Structured Finance and Securitisation 2010

Szerző: Gárdos István

letöltés

Practical Law Company Cross-Border Handbooks 2010, page 105-111

15. Are there any prohibitions on transferring the receivables or other issues restricting the transfer? For example, is a negative pledge enforceable, or are there any legislative provisions that affect the transfer of receivables (such as consumer or data protection rules)?

Contractual restrictions

The creditor and debtor can agree that the creditor cannot assign the receivable arising from their agreement. Such agreement is considered by the courts as effective against third parties, so any assignment in breach of such an agreement would be null and void. To avoid such risks, it is recommended that the assignee examines the assignability of the receivables.

The Civil Code and the Bill would make contractual non-assignment clauses valid but ineffective in relation to third parties (that is, the assignee acquires the receivables, but the transfer would be a breach of contract between the assignor and the debtor).

Legislative restrictions

The Civil Code prohibits the assignment of personal receivables, and there are certain laws which prohibit the transfer of specific receivables, for example the assignment of wages is null and void.

Act LXIII of 1992 on the Protection of Personal Data and the Civil Code provides that personal data relating to private individuals can usually only be processed if the affected person gives his consent. This requirement, if strictly applied, may create an effective restriction on the transfer of receivables, at least where the debtors are private individuals.

Act CXII of 1996 on Credit Institutions provides for special protection of confidential bank information. This act, however, provides an explicit exemption under the bank confidentiality prohibitions for cases when the credit institution transfers its debt receivables to third parties.

In relation to transfers in securitisation transactions, the Bill would also allow the transfer of personal data relating to the assigned or otherwise securitised receivables.

Avoiding the transfer being re-characterised

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