Translated from Latin, “cession” is the assignment of the right to something. The latter more often means property, property, etc., to which there is documentary evidence of the right. Debtor, assignor and assignee - what unites these three components in the assignment process? Let's figure it out.
Assignment process
In this case, “cession” is understood as a procedure for assigning the right of claim, that is, the sale of debt to third parties. There are three parties involved in this process: the debtor, the assignor and the assignee.
The assignee is the receiving party. Acts as a buyer of rights sold by the assignor. Is a third party.
Assignor is the seller of rights to claim receivables.
The debtor is the source of receivables.
Position of the law
Unfortunately, judicial practice shows disappointing data. Even if the agreement prohibits the procedure for transferring debt to third parties without the debtor’s permission, but the transaction still took place “behind the latter’s back,” often such procedures are not recognized as invalid (clause 3 of Article 388 of the Civil Code of the Russian Federation).
In our country, assignment is not so common at the legal level. As a rule, such transactions occur in relation to the debtor, and often all the rights of the former are grossly violated. Let us remind you once again that the debtor can express his protest about the transfer of debt to a third party in court.
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Article No. 4768
05.02.2015
CESSION: CALCULATION FEATURES
Are there any obstacles
The need for the assignor to return to the assignee what was received from the debtor is confirmed by clause 10 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 11, 2000 N 49, according to which, if the debtor was not notified in writing about the transfer of the rights of the creditor to another person, the new creditor has the right to claim what was performed by the debtor from the previous creditor as received unjustifiably. At the same time, placing on the new creditor the risk of the consequences of failure to send written notice to the debtor does not mean releasing the former creditor from the obligation to transfer to the new creditor what was received unjustifiably. The new creditor bears the risk of not receiving these funds from the previous creditor due, for example, to the insolvency of the latter. This position is confirmed by judicial practice, namely the Resolutions of the FAS UO dated October 23, 2013 in case No. A07-19952/2012, FAS VSO dated October 30, 2013 in case No. A33-348/2013. Despite this, the assignor does not always willingly agree to transfer such performance from the debtors.
The most common arguments of the assignor about the impossibility of transferring what was received from debtors are arguments about the prohibition of transfer by virtue of the legislation of the Russian Federation regulating the activities of accepting payments from individuals carried out by payment agents, the national payment system, as well as relations arising from a bank account agreement. According to some counterparties, the norms contained in this legislation do not allow the assignor to transfer to the assignee funds received from debtors, the rights to which were transferred by the assignor to the assignee.
In our opinion, this legislation is not an obstacle to the return by the assignor to the assignee of what was performed by such debtors, since in accordance with paragraph 1 of Art. 1102 of the Civil Code of the Russian Federation, a person who, without the grounds established by law, other legal acts or transaction, acquired or saved property (acquirer) at the expense of another person (victim), is obliged to return to the latter the unjustifiably acquired or saved property (unjust enrichment), with the exception of cases provided for in Art. . 1109 of the Civil Code of the Russian Federation.
Thus, according to this norm, the following are not subject to return as unjust enrichment:
- property transferred in fulfillment of an obligation before the due date, unless otherwise provided by the obligation;
- property transferred in fulfillment of an obligation after the expiration of the limitation period;
- wages and payments equivalent to it, pensions, benefits, scholarships, compensation for harm caused to life or health, alimony and other sums of money provided to a citizen as a means of subsistence, in the absence of dishonesty on his part and an accounting error;
- sums of money and other property provided in fulfillment of a non-existent obligation, if the acquirer proves that the person demanding the return of the property knew about the absence of an obligation or provided the property for charity.
Moreover, the legislation regulating the activities of accepting payments from individuals carried out by payment agents, as well as the national payment system, is not applicable to relations arising from an assignment agreement, due to the following.
By virtue of Part 1 of Art. 1 of the Federal Law of 06/03/2009 N 103-FZ "On the activities of accepting payments from individuals carried out by payment agents" this Law regulates the relations arising when the payment agent carries out the activities of accepting funds from the payer aimed at fulfilling the monetary obligations of an individual to supplier for payment for goods (works, services), as well as those sent to state authorities, local governments and institutions under their jurisdiction, within the framework of their performance of functions established by the legislation of the Russian Federation.
At the same time, according to paragraph 1 of Art. 2 of Law N 103-FZ, a supplier is a legal entity, with the exception of a credit organization, or an individual entrepreneur who receives the payer’s funds for goods sold (work performed, services provided) in accordance with this Law, as well as a legal entity or individual entrepreneur who contributes payment for residential premises and utilities in accordance with the Housing Code of the Russian Federation, as well as state authorities and local self-government bodies, institutions under their jurisdiction, receiving the payer’s funds as part of their performance of functions established by the legislation of the Russian Federation.
The assignee is not a supplier, since it does not sell goods, perform work or provide services to the debtors of the assignor, the rights to which were assigned to it by the assignor. The supplier is the assignor. Under an assignment agreement, the assignor assigns rights to the debtor's unfulfilled obligation to pay for goods sold by the assignor, work performed, services rendered. As a result of the assignment, the assignee does not become a supplier of goods, works and services. Otherwise, the assignee to whom the rights under loan agreements with individuals are assigned by the assignor, which is a bank, would be considered a bank.
Consequently, Law No. 103-FZ does not apply to the relationship between the assignor and the assignee to receive performance from debtors after the transfer of rights to the assignee. Because of this, the assignor is not recognized as the paying agent of the assignee, since only a legal entity or individual entrepreneur subject to this Law can be such.
NPC has nothing to do with it
In accordance with Art. 1 of the Federal Law of June 27, 2011 N 161-FZ “On the National Payment System”, this Law establishes the legal and organizational foundations of the national payment system (NPS), regulates the procedure for the provision of payment services, including the transfer of funds, the use of electronic means of payment, activities of NPS subjects, and also determines the requirements for the organization and functioning of payment systems, the procedure for supervision and monitoring in the national payment system.
According to paragraph 1 of Art. 3 of Law N 161-FZ national payment system - a set of money transfer operators (including electronic money operators), bank payment agents (subagents), payment agents, federal postal organizations when they provide payment services in accordance with the legislation of the Russian Federation, operators payment systems, payment infrastructure service operators (NPS entities).
Payment services - money transfer services, postal transfer services and payment acceptance services (Clause 17, Article 3 of Law No. 161-FZ).
Transfer of funds - the operator’s actions to transfer funds within the framework of the applicable forms of non-cash payments to provide the payer’s funds to the recipient (clause 12 of Article 3 of Law No. 161-FZ). At the same time, by virtue of Part 1 of Art. 11 of Law N 161-FZ, money transfer operators are:
- Bank of Russia;
- credit organizations that have the right to transfer funds;
- state corporation "Bank for Development and Foreign Economic Affairs (Vnesheconombank)".
The postal transfer service is provided by the federal postal service organization in accordance with the requirements of Federal Law No. 176-FZ of July 17, 1999 “On Postal Services” (Part 3, Article 4 of Law No. 161-FZ).
The service for accepting payments is provided by a payment agent in accordance with Law No. 103-FZ (Part 4 of Article 4 of Law No. 161-FZ), and the acceptance of funds must be carried out in order to direct these funds to fulfill the monetary obligations of an individual to the supplier for payment for goods (work, services), as well as their distribution to government bodies, local government bodies and institutions under their jurisdiction, within the framework of their performance of functions established by the legislation of the Russian Federation (Part 1 of Article 1 of Law No. 103-FZ).
Thus, the assignor does not provide payment services, since it does not provide funds transfer services, postal transfer services, or payment acceptance services. In our case, the debtor transfers funds to the assignor not as a money transfer operator or as a paying agent, even if it is a credit organization, for the purpose of their further transfer by the assignor to the assignee as the recipient of the payment, but as a party, including the loan agreement, the right to to which it was transferred to the assignee. In this case, in our opinion, it does not matter for what reason the debtor pays the assignor: due to lack of information about the new creditor or deliberately, not wanting to pay him.
Due to the fact that the assignor does not provide payment services and, as stated above, in accordance with Law N 103-FZ is not recognized as a paying agent in the situation under consideration, the assignor is not a subject of the NPS, and Law N 161-FZ, as well as the Law N 103-FZ, in no way regulates the activity of the assignor in terms of relations arising from concluded assignment agreements, as a result of which the assignor is not prohibited from accepting funds received from the assignor’s debtors after the assignment of rights to them to the assignee, and subsequently transferring them to the assignee.
As for the legislation regulating relations arising from a bank account agreement, due to the fact that the debtor transfers funds to fulfill his obligation to pay for services rendered in the field of lending, while the right to fulfill this obligation is transferred under the assignment agreement by the assignor to the assignee, these funds are subject to return to the assignee as received without the grounds established by law, other legal acts or the transaction. The assignor's reference to the restrictions established by legislation regulating relations arising from a bank account agreement regarding further disposal of such funds without the consent or indication of the owner of such an account does not correspond to reality, since there are other cases excluding the return of unjust enrichment, except for those provided for in Art. 1109 of the Civil Code of the Russian Federation, not established by law.
Thus, there are no grounds for the assignor’s refusal to return to the assignee the performance received from the debtor, whose rights were transferred to the assignee.
Time limit
Until recently, the practice of establishing in an assignment agreement a period during which the assignor is obliged to return to the assignee the funds received from the debtors was inconsistent with the law. The terms could vary from six months to three years, or the assignment agreement contained a condition that the assignor would not transfer such funds.
In our opinion, since the funds received by the assignor from the debtor to fulfill the right transferred by the assignor to the assignee to such a debtor are unjust enrichment, the assignor is obliged to return such funds to the assignee indefinitely, that is, as long as they are received from the debtors.
A different rule appeared on July 1, 2014 in connection with amendments to the Civil Code of the Russian Federation by Federal Law dated December 21, 2013 N 367-FZ “On amendments to part one of the Civil Code of the Russian Federation and the recognition as invalid of certain legislative acts (provisions of legislative acts) of the Russian Federation ". So, from July 2014, in accordance with paragraph 3 of Art. 389.1 of the Civil Code of the Russian Federation, unless otherwise provided by the contract, the assignor will be obliged to transfer to the assignee everything received from the debtor on account of the assigned claim. This clause will also apply to the very possibility of transferring such performance (in whole or in part) to the assignee.
Taking into account the considered nuances, we believe that the transfer by the assignor to the assignee of the funds received by him from the debtors after the assignment of rights is legal and the assignee can use the above arguments to defend his position when agreeing on the terms of the transaction for the assignment of rights, in particular to reduce the price of the assigned rights, since the impossibility of transferring funds received from debtors after the assignment of rights or any restrictions on the transfer of such funds cannot but affect the profitability of the acquired rights.
Without special knowledge and without mastering legal terminology, ordinary people practically do not encounter such concepts as “assignor” and “assignment agreement”. But sometimes such knowledge is very useful in order not to be deceived, for example, when concluding a loan agreement. After all, without paying attention to some details, you may not notice how the debt obligations under the loan agreement will be sold to third parties. Who is the assignor? Let's find out in this article.
Assignment agreement
We first learned about these treaties in history lessons at school, studying the Middle Ages. In connection with this phrase, diplomatic treaties, transfer of territories, any rights, etc. were mentioned. This process proceeded quite peacefully and ended with the receipt of something valuable to the mutual satisfaction of the parties. This was called an assignment, and it was about transferring rights to something (for example, an administrative unit) to another party with the receipt of favorable compensation. A kind of agreement, from the category “you - for me, I - for you.” The concepts of “assignor” and “assignee” are of interest to many. 
With the development of the financial, legal and political system, the concept of “cession” began to reflect various types of debt relations. In the modern world, an assignment agreement is a document confirming the alienation of debt in favor of a third party (both a legal entity and an ordinary citizen). In some cases, it seems problematic to determine the substantive component of the contract for the transfer of rights, as well as the legal obligations of all interested parties. We encounter the simplest version of such documents when the creditor transfers loan obligations to the collecting organization. Who is the assignor? This question is often asked.
Who are the assignor and assignee?
The parties involved in this agreement are called assignors and assignees. The participant in the transaction who assigns the right of claim under the contract is the assignor, and the receiving party is the assignee. The document certifying the assignment of rights is called title. The ability to collect debt passes from one creditor to another. Actually, the debtor does not participate in this at all (with the exception of tripartite assignment agreements, which we mentioned above), the legal act is completed without him, and he learns about everything, as a rule, after the conclusion of the transaction. There is an assignment of debt. Initially, when determining contractual obligations, the borrower has obligations to the assignor, and after the assignment of rights - to the assignee. The relations arising as a result of the conclusion of these agreements are regulated by Russian legislation in sufficient detail. 
Features of concluding assignment agreements
An assignment agreement can be concluded upon the sale of an enterprise. The previous owner is the assignor, who transfers the ownership of the company's assets to the assignee (the next owner). When concluding transactions of this kind, the rights and interests of all participants must be taken into account and respected. However, such a sale cannot be made if there are any contradictions with the law. There is an interesting nuance to keep in mind. Sometimes the original lender enters into an agreement with the borrower prohibiting the assignment of the right of claim to other persons (enterprises). If there is still a signed assignment agreement, then it is valid and completely legal. However, the first lender is legally liable to the borrower for termination of the agreement. How is the debt divided by the assignor and the assignee? 
The Civil Code indicates that at the moment of concluding an assignment agreement, the right of claim passes to the assignee. If the debtor has paid a certain amount on account of the assigned claim, then it must be transferred to him. The assignor is responsible for invalid claims. However, failure to fulfill obligations by the debtor does not entail liability for the assignor unless he has vouched for the borrower in advance.
If the law was violated during the conclusion of the transaction, all agreements are canceled, and the damage caused must be compensated. If a document on the assignment of rights was concluded between the same assignor and several persons, then the agreement that was concluded earlier is considered valid.
We figured out who the assignor is.
Use of assignment agreements
Often there is an assignment of debt between legal entities when enterprises are reorganized. In this case, the reorganized company becomes the debtor. Alienation of property during divorce proceedings or transfer of debt obligations from one person to another may also be accompanied by the registration of assignment obligations.
Also, an assignment agreement is used as a guarantee of the fulfillment of obligations for the supply of various goods, as well as when issuing a loan. In this case, the transaction does not require the participation of a notary. To conclude it, only the signatures of the participants, the availability of their passport data and the basic terms of the agreement are required. 
Conditions
A tripartite assignment agreement can be concluded on the basis of reimbursement of costs or be gratuitous. Thus, the rights are transferred or sold by the assignor to a collection agency. However, according to the law, this should not have any impact on the total financial burden of the borrower (amount of debt, interest rate, repayment terms). Simply put, nothing changes for him, he doesn’t care who should receive the debt.
There is also a tripartite form of assignment agreement with the participation of the object of the claim - the debtor. In this case, the borrower must be promptly notified of the transaction. The tripartite form of assignment agreement is currently used quite rarely. This is how debt assignment works.
Conditions necessary for concluding an assignment agreement
When making a transaction of this kind, its participants must indicate the information required by law. The names and details of the participating parties are written down, and for individuals - passport details. The time frame and other conditions under which the assignment of rights of claim occurs, as well as the amount of financial obligations, are clearly defined. A list of documents and contract details confirming the existence of debt obligations to the first creditor are indicated.
Thus, the document explains in detail the reasons for the occurrence of debt obligations and their size. The liability of the parties is established, as well as the circumstances under which legal proceedings are permissible. The rights of the assignor are quite legal. 
What does the law say?
The conclusion of such transactions should not contradict the legislative acts of the Russian Federation. For example, if the assignor is determined to be a party participating in a joint activity agreement, then the assignment of rights is impossible without obtaining the consent of the other participants.
The following rights are also not subject to assignment:
- payment of alimony;
- compensation for moral as well as material damage in the event of harm to the life or health of third parties.
The conclusion of an assignment agreement requires the presentation of additional documents. For example, you will need an act containing a detailed list of papers transferred to the assignee, or additional agreements to the contract. This helps minimize the assignor's risks.
Relationship between assignee and debtor
The new creditor is obliged to inform the debtor that there has been a change of creditor. Until the borrower is properly notified of this, he has the right not to pay any funds. If the debt was paid to the assignor after the conclusion of the assignment agreement, but before notification of the conclusion of the transaction, then the assignee finds himself in a very difficult situation. He will have to seek the return of the debt by the assignor, and he cannot have any claims against the debtor. These are the responsibilities of the assignor. 
Assignment and simple assignment - what is the difference?
Under an assignment agreement, the assignor can only transfer its rights. And the assignment agreement can be drawn up in such a way that along with the rights, certain obligations will also be transferred to the other party. For example, the assignment of rights to lease office space cannot be the subject of an assignment agreement, since in accordance with the agreement the tenant not only occupies the space, but also pays for it at a certain rate within the specified time frame. And in the case of the assignment of rights to shares, the agreement is considered assignable, since the assignee has the right to receive dividends, but no obligations are imposed on him.
Now it is clear who the assignor is.
For better mutual understanding between lawyers and clients, directors, chief accountants and just accountants, this short article was written.
Who is the assignor and assignee?
The assignor, on the basis of Article 388 of the Civil Code of the Russian Federation, is a CREDITOR who transfers his rights of claim from the debtor to a new person - the Assignee.
Let's look at an example:
Double Bottom Bank entered into a loan agreement with Filkina Grata LLC.
According to the terms of the agreement, the LLC repays the loan to the bank in a monthly payment in the agreed amount.
After a few months, the LLC stops paying.
The bank goes to court to collect funds from the LLC.
The court makes a decision to recover the loan amount, interest and penalties in favor of the bank from the LLC.
Thus, the bank formed right of claim with LLC a certain amount of money.
The bank can handle collection through the bailiff service. But the manager understands that there are more effective ways to return the “stuck” debt.
And he makes a deal with the collection agency “Horns and Hooves” assignment agreement.
In accordance with the terms of the assignment agreement, the right of claim is assigned. The collection agency buys from the bank the right to demand from the LLC the return of the entire debt, plus interest, plus penalties, say, in the amount of a million rubles, and pays only one hundred thousand for this.
The difference is potential profit. On the other hand, payment under an assignment agreement is a risk of complete non-repayment. But let’s leave such reasoning to professional market participants.
Thus, the bank is in the described situation Assignor.
A collection agency ASSIGNEE.
As for the LLC, its legal status has not changed. It remained as it should have.
Only he will have to fulfill his obligation to repay the debt not to the original creditor ( bank, assignor), and before the new one ( collectors, assignee).
The chain can continue. The collection agency may also assign someone the right to claim. And then it will already be the Assignor, and the new person will be the Assignee.
Similar schemes are common in corporate disputes, bankruptcy cases, etc.
There are features associated with the direct ban on concluding an assignment agreement, which are prescribed in the main agreement. They are usually prescribed by large buyers under supply contracts. Because they do not want to deal with the successors of abandoned suppliers.
There are reverse schemes associated with judicial challenges to such prohibitions.
However, in this article I do not consider the specifics of concluding and executing assignment agreements, but I tried to clarify: Assignor and assignee, who are they?
