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ASSIGNMENT OF CLAIM AND ITS IMPACT ON THE CHANGE OF PARTY TO THE DISPUTE IN THE CIVIL PROCEEDINGS

Svetlana Ficova, M. Ivanco

Abstract

The change of party to the dispute presents an institute that allows one party (either a plaintiff or a defendant) to withdraw from the proceedings in the course of civil litigation, whereas someone else is thereby allowed to enter into the proceedings and replace the former party. For a court to permit the change of party, though, a legal regulation requires that a legal fact, resulting in the transfer or assignment of rights or duties that constitute the cause of action, occurs only after the commencement of the proceedings. One such fact may consist in the assignment of a claim. However, substantive law also allows for the so-called “silent assignment”. This means that a debtor is not informed about the assignment of a claim, whilst an assignor, even though being no longer the owner of a claim, continues to recover the pertinent claim in his own name, but at the assignee’s expense. The interpretative problem arises, when the debtor gets informed of the assignment of a claim in the course of civil litigation, as a result of which the assignor loses the right to recover the claim. In that sense, the requested change of party to the dispute was denied by the court on the grounds that the decisive legal fact, i.e. the assignment of a claim, had occurred before the proceedings commenced. The Constitutional Court of the Slovak Republic has not considered this argument to be arbitrary, which would have eventually resulted in a violation of the right to a fair trial, either. The subject of this paper consists in a reflection, whether such a conclusion of the court corresponds to the principle of justice as one of the main principles of the civil procedure in the Slovak Republic.

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