[Direct answer]It is necessary. According to Article 551 of the Civil Code of the People's Republic of China (effective from January 1, 2021), if the debtor transfers all or part of the debt to a third party, the debtor shall obtain the creditor's consent; the transfer of debt without the creditor's consent shall not take effect, and the creditor shall still have the right to claim the entire debt from the original debtor. If the third party expresses his willingness to join the debt to the creditor, according to Article 552, if the creditor does not expressly refuse within a reasonable period of time, the creditor may request the third party and the debtor to bear joint and several liability for the debt. After receiving the notice of debt transfer, the creditor shall promptly express his consent or refusal in writing and may first proceed through legal procedures to protect his rights and interests.Creditor-debtor relations and enforcement case servicesAndBeijing Henglu Law FirmEvaluate the impact.

I. Problem Background and Typical Scenarios

Debt transfer is a common phenomenon in both corporate operations facing difficulties and personal debt restructuring: debtors with tight capital chains want to "pass on" their debts to affiliated companies, relatives, or third-party buyers; they suddenly receive debt transfer agreements or notifications during the collection process; divorce or family division agreements stipulate that "the debts shall be borne by one party"; and creditor's rights transfer and debt transfer are often confused with each other. For creditors, the repayment ability of the transferee is often inferior to that of the original debtor. Unauthorized transfer of debts means that the repayment subject changes and the guarantee is left hanging. If not careful, they will easily fall into a passive situation.

II. Key points of contention

  • Determination of consent: Written consent is the most clear-cut form of consent. Whether the actual acceptance of a third party's performance can be considered as consent, and whether silence constitutes consent, are matters of great controversy in practice. Courts generally adopt a strict interpretation of these issues.
  • The distinction between transfer and accession: According to Article 552 of the Civil Code, if a third party accedes to the debt and notifies the creditor, and the creditor does not expressly refuse within a reasonable period of time, it constitutes debt accession, and the third party and the debtor shall bear joint and several liability; while debt transfer requires the creditor's consent, and the consequences of the two are completely different.
  • From the continuation of debts and defenses: According to Article 554, the new debtor shall bear the secondary debts related to the principal debt; according to Article 553, the new debtor may claim the defenses of the original debtor against the creditor. Whether the defenses of interest, guarantee, and statute of limitations continue directly affects the realization of the creditor's rights.

III. Professional analysis by Henglue Lawyers

Henglue Lawyers have observed several common misunderstandings in handling debt transfer disputes. Firstly, mistaking "knowledge" for "consent": If the creditor fails to respond after receiving the transfer notice and later sues the original debtor, the original debtor often defends himself by claiming that the creditor tacitly agreed. In practice, consent should be explicitly expressed. Silence generally does not constitute consent, and the creditor should promptly send a written response to refuse or propose conditions. Secondly, focusing only on the agreement without considering the debtor's capacity: Even if consent to transfer is given, the transferee's assets, operations, and litigation situations should be verified. If necessary, the original debtor should provide guarantees or remain as a joint repayment party in the agreement. Thirdly, neglecting the continuity of debt obligations: After debt transfer, it is necessary to confirm whether guarantees such as mortgages and sureties remain effective and handle the change of guarantee procedures. Otherwise, the creditor's rights may be unprotected. Fourthly, confusing debt transfer with creditor's rights transfer: For creditor's rights transfer, it is sufficient to notify the debtor, while debt transfer requires the creditor's consent. The two are opposite in direction and subject to different rules. For inter-enterprise debt restructuring and arrangements involving debt settlement by assets, it is recommended to consult with a professional lawyer.Business and contract dispute services for enterprisesThe team collaborates to design the transaction structure to avoid the transfer scheme being invalid due to procedural flaws.

IV. Practical suggestions and legal basis

At the legal basis level: Article 551 of the Civil Code of the People's Republic of China (effective from January 1, 2021) establishes the rule that the transfer of debt must be agreed upon by the creditor. A transfer without the creditor's consent shall not take effect against the creditor; Article 552 stipulates debt assumption. Where a third party agrees with the debtor to assume the debt and notifies the creditor, or where the third party expresses his willingness to assume the debt to the creditor and the creditor does not expressly refuse within a reasonable period, the creditor may request the third party to bear joint and several liability for the debt within the scope of the debt he is willing to assume together with the debtor; Article 553 stipulates that the new debtor may assert the defenses of the original debtor against the creditor; Article 554 stipulates that the new debtor shall bear the incidental debts related to the main debt, except for those that are exclusively attributable to the original debtor himself. In terms of statute of limitations, Article 188 still applies the ordinary litigation statute of limitations of three years. At the practical advice level: After receiving the transfer notice, express your position in writing as soon as possible to avoid being claimed as an implied consent after a long delay; where you agree to the transfer, require the three parties to sign a written agreement, stating the scope of the debt, the performance arrangements, and the breach of contract liability; it is preferable for the original debtor to continue to bear joint and several liability or provide counter-guarantees. The design of the solution can be combined with the above-mentioned points.Creditor-debtor relations and enforcement case servicesEvaluation.

5. Henglu Law Firm's Advice

When facing debt transfer, the most important right held by creditors is the "right of consent". Make full use of this card: whether to consent or not depends on the transferee's repayment ability, the continuity of guarantees, and whether the scope of the debt has been reduced. If there are doubts about any of the three factors, they should refuse or postpone making a statement. Written records, tripartite agreements, and guarantees that do not lapse are the three bottom lines of debt transfer arrangements. If an unauthorized debt transfer has already occurred, there's no need to panic. Simply claim your rights against the original debtor in a timely manner and secure clues to their assets. If you are currently facing similar problems, you can seek assistance throughBeijing Henglue Law FirmMake an appointment for an interview to evaluate the transfer effect and determine the optimal response plan.

Q1: If the debtor has transferred the debt to someone else, can I still ask him/her for the money?

The key question is whether the transfer was done with your consent. According to Article 551 of the Civil Code, a debt transfer without your consent is not effective against the creditor. You can still claim the full debt from the original debtor, and the debtor cannot evade responsibility by citing the transfer. If you agree to the transfer, the repayment subject becomes the new debtor, and the original debtor is relieved of the debt obligation. At this point, you should claim the debt from the new debtor. In practice, it's important to secure evidence of whether you have given consent: notification letters, WeChat records, meeting minutes, payment instructions, etc. can all reflect your true intentions. If there is no written consent, priority should be given to holding the original debtor accountable. If necessary, you can sue both parties to clarify the relationship between them.

Q2: I didn't sign the debt transfer agreement with my nod. Is it still valid for me?

The debt transfer agreement is signed by the debtor and the third party. Its effectiveness may be established between the two parties, but without the creditor's consent, it will not be effective against the creditor, and you do not need to be bound by it. That is to say, you can either refuse to be passed around or continue to demand that the original debtor perform the obligation. It should be noted that the form of consent is not limited to signing: if you subsequently collect the debt from the third party, accept their payment and issue a receipt, or sign a tripartite agreement, these actions may all be regarded as consent. Therefore, if you do not accept the transfer, you should send a written reply to refuse it as soon as possible and avoid taking any actions that indicate that you accept the third party's performance of the obligation.

Q3: What is the difference between debt consolidation and debt transfer?

The biggest difference lies in whether the original debtor is relieved of his obligations and whether the creditor's consent is required. According to Article 551 of the Civil Code, the transfer of debts requires the creditor's consent, and the original debtor withdraws from the debt relationship; while according to Article 552, the joining of debts only requires notification. After the third party joins the debt, he/she bears joint and several liabilities with the debtor, and the original debtor does not withdraw from the debt. For the creditor, the joining of debts is usually more advantageous, as it adds another repayment subject and allows joint litigation; while the transfer of debts requires reviewing the transferee's financial capacity before deciding whether to consent. When receiving the notification, first check the wording of the document: if it states "the third party shall bear the debts and the original debtor withdraws", it is a transfer; if it states "joint repayment and joining the debts", it is a joining of debts.

Q4: After the debt transfer, are the interest and guarantees still valid?

From two perspectives. Interest belongs to the scope of the principal debt, and after the transfer is agreed upon, it shall be assumed by the new debtor together with the principal debt; according to Article 554 of the Civil Code, the new debtor shall also assume the accessory debts related to the principal debt, except for those that are exclusively attributable to the original debtor himself. In terms of guarantees, according to Article 697 of the Civil Code, if the creditor allows the debtor to transfer all or part of the debt without the written consent of the guarantor, the guarantor shall no longer bear the guarantee liability for the debt transferred without his consent; the guarantees such as mortgages will also face the risk of losing protection due to the transfer of the debt affecting the interests of the mortgagor. Therefore, before agreeing to the transfer, it is necessary to simultaneously implement the change of the guarantee or have the new debtor supplement the guarantee, otherwise the actual protection of the creditor may be greatly reduced.

Q5: What should I do first after receiving the notice of debt transfer?

Three steps: 1. Verifying the documents: Review the amount and scope of the debt specified in the transfer agreement or notice, as well as the transferee's information. Cross-check each item with the creditor's certificate to guard against the debt being "undervalued" or subject to additional conditions. 2. Checking the transferee's financial capabilities: Use public channels to verify the transferee's business status and information about litigation and enforcement actions to determine whether their repayment capacity exceeds that of the original debtor. 3. Providing a written response: If you agree, require the signing of a tripartite agreement and implement the guarantee modification. If you disagree, send a written refusal letter with reasons within a reasonable timeframe. Regardless of the choice, it's crucial to keep records and avoid verbal responses or ambiguous agreements. If unsure, consult a lawyer before making a decision.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, to avoid missing the statutory time limit. →\nLegal services for creditor-debtor disputes·Beijing Henglu Law Firm