An assignment is a contract by which a creditor transfers his or her alienable claim to another person. In the Law of Contract and Torts, assignment means the transfer of a claim from a previous creditor (assignee) to a new creditor (assignor) through a contract concluded by the latter, whereby the debtor (cessus) and the claim remain the same.
The assignment can also serve to strengthen (secure) an existing obligation. An assignment in lieu of security (German; Sicherungsabtretung, Sicherungszession) exists if the assignment is done to secure a claim of the assignee against the assignor, e.g., person A has a claim against person B and wants to secure this claim so that person B cedes to him/her his/her claims against person C.
The assignor is here the assignee’s debtor who wants to fulfill the obligation, but someone transfers their claim against a third party to the assignee for the purpose of security transfer (fiducia cum creditore contracta). The assignee has the duty to arrange for the collection of the assigned claim with the care of a prudent businessman, and after collection has taken place and he/she has retained from the assignor what he/she needs to settle his/her own claim, he/she is obliged to hand over the surplus amount to him/her (Article 89 of the Law of Contract and Torts).
Article 445 of the Law of Contract and Torts provides that in the case of an assignment to secure the claim of the assignee against the assignor, the assignee is obliged to ensure the collection of the assigned claim with the diligence of a prudent businessman and, after payment has been made and after he/she has withheld as much as he/she needs to settle his/her own claim against the assignor, to return the surplus amount to him/her.
In the legal matter in which this law firm represented the plaintiff in the proceedings regarding the “Assignment in lieu of security” (German; Sicherungsabtretung, Sicherungszession), the judgment of the District Court in Sarajevo, file number 65 0 Ps 884289 21 Ps of 27 April, 2022, accepted the lawsuit, with which the defendant was obliged to pay the plaintiff the due monetary claim of BAM 4,227,017.29 (EUR 2,161,239.62) plus interest on arrears calculated in accordance with the Law on Default Interest Rates and to reimburse them for the costs of the legal dispute in the amount of BAM 24,169.30 (EUR 12,357.56 EUR) within 30 days of receipt of the judgment.
If you as a company, shareholder, managing director or founder need advice on the subject of “Assignment in lieu of security” (German; Sicherungsabtretung, Sicherungszession) or a corporate law attorney for your company or your business idea, then you have come to the right place. You can contact our corporate law attorneys directly by telephone (+387 62 342 463), WhatsApp, Viber and e-mail (rasid@haracic.ba).
