INCREIBLEhd

The assignment of future credits in the contest

We speak of cession of credits, when by virtue of an agreement between the holder of a credit and its creditor (assignor and assignee), a credit is transmitted from the first to the second, being placed in the legal position of the assignor with respect to said credit.

There is not a simple legitimate assignment (the case of a mere mandate for the transferee for which the credit for the account of the assignor), but an assignment that pursues a solution function, that is, in which the assignor - debtor of the assignee , but at the same time a creditor of a third party of joint treatment, through the assignment, a channel for the solvent of its own debt.

This question cannot be analyzed from the classical distinction between the assignment of the solution and the assignment in the liquidation, the assignment "in payment" of the credits or "for the payment" of the credits, which according to DÍEZ PICAZO, it is necessary to differentiate well [1]:

a) The assignment pro solution occurs when the transferee is given by the full payment of the debt that he has against the assignor, by the pure fact of receiving the assigned loan. The assignor only responds to the legitimacy of the assigned loan but does not respond - except for an express agreement on the solvency of the third party, a debtor of said credit. With the single assignment pro solution of its credit to the assignee and the acceptance of the same by the assignee, the assignor is "freed" of its debt.

b) On the contrary, in the assignment of the loan of credit, the transferor does for the guarantee of solvency, and for that reason, its debt is only really extinguished when the transferred loan has been effectively collected by the transferee.

At the time of setting up the assignment under another model, full freedom to the parties, and the problem arises when the outcome is unclear what concrete type of assignment is to be agreed upon. One respect of this, I understand that the interpretation must take place in favor of the assignment by the solvent, which is the least sacrifices for the assignee, so it does not seem reasonable to burden on these more risks of the obligations of what was expressly accepted.

On the other hand, it is possible to consider whether in both types occurs in all the effect - very transcendent, also for insolvency purposes that the transferee becomes cash holder of the credit as a direct consequence of the assignment.

Initially, the Supreme Court came to form a line of jurisprudence that denied translative effectiveness to the pro solved assignment. Thus, judgments 67/2001 of 2 February 2001; 677/2003, of 27 June; 136/2004 of 5 March 2004; and 1315/2007, of 4 December.

But later, both Judgment 125/2008 of February 22 and 650/2013 of November 6 indicate the full translative effectiveness of the assignment, either pro solute or pro solvendo, stating that the fact that in the latter the assignor is not released only when the transferee covers the assigned receivable, does not prevent the full translation effect, so that the assignee holds the assigned receivable from the time the assignment was carried out, and not since the credit was satisfied ceded. This position has subsequently been endorsed by Judgment 62/2014 of February 25, stating the following: "Recently, we have had the opportunity to confirm that the transferability efficiency of the assignment of credits operates not only when it has been carried out pro solution, but also when it is pro solvendo, ... ".

Having said this, it should be pointed out that in our Ordinance, early assignments of future receivables are possible, but subject to the essential requirement that the defining characteristics of the future credit be adequately determined, at the latest, at the time of its birth, without need for a new agreement between the parties.

The aforementioned STS no. 650/2013 of 6 November not only confirms that this possibility is perfectly possible; but also:

It confirms the need to determine the defining characteristics of the future loan granted, at the latest at the time of its birth;
It specifies the moment when the transfer of the credit from the assignor to the transferee takes place ("at the instant of the credit's birth") when "the assignment is granted".
And it determines that the credit content that will be understood as transferred to the transferee will be the one with which the credit is actually born at the future moment.
On the other hand, Judgment 186/2016 of March 18, adds that: "... the credit in question - according to the most authoritative opinion - [2]" will be born immediately in the head of the assignee, based on the expectation of acquisition already transmitted while the transferor still had the free disposition of the patrimony "

In this sense, if the future loan receivable became "present" before the transferor's tender, its birth, and the consequent transferability in favor of the assignee, would have been verified prior to the tender, and nothing would justify that "good" belonging to others is integrated into the active mass.

And when said credit loses its status as "future" after the assignor's declaration of competition, I understand that the solution is given by the cited case law when it states that "it will be born immediately in the hands of the assignee, based on the expectation of acquisition and transmitted ". That is to say, at the same time as the assignment of the future receivable, this credit, which is necessarily determined, falls immediately within the scope of the assignee, so that the subsequent and definitive post-insolvency break-in does not affect the ownership of the assignee and that credit, even if it has been made "present" after the declaration of competition, must not integrate the active lump.