Assignment of claim
The assignment of claim is the contract by which a creditor transmits one of his claims to another person, free of charge or for consideration. The creditor who transmits the claim is the assignor, the individual who takes over the claim is the assignee, and the debtor whose claim is subjected to the assignment, assigned debtor.
The assignment of claim is a contract concluded between the assignor and the assignee, in relation to which the assigned debtor has the capacity of third party.
- to meet all the conditions of validity of the contracts, consensual contract – except for the situation when the assignment is free of charge,
- to regard an amount of money,
- to be an assignable claim,
- to be notified to the debtor or accepted by the debtor for enforceability.
Being a contract, the assignment of claim must have all the elements of a contract, a capacity, a cause, an object. This means that it can be requested its cancellation, in case of absence of any of these elements.
The assignment of claim is a consensual contract, but it can occur within another contract, such as a sales contract, datio in solutum, exchange, or donation.
If the assignment of claim is performed free of charge, then it is subjected to the rules of the sales contract or the contract to which it is assimilated.
If the assignment of claim is free of charge, it is a donation and it must meet the rules of the donation contract, being mandatory the authentic form for the contract to be valid.
The assignment of claim must regard an obligation consisting in the payment of an amount of money.
The assignment of claim can regard claims resulting from the rental contract, promise to sell, exchange, claims affected by methods or future claims. But there are also claims which are not assignable, such as the child maintenance, salaries to a certain quota – in the recital that it must provide the limits for life insurance, other personal rights.
Even though in principle it is a consensual contract, being validly concluded under the agreement of willin order to be enforceable, the assignment of claim must be notified to the assigned debtor or accepted by the latter. The written form is necessary for enforceability and to support the contract and its content.