Cession - what is it? Cession is the assignment of the right of claim. Cession between individuals

Today, very often in various media, you can find such a thing as "cession." What is it? Let's try to understand this term.

Definition

This term is defined in the Civil Code of the Russian Federation (Article 382): this is a requirement (right) that belongs to the creditor and may be transferred to another person under a particular transaction or to transfer to such person in accordance with the current legislation. Such a concession of a claim is a cession.

What is it, well know in certain business areas. However, some businessmen did not even hear about such a concept.

Cession - what it is, and how it can be used in economic activities

The first thing that requires special attention - the types and forms of rights, for which there is the possibility of their transfer under the cession agreement. The above law provides only a list of rights prohibited for transfer. This, for example, claims for compensation for harm that was caused to health or life, and about maintenance (Civil Code, Article 383). On the remaining rights, the parties have complete freedom in their decisions, while not forgetting about the requirements that the cession agreement contains (a sample of it can be found on any legal website).

Examples of contracts

As an example, we can cite a standard tri-lateral assignment agreement in which the supplier transfers to another person (organization) the right for a certain monetary reward to claim payment for the goods received or finished products from the buyer. What is the economic category of financial documents for? The answer is quite simple. If the payee is delayed with payment, when the supplier does not have time and extra funds for the courts, and money resources are needed immediately, the assignment of the right of claim is applied. Cession is quite successfully used in the reorganization of a buyer's debt that has not paid off its obligations for the received goods.

Another example is the case of the use of a cession under subrogation - the transfer of the insured's rights to the insurer with compensation for damage.

Problems arising from the use of cession

Since in any economy there are constantly some crisis situations and related negative phenomena, the untimely performance of counterparts by their counterparts, their financial inconsistency, generate lawsuits. Thus, the question arises: "What to do with the debt that has arisen?" Often after winning a court case with receipt of the writ of execution, it becomes clear that money from the debtor will not be received in the near future. And judicial executors are not always able to help. In such cases, the most effective mechanism for obtaining money is a cession of a claim. Cession will allow the seller to receive his money immediately.

Execution of the right of assignment of a claim after a court decision

Sometimes an effective way to get debt is to provide debtors with certain discounts. Despite some losses, the seller has a good chance of getting at least some part of the obligations. And then the question of using such a concept as "cession" may also be relevant. What is this in this case, we will consider in more detail. For example, the writ of execution is already at the bailiffs (bailiffs), and enforcement proceedings are carried out within the framework of the current legislation. In the event of a debt among citizens, a cession between individuals can be executed upon application to the court that issued the writ of execution. In this case it is necessary to take into account that in this case a court of general jurisdiction can be involved (the Code of Civil Procedure of the Russian Federation, Article 44) or the arbitration court (the agrarian and industrial complex of the Russian Federation, Article 48). The application is accompanied by a tripartite cession (the relevant agreement), signed on both sides and with a stamp indicating the notification of the debtor. The court makes a separate determination concerning the replacement of the party in the case. It is with this cession agreement and this definition that it is necessary to go already to the bailiffs.

Assignment agreement between individuals

Such an agreement takes place if they are not representatives of specific companies, and a contract for the provision of certain funds for a certain period was concluded among themselves. When drawing up such a document, both parties are guided by the current legislation (Civil Code of the Russian Federation).

This contract should contain a clear indication of the transfer of the creditor's rights to a third party on a different basis (paid and unpaid). This document specifies the personal data of the participating citizens of the parties, the amount of the loan, the form and timing of its return, their rights and obligations.

Such a contract can not be concluded if the debtor has duties to pay compensation to another person for causing damage or for payment of maintenance ordered by a court decision. Sometimes certain additional conditions may be included in the cession agreement, which must be negotiated before it is concluded.

Some time ago, the concession of rights between citizens in shared construction was also subject to registration in the form of a corresponding contract (cession). This fact was a violation of the law, since it was subject to discussion of the concession of not only rights, but also obligations to the contractor (construction organization).

Taxation and accounting for cession

If a business entity is given a cession to an individual or a legal entity, then there are some differences in taxation and accounting. So, upon the fact of concluding the contract of assignment of the right of claim it is necessary to remember the VAT. Its order of calculation is determined by the relevant tax legislation (Tax Code of the Russian Federation). For the new lender, the difference between the costs when acquiring the right of claim (the so-called "contract price") and the income received from the realization of this right (final receipt of funds from the debtor or subsequent assignment) should be accepted as the tax base.

For the first creditor, who applied a discount to the right of demand, it will be charged to losses, which are also taken into account in accordance with the Tax Code of the Russian Federation (Article 279).

When the parties are changed, the original creditor is given the name "assignor", and the acquirer of the debt is the "assignee". In accordance with the Civil Code of the Russian Federation, the former has the right to transfer to the partner in full all of its rights that existed during the assignment of the claim. And on the same terms. The price of such a transaction is lower than the amount of the debt itself, since the cession agreement must be paid for. If this condition is not met, then from the side of the tax service this transaction can be recognized as a gift with all the ensuing consequences from the taxation position. And then the enterprise will have its rightfulness, most likely, to defend in court.

However, the economic entity may have problems with the tax authorities, if the latter seems to be the agreed price in the contract is understated, which entails the presentation of claims from the position of economic unfoundedness of the transaction.

Agreement of cession between legal entities

Often there are situations when the interaction of legal entities in the course of their economic activities there is a change of persons in the obligations, and the cession agreement is concluded. In other words, the original creditor can transfer its rights to the debtor to a new person - another creditor. As a result, a cession agreement is concluded between business entities - legal entities with a corresponding change in rights and obligations. Today such agreements are quite common. They are bilateral and consensual and compensated.

At the same time, the transfer of rights to a new creditor does not require the consent of the debtor. He is simply informed of the concession agreement concluded through written notification.

In the contract of assignment of claims, the essence of such transferable right and the grounds for its occurrence (for example, a contract, writ of execution or a court decision) should be displayed. An obligatory condition is the indication of the details of legal entities (parties to the contract) and the notarial certification thereof.

There is within the framework of the current legislation and the responsibility of the former creditor, in the event that an invalid claim or a fictitious property was given to them. Perhaps a suretyship of the former creditor before the new one for the timely performance of the debtor's obligations.

The agreement of the cession is the successor of the pledge

Conclusion of contracts of assignment of claims was caused by the frightenedness of Russian creditors with unreturned loans. And this option is the only effective way to ensure the fulfillment of obligations. Until recently, a reliable enough way to collect debt was considered a pledge. With the advent of a bank guarantee, his successor was a cession (assignment of a claim).