The factoring market focuses on the assignment of unmatured receivables documented by VAT invoices (or in some other unquestionable way) arising from the sale of goods or services. Increasingly, companies are looking for new market niches - directing their product offerings to specialized markets - such as Agro-factoring (offered, for example, by Faktorzy S.A.).
However, the subject of assignment for factoring purposes is almost always receivables from the sale of goods or services. This phenomenon is not accidental and is not only due to the safety and affordability of factoring coverage of receivables of this type, but also due to legal regulations.
The rule is that a creditor (e.g., a seller) may, without the consent of the debtor (e.g., a buyer of goods), transfer a claim for payment to a third party (e.g., a factor) in the form of a transfer (assignment), which follows directly from Article 509 § 1 of the Civil Code. At the same time, this provision stipulates that it will not be allowed if such assignment is contrary to (1) a provision of the contract, (2) the law, or (3) the nature of the obligation.
Contractual restrictions.
Restrictions on the assignment of receivables may arise from the contract (contractual prohibition of assignment). The consequences of such provisions and their legal effectiveness will be the subject of a separate Blog article.
Regulatory restrictions. Individual restrictions are based on the provisions of various acts - the prohibition of assignment includes, for example:
- all receivables of a public-legal nature (tax liabilities, contributions, also overpayment of taxes);
- The right to remuneration for work (Article 84 of the Labor Code);
- compensation for personal injury, unless it is already due and has been recognized in writing or awarded by a final judgment (Article 449 of the Civil Code);
- The right of repurchase (Article 595 of the Civil Code) and pre-emption (Article 602 of the Civil Code);
- rights of a partner of a civil partnership in the joint property of the partners (Article 863 of the Civil Code), which, of course, does not exclude the assignment of claims from invoices for the sale of goods and services by the partners of a civil partnership; There are no obstacles to a partner being able to freely dispose of claims he will have against the partnership upon withdrawal or dissolution. A partner's claims against the partnership for payment of a portion of the profit and for reimbursement of expenses incurred by the partner in connection with the conduct of the partnership's affairs are also transferable;
- the totality of the rights and obligations of a partner in a partnership (Article 10 of the Commercial Companies Code);
- The right to an annuity (Article 903 of the Civil Code) and the claims of the annuitant (Article 912 of the Civil Code), although it is possible to transfer specific, mature and enforceable claims that make up such claims;
- Cooperative tenant right to a residential unit (Article 9(3) of the Law on Housing Cooperatives);
- independent transfer of a registered pledge without a claim secured by that pledge (Article 17(1) of the Law on Registered Pledge and Pledge Register);
- stand-alone transfer of a mortgage without a secured claim (Article 79(2) of the Land and Mortgage Law)
Limitations arising from the "appropriateness of the obligation".
These are claims of a strictly personal nature. They are not (so far) of interest to companies providing factoring services, but for the sake of order it is worth mentioning them: personal claims from a work contract (e.g., a painter painting a picture or a sculptor making a sculpture), claims from a service contract (e.g., child care); non-property rights for the protection of strictly personal goods and interests (e.g. from Article 24 of the Civil Code); non-substantive rights and claims (e.g., rights from Articles 59, 459, 460, 462, 527 of the Civil Code), or claims to protect property (only supplementary claims from Article 224 et seq. of the Civil Code can be the subject of assignment); accessory claims (e.g., a claim against a guarantor). However, they have no practical significance for factoring.
Doubtful receivables in terms of assignment
There are also many types of receivables for which we will not get a clear answer to the question - whether they can be subject to assignment and factoring at the same time. I have analyzed quite a lot of such examples (the ingenuity of factoring companies is high), however - I will indicate here only exemplary receivables only outlining the existence of the problem.
Doubts are raised about the possibility of assignment claims under grants (subsidies) Of the EU financial perspective projects. This issue will be covered in a separate article. At this stage I would like to point out that there was no statutory prohibition on the assignment of such claims, and the decisive factor in each case was the content of the contract which either provided for a non-assignment clause or not.
Assignment of the right to alimony or maintenance obligations is not permissible. What is disputed, however, is the admissibility of the assignment of already due claims for particular alimony installments. It seems that in this case there are no obstacles to disposing of them by assignment, especially if their payment is limited to a monthly transfer. "Alimony factoring" could undoubtedly find its place in business.
The situation is similar with regard to labor remuneration. This right cannot be the subject of assignment, i.e., it cannot be concluded with effect for the employer (debtor) to the extent of all monthly payments. However, it seems that there is no contraindication to include in the assignment a specific, mature claim for payment of a specific labor remuneration. However, since this applies to a one-time assignment and mature receivables - it is unlikely to find practical application in factoring, the essence of which is unmatured cyclical receivables.
Doubts were raised about the possibility of assignment retention claims, however, its admissibility is now accepted (in accordance with the resolution of the Supreme Court of 13.02.1975).
