The institute of assignment of claim (cession) in Ukrainian civil law: problems of legal definition and directions for improvement

It has been established that the institute of assignment of claim (cession) is one of the key mechanisms in the law of obligations of Ukraine, yet its regulation in the Civil Code has significant gaps. The absence of a clear legislative definition of cession leads to doctrinal controversies regarding its legal nature – whether it is an independent legal transaction or a result of other agreements, which complicates qualification and leads to disputes. Historically, cession developed from Roman private law, overcoming the limitations of early forms of transfer of obligations and becoming an effective mechanism for the transfer of rights. It has been researched that modern judicial practice resolves these discrepancies by considering cession as a legal result of other contracts, thereby increasing legal certainty. A clear distinction of cession from related legal institutions, particularly factoring, based on criteria of subject matter, purpose, onerousness, and composition of parties, is important. The necessity of legislative consolidation of these distinctions is recognized in the Draft Concept for Updating the Civil Code of Ukraine, which is an important step towards eliminating legal uncertainty. The Draft Concept also proposes the modernization of the institution of cession, including the possibility of assigning future rights provided they are identifiable, harmonizing Ukrainian legislation with European standards, particularly with the provisions of the Draft Common Frame of Reference (DCFR). A review of restrictions on the assignment of claims in Article 515 of the Civil Code is envisaged, allowing the assignment of property rights with the debtor’s consent and limiting the transfer of rights inextricably linked to the creditor’s personality. It has been proven that for further strengthening the protection of participants’ interests and increasing trust in the claims market, the implementation of additional provisions of European contract law, particularly the DCFR, is expedient. This includes the introduction of detailed warranties from the cedent to the cessionary (regarding the existence of the right, stability of terms, and protection against double assignment), as well as clear rules regarding successive assignments, where priority is determined by notification to the debtor. The consolidation of the principle of impossibility of separate assignment of an accessory right is also important. It is emphasized that despite progress in judicial practice and proposed amendments to the Civil Code, the legal regulation of cession requires further systemic modernization. Comprehensive implementation of European standards is necessary for the full protection of participants’ rights, increasing trust in the claims market, and the effective functioning of the institution in Ukraine.