As a result of the assignment, the creditor changes, but the claim itself does not change. This refers, among other things, to the place of performance (the place where payment must be made) resulting from the creditor's registered office or the place where the creditor maintains a bank account. This place, in turn, determines the jurisdiction of the court when the creditor (factor) wants to sue the debtor for payment.
- Let's assume that the factoring company, which is the original creditor (cedent), has its headquarters in Poznan and the Bank Branch here also maintains its bank account.
- The debtor is based in Zielona Góra.
- The factor (assignee) or new creditor, on the other hand, is based in Warsaw, and the Bank Branch maintains its bank account here.
The original creditor (assignor), wishing to sue the debtor, would sue him before the Court of the place of fulfillment (creditor's seat = Poznań), i.e. before the Court in Poznań. The factor, in the same way, could sue the debtor before the Court in Warsaw where it has its seat and bank account. This would be a difficult situation for the debtor - instead of going to Poznań, he would have to go all the way to Warsaw for the hearing. Does the law protect the debtor in this situation?
Yes, but not always.
Admittedly, there is a view expressed in the case law that the transfer of claims following without the consent of the debtor can not lead to a deterioration of the debtor's existing legal position (see the judgment of the Court of Appeals in Bialystok dated 28.10.2015, ref. I ACa 544/15). but only if the debtor has not consented to the assignment (see, for example, the resolution of the Supreme Court of 11.02.2003, ref. III CZP 81/01; the decision of the District Court in Kalisz of 6.03.2017. I Cz 108/17). Meanwhile, classic factoring (perhaps with the exception of silent factoring) assumes the consent of the debtor (recipient) to the assignment on a special form, or in the form of a ZOC (notice of assignment). Therefore, if the debtor has consented to the assignment his plea of impropriety of the Court should not be considered - then the case would continue to be handled by the Court in Warsaw.
What about a situation where the VAT invoice issued by the assignor (factor, creditor) already specifies the bank account of the factor (assignee) as the only proper account for payment, and additionally includes a factoring clause on the invoice? Then, after all, the place of performance equivalent to the creditor's seat is determined by the bank account - in our case in Warsaw. It seems that in this situation, the factor may refer the case to the Court in Warsaw, arguing that it was the bank account indicated on the invoice that determined the place of performance and thus the jurisdiction of the Court.
In practice, however, the courts rule differently - and the above-mentioned issues are often disputed. Since the court's impropriety is taken into account by the court "on the plea" of the defendant (although the interpretation of Article 202 of the CCP is still disputed by lawyers) - often cases are conducted by the court of choice of the Factor.
The above experience shows how important it is to thoughtfully prepare factoring documentation (including ZOCs) that provides for such legal aspects whose importance usually emerges after time.
