What if the creditor's rights are transferred to a third party and sued by a third party?

How to deal with the transfer of debt to a third party?

In order to ensure the effectiveness of the transfer of creditor's rights, it is suggested that the original creditor directly confirm the assignee of creditor's rights to the original debtor and issue a corresponding letter of commitment; The method of notification may be notified by the creditor himself; In addition, we should pay attention to the risk problem.

First, the effectiveness of the transfer of creditor's rights

Except the creditor's rights whose assignment is restricted by law, other creditor's rights may be assigned to a third party, and the assignment shall take effect when the debtor is notified. If the assignee of the creditor's rights actually informs the company by carrying or sending a notice of assignment of the creditor's rights, it is considered that the effect of the act is to be determined, and the original creditor shall confirm the assignee of the creditor's rights.

In practice, there are disputes about the handling methods of repeated transfer of creditor's rights. Some people think that it should be determined according to the notification time. Because the creditor's rights transfer is notified to the debtor, the creditor's rights transfer takes effect first. Others think that debt should be shared in proportion, which is more conducive to the principle of fairness. Therefore, remind the company that similar incidents may be handled in different ways, that is, the final legal evaluation is uncertain. In this case, if the company performs the debt to the creditor without authorization, it may be considered as invalid, which may lead to the risk of repeated performance. However, if the company waits for the other party's response and does not take the initiative to pay, it will have the risk of overdue payment and thus bear the responsibility for breach of contract. Therefore, in principle, it is suggested that the original creditor directly confirm the transferee of the creditor's rights to the original debtor and issue a corresponding letter of commitment.

Second, the way of notification.

The law does not stipulate the way to notify the debtor when the creditor's rights are transferred, so there are disputes in actual operation. Some people think that as long as sufficient materials are produced to prove the authenticity of the notice of assignment of creditor's rights, both the assignor and the assignee have fulfilled their notification obligations; Others think that it should be informed by the legal representative of the creditor or his entrusted agent before it can be considered as fulfilling the notification obligation.

Generally speaking, in the case of uncertainty about the authenticity and validity of the notice, it is recommended to notify the creditor in person to take effect.

Third, risk warning.

1, the risk of being sued

The assignee may bring a lawsuit to the people's court with jurisdiction according to the agreement and notice of assignment of creditor's rights, but the original debtor has a reasonable right of defense and should not bear other responsibilities except payment. However, in order to respond to the lawsuit, relevant evidence materials, such as sales contracts, statements and notices, should be collected as soon as possible. , and keep in touch with the original creditors.

2. Risk of late payment

If there is an agreement in the contract, there may be a risk of bearing relevant liquidated damages; Or according to the law, there may be a risk of late payment and interest. Therefore, it is suggested to send a letter to the original debtor, requesting that the payment of the goods and the calculation of the liquidated damages for overdue payment be suspended before the transferee is determined; Or according to the law, the money can be deposited in the notary office to eliminate the debt, avoid the delay in the performance of new debts, and help protect the interests of the company.

However, it is still necessary to remind the company that from the perspective of litigation, there are certain legal risks in writing letters: writing letters to the original creditors means that the company has received the notice of the transfer of creditor's rights, that is, it has acknowledged the above facts, and there is little room for contingency in litigation.

3. The risk of revocation

If an enterprise is insolvent within six months before filing for bankruptcy and still pays off its personal debts, the court has the right to cancel the payment. However, according to practice, not all enterprises will enter bankruptcy proceedings, so the possibility of this risk is not high; Even if it is revoked, the creditor's rights will be judged by the court, which has little impact on the company.

The information about these problems is compiled by Bian Xiao here, hoping to help you. The laws in China are gradually improving, and we look forward to helping more people. If you need this, you can get more legal knowledge, or you can get professional legal advice from a lawyer.