TRANSFER OF CLAIMS AND OBLIGATIONS
Transfer of Claims
- 164. Assignment of claim
(1) An obligee may transfer the claim thereof to another person on the basis of a contract in part or in full regardless of the consent of the obligor (assignment of claim). A claim shall not be assigned if assignment is prohibited by law or if the obligation cannot be performed for the benefit of any other person but the original obligee without altering the content of the obligation.
(2) Upon assignment of a claim, the new obligee assumes the position of the original obligee.
(3) If an obligee assigns one and the same claim more than once, the earliest assignment is deemed to be valid.
- 165. Assignment of contingent claims and future claims
Future claims and contingent claims may also be assigned if they are sufficiently defined at the time of the assignment.
- 166. Restrictions on assignment
(1) Claims for maintenance, claims for compensation for damage arising from a bodily injury, health damage or the death of a person and any other claims which cannot be subject to a claim pursuant to law shall not be assigned. Such claims may be assigned if counter-performance of equal economic value is received in exchange for the assignment.
(2) Agreements concluded between an obligor and an obligee whereby assignment of the claim is precluded or the right to assign the claim is restricted have no effect against third parties.
(3) The provisions of subsection (2) of this section shall not preclude or restrict the liability arising from agreements entered into between the original obligee and the obligor for violation of the prohibition to preclude or restrict the right to assign the claim. The person to whom the claim is assigned shall not be liable for violation of such agreement.
- 167. Transfer of security and other rights
(1) Security given to secure a claim and rights arising from accessory obligations which are related to the claim, including pre-emptive rights for the occasion of bankruptcy or compulsory execution, which are not inseparably bound to the person assigning the claim and which are transferable shall transfer to the new obligee upon assignment of the claim. The obligation of the person assigning the claim also to transfer the security and the rights arising from accessory obligations which are not related to the claim is presumed.
(2) Security and rights arising from accessory obligations are related to the claim if the security and the rights extinguish upon termination of the claim secured thereby. Security and rights arising from accessory obligations are not related to the claim if the security and the rights do not extinguish upon termination of the claim secured thereby.
(3) Upon assignment of a claim, the rights of the original obligee to interest and contractual penalties also transfer to the new obligee.
(4) Upon assignment of a claim, the right to exercise rights arising from execution documents existing with respect to the claim also transfers to the new obligee.
(5) If a claim is assigned in part, the original obligee shall retain the pre-emptive right before the new obligee to the satisfaction of the claim to the extent that the claim is not assigned to the new obligee and the pre-emptive right to rights and security arising from accessory obligations.
(6) Upon transfer of security and rights arising from accessory obligations, the original obligee shall do all that is necessary to enable the new obligee to exercise the rights arising from the security and accessory obligations, including handing over the pledged objects held by the original obligee to the new obligee. Upon transfer of a claim secured by a mortgage or by a registered security over a moveable, the obligee assigning the claim shall provide assistance in registering the transfer of the right of security.
(7) Upon assignment of a claim for which another claim is assigned or another right is transferred to the obligee as security, it is presumed that they shall be transferred to the new obligee.
(8) The provisions of this section shall not preclude or restrict the validity of agreements to preclude or restrict the transfer of security which are entered into between an obligee assigning a claim and an obligor or a person providing the security.
- 168. Evidence of assignment of claim
(1) An obligee who assigns a claim shall hand over documents certifying the claim and rights arising from accessory obligations, including execution documents specified in subsection 167 (4) of this Act, to the new obligee and provide the obligee with information necessary for filing the claim. If the original obligee has further use for a document, the new obligee may, in lieu of the document, require a copy of or extract from the document or other performance which would enable the new obligee to exercise the rights thereof.
(2) At the request of the new obligee, the original obligee shall provide the new obligee with a document certifying the assignment of the claim.
- 169. Performance of obligation for benefit of original obligee
(1) If an obligor performs an obligation for the benefit of an obligee who has assigned the claim and, at the time of performance of the obligation, the obligor is not and does not need to be aware of the assignment of the claim, the obligor is deemed to have performed the obligation for the benefit of the correct person.
(2) If an obligor concludes a transaction or other act relating to the claim with the obligee after the obligee has assigned the claim but, at the time of performance of the transaction or other act, the obligor is not and does not need to be aware of the assignment of the claim, the transaction or other act is deemed to be valid.
(3) [Repealed – RT I 2008, 59, 330 – entry into force 01.01.2009]
- 170. Notice of assignment
If an obligee notifies an obligor of assignment of the claim to a new obligee, the assignment is deemed to have occurred in respect of the obligor even if the claim was actually not assigned or the assignment is invalid. The same applies if the obligee has issued a document concerning assignment of the claim and the new obligee submits the document to the obligor.
- 171. Defences of obligor against claim of new obligee and set-off against assigned claim
(1) In addition to defences which an obligor has against the claim of a new obligee, the obligor may set up all such defences which the obligor had against the original obligee at the time of assignment of the claim.
(2) An obligor shall not set up such defences against a new obligee which arise from non-performance of a contract which precluded or restricted the right of the obligee to assign the claim and the obligor shall not set off the claim on such basis.
(3) An obligor may also set off a claim against the original obligee against the claim of the new obligee unless:
1) the obligor has acquired the claim thereof from a third party and, at the time of acquiring the claim, the obligor knew or should have known that the claim against the obligor had been assigned;
2) the claim of the obligee falls due later than the assigned claim and after the obligor became or should have become aware of the assignment.
- 172. Document certifying assignment
An obligor may withhold performance of an obligation to a new obligee if the original obligee fails to provide the obligor with a document certifying assignment of the claim unless the original obligee has given written notice to the obligor of the assignment of the claim.
- 173. Transfer of claim on basis of law
(1) If a claim transfers from an obligee to another person (acquirer of claim) on the basis of law, the transfer of the claim shall be valid without a declaration of intent from the original obligee.
(2) The provisions concerning assignment of claims apply to the transfer of a claim on the basis of law.
(3) A claim transfers on the basis of law:
1) to a person whose assets are sold in an execution proceeding in order to satisfy a claim against an obligor;
2) to a person who performs an obligation because satisfaction of the claim against the obligor is secured with the assets of the person;
3) to a person who performs an obligation in order to avoid compulsory execution in the cases specified in subsection 78 (3) of this Act;
4) in other cases provided by law.
(4) In the cases provided for in clauses (3) 1) to 3) of this section, the obligation to satisfy the claim shall not transfer to the extent that the obligation is borne by the acquirer of the claim in the legal relationship between the acquirer and the obligor.
(5) Upon transfer of a claim on the basis of law, the acquirer of the claim acquires the right to the interest and contractual penalties agreed upon only to the extent that such interest or penalties have arisen after the transfer of the claim.
- 174. Transfer of other rights
The provisions of this Division concerning transfer of claims apply mutatis mutandis to the transfer of other rights unless otherwise prescribed by law or the nature of the rights.