Factoring Agreement Development Trends in Civil Law of Russia

Abstract

The article analyzes the novelties of the civil legislation on the financing agreement against the assignment of a monetary claim (factoring agreement). It is concluded that the changes introduced have made it possible to bring domestic factoring closer to the Convention on International Factoring Operations. For greater harmonization of national and international legislation, it is proposed to fix the action of the factor for protection against the insolvency of debtors in the list of its duties. Taking into account the possibility of concluding the contract under study, which does not provide for financing of the client, the conclusion about changing the name of the contract is argued. It seems more successful to call Chapter 43 of the Civil Code of the Russian Federation «Factoring Agreement», without indicating financing against the assignment of a monetary claim. The legal nature of the factoring agreement has been comprehensively investigated. The factoring agreement and related civil law institutions are delimited. The differentiation of cession and factoring agreement is analyzed. An exhaustive list of essential terms of the contract is argued. This agreement has one essential condition – this is its object (assigned monetary claim), including the volume and conditions of the transferred obligation. The expediency in determining the rules on the form of the contract to apply the rules on the form of the cession was confirmed. The subject composition of the contract under study is determined. The position on the tripartite nature of the factoring agreement is not supported. The debtor is an important subject of factoring relations. However, it is not recognized as a party to the contract. It is proved that the factoring agreement mediates relations exclusively between business entities. The types of factoring agreement (traditional, security factoring, as well as factoring according to the collection-cession model) are named. The rules on the responsibility of the client for improper performance by the debtor of a monetary claim, depending on the conclusion of a factoring agreement with or without recourse, have been studied. The thesis about classifying the treaty as aleatory transactions is not supported.