Commentary to article 341. The scope of the creditor's rights transferred to another person of the Civil Code of the Republic of Kazakhstan
The commented article enshrines the general principle of civil law: rights are transferred in full, with all encumbrances and on the terms that existed at the time of the transfer of rights.
Rights that ensure the fulfillment of an obligation are ways to ensure the fulfillment of an obligation, both provided for and not provided for by the Civil Code, in particular, a penalty, surety, guarantee, pledge (see commentary to art. 292 of the Civil Code).
Other rights related to the claim may be established by law (in particular, the right to unpaid remuneration (interest) mentioned in the commented article or an agreement between the debtor and the original creditor (for example, the right to extend the term of the contract or to terminate it prematurely).
The moment of transfer of rights is determined either by the date of the transaction (upon assignment of the claim), or by the date of occurrence of the circumstances specified in the legislative act (upon transfer on the basis of the legislative act).
384 of the Civil Code of the Russian Federation raises an interesting problem about the applicability of assignment to prorogation agreements on the establishment of contractual jurisdiction for future disputes. This issue is of particular importance for foreign economic transactions, which usually contain an arbitration clause on the location of the dispute.
It follows from the wording of the commented article that it should also apply to the transfer of rights arising from agreements on contractual jurisdiction. The issue of the binding nature of an arbitration agreement in the case of an assignment causes contradictory judgments in international practice, although in general there is a tendency in favor of recognizing such a binding nature (S.N. Lebedev. International commercial arbitration: the competence of the arbitrator and the agreement of the parties. M.1988, p. 77).
This approach to the transition along with the assignment and the terms of the arbitration agreement was demonstrated recently by the Presidium of the Supreme Arbitration Court of the Russian Federation in a decision on a specific case (see: newspaper "Economics and Life", 1998, No. 2, p. 21).
At the same time, prorogation agreements have procedural features. Therefore, when resolving one of the disputes, the Foreign Trade Arbitration Commission (VTAC) at the USSR Chamber of Commerce and Industry concluded that the arbitration agreement "cannot be the subject of an assignment at all. Being an autonomous procedural agreement, it requires the assignee's independent consent to submit to the jurisdiction that was chosen by the parties to the agreement" (see the VTAC decision of July 9, 1984). This decision became widely known and was published abroad.
It is difficult to agree with such a decision. The commented article does not make any exceptions to the procedural rights arising from the contract. In order to reduce the volume of transferred rights or change the terms of their exercise, the parties must specifically specify this in the assignment agreement. The arbitration clause refers precisely to the conditions for exercising the transferred rights, and the creditor certainly knew or should have known about the existence of such a clause. Nevertheless, in order to avoid disputes, it should be recommended that entrepreneurs, when concluding an assignment agreement, specifically stipulate the transfer of the right arising from the prorogation agreement.
Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases
The commentary was prepared within the framework of the scientific and practical research program of the Scientific Research Center of Private Law of the Kazakh State Law University.
Head of the working group on the preparation of the draft Civil Code of the Republic of Kazakhstan, Corresponding Member of the Academy of Sciences of the Republic of Kazakhstan, Professor Suleimenov M.K.
Deputy head Professor Basin Yu.G.
