Open AccessTransfer of right to claim in obligation (cession)
Author(s) -
V.Ya. Pohrebniak
Publication year - 2020
Publication title -
časopis kiïvsʹkogo unìversitetu prava
Language(s) - English
Resource type - Journals
ISSN - 2219-5521
DOI - 10.36695/2219-5521.1.2020.41
Subject(s) - creditor , obligation , civil code , object (grammar) , order (exchange) , paragraph , law and economics , constitution , business , law , political science , economics , computer science , debt , finance , artificial intelligence
The article is devoted to consideration essence and order of realization of transfer of right to claim in relative legal relationships (cession). It is defined that in modern juridical literature a cession is principally considered as transfer of claims of a primary creditor (assignor) to a new creditor (assignee) based on a contract. Appropriate result is achieved by separate relationship in which primary creditor is obliged to transfer his right to claim to another person. A result of appropriate juridical operation is complete or partial change of the creditor in primary relationship.
It is defined that paragraph 1 of part 1 of article 512 of Civil Code of Ukraine demonstrate that cession is characterized by such signs as: 1) is a volitional act of a person to who belong civil right to claim; 2) is a dealing-nature act. In view of these factors numerous scientist consider contract as main cause for cession.
The approach according to which a contract of cession is consensual and recognized as concluded in moment when its participants reconcile all determinative conditions including an object of cession is the most widespread in modern juridical literature. At the same time the author substantiates that appropriate persons can conclude cession contract in real form by using construct of previous contract. It is defined that cession provides singular succession. The acquirer can get creditor’s rights only if it belong to creditor. Singularity also means that acquirer gets only appropriate subjective civil right as a separate object but not all civil rights and obligations of assignor how does it take place for example in succession after a testator.
Considering appropriate problem in context of such categories as “foreclosure” and “compulsory alienation” the author defines it possible to increase categorical composition of civil law by term “compulsory cession” which means conduction of cession forcefully, for example by court order which doesn’t provide creditor’s assistance.