Is it possible to assign a contract?

CESION DE CONTRATOS

 

 

 

 

 

 

 

 

 

 

What requirements are needed to perform the assignment of a contract? Could I sell my contract?

The assignment of contracts It is an issue that is not expressly regulated by civil law but arises with some frequency. The Civil Code regulates the Assignment of Receivables but makes no reference to the assignment of contracts “Complete”. The assignment of contracts It is perfectly legal and is supported by doctrine and jurisprudence. But there are aspects that differentiate it from the transfer of credits so it is necessary to make the appropriate legal approach.

The assignment of contract involves the transmission full set of rights and obligations that a party has a given contract, so that unless the change in the subject, other covenants and conditions are transmitted unchanged. The assignment of contract includes not only rights but also obligations and other legal effects as the right to modify or terminate a contract and to invoke actions that corresponded to the transferor.

Before entering requirements assignment of contracts, is important to refer to the regulation of the figure by special laws: In certain cases such as in the workplace, in both urban and rural leases or procurement, there is a specific regulation for the subject, it would be applicable. Apart from cases in which the law establishes special rules expressly, the parties may agree to the transfer of his contract.

The legal basis to make an assignment of contract is the freedom of agreements and private autonomy party, enshrined in Article 1.255 Civil Code.

Jurisprudence, figure includes the assignment of the contract numerous judgments. Highlights the Decision of the Supreme Court of 26 November 1982, of 29 June 2006 and very recently in 13 October 2014. In the latter differs transfer of credits assignment of contracts: The assignments of the previous ownership is transferred exclusively to the new creditor: Involved only the transferor and transferee and account debtor is not a party to the business transfer and not have to consent to it occurs.

On assignment of contracts:

“” involves the transmission of the contractual relationship in its entirety, admitted to the system through the jurisprudence, without affecting the life and virtuality of the contract continues in force, retains its rights and obligations to those who are followers of the Contracting ( sentence 4 April 1990 ) and the original contractual relationship is extended to a third, passing to the assignee its effects ( sentence 4 February 1993). Its essence is, for, replacing one of the subjects of the contract and the objective permanence of the contractual relationship ( Case 19 September 1998 ) and 27 November 1998 ); whereby, it is evident that requires the consent of the contractor transferred; this is, for, required the combination of three contractual wills (highlighting the sentence 5 March 1994 ).””

Therefore, It is essential for the assignment of contracts, there is a three wills, previous, assignee and loan contracting.

The contractor transferred is not obliged to consent to the assignment: . If the transferor attempt an assignment without acceptance by the assigned contracting, the assignment would be void for lack of consent under the provisions of Articles den 1.256, 1.091 and 1.258 Civil Code.

Thus, It will require one of the following options:

  • The acceptance of the contract in anticipation of a future assignment of contract.
  • A subsequent agreement.

For contracts “personal” or personalísimos, consideration of the specific person is a fundamental element of the relationship. In this type of links, the error invalidates the contract person (1.262 C.Civil), payment can not be made by a third (art. 1.161 C.Civil) contract and is not transferable upon death even. In these situations, Clearly the contractor who wants to be transferred will not consent to the change of the other party, without their consent, No transfer of valid contract.

By way of conclusion (and except for special rules applicable to certain areas), there is the possibility of the assignment of a contract. You could even sell your contract. But unlike the assignment of receivables (you do not need the acceptance of the assigned debtor) to assign a contract is must consent contractor transferred. This consent may be made at the contract signing, or at a later time. It is quite possible that the circumstances are not the same at the time of signature later. If you go to the other contracting asking him to accept an assignment of the contract will probably be asked for a contribution. Thus it is desirable that in drafting the contract provides for the possibility of the transfer of the contract, and if you may be interested, that the signature of the possibility of assignment of contract be expressly accepted by the other party.

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