parties fix their disagreements on the terms of the contract being concluded. A protocol of disagreements can be drawn up both after the conclusion of the contract (then its terms are accepted in the same manner as the terms of the contract itself), and at the stage of developing a draft contract "The existence of such an addition means only the existence of some disagreements on certain issues. It is these contentious issues that are fixed by the protocol of disagreements. Usually such a protocol is drawn up in the form of a table containing the clauses of the contract that were not agreed upon by the parties and the wording of these clauses proposed by both one and the other party. The protocol of disagreements is a full part of the agreement, and its terms have the same force as the terms of the agreement itself.The protocol of disagreements must be signed, sealed and attached to the agreement.Otherwise, the signed agreement cannot be considered valid.In the agreement itself, the existence of the protocol disagreements, a postscript is made: “Signed with a protocol of disagreements No. ... from ... date ... month ... year." The party that drew up the protocol of disagreements submits it together with the prepared and signed agreement for signing to the other party. If the other party accepts the protocol of disagreements, then the protocol of disagreements is included in the contract as an additional condition. In case of disagreement of the first party with the protocol of disagreements, the first party has the right to refuse to sign the contract. Either refuse the protocol of disagreements and accept the terms of the agreement for signing, or draw up a protocol for reconciling disagreements. Used in all contracts except labor contracts ).;

Disagreement Protocol ( In case of disagreement of the first party with the protocol of disagreements, the first party has the right to draw up a protocol for reconciling the disagreements. In addition to the information contained in the protocol of disagreements, this document determines either a new, agreed version of the disputed clauses of the agreement, or an indication that the disputed clauses of the agreement were adopted in the version of one or another party. At the same time, a note is made in the protocol of disagreements: “Signed with the protocol of agreement of disagreements No. ... dated ... date ... month ... year." After signing the protocol for reconciliation of disagreements, the parties may also draw up a new version of the contract to be concluded, including the clauses agreed by the parties, or conclude an additional agreement to the contract. A signed protocol for reconciling disagreements can be equated to an additional agreement that changes some of the terms of the contract. Used in all contracts except labor contracts ).

CONTRACT OF ASSIGNMENT OF RIGHTS (CESSION)

Being ______ successor of ___________________________________, represented by __________________________________________, acting ___ on the basis of the Charter, hereinafter referred to as __ "Assignor" on the one hand, and ___________________________________________________, represented by _____________________________________________________________, acting ___ on the basis of the Charter, hereinafter referred to as __ "Assignee" on the other hand, have concluded this agreement on the following .

1. THE SUBJECT OF THE AGREEMENT

1.1. The Assignor assigns, and the Assignee accepts in full the rights and obligations under the agreement __________________________ concluded between the Assignor and __________________________________.

1.2. For the assigned rights and obligations under the ______________ agreement, the Assignee shall pay the Assignor compensation equal to the amount spent by the Assignor, Money under the specified contract (hereinafter referred to as the contractual amount).

2. TRANSFER OF RIGHTS AND OBLIGATIONS

2.1. The assignor is obliged to transfer to the Assignee within three days from the date of signing this agreement all the necessary documents certifying the rights and obligations under the agreement ________________ concluded with ____________________________, namely:

Agreement ______________, specified in clause 1.1 of this agreement, with all annexes, additional agreements and other documents that are an integral part of this agreement.

2.2. The assignor is obliged to inform the Assignee of all other information relevant for the Assignee to exercise his rights under the agreement _______________.

3. RIGHTS AND OBLIGATIONS OF THE PARTIES

3.1. On account of the assigned rights and obligations, the Assignee shall pay to the Assignor __________ _______________________________________. Payment of the specified amount is made according to the monthly payment schedule, which is part of the Agreement on the transfer of rights and the procedure for settlements (hereinafter referred to as the Agreement). The agreement is signed by authorized persons of the parties and is an annex to this assignment agreement.

3.2. The Assignee has the right to pay the contracted amount ahead of schedule, of which he must notify the Assignor in writing.

4. RESPONSIBILITIES OF THE PARTIES

4.1. The Assignor is responsible for the accuracy of the documents and information transferred in accordance with this Agreement, and also guarantees the availability and transferability of all rights assigned to the Assignee.

4.2. The assignor is responsible for the validity of the rights and obligations transferred under this agreement.

4.3. The liability of the Assignee in case of delay in payment of the contractual amount is specified in the Agreement.

4.4. For any other failure or improper performance of this agreement, the parties are responsible in accordance with the current legislation of the Russian Federation.

5. FINAL PROVISIONS

5.1. This agreement comes into force from the date of its signing by the Assignor and the Assignee and is valid until the full fulfillment of obligations under the agreement ___________________________.

5.2. The assignor undertakes, within three days after signing this agreement, to notify ___________________________ (the party to the main agreement) and all interested third parties of the assignment of their rights and obligations under the agreement to ________________.

5.3. This agreement is made in 3 copies, one for each of the parties. Instance no. 3 is sent to _______________________ (the party to the main contract).

Addresses and details and signatures of the parties:

CEDENT: CESSIONARY:

Application No. 1

to the assignment agreement dated "___" ____________

AGREEMENT ON THE TRANSFER OF RIGHTS AND PAYMENT PROCEDURES

______________ "__"________ ____

1. According to the assignment agreement dated "__" _________ ____, the Assignor transfers to the Assignee all his rights and obligations under the agreement _____________________ concluded between the Assignor and ___________________ ______ (the party to the main agreement). The transfer of rights under the cession agreement dated "__" _________ _____, occurs at the time of signing this agreement.

2. The Assignee pays to the Assignor _________________________________________________.

3. According to paragraph 3 of the assignment agreement dated "__" _________ _____, the parties establish the following payment schedule:

- _______________ - _________ (_______________) rubles;

- _______________ - _________ (_______________) rubles.

4. For delay in payment, the Assignee shall pay to the Assignor a penalty in the amount of ___% of the amount of the debt for each day of delay.

5. Payment is made by bank transfer. Upon completion of the payment of the contractual amount, the parties reconcile the settlements.

6. This agreement is valid from the moment of signing and is an integral part of the assignment agreement from "__" _______ ____.

Assignor: Assignee:

__________________________ ________________________

The cession agreement (assignment of the right to claim) under the Civil Code of the Russian Federation in 2020 is drawn up with the obligatory consideration of the established rules and nuances.

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If they are ignored, there is a high probability that the court will recognize the contract as invalid. The legislation of the Russian Federation provides for the possibility of transferring the rights of claim to other persons.

To do this, it is enough to draw up an assignment agreement. At the same time, it is necessary to pay attention to certain subtleties that make it possible to draw up an agreement with ease and at the same time prevent it from being recognized by the judicial authority as invalid.

Important Points

Before proceeding to consider the issue of the rules for drawing up an assignment agreement, it is initially necessary to understand the basic concepts and legislative aspects governing the filling out of the document.

What it is

In order to be able to give a clear definition of the assignment agreement, what is it in simple terms, you must refer to .

Based on the specified legislative act, an assignment agreement is an agreement in which one of the parties acts as an assignor (the original creditor under an obligation) and transfers rights to an assignee (a person who acts as a new creditor).

This is possible with the aim of requiring the full fulfillment of debt obligations by the debtor.

It is important to remember: in the process of transferring the rights of claim, for example, the sale of debt, the new creditor must require the holder of debt obligations to fulfill his obligations under conditions that cannot worsen his situation.

Parties to the agreement

The parties to the agreement are:

It is important to remember: the main package of necessary accompanying documentation is determined on an individual basis.

Legal framework

The change in the composition of the subjects of obligation relations can be initiated both by the direct creditor and by the debtor himself. This is clearly stated in Art. 382 and .

The powers of the creditor can be transferred by means of an agreement or by virtue of certain legislative prescriptions - provided for in Art. 382 of the Civil Code of the Russian Federation.

Modification of the parties of the creditor may be prohibited or limited - displayed in.

At the same time, situations in which it is necessary to obtain the consent of the debtor is established by such legislative acts as:

In addition, it is necessary to pay attention to what clearly indicates that if the creditor has decided to assign future interest and rights to losses, then there is no need to indicate the direct transfer of interest rights.

This is largely due to the fact that it is already implied automatically. All the legislative acts mentioned above are not exhaustive, but at the same time contain all the necessary information on the issue under consideration.

Features of the deal

Under the agreement in question, it is possible to make an assignment:

existing rules;
further right of claim;
possible disputed right;
the right to claim various penalties: accrued forfeit, interest, compensation for damages, and so on;
a possible right to recourse (for example, a citizen does not want to waste his time and decided to transfer the right to other persons).

In particular, it states:

“The judicial body decided to invoke Art. 382 and , which led to the conclusion that the entered specific circumstance, due to which the corresponding right was formed, is considered to be the essential terms of the contract regarding the assignment of rights”

Based on judicial practice, it can be concluded that it is customary to attribute the amount of financing and the monetary claims themselves, which are bought by certain persons, to the essential conditions.

How to fill out the form (sample)

Depending on who exactly takes part in the conclusion of the assignment agreement, there are certain features that must always be remembered in order to avoid problems directly related to the risks of invalidating the document.

Between legal entities

An agreement between legal entities can be drawn up for various reasons.
For example, it is often signed by financial institutions for bad debt obligations.

Moreover, not only credit companies can act as a new creditor (based on the decision of the Supreme Court of the Russian Federation of October 2015).

The main nuances of the assignment agreement between legal entities are as follows:

In addition, do not forget about the mandatory display of the transaction in the accounting documentation, as well as the need to pay VAT. For this reason, it is necessary to approach the price of the agreement with extreme caution.

It is important to remember: representatives of the tax authority have the right to add if they establish the fact of a deliberate underestimation of the cost.

Between individuals

This agreement can be signed by citizens who are not representatives of any companies. Focusing on the Civil Code of the Russian Federation, it is individuals who determine the type of operation and periods.

In the document itself, it is necessary to reflect the principle of transferring rights to other persons, and this can be both in a paid and in a gratuitous form.

Additionally, it is mandatory to display:

the full amount of monetary debt obligations;
payment period;
existing rules and obligations for each party;
information from the passport (series, number, by whom and when it was issued, and so on).

It is important to remember that an assignment agreement cannot be signed in situations where the debtor is already under obligations to the judicial authority on the issue of paying personal debt obligations.

and so on.

This nuance must be remembered in order to minimize the risks of various misunderstandings.

Between a legal entity and an individual

Considering the Civil Code of the Russian Federation, certain conclusions arise, which are as follows:

In simple words, everyone indicates their details, which differ slightly from each other. Everything else remains standard.

Trilateral

The tripartite version of the documentation differs from the standard contract only in that in the first situation, the debtor himself also takes part in the transaction.

If we talk about the status of persons who are directly involved in the compilation process, then this fact also plays an important role.

There are some differences in the process of forming an agreement, which are directly related to whether individuals or legal entities take part in the transaction.

In the case of a tripartite relationship between individuals, then it is enough just to provide the passports of each of the parties.

If we are talking about the idea of the relationship between individuals and legal entities, then the rules are slightly different:

individuals need to provide only a passport;
legal entities must additionally indicate personal information and passport data.

In addition, before signing a document, legal entities are required to undergo a check for the reliability of the constituent documentation.

Verification is necessary only for the purpose of protecting other participants in the transaction from fraudulent activities (for example, it is missing or compiled with errors).

Termination procedure

You can terminate the agreement in several ways:

unilaterally;
bilaterally.

To be able to terminate the contract unilaterally, the following options are provided:

It is worth noting that the reasons must be weighty for termination, which means:

The legislation of the Russian Federation allows the possibility of terminating the assignment agreement by mutual agreement and fixing this decision by signing an additional agreement.

Such an agreement should specify:

full initials of the assignee and assignor;
documents on the basis of which the agreement is valid.

In addition, such an agreement must specify:

the main reason for terminating the agreement;
specific rights and obligations of each of the parties;
level for each of the parties;
general provisions. In other words, it is necessary to indicate the period of entry into force of this agreement.

It is mandatory to put signatures and addresses of the parties at the end of the document.
If it's about legal entities, then if there is a seal, it must be affixed additionally.

Emerging nuances

In the process of transferring the rights of claim to other persons, it is imperative to take into account the emerging nuances. Let's consider the most relevant of them in more detail.

Tax implications of the deal

Value added tax in the process of transfer of rights of claim implies certain features.

It is the grounds on which the need for rights of claim arose that depends on whether there is taxation or not.

VAT can be charged on transaction types that debt obligations were transferred on the basis of a signed (on the basis of).

Video: cession agreement

At the same time, VAT cannot be charged on assignments of rights to claim debt, which was formed as a result of the sale of products or provision, and at the same time they are exempt from taxation at the legislative level.

An example is a transaction for the sale of debt obligations, which were formed on the basis of ignoring obligations under.

It is also worth paying attention to the fact that the person who has the right to claim also plays a special influence, since the rule by which the value added tax is calculated depends on him.

If the debt obligations have decided to sell the creditor himself, which may be, for example, a supplier of any services, then the tax base is determined by the amount of excess income from volume.

Recognition of it as invalid (jurisprudence)

According to the Civil Code of the Russian Federation, debtors have few options to challenge the assignment agreement.

The grounds may be the fact that the agreement has been declared invalid, and in this case only if the assignment of the rights of claim by the contract is identified.

An additional reason for the possibility of recognizing the fact of the contract as invalid may be the revealed fact of violation by the assignee himself of its specified conditions.

At the same time, on the basis of the identified act of non-compliance with the restrictions on assignment, does not deprive the transfer of legal force.

In addition, on the basis of Art. 388 of the Civil Code of the Russian Federation, it is possible to recognize the contract as invalid on such additional conditions as:

It is for the above reasons that you can open legal proceedings. Despite the fact that in judicial practice in such cases, the judge rarely takes the side of the debt bearer, the presence of at least one of the above grounds can guarantee the recognition of the contract as invalid.

What accounting entries reflect

The implementation of accounting in the issue under consideration for all participants in the cession, without exception, including the bearer of debt obligations, has certain specific features.

The original creditor who became the assignor has several options - the transfer of claims before the period of the required payment and after it.

In the first situation, the basis for making all the necessary calculations is certain costs, which are calculated by the difference between the period of the cession until the closing of debt obligations on the basis of .

Another option implies costs in the form of a negative difference between the sales profit and the resulting cost of goods sold, works or services.

The entries under the assignment agreement with the debtor on the basis of the Federal Law on Accounting will look like this:

For the assignee, the example looks like:

In addition, it is necessary to pay attention to the fact that only the assignment agreement and the bank statement will be documentary evidence. They will be on the basis of the Civil Code of the Russian Federation and quite enough.

Free agreement between relatives

The signing of a cession of a gratuitous form cannot be considered a violation of the legislation of the Russian Federation.

At the same time, if one of the parties (regardless of who exactly) decides to apply to the judicial authority, then the judge with a high degree of probability (virtually guaranteed) recognizes such a transaction as failed.

In such a situation, the risk of not returning funds is at least huge.

By the way, this is how financial institutions act in the process of selling arrays of “bad debt obligations” at a discount of up to almost 92% of the nominal cost (the possibility of buying back the debt from the bank is implied).

This kind of mechanism allows you to fully clear the personal balance from arrays.

It is worth noting that many people buy the rights of claims and use them as a business. If we talk about the contract of this form, then there is no sample.

Agreement on the transfer of rights and obligations under a work contract

city of Moscow "__" ____ 20__

Limited Liability Company "_____", hereinafter referred to as « Contractor" , in the face Director General _______, acting on the basis of the Charter, On the one side,

Limited Liability Company "_______", hereinafter referred to as "Original Customer" represented by the General Director _______, acting on the basis of the Charter on the second side,

Limited Liability Company "______", hereinafter referred to as "New Customer" represented by the General Director _______, acting on the basis of the Charter, from a third party,

1. PREAMBLE:

Based on the fact that:

1.1. Between the Original Employer and the Contractor _____ concluded Contract No. _____ for the performance of construction and installation works (hereinafter - “ Work agreement”), the subject of which is the performance of work on the repair of the ventilation system of the facility (hereinafter referred to as the “Works”) at the address: ___________.

1.2. As of the date of conclusion of this Agreement, the Initial Customer and the Contractor partially (to the extent specified in this Agreement) fulfilled the obligations stipulated by the Contract.

1.3. The New Customer and the Initial Customer concluded a sublease agreement No. _______ subject, which is the temporary use of non-residential premises with a total area ______ (_____________) sq.m., located in the basement and on the first floor of the building at the address: _____________.

2. THE PARTIES HAVE AGREED AS FOLLOWS:

2.1. The Initial Customer, with the consent of the Contractor, transfers to the New Customer, and the New Customer accepts the rights and obligations of the Initial Customer under the Contract Agreement to the extent and on the terms and conditions existing on the date of conclusion of this Agreement by the Parties.

2.2. Rights and obligations specified in clause 2.1. of this Agreement are transferred by the Initial Customer to the New Customer from the date of conclusion of this Agreement by the Parties. From the specified date, the Initial Customer loses the rights and does not bear the obligations transferred to the New Customer in accordance with clause 2.1. present agreement.

2.3. Simultaneously with the signing of this Agreement, the Initial Customer undertakes to transfer to the New Customer:

A) according to the Transfer and Acceptance Certificate, the original Contract Agreement, all Annexes and Addenda to it;

B) copies of primary documents certified by the Initial Customer for obligations fulfilled by the Contractor;

2.4. As of the date of conclusion of this Agreement by the Parties, the Initial Customer paid to the Contractor ___% (_______) of the estimated cost of work under the Contract, which amounts to _________ (_________), including VAT - 18% _____ (_________). At the time of the conclusion of this Agreement, there are no debts of the Initial Employer for payment to the Contractor.

The Contractor hereby confirms that there are no claims against the Initial Customer and / or the New Customer regarding the execution of the Contract, including, but not limited to, claims regarding debt for actually performed work.

2.5. The new customer undertakes up to _________ subject to the transfer to the New Customer of the documents specified in clause 2.3 of this Agreement, pay the Initial Customer the funds in the amount of ________ (______), including VAT - 18% ___________ (__________) for the assignment by the Initial Customer of the rights and obligations under the Contract. Payment is made by transferring funds to the settlement account of the Initial Customer.

Simultaneously with the signing of this Agreement, the Initial Customer is obliged to transfer to the New Customer payment documents confirming the fact of payment by the Initial Customer of funds to the Contractor in the amount of ________ (___________), including VAT - 18% ________ (________).

2.6. From the moment the Parties enter into this Agreement, the ownership of the result of the work performed by the Contractor as of the date of conclusion of this Agreement passes to the New Customer, until the New Customer pays the Initial Customer the amount for the assignment by the Initial Customer of the rights and obligations under the Contract, the results of the work are pledged to the Initial Customer . The cost of the results of work under the Contract is included in the amount paid by the New Customer to the Initial Customer.

2.7. The Contractor hereby confirms his agreement with the transfer of rights and obligations (replacement by the party) under the Contract. Subject to the proper performance of the Contract by the New Customer, the Contractor guarantees the proper performance of the Contract.

2.8. The Parties have agreed that the list of monetary obligations, which is specified in this Agreement as of the date of its conclusion, is exhaustive. Neither the Contractor nor the Initial Employer shall be entitled to demand from the New Employer any additional payments related to the transfer of rights and obligations that arose prior to the conclusion of this Agreement.

2.9. This Agreement is made in 3 (three) copies of equal legal force, one for each of the Parties. The Parties are not entitled to unilaterally refuse to fulfill their obligations under this Agreement.

2.10. This Agreement comes into force from the date of its signing by the Parties and is valid until the Parties fully fulfill their obligations.

3. DETAILS OF THE PARTIES: