The main form of commercial financing is international factoring. The emergence of a factoring agreement is associated with the desire of participants in the civil turnover to apply effective system financial settlements with the help of intermediaries that ensure fast and guaranteed receipt of payments from obligated persons. Factoring agreement aims to regulate mediation in the field of international commercial settlements.
This agreement was formed in the practice of the United States in the 50s of the XX century, and from the end of the 60s it began to be applied in the practice of other countries. At the national level, the factoring contract is regulated mainly judicial practice. There is practically no special legislative regulation of this agreement.
A factoring contract is a contract for the provision intermediary services in carrying out settlement operations m/y participants commercial activities, providing for certain obligations of the intermediary to provide other services of a commercial nature. This is an agreement of three parties: a supplier of goods or services, a factoring company (factor), a firm that purchases goods or services. The supplier is a creditor, i.e. the owner of the rights of claim under the concluded contract (purchase and sale, supply, etc.). The acquiring firm is a debtor, i.e. person liable for this transaction.
The main content of factoring as an intermediary financial transaction is to satisfy the factor of the rights of the creditor's claim. This is done by collecting from the debtor Money but to the creditor's commercial account. The supplier enters into a special agreement with the factor, according to which the rights of claim against the debtor are transferred from the supplier to the factor. The transfer takes place in the form of a legal entity. assignment of rights (subrogation).
The factor undertakes to immediately pay the supplier the sums of money according to the documents (commercial invoices) received from him. A guarantee for the transfer of monetary amounts is provided regardless of the results of their recovery from the debtor. From an economic point of view, factoring is the purchase by a factor of commercial invoices with their immediate payment.
The factoring agreement is of a framework nature and serves as the basis for the factor to fulfill the specific instructions of the supplier. The contract is defined as General terms relations between the parties, and the mechanism for their implementation. As a rule, there are restrictions on the total amount of transactions, within which the factor is obliged to accept the supplier's order to recover funds from the debtor on commercial accounts.
There are also time limits contract validity, i.e. the period of such operations (for example, half a year, a year, etc.). Such restrictions are aimed at minimizing the commercial risks of the factor. For the same purpose, the factor previously, even before conclusion of the contract, conducts research on commercial and financial position supplier as a possible counterparty.
Under a factoring agreement, the factor becomes the supplier's monopoly intermediary in carrying out settlement transactions. In the established contractual territory, during the term of the contract, the factor has the exclusive right to carry out transactions with clients. The supplier is not entitled to use the services of other factors in the contractual territory; he is obliged to send to the factor all commercial invoices for concluded transactions.
The factoring agreement contains a condition on the transfer by the supplier of the rights of claim to the factor (subrogation), a condition on the procedure for accepting individual orders of the supplier by the factor, a condition on opening a current account for the supplier to transfer funds to the factor.
Distinctive feature mechanism for conducting factoring operations - the factor does not assume a firm obligation to accept all orders of the counterparty for execution. The factor may accept or reject the offer in respect of any particular invoice for any debtor. Acceptance by a factor of an order is not only consent to its execution and immediate payment upon execution of the assignment of rights, but also a guarantee of payment on the account.
Recovery from the debtor of funds on the account in many cases can be fraught with serious difficulties and even be impossible. In such cases, the factor has the right not to approve the instructions, but this excludes the possibility of conducting a settlement operation. With the consent of the supplier, the factor conducts such an operation, but with the transfer of funds only after the debtor has paid the invoice and without providing a guarantee of payment. In such a situation, the settlement transaction has the character of an ordinary contract of agency.
The essence of international factoring is that the financial corporation releases the exporter from the financial burden of the export transaction, in particular from the collection of the purchase price due from foreign buyers. That. the exporter can concentrate entirely on their direct sales and marketing activities.
This achieves the separation of functions: export, including the dispatch of goods, paperwork and transfer of transport documentation are carried out by the exporter (seller), but lending within the established limits is the responsibility of the factor. The purpose of factoring is to achieve an optimal international division of labor.
The financial corporation (factor) acts as an intermediary. The significance of international factoring as an intermediary financial transaction lies in the fact that the factor satisfies the rights of the creditor's claims at the expense of the amounts collected from the debtor on the commercial account of the creditor. International factoring makes it easier to get cash in export transactions and provides protection against bad debts. Types of factoring: disclosed (assignment to the factor of the exporter's right to demand payment of the purchase price) and undisclosed (discounting invoices).
Disclosed factoring is based on the assignment to the factor as an assignee of the exporter's right to claim payment of the purchase price. The assignment of the right to claim is made in writing, is signed by the assignor (exporter) and brought to the attention of the debtor (foreign buyer) by a special written notice. The assignment of the right to claim must be absolute, i.e. full (and not partial), so that the debtor does not have to deal with several creditors.
Undisclosed factoring (discounting of invoices, i.e. redemption of invoices at a discount) is the most common type of international factoring. Implementation in a form based on the right of equity of the cession (assignment of a claim in an obligation to another person). In this agreement, the factoring arrangement is not disclosed to the foreign buyer, and he pays the purchase price to the exporter.
The exporter receives the price as the factor's trustee and must transfer the funds received to a special account specified by the factor. Violation of the terms of the agreement (transfer of funds to the account of the supplier, not the factor) is an offense of misappropriation of movable things. The payment must be returned to the factor.
At the international level, this method of financing is regulated in the Ottawa Convention on International Factoring of 1988. The Convention applies if the debt claims assigned under the factoring agreement arose from a sale and purchase agreement between the supplier (seller) and the debtor (buyer) , commercial enterprises which are located on the territory of different state-in. In addition, the states in whose territory the enterprises of the supplier, debtor and factor are located must be parties to the Convention. The provisions of the Convention also apply if the contract of sale and the factoring contract are governed by the law of the member states.
For the purposes of the Convention, a factoring contract must meet certain conditions:
The supplier is able or willing to assign to the factor the rights of claim that have arisen from sales contracts concluded by the supplier with its buyers (debtors). Excluded from the scope of the Convention are contracts for the sale of goods purchased for personal, family or household needs.
The factor must perform at least two of the listed functions: supplier financing, including loans and advance payments; bookkeeping (ledgering) related to debt claims; receiving debts; protection against non-payment by the debtor.
The norms of the Convention are dispositive in nature - they are mandatory for application only if the parties have not agreed otherwise legal regulation. The Convention applies to both disclosed and non-disclosed factoring.
There are no norms on the factoring contract in the Russian legislation, and Russia also does not participate in the Ottawa Convention on international factoring. The relations underlying factoring, from the point of view of the Civil Code of the Russian Federation, represent an assignment of rights. This transaction is governed by the provisions of Chapter 24.1 of the Civil Code "Transfer of Creditor's Rights to Another Person". The norms of this chapter apply both to the assignment of the right, which has only an internal, “Russian character”, and to m / national civil rights, if the place of residence or the main place of activity of the financial agent is located on the territory of the Russian Federation.
Article 1211 of the Civil Code of the Russian Federation refers to a financing agreement against the assignment of a monetary claim. The financial agent acts as the central party of this agreement. Many domestic scientists note the urgent need to consolidate the special legal regulation of the factoring agreement in the Russian legislation.
Forfaiting is a type of factoring. Factoring is mainly used to service transactions related to consumer goods, and forfaiting - related to machinery and equipment. The period of payment of obligations by the buyer for factoring is 3-6 months, and for forfaiting - 0.5 - 5 years. The factor does not take on any risks in the transaction, and the forfait takes on all the risks. The discount rate for factoring is 10-12%, but for forfaiting - 25-30%. The factor does not have the right to transfer monetary obligations to third parties, while the forfait has such a right.
39. Renting in the MCHP: concept, types, conflict regulation.
Rent (lat. rent) is a type entrepreneurial activity, in which the owner of the property (the lessor), for the purpose of making a profit, transfers it for temporary possession and use or only for the use of another person (the lessor) for an agreed rent.
Unlike a contract of sale, under which ownership of the goods passes from the seller to the buyer, the lease retains the lessor's ownership of the leased object, giving the lessee only the right to its temporary possession and use.
International leasing operations involve the leasing of goods crossing the border of the country of the lessor. An international transaction in which a lessor buys a leased item from a domestic firm and leases it to a foreign lessee is considered an export lease. A lease operation in which the lessor purchases the leased item from a foreign firm and provides it to a domestic tenant is considered an import lease operation.
characteristic feature both the international lease and the international lease operation is the participation in it of either the lessor and the tenant located in different countries, or the lessor and the manufacturer of the leased item in different countries. In some cases, all three participants in the lease operation may be located in different countries.
As a rule, the subjects of m/national lease are:
consumer goods, office and printing equipment, computer science and information processing, vehicles, material handling and road construction equipment, general industrial equipment, stationary equipment and equipment of complete plants, fully equipped and ready for operation (combination of rental property and industrial equipment), used equipment or equipment sold "on the occasion".
In international practice, depending on the timing or duration, there are three types of lease:
Long-term - with the provision of goods for rent for a period of 3 to 5 years, and for some types of equipment up to 15-20 years. This type of lease is called "leasing" (English to lease - rent).
Medium-term - involves the rental of goods for a period of 1 to 2-3 years and is called "hairing".
Short-term - duration from several hours, days, months to 1 year. In most countries, this type of lease is called "renting", and in Japan - "charter".
The classic lease differs from the currently widespread modification of the lease - leasing - in the following characteristics:
Unlike the lessee, the lessee usually assumes some of the responsibilities associated with ownership (risk of accidental loss, maintenance) and pays not a monthly fee for the right to use, but the full amount of depreciation.
The lessor is fully responsible for the quality of the leased property, while the lessor often assigns to the lessee his right to file complaints with the manufacturer (supplier) of the property.
In leasing, unlike renting, the lessor does not have the right to early termination of the contract on his own initiative.
When calculating a lease, the amount of payments mainly depends on market conditions, while in leasing, the purchase price of the object, the lease term, the residual value of the equipment and the cost of the loan are taken into account.
Lease provides, as a rule, for the temporary use of the property already owned, while leasing for the most part involves the acquisition of ownership of property at the request and direction of the lessee for the purpose of its subsequent lease.
In many countries, depending on the content and methods of implementation, international rent is divided into two types:
operational (current) (operating lease) and
financial lease (leasing).
Operating (current) lease involves the provision of goods purchased in advance by the lessor for a certain period of time for the rent specified in the lease agreement or on the basis of list rental rates.
After the expiration of the specified period, the tenant is obliged to return the subject of the lease. The purpose of an operating lease is to satisfy the tenant's temporary needs for the leased property. This may be a one-time or seasonal use of aircraft, ships, construction equipment, or the current use of a standard industrial equipment to fulfill specific orders (machines, engines, motors, etc.). The term of the lease agreement for current leasing operations can range from 2–3 years to 10 years, after which the tenant returns the leased asset to the lessor. The risk of damage or loss of property lies with the lessor, who also carries out maintenance, current repairs, etc.
In current leases, rental rates are usually higher than in financial ones, since the lessor takes on a number of risks: commercial, obsolescence of equipment, loss of profitability and other direct and indirect non-productive costs (repairs, equipment downtime, etc.).
Financial lease (leasing) consists in the fact that the leasing company acting as the lessor pays the full cost of movable or immovable property, most often equipment, ordered by the company interested in leasing from a specific supplier. The lessee uses this equipment under the terms of a leasing agreement concluded with a leasing company (lessor), as a rule, for a long period, close to the payback period of the equipment (depreciation of the full or most of the cost of the equipment).
Upon expiration of the lease agreement, the tenant may extend the agreement; conclude a new lease agreement; return the leased item to the lessor; buy it from the landlord at the residual value.
At its core, financial lease is a form of long-term lending by a leasing company to a consumer (user) of equipment, which repays the cost of equipment and reimburses the services of the lessor, including financing fees, by paying lease payments.
Thus, the leasing company enters into two agreements: a leasing agreement with the tenant and a purchase and sale agreement with the equipment supplier.
The leasing company is not responsible for the uninterrupted operation of the equipment and does not provide any guarantees. Maintenance and repair of equipment the tenant makes at his own expense. The risk of loss or damage to the equipment remains with the lessor as the owner of the leased item.
In accordance with Art. 1211 of the Civil Code of the Russian Federation on the territory of Russia, these rights are regulated by agreement of the parties. In the absence of this agreement, the contract shall be governed by the law of the country with which the contract is most closely connected. The law of the country with which the contract is most closely connected is considered, unless otherwise follows from the law, the terms or essence of the contract or the totality of the circumstances of the case, the law of the country where the place of residence or the main place of activity of the party that performs the performance, which is decisive for the content contracts.
International factoring- a type of factoring operation that provides settlements and service support for financing the supply of goods and services with a deferred payment in conditions where the supplier and buyer are residents of different states. International factoring, in contrast to trade finance transactions, is used to work on long-term or open-ended foreign economic contracts, characterized by regular deliveries and a tendency to increase turnover. International factoring is carried out according to two models: one-factor and two-factor.
One factor model provides for the provision of a range of international factoring services, in which the Factor and the client company are residents of the same state. The one-factor model is mainly used in export operations.
Two-factor model provides for the division of international factoring functions between two factors that are residents of two countries, which are represented by the supplier and the buyer, respectively. As a result, settlements and factoring services are provided to both the resident supplier and the non-resident buyer.
export factor- a bank or a specialized factoring company providing international factoring services to an exporting supplier. The functions of the Export factor may include the implementation of cross-border settlements under foreign trade contracts, financing of the exporting supplier in the amount of proceeds under the export contract (in whole or in part), covering the risk of non-payment by the non-resident buyer, as well as receiving proceeds from the non-resident buyer.
Import factor- a bank or a specialized factoring company providing international factoring services in the country of a non-resident buyer. The import factor is involved in the implementation of the two-factor model of international factoring. The functions of the Import Factor may include cross-border settlements under foreign trade contracts, covering the risk of non-payment by a non-resident buyer, and receiving proceeds from a non-resident buyer.
International factoring agreement- a bilateral agreement on factoring services concluded between residents of one state. The terms of the contract depend on the type of trade operation (export or import) carried out by the resident company.
Foreign trade contract- a contract for the supply of goods or the provision of services, concluded between the Russian and foreign company. A copy of the contract is provided when concluding an international factoring agreement along with documents confirming the fact of delivery (invoice). For the purposes of international factoring, a foreign trade contract must provide for the procedure for settlements on a deferred payment basis.
International Factoring Association - an organization under whose auspices the interaction between the Export factor and the Import factor is carried out in the implementation of international factoring according to the two-factor model. Bank or specialized company in Russia must be members of one of the two IFAs - Factors Chain International and/or International Factors Group.
One of the most developed forms foreign economic activity, reflecting modern trends in the development of the economy, is international factoring. Like financial leasing, factoring is aimed at attracting additional sources financing in the production and trade sphere, being a kind of commercial lending.
Factoring is used mainly in the field of buying and selling goods. At the same time, the seller of the goods, without waiting for the buyer to fulfill the obligation to pay the price for the goods, assigns the right of a monetary claim to a bank or other commercial organization(factor) to which, at the request of the seller, the purchase price is paid by the buyer. At the same time, the factor provides the seller with other financial services, in particular for accounting, invoicing for cash receipts, studying financial condition debtors, non-payment risk insurance.
The legal regulation of the factoring contract in many industrialized countries is based not on special, but on the general rules of the law of obligations relating to the assignment of the right to claim (cession), with which factoring has much in common. At the same time, factoring differs from the usual cession, since it is an independent type of business activity related to the provision of financial services to commercial enterprises engaged in the sale of goods, works or services.
International legal regulation of factoring
The absence of special norms on factoring in the national legislation of many countries and differences in the practice of applying factoring operations have necessitated international legal regulation of factoring. The result was UNIDROIT Convention "On International Factoring", signed in Ottawa on May 28, 1988 (hereinafter referred to in this chapter as the Ottawa Convention) and entered into force on May 1, 1995 for three countries - France, Italy and Nigeria. In the future, other states became its participants (in particular, Hungary, Italy, Latvia, Ukraine). Russia does not participate in this Convention, however, many of its provisions were adopted during the development of Ch. 43 of the Civil Code of the Russian Federation, which regulates the financing agreement under the assignment of the right to claim.
The Convention was adopted simultaneously with the Convention "On International Financial Leasing". In both Conventions, the same approaches were used in dealing with common issues. Thus, the Convention applies in cases where the places of business of the seller and his debtor are located in different states participating in the Convention. The state of the commercial enterprise-factor should also be its participant.
The provisions of the Convention shall also apply if the contract of sale concluded between the seller and the buyer (debtor), as well as the factoring contract, are subject to the law of a country participating in the Convention.
However, even in the presence of these conditions, the application of the Convention may be excluded by the participants in factoring - both the parties to the factoring agreement (if it is agreed by them in the factoring agreement), and the parties to the contract for the international sale of goods, if it is agreed between them in the agreement in relation to monetary claims, arising after the factor was notified in writing of such an exception (Article 3).
Issues related to the subject of regulation of the Convention, which are not directly addressed in it, shall be resolved in accordance with general principles on which it is based, and in the absence of such principles - in accordance with the law applicable by virtue of the rules of private international law (conflict rules) (clause 2, article 4), etc.
According to the Convention under factoring agreement means an agreement concluded between one party (supplier) and another party (factor), according to which the supplier transfers to the factor claims arising from contracts for the international sale of goods concluded between the supplier and his debtor (buyer). The subject of the assignment are claims arising from contracts for the international sale of goods concluded in the field of entrepreneurial activity. In particular, monetary claims arising from transactions for the purchase of goods for personal, family or household needs cannot be the subject of assignment (clause 2, article 1).
The factor performs at least two of the following functions:
- a) supplier financing, including loan and down payment;
- b) accounting for amounts due;
- c) presentation of monetary claims for payment;
- d) protecting the interests of the supplier in connection with the insolvency of its debtors.
The Convention regulates the so-called "disclosed" factoring, which consists in the fact that the debtor in without fail notified in writing of the assignment of the right to claim. In international practice, "undisclosed" factoring is also used, in which the assignment agreement is not disclosed to the debtor (buyer). In this case, the seller receives from him the purchase price for the goods and credits the received amounts to a separate account according to the indication of the factor.
Emphasizing the interdependent nature of factoring relations, the participants of which are the seller, the factor and the buyer of the goods (debtor), at the same time, the Convention considers factoring as an independent obligation. Accordingly, the assignment of a claim may be made despite any agreement between the supplier and its debtor (buyer) prohibiting such an assignment (Article 6).
The Convention defines the procedure for presenting claims in the event that some participants in factoring fail to fulfill their obligations to other participants. By general rule when the factor claims the debtor for payment, this debtor has the right to use against the factor all the remedies specified in the contract, which he could use if such a claim were made by the supplier (in particular, to present to the factor counterclaims related to quality or quantity of goods) (Article 9). At the same time, if the payment has already been made by the debtor, but he has not received or received goods that do not comply with the contract, he has the right to present a claim directly to the supplier, without turning to the factor for recovery (Article 10).
The debtor has the right to present a claim directly to the factor only in two cases provided for by the Convention. Firstly, if the debtor made a payment to the factor, but the factor did not pay the cost of the goods to the supplier and, secondly, if the factor made a payment to the supplier, knowing that the supplier did not fulfill its obligations to the debtor (Article 10).
The unification of the law relating to the assignment of claims for payment obligations, including international factoring, was carried out by UNCITRAL. The result was Convention on the Assignment of Receivables in international trade, adopted on December 12, 2001 by Resolution 56/81 at the 85th Plenary meeting of the 56th session of the UN General Assembly (the Convention has not entered into force).
In relation to the Ottawa Convention on International Factoring of 1988, this Convention, if it comes into force, will take precedence, unlike any other international agreement, the scope of which includes the transactions provided for by it (here the Convention does not prevail) (Art. 38).
The Convention applies to assignments of "international receivables" and "international assignments of receivables". In accordance with it, the assignment is international if the assignor and the assignee are located in different states, in turn, the receivables are international if the assignor and the debtor are located in different states. The international nature of an assignment or receivable is determined by the location of the assignor and the assignee or debtor at the time the assignment contract is concluded.
The Convention regulates not only factoring, but also all known types of assignment of receivables, including the traditional institution of cession, forfaiting, invoice accounting, securitization of contractual receivables, asset-backed lending, project finance under the future income of the project, etc. The assignment may also be a subrogation or a pledge transaction.
The assignment of receivables is also regarded in the Convention as "securing a debt or other obligation", which reflects current international trends in the use of assignment as a way to secure obligations.
The subject of the assignment is the rights to the amounts of money due from the debtor (accounts receivable, both "existing" at the time of the conclusion of the contract, and "subsequent", i.e. arising after its conclusion), transferred in whole or in part by one person (assignor) to another person (assignee). The scope of assigned claims also includes accessory rights that secure payments under the original contract.
Unlike the Ottawa Convention, the assignment of claims can be carried out not only under a contract of sale, but also under other contracts. However, claims arising from grounds other than a contract - "non-contractual" or legal grounds, such as claims in tort or claims for tax refunds - are not covered by the Convention.
It does not apply to the assignment of claims arising from contracts and other transactions in the field of financial services, expressly referred to in Art. 4 of the Convention, which include transactions on the regulated stock market, transactions with foreign exchange, forward trades, spot and swap trades, futures trades, options trades, etc.
The receivable is transferred to the assignee irrespective of any agreement between the assignor and the debtor limiting the assignor's right to assign its receivable. At the same time, unlike the Ottawa Convention, it allows both disclosed assignment (that is, requiring the debtor to be notified in writing of the assignment) and undisclosed assignment.
Of particular interest is the regulation related to determining the order of receipt of receivables (including cases of bankruptcy of the debtor), when several assignees simultaneously have rights to it. The Annex to the Convention offers States Parties a choice of model provisions, containing three options for determining the priority of the assignee, with which the states can be associated on the basis of the application: providing for the order in which the assignment is registered, the order in which the assignment agreement is concluded, or notification of the debtor about the assignment.
Along with substantive legal regulation, the Convention provided for a general conflict of laws rule, according to which all conflicts relating to the issue of the priorities of competing assignees are subject to resolution in accordance with the law of the location of the assignor (Article 22).
In ch. V of the Convention contains autonomous conflict of laws rules to be applied unless a decision can be made in accordance with the principles underlying it.
These conflict-of-law anchors may apply irrespective of other provisions of the Convention – even where the assignor or debtor is not located in a State party to the Convention or where the law governing the original contract is not the law of a State party to the Convention. At the same time, it is necessary that such transactions be of an international nature and not be excluded from its scope.
Autonomous conflict rules provide that the mutual rights and obligations of the assignor and the assignee are regulated in accordance with the principle of autonomy of will "their chosen right" (clause 1, article 28). In the absence of an agreement between them, the applicable law is determined on the basis of the criterion of the closest connection with the contract (clause 2, article 28). The relationship between the assignee and the debtor shall be subject to the law of the country to which the original contract is subject. In accordance with this right, the admissibility of the assignment of a claim, the relationship between the assignee and the debtor, the conditions under which the claim can be brought against the debtor by the assignee, the question of the proper performance of the obligation by the debtor (Article 29) are determined.
The provision is also reproduced according to which the priority of competing assignees is determined in accordance with the law of the state in which the assignor is located (Article 30), etc.
Russian legislation on international factoring (financing against the assignment of the right to claim)
In the legislation of the Russian Federation, factoring (known as financing under the assignment of the right to claim) is singled out as an independent type of contract. The substantive regulation of this agreement is contained in Ch. 43 of the Civil Code of the Russian Federation, which adopted many provisions of the Ottawa Convention on International Factoring.
The Civil Code of the Russian Federation also has a special conflict of laws rule governing factoring (financing against the assignment of the right to claim). In accordance with it, the law applicable to the financing agreement against the assignment of the right to claim is determined on the basis of subpara. 9 p. 3 art. 1211 of the Civil Code of the Russian Federation, which, in the absence of an agreement between the parties, refers to the law of the country of the financial agent (factor).
The main form of commercial financing is international factoring. Appearance factoring agreements connected with the desire of participants in civil transactions to apply an effective system of financial settlements with the help of intermediaries that ensure fast and guaranteed receipt of payments from obligated persons. treaty factoring is aimed at regulating intermediary activities in the field of international commercial settlements.
This treaty(contract of factoring) was formed in the practice of the United States in the 50s of the XX century, and from the end of the 60s it began to be used in the practice of other countries. At the national level treaty facto-
The ring is regulated mainly by jurisprudence. There is practically no special 281 legislative regulation of this agreement.
treaty factoring- this is a contract for the provision of intermediary services in the conduct of settlement transactions between participants in commercial activities, which provides for certain obligations of the intermediary to provide other services of a commercial nature. This is an agreement between three parties: a supplier of goods or services, factoring the firm (factor), the firm of the purchaser of goods or services. The supplier is a creditor, i.e. the owner of the rights of claim under the concluded contract (purchase and sale, at a rate, etc.). The acquiring firm is a debtor, i.e. person liable for this transaction.
Main content factoring as an intermediary financial transaction is reduced to the satisfaction of the factor of the rights of the creditor's claim. This is done by collecting money from the debtor to the commercial account of the creditor. The supplier enters into a special agreement with the factor, according to which the rights of claim against the debtor are transferred from the supplier to the factor. The transfer takes place in the form of a legal assignment of rights (subrogation). The factor undertakes to immediately pay the supplier the sums of money according to the documents (commercial invoices) received from him. A guarantee for the transfer of monetary amounts is provided regardless of the results of their recovery from the debtor. From an economic point of view factoring- is the purchase by the factor of commercial invoices with their immediate payment.
treaty factoring has a framework character and serves as a basis for the fulfillment by the factor of specific instructions of the supplier. IN treaty both the general conditions of relations between the parties and the mechanism for their implementation are determined. As a rule, there are restrictions on the total amount of transactions, within which the factor is obliged to accept the supplier's order to recover funds from the debtor on commercial accounts. The duration is also limited contracts, those. the period of such operations (for example, six months, a year, etc.). Such restrictions are aimed at minimizing the commercial risks of the factor. For
282 THE SAME GOAL FACTOR tentatively, even before the conclusion contracts, conducts a study of the commercial and financial position of the supplier as a possible counterparty.
By factoring agreement the factor becomes a monopoly supplier's intermediary in carrying out settlement transactions. On the installed negotiable territory during the term of the contract, the factor has the exclusive right to carry out transactions with clients. The Supplier is not entitled to use the services of other factors on negotiable territories; he is obliged to send to the factor all commercial invoices for concluded transactions. treaty factoring contains a condition on the transfer by the supplier of the rights of claim to the factor (subrogation), a condition on the procedure for accepting individual orders of the supplier by the factor, a condition on opening a current account for the supplier to transfer funds to the factor.
A distinctive feature of the mechanism for conducting operations on factoring- the factor does not assume a firm obligation to accept all orders of the counterparty for execution. The factor may accept or reject the offer in respect of any particular invoice for any debtor. Acceptance by a factor of an order is not only consent to its execution and immediate payment upon execution of the assignment of rights, but also a guarantee of payment on the account.
Recovery from the debtor of funds from the account in many cases can be fraught with serious difficulties and even be impossible. In such cases, the factor has the right not to approve the instructions, but this excludes the possibility of carrying out a settlement transaction. With the consent of the supplier, the factor performs such an operation, but with the transfer of funds only after the debtor has paid the invoice and without providing a guarantee of payment. In such a situation, the settlement operation has the character of an ordinary agreements instructions.
Essence of international factoring is that the financial corporation releases the exporter from the financial burden of the export transaction, in particular from the collection of the purchase price due from foreign buyers. Thus, the exporter can fully concentrate on his direct activity.
activities for the sale and marketing of goods. This achieves the division of functions: export, including the dispatch of goods, paperwork and transfer of transport documentation are carried out by the exporter (seller), but lending within the established limits is the responsibility of the factor. Target factoring- achievement of an optimal international division of labor.
The financial corporation (factor) acts as an intermediary. Importance of international factoring as an intermediary financial transaction, it consists in satisfying the factor of the rights of the creditor's claims at the expense of the amounts collected from the debtor on the commercial account of the creditor. International factoring makes it easier to get cash in export transactions and provides protection against bad debts. Kinds factoring: disclosed (assignment to the factor of the exporter's right to demand payment of the purchase price) and undisclosed (discounting of invoices).
Disclosed factoring is based on the assignment to the factor as an assignee of the exporter's right to demand payment of the purchase price. The assignment of the right to claim is made in writing, signed by the assignor (exporter) and brought to the attention of the debtor (foreign buyer) by a special written notice. The assignment of the right to claim must be absolute, i.e. full (and not partial), so that the debtor does not have to deal with several creditors.
Undisclosed factoring(discounting of accounts, i.e. redemption of accounts at a discount) is the most common type of international factoring. Implementation in a form based on the right of equity of the cession (assignment of a claim in an obligation to another person). In this agreement arrangement O factoring the foreign buyer is not disclosed, and he pays the purchase price to the exporter. The exporter receives the price as the factor's trustee and must transfer the funds received to a special account specified by the factor. Violation of the terms of the agreement (transfer of funds to the account of the supplier, and not the factor) is an offense of misappropriation of movable things. The payment must be returned to the factor.
284 At the international level, this method of financing is regulated in the Ottawa Convention on the International factoring 1988 Convention applies if debt claims assigned under factoring agreement, emerged from agreements sale and purchase between a supplier (seller) and a debtor (buyer), whose commercial enterprises are located on the territory of different states. In addition, the states in whose territory the enterprises of the supplier, the debtor and the factor are located must be parties to the Convention. The provisions of the Convention apply even if treaty buying and selling and factoring agreement governed by the law of the Member States.
For the purposes of the Convention factoring agreement must satisfy certain conditions:
The supplier is able or willing to assign to the factor the rights of claim that arose out of contracts purchase and sale concluded by the supplier with his buyers (debtors). Excluded from the scope of the Convention treaties purchase and sale of goods purchased for personal, family or household needs.
The factor must perform at least two of the listed functions: supplier financing, including loans and advance payments; bookkeeping (ledgering) related to debt claims; receiving debts; protection against non-payment by the debtor.
The norms of the Convention are dispositive in nature - they are obligatory for application only if the parties have not agreed on other legal regulation. The convention applies to both disclosed and undisclosed factoring.
Russian legislation lacks provisions on factoring agreement, and Russia also does not participate in the Ottawa Convention on International Factoring. Relationships underlying factoring, from the point of view of the Civil Code of the Russian Federation, they represent a deal of assignment of rights. This transaction is governed by the provisions of Chapter 24.1 of the Civil Code. Transfer of the creditor's rights to another person. The norms of this chapter apply both to the assignment of rights, which has only an internal, Russian character, and to international civil legal relations, if the place of residence or main place of activity
financial agent is located on the territory of the Russian Federation. Article 1211 of the Civil Code 285 of the Russian Federation refers to treaty financing against the assignment of a monetary claim. The centerpiece of this agreements acts as a financial agent. Many domestic scientists note the urgent need to consolidate special legal regulation factoring agreements in Russian law.
Forfaiting is a type factoring. Factoring is mainly used to service transactions related to consumer goods, and forfaiting - related to machinery and equipment. The period of payment of obligations by the buyer under factoring is 3 - 6 months, and under forfaiting - 0.5 - 5 years. The factor does not take any risks on the transaction, and the forfait takes all the risks. The amount of the discount factoring- 10x12%, and forfaiting - 25 - 30%. The factor does not have the right to transfer monetary obligations to third parties, while the forfait has such a right.
Factoring agreement in MChP. International factoring is a type of factoring operation that provides financing for the supply of goods and services with a deferred payment in conditions where the seller and buyer are residents of different countries. International factoring is often used as a financial service for long-term or open-ended foreign economic contracts, which are characterized by regular deliveries and significant turnover. A factoring agreement is a contract for the provision of intermediary services in the conduct of settlement transactions between participants in commercial activities, which provides for certain obligations of the intermediary to provide other services of a commercial nature. This is an agreement of three parties: a supplier of goods or services, a factoring company (factor), a firm that purchases goods or services. The supplier is a creditor, i.e. the owner of the rights of claim under the concluded contract (purchase and sale, supply, etc.). The acquiring firm is a debtor, i.e. person liable for this transaction. The main content of factoring as an intermediary financial transaction is to satisfy the factor of the rights of the creditor's claim. This is done by collecting money from the debtor to the commercial account of the creditor. The supplier enters into a special agreement with the factor, according to which the rights of claim against the debtor are transferred from the supplier to the factor. The transfer takes place in the form of a legal assignment of rights (subrogation). The factoring agreement is of a framework nature and serves as the basis for the factor to fulfill the specific instructions of the supplier. The contract defines both the general conditions of relations between the parties and the mechanism for their implementation. As a rule, there are restrictions on the total amount of transactions, within which the factor is obliged to accept the supplier's order to recover funds from the debtor on commercial accounts. The duration of the contract is also limited, i.e. the period of such operations (for example, six months, a year, etc.). Such restrictions are aimed at minimizing the commercial risks of the factor. For the same purpose, the factor previously, even before the conclusion of the contract, conducts a study of the commercial and financial situation of the supplier as a possible counterparty. Under a factoring agreement, the factor becomes the supplier's monopoly intermediary in carrying out settlement transactions. In the established contractual territory, during the term of the contract, the factor has the exclusive right to carry out transactions with clients. The supplier is not entitled to use the services of other factors in the contractual territory; he is obliged to send to the factor all commercial invoices for concluded transactions. The factoring agreement contains a condition on the transfer by the supplier of the rights of claim to the factor (subrogation), a condition on the procedure for accepting individual orders of the supplier by the factor, a condition on opening a current account for the supplier to transfer funds to the factor. Types of factoring: disclosed (assignment to the factor of the exporter's right to demand payment of the purchase price) and undisclosed (discounting invoices). Disclosed factoring is based on the assignment to the factor as an assignee of the exporter's right to claim payment of the purchase price. The assignment of the right to claim is made in writing, signed by the assignor (exporter) and brought to the attention of the debtor (foreign buyer) by a special written notice. The assignment of the right to claim must be absolute, i.e. full (and not partial), so that the debtor does not have to deal with several creditors. Undisclosed factoring (discounting of invoices, i.e. redemption of invoices at a discount) is the most common type of international factoring. Implementation in a form based on the right of equity of the cession (assignment of a claim in an obligation to another person). In this agreement, the factoring arrangement is not disclosed to the foreign buyer, and he pays the purchase price to the exporter.
