Assignment and Factoring
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Abstract
The article analyses the relationship between assignment and factoring. These two different legal institutes are clearly connected, however, this connection as well as differing aspects are not self–evident.
The article begins with analysis of the issue of assignment, which is a part of the factoring relations, as a particular object of civil rights, civil turnover. Different approaches to the right of claim (demand) as an object of civil rights are analysed. The analysis continues with discussion of the relationship between notions of the assignment (cession) and factoring law. The author takes the view that the foundation of the factoring agreement is the assignment, from which the factoring actually derives. When dealing with the questions whether the factoring is a separate type of the assignment, the author is of the opinion that factoring may not be considered a type of the assignment as the assignment is only one of the elements, albeit essential, of the factoring agreement.
Following the conclusion that the assignment is only one of the elements of the factoring agreement, the author seeks to reveal the legal nature of the factoring institute which has been newly introduced in the Civil Code of the Republic of Lithuania. The article goes on with addressing the fundamental issues of the assignment institute – the problems of the assignment as a separate transaction and its abstractness. The theoretical substantiation of these issues is important for the correct understanding of the factoring legal relations and their nature as the legal norms regulating the assignment are subsidiary applicable to the factoring. The author points out that the analysed literature provides for quite varying solutions to these issues and also discusses the practice of the Lithuanian courts.
The article concludes that in the factoring relations the assignment takes quite a new qualitative composition and is of special commercial character, therefore the differences of the assignment as such and the assignment in the factoring transactions are to be analysed in order to reveal the relationship of these two legal institutes. The article provides analysis of the factors causing such differences and their reasons.
The article begins with analysis of the issue of assignment, which is a part of the factoring relations, as a particular object of civil rights, civil turnover. Different approaches to the right of claim (demand) as an object of civil rights are analysed. The analysis continues with discussion of the relationship between notions of the assignment (cession) and factoring law. The author takes the view that the foundation of the factoring agreement is the assignment, from which the factoring actually derives. When dealing with the questions whether the factoring is a separate type of the assignment, the author is of the opinion that factoring may not be considered a type of the assignment as the assignment is only one of the elements, albeit essential, of the factoring agreement.
Following the conclusion that the assignment is only one of the elements of the factoring agreement, the author seeks to reveal the legal nature of the factoring institute which has been newly introduced in the Civil Code of the Republic of Lithuania. The article goes on with addressing the fundamental issues of the assignment institute – the problems of the assignment as a separate transaction and its abstractness. The theoretical substantiation of these issues is important for the correct understanding of the factoring legal relations and their nature as the legal norms regulating the assignment are subsidiary applicable to the factoring. The author points out that the analysed literature provides for quite varying solutions to these issues and also discusses the practice of the Lithuanian courts.
The article concludes that in the factoring relations the assignment takes quite a new qualitative composition and is of special commercial character, therefore the differences of the assignment as such and the assignment in the factoring transactions are to be analysed in order to reveal the relationship of these two legal institutes. The article provides analysis of the factors causing such differences and their reasons.
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Section
Articles
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Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
