Features of the conclusion of agreements on the assignment of rights
According to the general theory of civil law, the subjects of the obligation are the authorized person (creditor) and the obligated party (debtor). The creditor is a person authorized to demand from the debtor to perform a certain action or to abstain from it, and the debtor is the person who is entrusted with the obligation to perform such an action. A subjective right belonging to an authorized party is required to be a right of demand, and a subjective obligation of a party is a duty.
The specialists of the company Contragento.By, based on the arbitration practice of considering in court and resolving disputes between business entities, explained in their comments that, given the economic situation in the country, the best solution to prevent the possibility of cooperation with unscrupulous partners is to check counterparties. This allows subsequently to exclude various adverse effects. Also, the right of claim has become a certain asset, which can be used with advantage in legal relations with both the debtor and the creditor.
So, participants in economic and civil legal relations are increasingly using one of the instruments for resolving problems related to debt repayment, using agreements on the assignment of the right to claim and agreements on crediting homogeneous counterclaims.
In this context, experts from consulting companies recommend that when registering an economic activity, provided that the registration of a limited liability company in Podolsk will be carried out in compliance with all current legislation, carefully consider the semantic component of the statutory documents so that later, when obtaining a loan for doing business, lenders do not could use the possibility of assignment of rights of claim on credit obligations, which in turn can lead to additional costs Am when paying Kerdit.
However, in practice, the conclusion of such agreements has a number of significant features. More about them.
Offsetting homogeneous claims
The peculiarity of offsetting counterclaims of homogeneous claims is that it can terminate two counterclaims at once, provided that claims are equal in size.
In accordance with Art. 601 of the Civil Code and Articles 203, 220 of the Civil Code, the obligation shall be terminated by offsetting counterclaims of homogeneous claims, the deadline for fulfillment of which has come, as well as claims whose deadline for fulfillment has not been established or is determined by the moment of demand.
So, to set off the requirements, it is necessary to observe three conditions: the requirements must be counter, uniform and such, the deadline for which is either arrived, or determined by the time of demand.
The first condition is meeting requirements. The legislator implies the simultaneous participation of the parties in two obligations, where the creditor under one obligation is the debtor in the other. That is, the counterparties in two different obligations are the same, however, they play different roles in relation to each other. The debtor for one contract is a creditor in another and vice versa.
Regarding the concept of uniformity of requirements, you can immediately understand that everything is a bit more complicated here. This is due to the fact that the legal interpretation of this definition as such is not provided by law or by-laws. The only ray of light was shed in the Decree of the Supreme Court of December 9, 2008, which states that the uniformity of requirements comes from their material content and legal nature and does not depend on the grounds that led to the occurrence of obligations. This means that the requirements are considered homogeneous if the obligations of the parties with respect to each other must be fulfilled equally, and the grounds for such obligations may be different. For example, LLC “A” under a supply contract should LLC “B” 1 thousand rubles, and LLC “B” should LLC “A” to the contract of sale also 1 thousand rubles. Considering that the obligations of LLC “A” to LLC “B”, as well as LLC “B” to LLC “A” must be fulfilled by paying money – such requirements are considered uniform. In addition, for example, if LLC “A” under the sales contract owes LLC “B” 1 thousand rubles, and LLC “B” under the supply contract owes OOO “A” products, then such requirements will not be considered homogeneous, since the requirements have different legal nature and different material content.
As you know, offsetting is possible for those obligations whose term has already arrived, or if the deadline is determined by the time of demand. In addition, it is important that the date for fulfillment of an obligation comes on two obligations. Since, if under one agreement the deadline has come, but not under the second, then crediting will become possible only after the deadline for fulfillment of the second obligation.
Only a combination of three conditions – meeting requirements, their uniformity and the deadline can serve as a basis for the parties to consider the possibility of setting off.