TRANSFER OF CREDITOR’S RIGHTS TO THE THIRD PARTIES AS THE SUBSTITUTION OF PARTIES TO AN OBLIGATION

Abstract

The article studies the general issues of the transfer of creditor’s rights to the third parties as the substitution of parties to an obligation. It is noted that legal literature devoted to the study of law of obligation, the focus is on the institute of modification of obligations. The author stresses that in civil law, there are many interpretations of the concept “substitution of parties to an obligation”, but many scholars share a unified position towards the concept of the institute of modification of obligations by defining it as a change of some elements. The author proposes the classification of cases of modification of obligations by E. Hodeme, who separates three types of modification of obligations: changes which belong to obligation power; changes which belong to a subject or content of an obligation; changes which belong to active or passive subjects of obligation. It is highlighted that as the parties of obligation involve an active subject (a creditor) and a passive subject (a debtor), an obligation is subject to modification both on the part of the creditor and the debtor. In other words, the original creditor and/or debtor can secede from this obligation during obligation action through the substitution. Legal literature defines such a change on the part of the creditor and the debtor as the substitution of parties to an obligation. Taking into account the research subject, the main focus is on the contractual ways of the substitution of parties to an obligation, specifically the contractual transfer of the creditor and assignment of debt. The legal regulation of cooperation between persons participating in the transfer of the rights of demand of the original creditor to the new creditor. In particular, the author characterizes the interrelation between the original and new creditors and the interrelation between the new creditor and the debtor. The research makes it possible to conclude that the legislator strives to keep the stability of the original obligation through allowing the transfer of the creditor’s rights and to avoid the abuse of creditors, it ensures the legal protection of creditors –the weakest subject from the perspective of legal scope of the influence on the process of transferring the mandatory rights of demand to him – using compulsory rules.