THE INSTITUTE OF ASSIGNMENT OF THE RIGHT OF DEMAND (CESSION) IN THE CONTRACTUAL REGULATION OF PRIVATE LAW RELATIONS IN UKRAINE

Abstract

The relevance of the study of the institution of assignment of the right of demand (cession) in the contractual regulation of private law relations is determined by the fac that the transfer of the creditor’s rights to the third parties in civil law is a complex legal phenomenon, the essence of which is the full or partial change of one creditor in the obligation for another by third parties – the creditor’s successors, persons who are granted the creditor’s rights, persons who have acquired the creditor’s right under the deal on a fee or free basis, etc. The article examines the institution of assignment of the right of demand (cession) in the contractual regulation of private law relations in Ukraine. It is noted that the institution of assignment of the right of demand (cession) in its modern sense originated in the imperial period of ancient Rome. Roman private law considered the assignment of the right of demand (cession) as a contractual transfer the creditor’s right of claim. It is proved the legal positions towards a legal nature of assignment of the right of demand can be divided into three basic groups. The first should involve the standpoints of the authors who consider assignment of the right of demand as a special independent deal, suigeneris (N. I. Kovalenko). The second group of the authors treats assignment of the right of demand as a deed of assignment based, as a rule, on an agreement (D.I. Meiier, H.F. Shershenevych, M.M. Aharkov et al.). Thus, the third group regards assignment of the right of demand as a legal outcome of a deal (an agreement) on the cession of rights (B. B. Cherepakhin, M. I. Brahinskyi, I. B. Spasybo-Fatieieva). It is substantiated the assignment of the right of demand (cession) is a direct legal result of a deal on the transfer of demand. Norms on assignment of the right of demand have priority over norms on the contract on the basis of which the rights are transferred (norms on purchase and sale, gift, etc.). Consequently, the author concludes on the possibility of using the assignment of the right of demand as a way to ensure the fulfillment of the obligation under the observance of the following conditions: first, such assignment of the right shall be accessory regarding the main obligation; secondly, the assignment of the right of demand should stimulate a debtor (assignor) to perform the main obligation properly; third, the assigned right of demand shall be of value to the creditor.