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Restrictions on assignment in business transactions Part 2 – what receivables may be the object of an assignment contract

We already know that two contracts and three entities take part in an assignment and that an assignment contract may or may not be free of charge. Below, I am answering the question of which receivables may be the object of an assignment.

The list of receivables is broad…

Both claims from legal transactions performed subject to a condition precedent, receivables based on only partly fulfilled actual situation which justifies them arising, existing claims (which exist at the time that the assignment contract is concluded) and claims which will arise in the future, may be the object of an assignment.

For example, the fee receivable for construction work, which will only arise upon the completion of a construction milestone and not on the date of conclusion of the assignment contract may be the object of an assignment. A future receivable which is the object of an assignment will only be transferred to the assignee when it arises.

Not only can claims from contractual obligation relationships (such as rental contracts, contracts for the provision of services, specific task contracts, etc.) be the object of an assignment, but so can claims from:

  • obligation relationships following unilateral legal transactions (e.g. a will);
  • unjust enrichment;
  • torts (claim for redressing damage); or
  • administrative acts.

In practice, the most frequent objects of assignment in business transactions are cash receivables (in particular, the right to demand payment).

Other objects of assignment may also include:

  • claims for redress arising from a road traffic accident;
  • claims that are existing and determined at the time of the transfer of reimbursement of the difference between the market price of a drug and its retail price which is payable by an insured consumer who purchases the drug;
  • individualized parts of a future claim.

The whole amount of the claim or its part (if the claim is divisible) may be transferred to the acquirer under an assignment contract. For example, the whole receivable of PLN 100 may be assigned, or only its part of PLN 50. Also, several instalments may be assigned, if the amount due is repayable in instalments. If the claim applies to periodic performances (such as rent), the right to rent receivables for a given period may be transferred. The assignment of several or only one claim due to the creditor is also possible, for example, the principal amount of the receivable may be assigned without interest, or vice versa (on condition that it is possible to isolate the assigned claim). The contractual penalty may also be assigned on its own.

In conclusion, to be able to assign parts of claims or specific claims, the rights transferred constituting a part of the claim must be of an independent nature (independent of other rights).

but there are exceptions

The following, among others, cannot be assigned:

  • a redemption right;
  • a pre-emptive right;
  • a shareholder’s interest in a partnership (although, claims for a share of the profit may be assigned);
  • a tenant’s right to cooperative premises;

The assignment of these claims is prohibited by the unconditionally applicable provisions of the law. Therefore, the transfer of those receivables will be absolutely invalid.

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