How to transfer the future right of claim under a contract with a price with a formula and not create the risk of recognizing the contract as having signs of factoring?

When concluding contracts for the transfer of debt, assignment of rights of claim, replacement of the party in the obligation, there is often a risk of the contract being recognized as invalid or fake due to its similarity to a factoring contract, which can be concluded only by companies with a certain financial license, both in Ukraine and in other jurisdictions .

Pay attention to the following legal provisions and court decisions to make the right decision:

1. According to paragraphs 14.1.255 clause 14.1 of Art. 14 of the Code of assignment of the right of claim is an operation of assignment by the creditor of the rights to claim the debt of a third party to a new creditor with prior or subsequent compensation of the value of such debt to the creditor or without such compensation. That is, the PKU, in contrast to the CKU, does not say that something else can be paid for the retreat, in addition to compensation for the cost of the debt.
2. The purpose of the assignment agreement is to transfer the right of claim, and factoring is to finance.
3. see item 1 signs of factoring https://zakon.rada.gov.ua/laws/show/z0342-14#Text
4. If the right of claim is assigned " at nominal value " without charging an additional fee by the factor, then in this case there is no factoring relationship, and the relations of the parties are regulated by the general provisions on sale and purchase, taking into account the norms regarding the replacement of the creditor. Additional justification here https://reyestr.court.gov.ua/Review/86565456 - the assignment agreement is recognized as a factoring agreement.
5. In this decision https://reyestr.court.gov.ua/Review/89625064 , when the withdrawal agreement is recognized as valid, it is about the collection of future 3% annual and inflationary. The parties used the following caveats:

" By Clause 2 of the additional agreement, the parties established that due to the fact that at the time of concluding this addendum, the parties cannot accurately specify the amount of money that will be collected from the Debtor, including penalty, inflationary interest and 3% per annum (general right of claim), then the parties agree that the amount that the Assignee undertakes to pay to the Assignor in accordance with clause 1 of this additional agreement will be finally determined by the parties on the basis of a separate act of agreement on the amount of payment for the assigned right of claim.

According to clause 3 of the supplementary agreement, the Assignee pays the Assignor the funds specified in clause 1 of this supplementary agreement within 18 months from the moment of receipt of these funds from the Debtor. In any case, this amount cannot exceed the amount of money that the Assignee will receive from the Debtor ."

To conclude this type of contract, it is recommended to consult a lawyer, make an appointment by calling +38 (093) 1776558 or write to us   info@instaco.com.ua

Popular contracts in the category "Contracts of transfer of debt, assignment of rights of claim, replacement of a party in an obligation

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