Valuation of claims — subject substance and model of contract

The appointment was regulated by the Act of 23 April 1964. – The civilian Code and statutoryly defined as a transfer of claims. This is simply a contract between the creditor and a 3rd organization and under specified a contract the existing creditor transfers to the 3rd organization the claim he has previously been entitled to with respect to a peculiar debtor. In common, the assignment of claims means a contractual transfer of debt to another person.

Read more about the assignment of claims in the following article.

Credit valuation — key information

In accordance with Article 509 of the civilian Code:

It follows from this provision that the creditor has the anticipation to transfer the claim to a 3rd party, the alleged transfer without prior authorisation of the debtor. A transfer is nothing more than a contract whereby the creditor transfers to the buyer of his debt to the debtor. The claim which is the subject of the claim is not changed — it is only on the creditor’s side, since the purchaser of the claim takes its place.

It is besides worth pointing out that:

• the transfer may cover the full claim and only part thereof;
• the transfer may relate to future claims;
• it is possible to get future claims by assigning rights and to get liabilities as future debts from a circumstantial legal relationship;
• the claim may be acquired by respective persons;
• the transfer may be paid or free of charge.

Party to the assignment agreement are:

• the cedent, the creditor;
• an assignee, a 3rd party.

Until the seller has notified the debtor of the transfer, the fulfilment of the benefit to the erstwhile creditor shall have effect vis-à-vis the buyer, unless at the time of the performance the debtor was aware of the transfer. This provision shall apply mutatis mutandis to another legal acts between the debtor and the erstwhile creditor.

The transfer agreement may be concluded in any form, but it should be borne in head that if the claim is recorded in writing, the transfer of the claim should besides be recorded in writing.

In addition, if the transfer contract is carried out in the performance of an work arising from a pre-existing contract requiring the transfer of a debt, from the average provision, from unjust enrichment or from another event, the validity of the transfer contract depends on the existence of that obligation.

Practical case law

Judgment of the Court of Appeal in Katowice of 3 September 2020, Case I ACa 1017/19

• In order to show the effectiveness of the transfer agreement, pursuant to Article 511 k.c., it is only essential to ‘identify’ the transfer of claims in writing. This provision does not require the conclusion of a transfer agreement in writing. Is it different to carry out a legal act in writing, and otherwise to ‘declar’ by letter that a circumstantial legal act has been carried out. The message by letter does not mention to the form of the legal act, but only to the existence of a letter stating that the transfer was concluded by the parties. This means that the applicant's failure to submit a transfer agreement is not adequate to presume that the assignment agreement has not been effectively concluded.

Judgment of the Court of Appeal in Warsaw of 11 September 2020, No. VII AG 953/19

• The transfer is simply a legal act which governs the transfer of the right of entity (reliability) from the property of the cedent to the property of the assignee. The aim and effect of the assignment is to bring to the benefit of the latter. According to the solution provided for in Article 510(1) k.c., as a general rule, the contract for the transfer of claims has a double binding-resolution effect, i.e. the contract requiring the transfer of claims transfers the claim to the purchaser. specified agreements besides include a factoring agreement. It should be noted, however, that the parties to the agreement may decide otherwise, i.e. excluding the disposition effect.

Judgment of the Court of Appeal in Warsaw of 28 July 2020, No. VI of ACa 132/19

• The debt transfer agreement is simply a private paper and is simply evidence that the persons who signed the contract have made a message of circumstantial content, and thus proof of the contract of transfer of a peculiar debt. However, that paper is not evidence of the existence and due diligence of the claim in question.
• The transfer of a claim, in accordance with Article 509 k.c., shall only consequence in a change in the individual to whom the debtor is obliged to fulfil the benefit, and shall not lead to a change in the subject substance of the benefit or in its factual and legal basis, the transfer of the claim shall not consequence in a deterioration of the legal situation of the debtor, who, consequently, in respect of the buyer of the claim, in accordance with Article 513.1 k.c., all the charges which he may have raised at the time of receipt of the transfer announcement in relation to the cedent.
• The transfer of the claim only covers the creditor’s right to claim a benefit from the debtor, without the assignee being able to submit form statements leading to a change or cessation of the bond relationship.

Page allegations

Charges of the debtor against the assignee

The debtor shall be entitled to any charges against the buyer that he had against the seller at the time of the transfer. The debtor may deduct from the transferred debt the claim that he is entitled to with respect to the seller, even if it becomes due only after the debtor has received the transfer notice. This is not the case, however, where the claim due to the seller became due later than the claim transferred.

Cedent charges against debtor

If the debtor who has received a written announcement from the seller has fulfilled the payment to the buyer of the claim, the seller may trust on the debtor's nullity of the transfer or on the allegations arising from his legal basis only if they were known to the debtor at the time of the payment. This provision shall apply mutatis mutandis to another legal acts between the debtor and the purchaser of claims [see Article 515 of the civilian Code].

Liability of the cedent

Seller of claims assumes work towards the buyer for his claim. For the solvency of the debtor at the time of the transfer, he shall be liable only if he has accepted that responsibility.

Thus, the assignor is liable to the assignee for the fact that a claim of circumstantial content exists and is entitled to it. The liability of the seller of claims for legal defects of the transferred debt derives from the liability relation underlying the transfer. The limitation period shall begin on the date on which that claim would become due if the entitled individual called on the debtor to comply with the work at the earliest possible time. This date is far from the date on which the work was established for the period essential to comply with the benefit, provided that the debtor would act, taking into account all the circumstances giving emergence to the performance of the obligation, without undue hold [cf. ultimate Court judgement of 17 October 2008, CSK 100/08].

Participation in creditor rights

A 3rd organization who repays the creditor shall get a paid claim up to the amount of the payment made:

• if he pays individual else's debt for which he is personally or with certain assets;
• if it is entitled to a right before which the claim paid is satisfied;
• if it acts with the consent of the debtor in order to become a creditor; the consent of the debtor should be invalidated in writing;
• where circumstantial provisions supply for this.

In the above cases, the creditor may not refuse to accept a benefit which is already due. If the creditor has only been repaid in part by a 3rd party, he shall have precedence over the remaining part of the claim that has transferred to the 3rd organization as a consequence of partial payment.

Together with the claim, they pass on to the purchaser all the rights related to it, and the transfer of the claim itself causes not only the succession of the claim itself, but besides includes another elements consisting of the creditor's situation [so the judgement of the Court of Appeal in Warsaw of 24 September 2021, No. VII AG 772/20].

Model of debt transfer agreement

Free model debt transfer agreement you can download here.

Summary

Transfer is simply a contract whereby the creditor transfers to a 3rd organization the claim he has against the debtor. The claim which is the subject of the transfer shall not be changed, as only the creditor is affected. In addition, it is worth remembering that any debt can be transferred.

You want to know what a hit-and-run is, according to the civilian Code rules, go to this article.