Ar finansavimo sutartys, pagrįstos piniginio reikalavimo perleidimu su „regreso“ teise, atitinka faktoringo sutarties sampratą?
Petrutytė, Erika |
Darbe nagrinėjama viena seniausių kreditavo rūšių – faktoringas. Faktoringas yra kompleksinis teisinis institutas, kuris apima skirtingus reikalavimo perleidimo, pirkimo-pardavimo, paskolos (kredito), atlygintinų paslaugų teikimo, laidavimo santykių elementus. Todėl tinkamas faktoringo sandorių kvalifikavimas itin svarbus ir sudėtingas procesas, nes sudarant sandorius šalims ne visada suprantamos faktoringo instituto ribos bei šio instituto santykis su panašiais teisės institutais. Tokios teisinės klaidos gali sukelti itin rimtų teisinių pasekmių, todėl faktoringo institutą, jo teisinę prigimtį bei santykį su kitais teisės institutais būtina detaliai išanalizuoti. Darbe analizuojama faktoringo samprata, remiantis moksliniais darbais, tarptautiniu bei nacionaliniu faktoringo instituto reglamentavimu. Pateikiami esminiai faktoringo sutarties elementai. Taip pat analizuojama teisinė faktoringo prigimtis, aiškinantis faktoringo santykį su reikalavimo perleidimu (cesija) bei subrogacija, tiriamas faktoringo sutarties santykis su kitais sutarčių teisės institutais: pirkimo-pardavimo, paskolos, laidavimo sutarčių. Analizuojant teismų praktiką, darbe atskleidžiami atvejai bei pasekmės, kai šalys netinkamai bando pritaikyti faktoringo institutą reglamentuojančias nuostatas apibrėžti kitoms sutartims, ir atvirkščiai. O nustatinėjant faktoringo šalių riziką ir atsakomybę, analizuojama „regreso“ sąlyga faktoringo sutartyse tarp finansuotojo ir kliento.
Factoring is one of the oldest types of lending. In Lithuania legal regulation of factoring relations was started only on 1 July 2001, upon enforcement of the Civil Code of the Republic of Lithuania (hereinafter – the CC). Regulation of factoring in the CC is formulated and laid down in Part IV next to the types of separate contracts. According to the data of the Association of Lithuanian Banks, in the recent years the number of factoring contracts is growing. Factoring attracts its client with the opportunity to get fast financing without mortgaging property or taking loans, which sometimes an enterprise may fail to receive due to improper creditworthiness. Factoring contracts are also favourable to clients due to the fact that there is a possibility to “share” or even transfer in full the risk of debtor’s failure to pay invoices to a financial backer, i.e. to conclude factoring contract without recourse. However, during the economic crisis in Lithuania, factors little tend to conclude factoring contracts, assuming the risk of failure to pay by a debtor to themselves, i.e. factoring contracts without recourse. Major part of factoring contracts is concluded with recourse. Therefore the objective question has arisen if factoring is not losing its sense, if a factor does not assume any risk to himself and transfers all the risk to a client, and in case of recourse the client must repurchase the claim, returning the received financing and paying the factoring administration fees. It is necessary to analyse the institute of factoring in detail in the paper, since factoring is not just a simple financing contract. Factoring is a complex legal institute, covering different elements of assignment of requirement, purchase-sale, loan (credit), provision of repayable services, warranty relations. Thus a proper qualification of factoring transactions is especially important and complicated procedure. The new Lithuanian court practice has shown that upon conclusion of transactions the parties do not always understand the limits of factoring institute and relation of this institute with similar institutes of law. Such legal mistakes may cause especially serious legal consequences, therefore it is necessary to analyse in detail the factoring institute, its legal nature and relation with other institutes of law. Thus, when analysing this issue, this paper is based on scientific works, literature of foreign countries, international and foreign countries’ legal acts, regulating the analysed institutes of law, as well as analyses factoring contracts. The goal of this paper is to analyse if financing contracts based on assignment of monetary claim with recourse conform to the conception of factoring contract. When implementing the raised tasks for achieving the goal, the first part of the paper analyses the conception of factoring according to scientific works, international and national regulation of factoring institute. It is aimed in this part to present the essential elements and features of factoring contract. The second part analyses the legal nature of factoring, explaining the relation of factoring with assignment of claim (cession) and subrogation; determines the limits of application and the main issues of factoring and these institutes. The third part of the paper is intended for analysis of relation of factoring contract with other institutes of contract law: purchase-sale, loan, warranty contracts. This part, analysing the court practice, aims at revealing cases and consequences when the parties attempt to improperly apply the provisions regulating the factoring institute in order to define other contracts and vice versa. Upon determining the risk and liability of the parties to factoring, the fourth part analyses the recourse condition in factoring contracts between a financial backer and a client. The hypothesis raised in Master’s final thesis that financing contracts based on assignment of monetary claim with recourse do not conform to the conception of factoring contract, is partially confirmed. According to the research carried out in the paper the conclusion can be drawn that the essence of factoring contract is assignment of monetary claim for funding (money). Factoring transaction is a financing transaction, the aim of which is to transfer assets to a client and the latter assigns to a financial backer the available monetary claim rights for the granted assets. After analysis of the factoring institute, the following main features of factoring are distinguished: • A factor under factoring contract can be only a bank or other profit-seeking legal entity, entitled to carry out factoring activity; • Factoring contract will always be repayable; • Monetary claim must be exclusively arising out of sales of goods, performance of works or provision of services; • The aim of factoring contract is financing, and not assignment of claim. In this case financing is expressed in granting of money to a client in exchange of property assigned by him (i.e. assignment of monetary claim). It has also been arrived at the conclusion that in order to distinguish factoring transaction and similar institutes of law, it is necessary to consider the aim, which the parties are achieving. When applying the provisions of the factoring institute, if the aim does not comply with the aim raised for factoring transactions – financing – legal relations cannot be qualified as factoring. After analysis of conformity of factoring contracts with recourse to the conception of factoring contract we have arrived at the conclusions that financing contracts, based on assignment of monetary claim with full recourse, do not conform to the conception of factoring contract. “With full recourse” means, that a financial backer transfers full burden of failure to pay invoices by a debtor to a client, and a client must return to a financial backer the full received advance payment, i.e. to repurchase the monetary claim and to pay the fees of factoring contract. In such case the goal of factoring – financing – is not achieved and these relations are more similar to loan legal relations. Whereas financing contracts, based on assignment of monetary claim when there is no full recourse, conform to the conception of factoring contract. This means that even if the contract sets out recourse, a client together with a debtor are solidary liable to a financial backer for failure to pay invoices. As a result, even with recourse but upon solidary liability of a client and a debtor for failure to pay invoices, the goal of factoring will be achieved, i.e. a client will be granted financing, even though only partial, because upon solidary liability the total claim is not returned to a client, due to which a client is not obliged to return the total advance payment.