In business and legal practice, there are situations when an organization cannot repay a debt for only one reason: it must, but it is not paid. Sometimes in such circumstances they use a debt transfer - a rare and difficult procedure associated with the lender with the additional risk of failure to fulfill circumstances.
The Civil Code regulates this area to a very small extent, so all the features of the relationship here follow from practice. We will briefly review them.
Who is involved in the transaction and their responsibility
So, in the agreements that process the transfer of debt, three parties are involved:
- creditor;
- the original debtor;
- a person assuming an obligation to repay a debt.
Naturally, the main thing in the formalized relationship is the consent of the creditor to such a transaction. Usually his signature on the contract already means that. But sometimes a separate document is compiled in the form of a statement, which is subsequently attached to the document.
Naturally, the transfer of debt implies that the new debtor has the necessary resources and legal capabilities to fulfill obligations instead of his predecessor. Moreover, the nature of the transferred values can be both tangible and intangible. The performance of a certain volume of services or work is also counted. The main thing is the wishes of the creditor.
Responsibility
In addition, assuming the burden of debts, the new debtor, as a rule, also assumes all responsibility for default, including sanctions. This point, admittedly, is very subtle and highly dependent on the circumstances. Moreover, the follower sometimes manages to bargain for more favorable conditions. For this, they usually refer to articles of the Civil Code (Art. 356, Cl. 2, Art. 367 and Art. 372), which state that neither a pledge, nor a guarantee, nor a guarantee for a new debtor applies.
However, at the stage of preliminary negotiations, the lender is not much pressed; do not forget that there is also a transfer of debt - a rather tough version of such a relationship, when a lender gives all rights to claims to other persons for a fee. The consent of the former debtor to this action is not asked. Example: memorable collection agencies that spoiled a lot of nerves for ordinary citizens.
Volume of transferred obligations
It is known from practice that most of these contracts are concluded for the entire volume of obligations. This is especially true when the subject of the agreement are debt on loans. The fact is that lenders strongly resist the fragmentation of obligations, not wanting to bother themselves with additional control. Moreover, the arbitration courts strongly support this trend. At the same time, nowhere in the legislative acts is there a ban on partial repayment. And if the parties to the transaction nevertheless decide to apply it, then it will be completely justified: it is easier to solve debt problems.
Debt Transfer Security
Debt transfer for obvious reasons requires certain security measures.
First, all parties should check the registration documents, as well as the credentials of those 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 cooperation.
Thirdly, the party accepting the debt must certainly make sure that the obligation really exists, and transferring the debt is not someone's intention to create problems for another entity now. Here you can even carry out some examination of the contract, and in its text provide for a clause on the transfer of all primary documents confirming the debt .