In economic and legal practicethere are situations when the organization can not return the debt for only one reason: it must also, but do not pay. Sometimes, in such circumstances, the use of debt transfer is used - a rare and complex procedure that is associated with a lender with the advent of an additional risk of non-fulfillment of circumstances.
The Civil Code regulates this sphere in a very small degree, so all the features of the relationship here stem from practice. Let's review them briefly.
Who is involved in the transaction and their responsibility
So, in the contracts that make up the transfer of debt, three parties are involved:
- the creditor;
- The original debtor;
- the person assuming the obligation to repay the debt.
Naturally, the main in the formal relationsis the creditor's consent to such a transaction. Usually his signature under the contract already means that. But sometimes a separate document is prepared in the form of an application, which is subsequently appended to the document.
Naturally, the transfer of debt implies thatThe new debtor has the necessary resources and legal capabilities to fulfill the obligations in place of his predecessor. And the nature of the transferred values can be both material and non-material. A certain amount of services or works is also counted. The main thing is the wishes of the creditor.
A responsibility
In addition, taking on the burden of debt, a newthe debtor, as a rule, also takes full responsibility for non-fulfillment of obligations, including sanctions. This point, it must be admitted, is very subtle and depends heavily on the circumstances. In this case, the follower sometimes manages to negotiate more favorable terms. To do this, usually refer to the articles of the Civil Code (Article 356, paragraph 2 of Article 367 and Article 372), which states that neither a pledge, nor a guarantee, nor a guarantee for a new debtor does not apply.
However, during the preliminary negotiations onthe creditor is not heavily pressed; do not forget that there is also a debt assignment - a rather rigid version of such relations, when the creditor gives all the rights to claims to other persons for a fee. The consent of the former debtor is not asked for this action. Example: the ever-memorable collection agencies, which spoiled a lot of nerves for ordinary citizens.
Amount of liabilities transferred
It is known from practice that the majority of suchcontracts is based on the whole scope of obligations. Especially it is characteristic, when the subject of the agreement are debts on loans. The fact is that creditors are in every way opposed to fragmentation of obligations, not wishing to trouble themselves with additional control. Moreover, arbitration courts strongly support this trend. At the same time, nowhere in the legislative acts does not contain a ban on partial repayment. And if the parties to the deal still decide to apply it, then this will be justified: it is easier to solve the problems of debt.
Security measures when transferring a debt
The transfer of debt for understandable reasons requires compliance with certain security measures.
First, all parties should check the registration documents, as well as the powers of the persons 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 to cooperate.
Thirdly, the host of the debt is sure tomust make sure that the obligation really exists, and the transfer of debt is not someone's intention to create problems now to another subject. Here, you can even conduct some examination of the contract, and in its text provide for the item on the transfer of all debt-supporting primary documents.
