Introduction
The assignment of credits is a key mechanism in legal and commercial transactions, allowing the transfer of credit rights from the original creditor (assignor) to a new creditor (assignee).
Spanish law explicitly allows this, without requiring the debtor’s consent for its validity — mere notification suffices. However, this does not mean that the debtor’s consent is irrelevant. In fact, commercial practice and case law have highlighted the need to clearly define the effects of the debtor’s consent, particularly in terms of their ability to plead defences against the new creditor.
The recent Supreme Court Judgment No. 1123/2025, dated July 15th (hereinafter, the “Judgment“), resolves such doubts: What happens when the debtor consents to the assignment? Do they lose the right to defend themselves against the new creditor? This article analyses the High Court’s decision and its practical implications for commercial transactions.
Credit assignment in the Spanish legal system
The Spanish Civil Code (“CC”) regulates credit assignment in Articles 1123, 1198, 1203.3º, and 1526 onwards, as well as the Commercial Code. It establishes the general principle of the free assignability of credit rights, unless otherwise agreed. Thus, the acquisition of a credit by a third-party assignee (new creditor) does not alter the original obligation, but merely replaces the creditor in the legal relationship. The debtor remains bound to the new creditor under the same terms (objective neutrality of the assignment for the debtor).
Notification of assignment to the debtor
For the assignment to be effective, the debtor’s consent is not required; an agreement between the assignor and the assignee is sufficient. Notification to the debtor is mainly a requirement for enforceability and to protect their good faith. As such, any payments made by the debtor to the original creditor, before learning of the assignment, are fully discharging (Arts. 1526 and 1527 CC). This principle, solidified by case law, aims to facilitate the transfer of credits, while safeguarding the debtor’s legal position in the event of changes regarding the ownership of the credit.
Effects of the debtor’s consent to the assignment
Notwithstanding the above, the debtor’s consent is not irrelevant and has effects. Specifically, Article 1198 CC states that, if the debtor has expressly consented to the assignment, they may not assert against the assignee the set-off (compensation) of credits they hold against the assignor, as this defence is intrinsically linked to the personal relationship between the original parties. In contrast, if the debtor has not consented to the assignment, even if notified, they may assert set-off for debts predating the assignment.
The Civil Code contains only this express provision regarding the effects of the debtor’s consent on the defences that can be pleaded by the debtor against the new creditor. Notwithstanding the above, the circumstances of each case, as well as the terms and conditions under which consent was given, remain relevant for the purposes of future defences against the new creditor. Thus, other effects can be inferred from a systematic interpretation and other general rules:
Among other things, the High Court recognises that the debtor’s consent may operate as a valid waiver of future defences. For example, the debtor’s express consent to the assignment of the credit can also contain a voluntary waiver of all or some of the defences that may be pleaded against the assignee in relation to the demand for performance of the obligation, a waiver that will be effective if it meets the requirements of Article 6.2 of the Civil Code and the case law that develops it; according to which the waiver must be voluntary and will only be valid when it does not contravene the interest or public order nor harm third parties.
Such consent may also operate as a limit on the possibility of subsequently pleading defences that were already known at the time of consent, without making any statement about them when there was an opportunity to do so.
Dispute: scope of mere consent to the assignment by the debtor
The issue debated in the recent Judgment is whether mere consent by the debtor to the assignment entails not just the loss of the right to assert set-off (as per Art. 1198 CC), but also the loss of other objective or personal defences, such as breach of contract, lack of performance or defects in the origin of the credit, among others.
According to the plain language of Article 1198 CC, the only specific effect ascribed to consent is the exclusion of compensation. Extending this effect to other defences would violate the principle that the debtor’s position should not be worse off as a result of the assignment — as the appellant (the debtor) rightly argues in this specific Judgment.
Supreme Court Judgment No. 1123/2025, of July 15th
The dispute resolved by the Judgment originated from the assignment of a credit arising from a supply contract. The debtor, after being notified and giving consent to the assignment, refused to pay the invoice corresponding to the assigned credit, arguing that the goods had not been delivered. Both the court of first instance and the Provincial Court interpreted the debtor’s consent as entailing the loss of its right to pleading objective and personal defences beyond compensation.
The Supreme Court, however, has overturned both judgments and ruled in favour of the appellant (the debtor), recalling that the assignment of claims does not alter the content of the obligation, but only the creditor’s title.
Principle of inalterability of the contractual relationship
The legal relationship remains unchanged in all its essential elements, so that the debtor’s consent cannot be interpreted as an unlimited waiver of all the defences available to him against the creditor, except for compensation, as expressly provided for in Article 1198 CC. Consequently, the debtor retains the possibility of pleading against the assignee those defences that originate from the underlying relationship, such as lack of due consideration, breach of the contract from which the credit arises, or the very non-existence of the obligation claimed.
In the words of the Supreme Court itself, the assignee does not acquire a credit with a ‘better right’ than the original creditor, but exactly the same credit, with its advantages and limitations. Consequently, the new creditor must act with due diligence and inform itself in advance of the characteristics and risks stemming from the contractual relationship which gives rise to the credit, assuming that its legal position is not improved by the mere fact of the assignment.
Jurisprudential doctrine established by the High Court
The Judgment thus establishes a clear doctrine of particular relevance to commercial practice:
- The debtor’s consent to the assignment, in the absence of an express waiver, does not imply a general waiver of the right to plead defences other than set-off.
- The loss of the right to plead objective or personal defences against the new creditor requires an express and specific waiver by the debtor; mere consent given after notification of the assignment is not sufficient.
- In the specific case of the Judgment, the debtor’s confirmation of the correctness of the assignment and of the invoice corresponding to the credit, does not constitute a sufficient act to tacitly deprive him of the possibility of invoking non-performance of the contract as a reason for refusing the payment claimed by the new creditor.
Practical implications and recommendations
With this ruling, the Supreme Court establishes a clear doctrine: the debtor’s consent to the assignment of credits produces only the effects provided for by the law, such as the waiver of compensation under Article 1198 CC, unless there is an express and valid waiver in accordance with Article 6.2 CC and the case law that develops it.
Consequently, only a clear, unequivocal statement that is not contrary to public policy nor harmful to third parties can restrict the debtor’s right to plead defences against the new creditor.
The doctrine established by the High Court reinforces legal certainty in commercial transactions by avoiding broad or tacit interpretations that unjustifiably limit the debtor’s rights of defence against the new creditor.
In practice, this means that economic operators must exercise extreme caution when documenting credit assignments, ensuring that any waiver of the right to plead defences other than the original set-off is expressly recorded, unless otherwise agreed. For assignees of credits (new creditors), it is advisable to exercise due diligence in verifying the status and any incidents relating to the credit being assigned, given that the unalterable nature of the relationship requires them to assume the risks arising from the original obligation, unless a valid agreement states otherwise.
Conclusion
Supreme Court Judgment 1123/2025, dated July 15th, definitively clarifies that the debtor’s consent to the transfer of a credit does not, by itself, imply the waiver of their rights of defence against the new creditor, except with regard to compensation under the terms provided for by the law.
This doctrine provides greater legal certainty in credit transfer transactions, establishing clear criteria for the actions of the parties. Thus, a balance is struck between the legal objective of promoting the circulation of credits in commercial transactions, and the need to protect the debtor’s legitimate rights vis-à-vis the new creditor.
Julio González
Vilá Abogados
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22nd of August 2025
