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of February 28, 2003 No. 110

About some questions of application of regulations of the Civil code of the Republic of Uzbekistan of right to claim concession

(as amended on 23-12-2006)

Due to the questions arising in court practice and for the purpose of ensuring uniform approaches to the dispute resolution on application of regulations of the Civil code of the Republic of Uzbekistan (further group of companies) about right to claim concession the Plenum of the Supreme Economic Court of the Republic of Uzbekistan based on article 47 of the Law "About Courts" decides to make the following explanations.

1. Courts should mean that the concession of right to claim is the transaction according to which unconditional replacement of person (creditor) in the obligation is supposed.

According to the agreement on right to claim concession the initial creditor shall transfer right to claim on primary obligation, and the new creditor shall accept this right.

The contract of assignment of right to claim is supposed paid if from the law, other legal acts, contents of the agreement other does not follow (the p. Z of Art. 355 of group of companies).

Owing to part one of Article 319 of group of companies the right to claim concession to other person is allowed by the creditor as it does not contradict the legislation or the agreement.

Having yielded right to claim, the initial creditor is disposed from the obligation in connection with change of persons in the obligation.

2. The creditor's rights according to the obligation can pass to other person not only according to the procedure of requirement concession with the prior creditor, but also by law (St, the Art. 318, 295 and 957 groups of companies).

3. By consideration of the disputes connected with transition of the rights of the creditor to other person, courts it is necessary to consider that important issue on such cases is scoping of obligations which are received by the new creditor as a result of transition of the rights from the former creditor.

The right to claim of the initial creditor passes to the new creditor in that, amount and on those conditions which existed by the time of transition of the right if other is not provided by the law or the agreement.

In particular, pass the rights providing execution of monetary commitment to the new creditor (for example, penalty, etc.), and also other rights connected with the requirement, including the right to unpaid interests. Therefore, in all cases when change of the creditor in monetary commitment takes place, there is transition of all rights from the initial creditor to the new creditor.

4. Courts should mean what in the agreement on concession of right to claim shall be specifically specified what requirement is transferred and on what obligation it is based.

Determining amount of the passing requirements and specifying obligations from which they follow, participants of the transaction shall formulate its subject which is the determining beginning of any agreement.

The subject of the agreement of concession - one of its essential conditions in this connection, the parties (the initial and new creditor) shall determine accurately and specifically subject of transfer of the right with binding to primary obligation.

If in the contract of assignment of right to claim there is no reference to the specific obligation generating the yielded right, the contract of assignment shall be, is acknowledged unconcluded (Art. 364 of group of companies).

5. For relations of the new and initial creditor who yielded the requirements, importance has regulations that the initial creditor answers to the new creditor for invalidity of the requirement transferred to it, but does not meet for neislolneniye this requirement the debtor except case when the initial creditor assumed the guarantee for the debtor before the new creditor (Art. 321 of group of companies).

6. If from sense of the agreement on concession of right to claim it is seen that there was not concession of the requirement, but the valid will of the parties it is directed to rendering services for remuneration, and according to the p. 2 of Article 124 of group of companies is the colourable transaction made with the purpose to cover other transaction (the agreement of the order or the services agreement), then the court applies rules of that transaction which really the parties meant.

If the main transaction is acknowledged as court unconcluded (or insignificant), the concession of requirements based on it is invalid (insignificant) as Art. 313 of group of companies which is not conforming to requirements.

7. Feature in the contract of assignment of right to claim is that on concession of right to claim receipt of consent of other party in the obligation (debtor) is not required if only it is directly not provided by the law or the basic agreement.

8. Explain to courts that the new creditor to whom passed right to claim shall notify on it the debtor in writing. Otherwise it will bear all adverse effects caused by lack of such notification (Art. 313 of group of companies).

Certain obligations are assigned as well he shall transfer to the creditor who yielded the requirements to other person to the new creditor the documents certifying right to claim and to report the data important for implementation of this requirement. The debtor has the right not to fulfill the obligation to the new creditor before submission of proofs of transition of the requirement to this person (Art. 316 of group of companies) to it.

At the same time it is necessary to consider that the debtor has the right to push against the new creditor all objections which he had against requirements of the initial creditor by the time of receipt of the notification on transition of the rights according to the obligation to the new creditor (Art. 317 of group of companies).

Lack of the notification of the debtor on concession of the rights of the creditor to other person or failure to carry out of obligation by the initial creditor on document transfer certifying right to claim shall not influence reality of transition of the right and cannot form the basis for recognition of the contract of assignment of right to claim unconcluded (invalid).

Transition of the right from the initial creditor to the new creditor is not connected with the moment when the debtor is informed on the transaction made by them. Its notification is made based on already taken place concession, it is not considered as the condition necessary for transition of right to claim on the obligation.


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