{"id":14506,"date":"2025-08-22T16:16:42","date_gmt":"2025-08-22T16:16:42","guid":{"rendered":"https:\/\/vila.es\/?p=14506"},"modified":"2025-09-17T07:07:13","modified_gmt":"2025-09-17T07:07:13","slug":"the-supreme-court-clarifies-the-effects-of-the-debtors-consent-in-the-assignment-of-commercial-credits","status":"publish","type":"post","link":"https:\/\/vila.es\/en\/contracts\/the-supreme-court-clarifies-the-effects-of-the-debtors-consent-in-the-assignment-of-commercial-credits\/","title":{"rendered":"THE SUPREME COURT CLARIFIES THE EFFECTS OF THE DEBTOR\u2019S CONSENT IN THE ASSIGNMENT OF COMMERCIAL CREDITS."},"content":{"rendered":"

ES<\/a><\/span>|EN|\u65e5\u672c\u8a9e<\/a><\/span><\/strong><\/p>\n

Introduction<\/strong><\/p>\n

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).<\/p>\n

Spanish law explicitly allows this, without requiring the debtor\u2019s consent for its validity \u2014 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\u2019s consent, particularly in terms of their ability to plead defences against the new creditor.<\/p>\n

The recent Supreme Court Judgment No. 1123\/2025, dated July 15th<\/sup> (hereinafter, the “Judgment<\/strong>“), 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\u2019s decision and its practical implications for commercial transactions.<\/p>\n

Credit assignment in the Spanish legal system<\/strong><\/p>\n

The Spanish Civil Code (\u201cCC<\/strong>\u201d) regulates credit assignment in Articles 1123, 1198, 1203.3\u00ba, 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).<\/p>\n

Notification of assignment to the debtor<\/u><\/p>\n

For the assignment to be effective, the debtor\u2019s 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\u2019s legal position in the event of changes regarding the ownership of the credit.<\/p>\n

Effects of the debtor\u2019s consent to the assignment<\/u><\/p>\n

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.<\/p>\n

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:<\/p>\n

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<\/u> 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<\/u>.<\/p>\n

Such consent may also operate as a limit on the possibility of subsequently pleading defences that were already known at the time of consent<\/u>, without making any statement about them when there was an opportunity to do so.<\/p>\n

Dispute: scope of mere consent to the assignment by the debtor<\/strong><\/p>\n

The issue debated in the recent Judgment is whether mere consent by the debtor<\/u> 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.<\/p>\n

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\u2019s position should not be worse off as a result of the assignment \u2014 as the appellant (the debtor) rightly argues in this specific Judgment.<\/p>\n

Supreme Court Judgment No. 1123\/2025, of July 15th<\/sup> <\/strong><\/p>\n

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\u2019s consent as entailing the loss of its right to pleading objective and personal defences beyond compensation.<\/p>\n

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\u2019s title.<\/p>\n

Principle of inalterability of the contractual relationship<\/u><\/p>\n

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.<\/p>\n

In the words of the Supreme Court itself, the assignee does not acquire a credit with a \u2018better right\u2019 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.<\/p>\n

Jurisprudential doctrine established by the High Court<\/u><\/p>\n

The Judgment thus establishes a clear doctrine of particular relevance to commercial practice:<\/p>\n