Review of counterparty in the transfer of the debt

Sept. 10, 2017, midnight

Review of counterparty in the transfer of the debt

 

Any legal entity may face a situation when it receives from contractor a proposal to transfer the debt to a third party, that is, to replace its part of the commitment. However, not every participant of civil turnover acquainted with peculiarities of such transaction and nuances of the transaction.

So what actions should adhere to the lender of the original obligation to minimize the risks of participation in such event?

First we need to check for the potential transfer of the debt obligation, regardless of the new debtor. In particular, the need to ensure that there is no ban or restriction in the Commission of a replacement part, provided by the legislation of the Russian Federation and by the obligation directly. Otherwise, subsequently, the deal on the transfer of a debt may be challenged and invalidated, because they do not complied with the relevant rules.

In respect of the new debtor should "inquire" about his eligibility. In other words, we need to monitor the availability of permits, licenses, certificates, SRO and other documents required for the implementation of activities under the primary obligation. In addition, it is desirable to conduct a "self study" potential counterparty through information – telecommunication network Internet. So, you can do the following:

1) to explore the site (if it exists) the new debtor on the subject posted on the news about the company activities, limitations of the update of the information;

2) check the organization's participation in court proceedings, including the lack of respect to her prosecution on the recognition of insolvency (bankruptcy) on the website www.arbitr.ru;

3) to request a statement of incorporation on the website of the Federal tax service www.nalog.ru and to verify the absence of liquidation events in respect of the counterparty, the records of its reorganization, as well as records on the available and unreliable information about him, etc.

In addition to the above paragraphs must be read with the Charter of the company. Special attention should be paid to the division of powers of the sole Executive body to carry out transactions (restrictions on the amount and/or the subject of the transaction, the need to obtain approval for the transaction, etc.). If at the conclusion of the agreement to transfer the debt on the side of the new debtor on the representative, you should request its attorney to verify its capacity.

As a General rule, enshrined in article 391 of the Civil code, "the transfer of debt from the debtor to another person may be made by agreement between the original obligor and the new obligor". Exceptions to this rule are obligations related to the exercise of the parties ' business activities. In such cases, an agreement is made between the creditor and the debtor. The transfer by a debtor of his debt to another person is allowed with the consent of the lender and absent such consent is void.

In our opinion, the best version of the agreement on change of persons in the obligation is a tripartite agreement. First, the agreement contains the expressed will of the three parties – the creditor the new debtor and the original debtor. Second, the proper approach to its development allows to reduce to zero the risks associated with disputes about the inconsistency of the transferred liabilities, the absence of obligee's consent to transfer of debt and other, and provides an opportunity for the lender is actually to conduct "secret control" over the terms and execution.

It is worth to note that the civil legislation of the Russian Federation must meet certain requirements as to the form of the agreement to transfer the debt. At the conclusion of such agreement should be based on the form of engagement, which is the replacement of the debtor. If the transaction is made in written or notarial form, for the recognition of the transfer of the debt held sufficient compliance with the appropriate form. State registration of agreements on change of persons in the obligation is required only in case if the obligation were subjected to this procedure. In the case of non-compliance with the prescribed form an agreement on the transfer of the debt may be declared unconcluded.