New Civil Code
Art. 1573 – For of assignment
(1) The account receivable is transferred subject to the plain agreement between the assignor and the assigned, with no notice being given to the debtor.
(2) The consent of the debtor is only required when, according to the circumstances, the account receivable is essentially linked with the creditor.
Art. 1574 – Delivery of the document ascertaining the receivable
(1) The assignor is required to submit to the assignee the document ascertaining the receivable in their possession, as well as any other documents supporting the right transferred.
(2) In case of a partial assignment of the receivable, the assignee is entitled to receive a notarized copy of the document ascertaining the receivable, as well as to have the receivable written down on the original document, under the signature of the parties. When the assigned acquires also the remaining part of the receivable, the provisions of para. (1) become applicable accordingly.
Art. 1578 – Service and acceptance of the assignment
(1) The debtor is held to pay to the assignee as of the time when it:
- a) accepts the assignment under a document bearing a certain date;
- b) receives a written notice of assignment, on paper or in electronic format, which discloses the identity of the assignee, reasonably identifies the assigned receivables, and demands the debtor to make payment to the assignee. For a partial assignment, the scope of the assignment shall be also indicated.
(2) Before accepting or receiving such service, the debtor may only discharge themselves by paying to the assignor.
(3) When the service of assignment is made by the assignee, the debtor may ask the latter to submit a written evidence of such assignment.
(4) Pending the receipt of such a piece of evidence, the debtor may suspend payment.
(5) The service of assignment is not effective if the written evidence of assignment is not served to the debtor.
Art. 1579 – Enforceability of the assignment of a universe of receivables
Assignment of a universe of accounts receivable, either current or future, is not enforceable against third party unless the assignment is registered with the archive. Nevertheless, the assignment is only enforceable against debtor as of the time of its service.
Art. 1581 – Enforceability of the assignment against the guarantor
The assignment is only enforceable against the guarantor when the formalities provided for the enforceability of the assignment against the debtor have not been completed also as regards the guarantors themselves.
Art. 1582 – Effects of assignment between the assignee and the assigned debtor
(3) When assignment has become enforceable against them by acceptance, the assigned debtor may no longer enforce against the assignee the setoff they could claim in the relations with the assignor.
Art. 1583 – Successive assignments
(1) When the assignor transfers the same receivable to more successive assignees, the debtor discharges themselves by making payments under the assignment served to him first, or which they accepted first under a document bearing a certain date.
(2) As between the successive assignees of the same receivable, preference shall be given to that which had its assignment registered with the archive first, irrespective of the assignment date, or the date when this was served to the debtor.
Art. 1493 – Receivable assignment in lieu of execution
(1) When, instead of the initial performance, an account receivable is transferred, the liability is deemed paid off at the time when the transferred account receivable is realized. The provisions of art. 1568 – 1584 apply accordingly.
(2) When, according to the understanding between the parties, the liability in lieu of which the debtor assigns their own receivable is paid off as early as the assignment date, the provisions of art. 1586 apply accordingly, unless the creditor prefers to demand the initial performance.
Art. 1623 – Assignment of, or mortgage on an account receivable
(1) The debtor that simply accepts the assignment or mortgaging of an account receivable consented to by their creditor to a third party may no longer enforce against the said third party the setoff they could claim against the initial creditor before acceptance.
(2) An assignment or mortgage not accepted by the debtor, but which has become enforceable against them, only prevents the offsetting of the debts of the initial creditor that are dated later than the time when such assignment or mortgage became enforceable against them.
Law no. 125/2011 approving the Government Emergency Ordinance no. 121/2010 amending and supplementing the Government Emergency Ordinance no. 146/2002 on formation and utilization of the resources ran through the State Treasury, and amending art. 52 of Law no. 500/2002 on the public finance
One new paragraph (15) is introduced after paragraph (14) of article 5, which reads as follows:
(15) The amounts representing the consideration of the goods acquired, the services rendered or the works executed, which are paid by economic operators with majority or full State-owned capital, from the subsidies or transfers collected into the accounts provided at para. (10), are transferred into the account of the beneficiary economic operators opened with the State Treasury, unless the law provides otherwise. The amounts thus collected by the beneficiary economic operators are applied in the order provided at art. 6 para. (2).
Article 52 of item 1 of Article I is amended and shall read as follows:
One new article 61 is introduced after article 6, which reads as follows:
(1) The economic operators may assign their receivable rights against public institutions for the goods acquired, the services rendered or the works executed provided at art. 6 para. (1) to other economic operators or other credit institutions, hereinafter referred to as assignees. Such assignment is only possible with the prior written agreement of the public institution that owes to the economic operator the amounts representing the consideration of the goods acquired, the services rendered or the works executed.
(2) The amount assigned shall be paid by the public institutions into the account indicated by the assignee, opened with the State Treasury, only when the economic operator has no payment liability to the State budget, the State social security budget and the budget of the special funds.
(3) The public institutions that make payments of amounts representing the consideration of the goods acquired, the services rendered or the works executed, owed to the economic operators that assigned their receivables, will apply to the competent bodies to be issued tax certificates for the respective economic operators, pursuant to art. 112 of the Government Ordinance no. 92/2003 on the Code of Tax Procedure, republished, as subsequently amended and supplemented, with not more than 10 days before the payment date. In this case, the issuing of the tax certificate is not subject to the off-court stamp duty.
(4) When the tax certificate provides for payment liabilities of the beneficiary, the public institutions will give notice to the economic operator and the beneficiary of the amount of such liabilities.
(5) In not more than 10 business days of such notice, however not later than 20 December, the economic operator may submit a new tax certificate to the public institution showing that the latter no longer has any liabilities to the State budget, the State social security budget, and the budgets of the special funds.
(6) At the expiry of the term set out at para. (5), the public institutions have the following duties:
- a) to transfer into the account of the economic operator provided at art. 5 para. (1) the amount of the budget liabilities written in the tax certificate;
- b) to transfer onto the account of the assignee opened with the State Treasury the difference between the assigned amount and the amount set out at letter a).
Law no. 76/2014 amending and supplementing the Government Emergency Ordinance no. 84/2003 on establishment of Compania Națională de Autostrăzi și Drumuri Naționale din România – S.A. further to reorganization of the Autonomous Administration “Administrația Națională a Drumurilor din România”
Art. 12 (…)
(3) The failure of the general contractor of their duties to give notice provided at para. (2), as well as the refusal of the general contractor to execute the corresponding addendum subject to the provisions of paras. (1) and (2) are charged penalties in an amount equal to the amounts payable to the subcontractor or the supplier of materials. The penalties are legally qualified as damages.
(4) At execution of public procurement contracts for works concerning execution, rehabilitation, extension or modernization of roads, as well as at execution of any addenda thereto pursuant to the provisions of para. (2), the general contractor shall create, in favour of the subcontractors or the suppliers of construction materials and any other subcontractors of the general contractor provided at para. (1), a pledge on any amounts due by CNADNR to the general contractor under the respective public procurement contract with a view to securing payment by the general contractor of any payment liabilities to subcontractors, representing the consideration of the provisions for or in connection with the subject-matter of the public procurement contract.
(5) To have the pledge registered with the Electronic Archive for Security Interests in Movable Property, any third beneficiary of the public procurement contract provided at para. (4), as interested party, is entitled to ask CNADNR to issue, within 3 days of such a request, a certified copy of the public procurement contract and the relevant addenda thereto.
(6) The clauses of the public procurement contract under which the pledge is created, subject to para. (4) represent for the third beneficiary a mortgage agreement for the purposes of the provisions of Law no. 287/2009 on the Civil Code, republished, as subsequently amended and supplemented, and are an enforceable title as regards the liability to pay the amounts it owes for the provisions assumed by it, under any instruments, and required for execution or in connection with the subject-matter of the public procurement contract concerned.
(7) The general contractor is under the obligation to make the payments to the subcontracted suppliers in a non-discriminatory manner, gradually, as they collect the amounts due to them under the public procurement contract, prorated with supply/provision/execution of each supplier/subcontractor that contributed to execution of the works that are the subject matter of the public procurement contract concluded with CNADNR.”
In the opinion of the Romanian Factoring Association, the requirement to set up the pledge (item 4) significantly limits the access of general contractors to receivable-based financing, considering that these accounts receivable are to be pledged from the very beginning in favour of one or more subcontractors. Similarly, the provision at item 7, while it intends to protect the rights of subcontractors, in its current wording, it actually fosters the highly sensitive practice of payment terms rendered conditional by another payment. Thus, the contractor may avail themselves of the duty of payment to the subcontractor by claiming, where applicable, the fact that they have not received the consideration for the works executed from the final beneficiary, i.e. CNAIR. This approach under the commercial contracts executed between the general contractor and subcontractors can be construed as provided in violation of the provisions of Law no. 72 of 28 March 2013 on measures to prevent delays in making payment of the amounts due under contracts concluded between professionals, and between them and the contracting authorities, which law sets out the maximum payment terms which start running from the invoice issuing dates, which are invoices the issuing of which may not be rendered conditional, and are issued further to the taking-over of certain works, which taking-over, in its turn, have to occur within the maximum term set out under the law. As regards the access to financing under accounts receivable held by subcontractors against the general contractor, this provision renders the chargeability thereof uncertain, and thus makes them ineligible for facilities of the factoring type.