Civil law. Part II. Concept, characteristics and elements of a financing agreement for the assignment of a monetary claim (factoring). Responsibility of the parties (most important)

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Civil law. Part II. Concept, characteristics and elements of a financing agreement for the assignment of a monetary claim (factoring). Responsibility of the parties (most important)

Lecture notes, cheat sheets

Directory / Lecture notes, cheat sheets

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81. THE CONCEPT, CHARACTERISTICS AND ELEMENTS OF THE AGREEMENT OF FINANCING UNDER THE ASSIGNMENT OF A MONETARY CLAIMS (FACTORING). RESPONSIBILITIES OF THE PARTIES

One party contract (financial agent) transfers or undertakes to transfer to another party (to the client) cash on account of the client's monetary claim (creditor) to a third party (to the debtor)arising from the provision by the client of goods, performance of work or provision of services to a third party, and the client assigns or undertakes to assign this monetary claim to the financial agent.

Characteristics of the contract: it can be real and consensual, it is mutual, compensatory.

The subject the contract can be as a monetary requirement, the payment term for the cat. has already occurred (existing requirement), and the right to receive funds, cat. will occur in the future (future requirement). The monetary claim must be defined in the contract in such a way that the cat. allows you to identify the existing claim at the time of the conclusion of the contract, and the future claim - no later than at the time of its occurrence. If an assignment is conditional on a certain event, it takes effect after the occurrence of that event.

As a financial agent (factor) any commercial organization can act.

Client can be any person, but in most cases they are commercial organizations and entrepreneurs. The debtor of the client is not a party to the agreement, but it depends on the business reputation of the debtor whether the financial agent will accept the claim against him under the agreement.

Form contract is subject to the provisions of the law on the form of assignment. This may be a simple or qualified written form of the transaction, and in cases established by law - a written form with the state. registration of the assignment of the right to claim.

Period in the contract is determined by the agreement of the parties.

Price contract - the value of the assigned client's claim to the debtor.

Property liability under contract.

В consensual agreement the financial agent is responsible for refusing to transfer funds to the client on account of the latter's monetary claim. The client is responsible to the financial agent for the validity of the monetary claim that is the subject of the assignment, and is also liable for non-execution or improper execution of the assignment of the claim. If a valid claim has been assigned, but the debtor has become insolvent, the client is not responsible for the non-performance of this claim.

В real contract responsibility for its failure occurs only for the client - for the validity of the subject of the contract, or for its feasibility. The client is liable to the debtor for violation of the agreement on the prohibition of the assignment of the right to claim, as well as in the case when the debtor has fulfilled the monetary requirement to the financial agent, and the client has not fulfilled his obligation to the debtor. This liability arises from the contract between the client and the debtor.

In all cases of the client's liability to the financial agent or to the debtor, the client compensates for the losses incurred and the penalty, if it is provided for by the contract.

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