Credit transfer: what risks for the debtor?

 

Credit transfer: what it is and how it works

Credit transfer: what it is and how it works

The Italian law has governed the assignment of the credit to guarantee the creditor the right to take possession of the service even before the expiry indicated in the contract, but without causing a prejudice to the debtor, which is not logically required to fulfill the obligation in via earlier than agreed. There are also particular situations, such as the transfer of VAT credit, or forms of contract widely used for carrying out the company’s own business, which sees factoring as the most used form.

Contract characteristics and obligations

Contract characteristics and obligations

The law makes explicit reference to the contract with which the credit is given, not proposing a “model” or facsimile type, but only requiring that all the conditions that make clear and certain the successful sale are specified, namely:

  • the type of service and whether the transfer is total or partial;
  • the new creditor to whom to fulfill the obligation;
  • the date from which it is operational.

With regard to the obligation to notify the debtor, this is the responsibility of the new creditor. If in fact the debtor, not correctly informed, fulfills his duties towards the old creditor, he is released, unless the new creditor is able to prove that he had anyway become aware of it and therefore acted in bad faith.

If then the old creditor assigns the credit to more than one person, the debtor is obliged to perform the service against the one who first communicated with a certain date, while the chronological order reported by the dates on the various contracts is not authoritative.. As mentioned on the obligations, exceptions or oppositions, there are no variations for the debtor, who is bound to the same type of service, and at the same times indicated in the contract of origin, as well as the possibility of being able to raise the questions of nullity, annulment, etc.

The sale can take place as a “sale” therefore for consideration, or free of charge by donation, and can be of a non-recourse or non-recourse nature.

The limits and conditions of the transfer in the case of VAT

The limits and conditions of the transfer in the case of VAT

The issue of the transfer of the VAT credit went to difficult situations, above all due to its nature of indirect tax, which saw the opposition of the Revenue Agency (see also Tax collection folders ). However, there was a ruling by the court of Venice, which instead established that when it comes to a VAT refund resulting from a declaration, becoming a certain and therefore payable credit, it should not be limited in the possibility of using the contract for the sale of the credit, like other situations.