It is not always possible for business partners to timelyfully fulfill their financial obligations to each other. In such cases, there is a need to find the best way out of a difficult situation. Among the options for solving monetary difficulties, an important place is occupied by a financing agreement for the assignment of a monetary claim, which allows each participant of market relations to exit the current situation without negative consequences.
What is this type of transaction
The concept of a financing contract for concessionmonetary claims came to the Russian world of market relations relatively recently, but already firmly entrenched in it. Its definition is given in item 1 of article 824 of the Civil Code of the Russian Federation. In accordance with this article, a financing contract for the assignment of a monetary claim fixes a transaction whereby one of its participants transfers or plans, after a certain time, to transfer funds to the second participant, the demand for return of which will subsequently be presented to a third party. It turns out that, despite the bilateral nature of this type of agreement, it binds the legal obligations of the three parties, involving them and those who did not put their signature in the contract.
In practice, such agreements are also called factoring.
Participants of the agreement
Parties to the financing contract for the assignment of a monetary claim are:
- The factor (financial agent) is an enterprise,characterized by a commercial orientation and issuing monetary resources under the assignment of a financial requirement (the requirement for the commercial basis of the agent is mandatory).
- Lender (client) - not received the payment due for the services and / or goods provided and the person who applied to the financial institution for the conclusion of the contract.
A person who has not paid for the goods / services received is a debtor. It will be applied to him a monetary claim, and he will be a third party involved in the legal relations of the parties to the transaction.
The financial claim is based on thecustomer goods or the services / services rendered to him / the debtor, which are not paid for at the time of the transaction. It can also be ceded by the client for other purposes (for example, if the client has a financial debt to the bank, he can enter into an agreement with him on factoring and thereby close his debt).
Characteristics of the financing contract for the assignment of a monetary claim, its features
The financing contract for the assignment of a monetary claim is:
- mutual - establishes bilateral rights and obligations of counterparties to each other;
- onerous - regulates payment for the performance of the obligations incurred to the counterparty.
Also, the agreement can be real orconsensual. In the first case, the contract is valid only after the transfer of the thing that one participant must transfer to another (in this case, financial means), provided that the parties have agreed and legally secured it.
The consensual agreement begins to act immediatelyfrom the moment of its signing by the contractors. To which of these types the financing agreement will be related to the assignment of a monetary claim, its participants decide for themselves. Their decision should be reflected in the text of the agreement establishing, from what time the signed document comes into force.
The peculiarity of such transactions is:
- combination of signs of two types of agreements: on assignment of the right of claim (assignment) and loan / credit;
- the opportunity to simultaneously be an agreement on rendering other financial services to the client by the agent (such as maintaining his accounting records).
Form of agreement
As with all standard transactions, the form of the contractfinancing under the assignment of a monetary claim - a simple written one. This means that to conclude an agreement, a document is drawn up, which reflects all the terms of the transaction and which is deemed valid after it has been signed by the counterparties. The document is made in two copies, each containing signatures of the parties. Notarial or other assurance in this case is not required unless otherwise provided by the parties.
In addition to the standard drafting of the document,the legislator allows you to conclude a financing agreement for the assignment of a monetary claim (factoring) through the exchange of telegrams, letters, as well as other documents, including e-mails. The main condition is the ability to establish reliably the fact that the information is actually obtained from the counterparty. The main requirement regulating the validity of the agreement is the receipt of an acceptance (consent) from the other party to the transaction. The consent is considered received if the person who received the offer (offer) starts to perform the actions stipulated in the text of the contract (provision of services, shipment of goods, etc.) within the time period established by agreement of the counterparties.
At the request of the parties to the transaction, the contractfinancing under the assignment of a monetary claim can be certified by a notary or registered with Rosreestr. If the parties want to conduct state registration of the transaction, the contract must be made in 3 copies in order to submit the original to the registering authority.
Content of the agreement
Content of the contract of financing for concessionThe monetary claim does not differ from other standard agreements, which are formalized in a similar form. The text of the document consists of the following mandatory items:
- preamble (this includes the title of the document, as well as the date and place of its compilation);
- information about the participants (full name or full name of the organization, indicating the postal and legal address and passport data);
- the subject matter of the agreement (this is an essential condition of the agreement reflecting the essence of the transaction);
- the price of the contract (the amount of financial resources provided to the client is determined by agreement of the parties);
- term of the agreement (determined by the parties);
- rights and obligations of counterparties;
- responsibility for non-fulfillment of their obligations;
- the possibility of occurrence of circumstances recognized as force majeure;
- other conditions (prescribed solely by agreement of the parties);
- requisites of the parties.
Sample of the contract of financing for the assignment of a monetary claim
The items listed above must be present in theagreement without fail. In this case, each of them must be prescribed in the most detailed manner. It should be borne in mind that if there is any disagreement between contractors, the proceedings will be conducted on the basis of the text of the document. Therefore, for each participant it is important to write down as much detail as possible in the agreement. However, it should be borne in mind that all contractual terms of the financing agreement must be agreed upon by the contractors, because the signed signature will confirm acquaintance with the text and agreement with each of its clauses.
Example of a contract of financing for concessionthe monetary claim can be seen below. It should be borne in mind that, in addition to mandatory items, the parties can add other details to the contract at their own discretion, provided that they do not contradict the legislation and requests of each participant.
Subject of the agreement
The subject of a financing contract for the assignment of a monetary claim is an essential condition that determines the essence of the transaction. Its role can be fulfilled:
- the fact that the factor receives a financial requirement from the client, which is carried out in exchange for financing the latter in cash in the required amount;
- fact of the transition of the requirement to the factor forthe possibility of the client fulfilling its financial obligations to it (as a rule, this applies to transactions with lending, and the financial requirement in such a case can be transferred to the factor only if it does not fulfill its obligations to the commercial organization).
Regardless of what exactly is the subject matteragreement, the agent, in one way or another, lends to the client, receiving a guarantee of the return of their funds in the form of assignment of a monetary claim. This is what determines the combination of the abovementioned signs of lending and cession in the contract.
It should be borne in mind that the subject matter isan essential condition of the agreement, without specifying which the transaction will not be considered concluded. Therefore, it is extremely important to write down the subject in the most detailed manner, indicating all the characteristics that allow it to be identified.
Rights and obligations of counterparties
The duty factor for this type of agreement is:
- financial subsidization of the counterparty by transferring to it the price of the transaction (financial means) in the order established by this document;
- acceptance of a package of documents from the client, allowing him to keep his bookkeeping in cases specified by the signed agreement;
- rendering the client other financial services that are agreed upon by the parties;
- preparation of a detailed financial report for the client;
- presentation to the debtor at his request confirmation that the financial claim was actually transferred to the factor.
Failure to comply with the latter condition gives the debtor the right to transfer funds to the client, after which his obligations to him will be considered fulfilled.
However, the right factor for this type of agreement is that it will receive cash from the debtor after the document is signed.
The client's obligations under the agreement include:
- an assignment or an obligation to subsequently assign a financial claim to the debtor to the factor;
- transfer to the agent of a package of documents that proves the right of a financial claim, as well as the information required to implement this requirement;
- informing the debtor about the fact of the transfer of the claim in writing (it is preferable to send the notice by registered mail with preservation of the check for dispatch);
- payment for factor services (financial agent).
The signing of a financing contract for the assignment of a monetary claim (factoring) imposes obligations also on the debtor, who is not a party to the transaction. They are as follows:
- payment to the agent provided thatthe debtor was notified of the fact of the transfer of the right of claim in writing (it can receive notification both from the factor and the client, while it should contain information about the factor (financial agent) to which the funds must be transferred);
- the product of payment for this monetary claim to the client in the event that the agent has not provided him with evidence that the assignment was made.
If the obligations of the debtor are performed before the factor, it is automatically released from the similar requirement to the client.
Liability under the contract
In accordance with Cl. 827 of the Civil Code of the Russian Federation, the client is required to provide the factor of guarantee of the validity of the subject matter of the transaction (monetary claim). Such it will be under the following conditions:
- the client has the legal right to assign its right of claim;
- at the time of signing the agreement, he does not know the circumstances that give the debtor the right not to repay his debt (paragraph 2 of Article 827 of the Civil Code of the Russian Federation).
In this case, the client does not need to carry anyresponsibility if the debtor does not fulfill the demand that was brought to him by the factor or will perform it improperly, (provided that the contract does not specify otherwise). Also, the client does not have to bear responsibility if the debtor can not fulfill the claim because of its insolvency (subject to the validity of the claim).
Advantages of financing concessions
Despite the relatively recent appearancecontracts of financing under the assignment of the right of demand in the Russian financial market, there is a large percentage of their conclusion. This suggests the undoubted advantages of transactions of a similar nature, which include:
- no need for collateral;
- loyal requirements to the client's solvency;
- guarantee of uninterrupted operation and acceleration of the turnover of financial resources;
- the possibility of full use of financial resources (in the case of credit, it is necessary that there is always a certain amount on the account);
- the possibility of obtaining additional financial services of high quality;
- protection from non-payment of its services, as well as from currency risks in international transactions;
- guaranteeing the possibility of timely execution of their tax obligations (there is no risk that they will occur before the client receives payment for his labor).
You can see all the advantages of the financing contract under the assignment of a monetary claim by example.
LLC "Romashka" (client) is engaged in productionfurniture for offices and on February 15 concludes with Vector LLC (the debtor) a contract for the supply of goods in the amount of 250 thousand rubles. In accordance with the agreement, the buyer must transfer payment for the goods no later than March 2. Urgently needing financial means, on February 21, "Romashka" LLC signs a factoring agreement with the Commercial Bank "Sozvezdie" (financial agent / factor), according to which, it concedes to it its right to demand for Vector LLC. On February 22, the factor transfers 200,000 rubles to the customer's account, which is equal to 80% of the debt of Vector LLC. When the maturity date (February 26), the factor issues a monetary claim to the debtor. On February 27, Vector LLC transfers 250 thousand rubles to its account, of which the Bank retains the amount for which the client's financing was paid plus a fee for the service, the rest is transferred to the account of Romashka LLC. If you assume that the reward is 3%, then it is equal to 7500 rubles. Accordingly, the bank transfers the client 42500 rubles.
Thus, under the financing contract under the assignment of a monetary claim from the example, the client:
- receives the amount necessary at a particular time without providing a security;
- has the opportunity to fulfill its tax obligations before the end of the reporting period (before March 1).
The disadvantages of concession financing agreements
Despite the large number of pluses, such deals have their drawbacks. These include:
- high commission (it comes to 10% of the debt or up to 30% per annum);
- the need for detailed information about the debtor;
- Applicability only to transactions paid by non-cash payments.
But, despite the shortcomings, many businessmen prefer to conclude such contracts instead of bank loans.
Based on the above facts, we can conclude that factoring is an advantageous and convenient type of transaction, which allows:
- to the client to receive the necessary sum in the concrete period of time;
- agent to receive a reward for the service rendered to the client.
As for the debtor, he does not pay anyadditional commissions for factoring. Therefore, for him there is no significant difference, where to transfer funds for the services rendered or the received goods, to the account of the client or agent.