Sale of debts. Amendments to the anti-embolism law

As a rule, the creditor may sell the debt without the debtor’s consent. It is based on the assumption that there is no time and money to recover it. He prefers to sell debt for less value, but have some money in your account. Then someone else, e.g. a debt collection company, deals with the recovery of the debt. This is called agreement for the assignment (transfer) of receivables, commonly known as the sale of debt.

However, the free transfer of claims can be limited. A reservation must be introduced into the contract that the debtor must consent to the transfer of the claim. This is allowed by art. 509 of the Civil Code. And large companies often used such a provision in contracts with small companies. Due to the amendment of the so-called the congestion act will cease to be effective. The Regulatory Impact Assessment shows that the new regulation concerns 3.8 thousand large entrepreneurs and over 2.2 million SMEs.


It’s easier for small businesses to sell their debts

Already adopted by the Sejm the amendment to the act on counteracting excessive delays in commercial transactions adds a new art. 9a. According to mim, in commercial transactions in which the debtor is a large entrepreneur and the creditor is a microenterprise, small or medium, a contractual reservation excluding or limiting the creditor’s right to transfer the receivable becomes ineffective if the payment has not been made within the period specified in the contract. If this deadline is not specified in the contract, the record will cease to be effective from the date the payment is due.

What does this mean in practice? If a large contractor has not paid, e.g. for the delivery of goods, 30 days from the date of invoice, the SME company may sell its debt. There is only one exception. The new provision will not apply to transactions where the debtor is a public entity. This means, for example, that invoices unpaid by an indebted hospital will not be collected. The new provision is to come into force two months after the act is published. Now the bill will be dealt with by the Senate, so it should be included in the Journal of Laws this year.

Change needed for difficult times

Grzegorz Piechowiak, deputy minister of development, believes that the amendment should have a motivating effect on the timely payment of liabilities by large entrepreneurs towards entrepreneurs from the SME sector. In his opinion, changes in the ineffectiveness of contractual provisions prohibiting or limiting the transfer of receivables, will have a positive effect on the financial liquidity of SMEs.

Adam Abramowicza spokesman for small and medium-sized enterprises, believes that the new recipe is very good. – A large company, using its market advantage, entered a clause in the contract limiting the possibility of assignment of receivables. This made debt enforcement difficult. The change is going in the right direction and will make payments to SMEs more timely – says Abramowicz.

Some of our interlocutors point out that a crisis is coming, and in difficult times every zloty counts. – Our relationship has been receiving numerous signals for a long time, in particular from factoring companiesabout the fact that in relation to entrepreneurs, mainly from the SME sector the institution of contractual prohibition on the transfer of monetary claims is abusedoften even leading to the loss of their financial liquidity, and then – to payment gridlocks and bankruptcies – says Marcin Czugan, president of the Union of Financial Entrepreneurs. In the opinion of ZPF, the ability to freely redeem debts is a condition for maintaining the good financial situation of enterprises. The Polish Factors Association also supports the new regulation.

See also: A revolutionary change for debtors. If they object, the collection will be stopped

Some employers’ organizations and the Supreme Court criticize the provision

Dr hab. Małgorzata Manowska, the first president of the Supreme Court, noted in her comments to the bill that the provision in fact prohibits the contractual reservation of the inalienability of a claim – except only for transactions in which the debtor is a public entity.

– This type of solution raises serious doubts, mainly due to the fact that it is inconsistent with the general provision of Art. 509 par. 1 Kc. In this situation, this provision would basically become a dead letter – warns President Manowska.

She is not convinced by the argument that the need to establish such a provision results from the risk of payment gridlocks and the abuse of the debtor’s position in asymmetric relationships. In her opinion, there are more effective ways of achieving such an effect, e.g. the possibility of granting the creditor a claim to lift the prohibition of marketability in the event that it was reserved against morality – and thus, above all, it was imposed on him in a standard contract prepared by the debtor – and threatened his legitimate business. You don’t like the new recipe also, among others: The Polish Chamber of Information Technology and Telecommunications, the Polska Miedź Association of Employers, the Chamber of Fund and Asset Managers, and the Polish Chamber of Insurance.

The Polish Trade and Distribution Organization, which associates the largest retail chains, also criticizes the provision. – There is no reason to treat any debtor in advance as potentially dishonest, who should be deprived of the right to contract the restriction of the assignment in advance. – explains Renata Juszkiewicz, president of POHiD. And he adds that the exclusion of the contractual reservation of assignment will lead to a situation where, in the course of a possible dispute to which a third party will be a party – the buyer of the debt (very often it will be a debt collection company), the entrepreneur will be forced to disclose information constituting the secret of his business in order to defend himself and his contractor. According to POHiD, if the regulation is to be introduced, it should be limited to micro-entrepreneurs and indicate an additional date by which the debt has not been paid.

According to ZPF, the supplier’s disposal of receivables, like any other asset of the enterprise, should not be limited either by a contractual reservation or by the necessity to wait for a certain period of time.

What else is changed by the act

Pursuant to the Act on counteracting excessive delays in commercial transactions, in force from January 1, 2020, the President of UOKiK may inspect and possibly punish a company that has arrears in payments of PLN 5 million in the next three selected months.. Despite many proceedings, UOKiK did not impose many penalties because the act is imprecise. The act also obligated large companies with an annual turnover of more than EUR 50 million will be required to submit a report on their receivables and liabilities to the Minister of Entrepreneurship by 31 January, which they had problems with. Therefore, the amendment:

  • extends by three months the deadline for submitting the report from January 31 to April 30;
  • excludes from reports cash benefits in the scope of insurance and reinsurance activities, expired benefits and benefits between companies within one capital group;
  • relieves the company from the reporting obligation included in tax capital groups and extending the deadline for submitting the report;
  • indicates the exchange rateafter which currency cash benefits should be converted for reporting purposes.