What should you pay attention to when fulfilling the notification procedure
1. Legal significance of notice of transfer of creditor's rightsNot effective against the debtor
1. Failure to fulfill the notification obligation will not affect the establishment and effectiveness of the creditor's rights transfer contract
Articles 490 and 502 of the Civil Code respectively stipulate that "if the parties conclude a contract in the form of a contract, the contract shall be established when both parties sign or seal it." , "A contract established in accordance with the law shall take effect from the time of its establishment." That is, unless there are special provisions in the law, as long as there are no negative conditions for the establishment and effectiveness of the contract, the contract will be established and effective when signed or sealed by both parties.
Therefore, failure to perform the obligation to notify the transfer of creditor's rights shall not As a result, the transfer of creditor's rights is invalid, and the transferor's obligation to notify, the obligation to pay consideration, and the corresponding liability for breach of contract based on the creditor's rights transfer agreement are still valid.
2. The notification obligation has not been fulfilled, and the debtor has not yet fulfilled its debt to the original creditor
If the transfer of creditor's rights does not take effect on the debtor, if the debtor still performs its debts to the assignor of creditor's rights in accordance with the original agreement, the debtor will be deemed to have fulfilled the corresponding part of the repayment. At this time, the transferee of the creditor's rights cannot require the debtor to perform the debt again on the grounds that the debt has not been performed; and if the debtor performs the debt to the transferor of the creditor's rights again after the transferor of the creditor's rights has fulfilled the notification obligation, it will not be deemed to have been paid to the transferor of the creditor's rights. The transferee of the creditor's rights shall perform its obligations.
3. Notification behavior It is the protective umbrella of the assignee of the creditor's rights and the means of fixing the rights and obligations
From the above two meanings, it can be concluded that the notice of transfer of creditor's rights has the following two functions: the biggest function is to fix the rights and obligations and protect the legitimate rights and interests of the assignee of creditor's rights. The function of the notice is to indicate to the debtor the transfer of creditor's rights In fact, it is determined that the debtor's obligation to perform the debt has changed from the creditor's transferor to the creditor's transferee, which separates the creditor's transferor from the original creditor-debt legal relationship and clarifies the rights and obligations of all parties; secondly, if the content of the notice contains "to the debtor" If "an expression of intention to assert rights", the notice can also play a role in interrupting the statute of limitations.
2. Obligation subject of notification of transfer of creditor's rights
After the creditor's rights are transferred, who should notify the creditor's rights? Is it the assignor of the creditor's rights or the assignee of the creditor's rights? Or both? If the creditor transfers its rights, it should notify the debtor. Judging from the logic of language, who transfers the notice; from From the perspective of legal theory and practical operation, the transfer of creditor's rights is an act of disposing of rights. The disposition of the creditor's rights will bring difficulties to the debtor's performance of the debt.to have a direct impact, and the creditor's notification behavior has the highest credibility for the debtor. Therefore, it is more logical for the creditor to fulfill the notification obligation.
According to existing jurisprudence, it is generally believed that only the original creditor It is only valid if there is no objection expressed or implied.
3. Methods of Notifying the Transfer of Creditor's Rights
1. Oral notificationOral notification is the riskiest of all notification methods, but it is still a legal and effective method of notifying the transfer of creditor's rights.
2. Written delivery
Written notification is one of the more commonly used notification methods and is generally applicable between enterprises Notice of transfer of claims. It is important to note that when making a written notice, the original creditor should use the following methods to confirm that the notice has been served:
(1) The transferor of the creditor's rights shall send it by himselfIf the notice is received, the debtor shall stamp its seal on the notice. The act of sealing indicates that notice has been received and is known about the transfer of creditor's rights, and it proves that the act of notification makes the transfer of creditor's rights effective for the debtor;
(2) If the notice is delivered by mail, "Notice of transfer of creditor's rights of xx yuan with XX" should be marked in the column of the express delivery order, and a copy of the express delivery order should be retained and Print the postal record on the express company's official website to prove that the credit transfer notice has been signed for.
(3) It is not recommended to use fax to deliver notices It is difficult for us to prove that the creditor has fulfilled its notification obligation if the other party claims that the faxed content is not a notice of transfer of creditor's rights.
3. SMS notification
SMS notifications may seem less “formal” to most people because they are generally too long. It is short and informal in form, and as electronic evidence, the retention and fixation of text messages are more complicated than general written notices. However, there is no provision on the method of notification, and the purpose of notification is to inform the implementation of the transfer, thereby fixing the rights and obligations of all parties. Combined with court precedents, it can be concluded that the court pays more attention to the substance of the notice rather than the form of the notice.
4. Email notification
Email delivery is also one of the more common notification methods and is used between companies There are more exchanges. Compared with text messages, emails are easier to save, and notarized emails have higher legal validity.
5. Announcement delivery
Announcement notices are less applicable to notices of transfer of creditor's rights. They are generally applicable to the delivery of legal documents, loss of documents, Invoice matters. The relevant provisions of the announcement and notification of the transfer of creditor's rights are generally related to the purchase of non-performing debts by financial asset management companies. This special provision is specially established for the special protection of state-owned assets and is not applicable to the general notice of transfer of creditor's rights.
Therefore, unless the parties or the transferred claims have special nature, if a notice of transfer of creditor's rights is delivered to assert the creditor's rights by means of announcement, the court generally does not consider it to have fulfilled the notification obligation.
6. Litigation Notice
Litigation notification is the most special notification method, probably because of its notification time and The subject of the notice is special: the litigation notice notifies the other party of the transfer of creditor's rights only when the lawsuit is filed, and it notifies the other party to perform the debt through the court. In the existing case law, the court held that a direct lawsuit that notifies the debtor of the fact of debt assignment through the court and asserts claims meets the conditions for notification.
The above is what the editor of Legal Savior Network introduces to you There are various ways to notify the transfer of creditor's rights, but we must pay attention to it when choosing. If you encounter a more complicated situation and need to consult a lawyer, you are welcome to seek legal consultation on this website.
