the business contract terms (assignment of receivables) regulations 2018

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The Business Contract Terms (Assignment of Receivables) Regulations 2018: still more to do?

The Business Contract Terms (Assignment of Receivables) Regulations 2018 (the " Regulations ") are now in force. The Regulations are intended to make it easier for small businesses to access receivables-based finance by making ineffective any prohibitions, conditions and restrictions on the assignment of receivables [1] arising under contracts for the supply of goods, services or intangible assets.

The Regulations have a somewhat chequered history. The Law Commission advocated legislation to limit the effectiveness of anti-assignment clauses in 2005, however, the proposal failed to gain momentum and lay dormant for more than a decade. Draft legislation finally appeared in 2017, but was withdrawn following criticism by the Loan Market Association and others. The final form of the Regulations addresses some of the criticisms, but adds complexity in what is already a complex area of the law.

The Effect of the Regulations

A term in a contract to which the Regulations apply is ineffective to the extent that it prohibits or imposes a condition or other restriction on the assignment of a receivable arising under that contract or another contract between the same parties. That does not necessarily mean that the term will be entirely void as a result: contractual prohibitions on assignment often do not distinguish between the right to performance of the contract and the right to be paid amounts arising under it. Prohibitions of this type will remain effective to prevent an assignment of the right to performance, even if they are ineffective to prevent the assignment of receivables arising under the contract.

The Regulations provide that a term which prevents an assignee from determining the validity or the value of the receivable or restricts its ability to enforce the receivable will be deemed to be a condition or other restriction on assignment. This, for example, includes provisions which prevent an assignee from obtaining particulars and evidence of any potential defence or set-off by a party to the contract. Therefore, the Regulations permit disclosure of matters which might otherwise be caught by confidentiality provisions in the underlying contract.

When do the Regulations apply?

Subject to specified exceptions, the Regulations apply to any contract entered into on or after 31 December 2018.

Certain types of contract are excluded from the Regulations. For example, the Regulations do not apply :

• to contracts for certain prescribed financial services or to other specific types of contract, including those in relation to real estate, certain derivatives, certain project finance and energy agreements and operating leases.
• to contracts entered into in connection with the acquisition, disposal or transfer of an ownership interest in all or part of a business, firm or undertaking, provided the relevant contract includes a statement to that effect. The need for such a statement applies even where the purpose of the contract is obvious on its face.
• where one or more of the parties is a consumer, or where none of the parties has entered into the contract in the course of carrying on a business in the UK.

The Regulations do not apply if the supplier is a "large enterprise" or a "special purpose vehicle" (the " SME Test ") at the time of the assignment. For this purpose, a special purpose vehicle is a firm that carries out a primary purpose in relation to the holding of assets (except trading stock) or financing commercial transactions, which in either case involves it incurring a liability of £10m or more.

The question of whether a limited company is a "large enterprise" depends in part on turnover, balance sheet total and number of employees assessed by reference the most recent annual accounts filed by the company or its parent prior to the assignment. Therefore, at the time the supplier and the debtor enter into a contract, they will not necessarily know whether a contractual prohibition on the assignment of receivables will be effective.

The definition of a "large enterprise" may be difficult to apply in some circumstances and to some entities. For example, the Regulations imply that limited partnerships are included in scope and some commentators argue that in this situation it would be the general partner entity which would be assessed under the SME Test, however, this is not expressly provided for by the Regulations.

If another governing law is imposed by a party wholly or mainly for the purpose of enabling it to evade the operation of the Regulations, the Regulations state that they will nevertheless have effect. Aside from the practical difficulty in determining whether the choice of law was imposed for this purpose, the effect of this provision is not entirely clear. Under Rome I, the law governing an assigned claim determines its assignability and the relationship between the assignee and the debtor [2] . Therefore, the fundamental question of whether the debtor should pay the supplier or the assignee remains determined by the governing law of the contract, but subject it seems (at least as far as the English courts are concerned) to the mandatory provisions of the Regulations.

The Regulations only affect prohibitions, restrictions and conditions on assignment contained in the contract under which the receivable arises or another contract between the same parties. For example, they would not restrict the effectiveness of a negative pledge or a restriction on the disposal of receivables contained in a financing document with a third party lender.

The term "assignment" is not defined in the Regulations and, assuming it has its normal legal meaning, does not include the creation of a charge or trust. Therefore, it appears that the Regulations do not apply to the creation of a charge or a trust.

What if the Regulations do not apply?

As a result of the SME Test and the exclusion of certain types of contracts, there will be many situations in which the Regulations are not relevant to the assignment of a receivable. Where the Regulations do not apply, the current law recognises the effectiveness of contractual prohibitions on the assignment of receivables [3] . However, case law suggests that a prohibition on assignment will not normally be construed as preventing the creation of a trust. Receivables purchase agreements will therefore often provide for the supplier to hold the receivable and/or its proceeds on trust for the assignee to the extent that the assignment is ineffective. In response, some debtors include specific prohibitions on the creation of trusts over receivables in their contracts. However, assignees will try to circumvent the practical effect of even the most widely drafted prohibition by taking a power of attorney enabling them to bring an action against the debtor in the name of the supplier.

The law is still developing in response to this escalating arms race between assignees and debtors. In part this is due to an inevitable tension between the interest of the assignee in having its proprietary interest in the receivable recognised and the interest of the debtor in choosing whether it deals with anyone other than its original contractual counterparty.

This has led some to argue that the common law should recognise all assignments of receivables notwithstanding prohibitions on assignment, at least as between the assignor and the assignee. [4] Arguably, this approach would balance the legitimate interests of all parties.

Still more to do?

Where they apply, the Regulations will make it easier for SMEs to assign their receivables and to raise finance. However, the Regulations do not mean that assignees can ignore the terms of the underlying contractual arrangements between suppliers and debtors; for one thing any existing rights of set-off will continue to bind the assignee [5] . Also, because the Regulations do not apply to contracts entered into before 31 December 2018, prohibitions on assignment will continue to apply to many receivables owed to SME suppliers for a while yet.

Assessing whether a supplier is an SME involves reviewing the most recent relevant annual accounts and the status of the supplier in this respect may change throughout the term of a contract. There are also various types of contract to which the Regulations do not apply and, in some cases, applying those exceptions is not straightforward. The Regulations add an additional layer of complexity to the law.

In practice, the question that assignees ask their lawyers is very simple: what action can they take to recover? The Regulations may enable the answer to be more positive, but they also make it more nuanced. There is more work for legislation or precedent to do to simplify the law in this area.

[1] "Receivable" is defined in broad terms as a right (whether or not earned by performance) to be paid any amount under a contract for the supply of goods, services or intangible assets.

[2] Regulation (EC) No 593/2008: Article 14(2), Rome I

[3] Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1994] 1 AC 85

[4] See in particular Professor Roy Goode's article " Contractual Prohibitions Against Assignment " [2009] LMCLQ 300 cited by approval by Lady Justice Gloster in First Abu Dhabi Bank PJSC and BP Oil International Limited [2018] EWCA Civ 14

[5] In recovery situations, set-off and disputes in relation to liability are often more significant issues for the debtor from a commercial perspective than the question of whether a prohibition on assignment is legally effective.

Draft Regulations laid before Parliament under section 161(4) of the Small Business, Enterprise and Employment Act 2015, for approval by resolution of each House of Parliament.

The Business Contract Terms (Assignment of Receivables) Regulations 2018

Coming into force in accordance with regulation 1

The Secretary of State, in exercise of the powers conferred by sections 1 and 161(2) of the Small Business, Enterprise and Employment Act 2015 1 , makes the following Regulations:

In accordance with section 161(4) of the Small Business, Enterprise and Employment Act 2015, a draft of this instrument was laid before Parliament and approved by resolution of each House of Parliament.

Citation, commencement, interpretation and application 1

These Regulations may be cited as the Business Contract Terms (Assignment of Receivables) Regulations 2018 and shall come into force on the day after the day on which they are made.

These Regulations apply to any term in a contract entered into on or after 31 December 2018.

In these Regulations—

“firm” has the same meaning as in the Companies Act 2006 2 ;

“intangible assets” includes electricity and data which are produced and supplied in digital form;

“licensee”, in relation to a petroleum licence, means the person to whom a petroleum licence is granted, their personal representatives and any person to whom the rights conferred by that licence may lawfully be assigned;

“large group” means a group that is not a small group or a medium-sized group (within the meanings given by the Companies Act 2006 3 or by that Act as applied with modifications by the Limited Liability Partnerships (Accounts and Audit) (Application of the Companies Act 2006) Regulations 2008 4 );

“ LLP ” means a limited liability partnership formed under the Limited Liability Partnerships Act 2000 5 ;

“petroleum licence” means a licence granted under section 2 of the Petroleum (Production) Act 1934 6 or under section 3 of the Petroleum Act 1998 7 ;

“prescribed financial services” means a regulated agreement within the meaning of the Consumer Credit Act 1974 8 or any financial service within the meaning of section 2 of the Small Business, Enterprise and Employment Act 2015; and

“receivable” is a right (whether or not earned by performance) to be paid any amount under a contract (other than a contract mentioned in regulation 4) for the supply of goods, services or intangible assets (and in relation to a receivable, “supplier” means the supplier of those goods, services or intangible assets to whom that amount is payable and “debtor” means the person liable to pay that amount).

These Regulations have effect notwithstanding any contract term which applies or purports to apply the law of Scotland or some country outside the United Kingdom, where the term appears to the court or arbitrator or arbiter to have been imposed wholly or mainly for the purpose of enabling the party imposing it to evade the operation of these Regulations.

Effect of a non-assignment of receivables term 2

Subject to regulations 3 and 4, a term in a contract has no effect to the extent that it prohibits or imposes a condition, or other restriction, on the assignment of a receivable arising under that contract or any other contract between the same parties.

A term in a contract which imposes a condition or other restriction on the assignment of a receivable includes a term which prevents a person to whom a receivable is assigned from determining the validity or value of the receivable or their ability to enforce the receivable.

For the purposes of paragraph (2), a term prevents a person to whom a receivable is assigned from determining the validity or value of the receivable or their ability to enforce the receivable if the condition or other restriction prevents that person from obtaining—

the names and addresses of the parties to the contract;

the name and address of the person who on behalf of the debtor can confirm the validity and amount of the receivable;

the VAT registration number of the debtor and of the supplier;

the date on which the goods, services or intangible assets that give rise to the receivable are supplied;

a description sufficient to identify the goods, services or intangible assets that give rise to the receivable (including the quantity of goods or intangible assets, or the extent of services, the unit price, the rate of VAT and the amount payable, excluding VAT );

the date and number of the invoice for the goods, services or intangible assets that give rise to the receivable and any credit note related to the invoice (and the reason for issuing the credit note);

the amount, basis or rate of any applicable discount;

the total amount of VAT chargeable;

the reason for any VAT zero-rating or VAT exemption;

details of any term in the contract to which regulation 2(1) applies;

the credit period for paying the receivable;

evidence of the performance of that part of the contract (or other contract between the parties) which gives rise to the receivable; or

particulars and evidence of any potential defence or set-off by a party to the contract.

Exception for suppliers who are large enterprises or special purpose vehicles 3

Regulation 2 does not apply and accordingly a term mentioned in that regulation does have effect in relation to the assignment of a receivable if at the time of the assignment the supplier is a large enterprise or a special purpose vehicle.

A supplier is a large enterprise unless it satisfies one of the conditions in paragraph (3) and in paragraph (3) “relevant financial year” means the last financial year (before the date on which the receivable is assigned) in respect of which the supplier has filed accounts.

The conditions in this paragraph are—

the supplier is an individual, a partnership (other than an LLP or a limited partnership) or an unincorporated association;

the supplier is a company to which the small companies regime (within the meaning given by sections 381 to 384 of the Companies Act 2006) applied in the relevant financial year and which was not a member of a large group in the relevant financial year;

the supplier is a company which qualified as medium-sized (within the meaning given by sections 465 to 467 of the Companies Act 2006) in respect of the relevant financial year and which was not a member of a large group in the relevant financial year;

the supplier is a company (other than an unlimited company exempt under section 448 of the Companies Act 2006 from the obligation to file accounts) that has not filed accounts since its incorporation and whose accounts are not overdue and which is not a member of a large group;

the supplier is an unlimited company exempt under section 448 of the Companies Act 2006 from the obligation to file accounts, that has not filed accounts since its incorporation and whose accounts would not be overdue if the exemption under that section did not apply and which is not a member of a large group;

the supplier is an LLP to which the small LLPs regime (within the meaning given by the Companies Act 2006, as applied with modifications by regulation 5 of the Limited Liability Partnerships (Accounts and Audit) (Application of the Companies Act 2006) Regulations 2008), applied in the relevant financial year and which was not a member of a large group in the relevant financial year;

the supplier is an LLP which qualified as medium-sized (within the meaning given by the Companies Act 2006, as applied with modifications by regulation 26 of the Limited Liability Partnerships (Accounts and Audit) (Application of the Companies Act 2006) Regulations 2008) in respect of the relevant financial year and which was not a member of a large group in the relevant financial year;

the supplier is an LLP that has not filed accounts since its incorporation and whose accounts are not overdue and which is not a member of a large group;

the supplier is a body corporate incorporated outside the United Kingdom which, if it were a company formed and registered under the Companies Act 2006, would have been a company to which the small companies regime (within the meaning given by that Act) would have applied in the relevant financial year and which would not have been a member of a large group in the relevant financial year;

the supplier is a body corporate incorporated outside the United Kingdom which, if it were a company formed and registered under the Companies Act 2006, would have qualified as medium-sized (within the meaning given by that Act) in respect of the relevant financial year and which would not have been a member of a large group in the relevant financial year; and

the supplier is a body corporate incorporated outside the United Kingdom that has not filed accounts since its incorporation and whose accounts would not be overdue, and which would not be a member of a large group if it were a company formed and registered under the Companies Act 2006.

A special purpose vehicle is a firm, wherever it is incorporated or established, that carries out a primary purpose in relation to—

the holding of assets (other than trading stock within the meaning of the Income Tax (Trading and Other Income) Act 2005 9 ); or

the financing of commercial transactions,

which in either case involves it incurring a liability under an agreement of £10 million or more.

For the purposes of paragraph (4)—

where a liability is a contingent liability under or by virtue of a guarantee or an indemnity or security provided on behalf of another person, the amount of that liability is the full amount of the liability in relation to which the guarantee, indemnity or security is provided;

where the amount of a liability is reduced or recourse in respect of it is limited by reference to the value of the special purpose vehicle’s assets at the time the liability is due, the amount of that liability is the full amount of the liability, ignoring that reduction or limit;

the reference to a liability includes—

a present or future liability whether, in either case, it is certain or contingent,

a reference to a liability to be paid wholly or partly in foreign currency (in which case the sterling equivalent shall be calculated as at the time when the liability was incurred).

Other exceptions 4

Regulation 2 does not apply to a term in a contract which is—

a contract for, or entered into in connection with, prescribed financial services;

a contract which concerns any interest in land;

a contract where one or more of the parties to the contract is acting for purposes which are outside a trade, business or profession;

a contract where none of the parties to the contract has entered into it in the course of carrying on a business in the United Kingdom;

a contract which concerns national security interests (and a certificate provided by the Secretary of State to the effect that a contract concerns national security interests shall be conclusive evidence of that fact);

a contract where one or more parties to the contract is a person designated as a counterparty for a contract for difference under section 7 of the Energy Act 2013 10 and who has entered into the contract by virtue of that Act;

a petroleum licence;

a contract where one or more parties to the contract is the licensee in respect of a petroleum licence whose terms would prohibit or restrict the assignment of receivables under that contract;

a contract which is entered into for the purposes of, or in connection with, the acquisition, disposal or transfer of an ownership interest in a firm, wherever it is incorporated or established, or of a business or undertaking or part of a business or undertaking, and which includes a statement to that effect;

an option, future, swap, forward, contract for differences or other derivatives contract, not falling within paragraph (a), which may be settled physically or in cash, relating to commodities, energy, emission allowances, climactic variables, freight rates or inflation rates or other official economic statistics that is either—

traded on a regulated market, multilateral trading facility or organised trading facility, or

is not traded on a regulated market, multilateral trading facility or organised trading facility, but is entered into under a market agreement providing for close-out netting,

and “regulated market”, “multilateral trading facility” and “organised trading facility” have the same meaning as in Article 4(1) of Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on Markets in Financial Instruments (recast) 11 ;

a contract entered into by the project company of a project which is—

a public-private partnership project;

a utility project;

a financed project; or

designed wholly or mainly to develop land which at the commencement of the project is wholly or partly in a designated disadvantaged area outside Northern Ireland,

and expressions used in this sub-paragraph which are also used in Chapter 4 of Part 3 of the Insolvency Act 1986 12 have the meaning given in that Chapter, except that “company” includes a firm, wherever it is incorporated or established;

a contract entered into by a trust, fund or other entity, or an arrangement entered, created by or on behalf of a site operator (within the meaning in the Energy Act 2008 13 ) to hold and accumulate assets under the terms of a funding arrangements plan that is part of a funded decommissioning programme submitted to the Secretary of State for approval under section 45 of that Act; or

a contract, not falling within paragraph (a), entered into wholly or mainly for the purpose of granting by one person of a right to possession or control of an object to another person in return for a rental or other payment.

(This note is not part of the Regulations)

These Regulations deal with terms in contracts to which the law of England and Wales or the law of Northern Ireland applies which prohibit or restrict the assignment of receivables. A receivable is a right to be paid under a contract for the supply of goods, services or intangible assets. Various types of contract are excluded from the scope of the Regulations.

The Regulations, which are made under section 1 of the Small Business, Enterprise and Employment Act 2015 do not cover financial services contracts: see section 1(3) and (4) of that Act. ‘Financial services’ are defined in section 2 of the Act. Some similar contracts that do not fall under this definition, such as operating leases and derivative contracts, are also excluded from the Regulations.

Regulation 2(1) provides that a term has no effect to the extent that it prohibits or imposes a condition, or other restriction, on the assignment of a receivable. Regulation 2(2) specifies a particular category of contractual terms which, by their impact on an assignee, would have the effect of imposing a condition or other restriction on the assignment. Regulation 2(3) sets out the information that the assignee must be able to obtain in order to determine the validity or value of the receivable or their ability to enforce it.

A contractual right of set-off which the debtor could have exercised against the assignor prior to the assignment or but for the assignment is not a term that imposes a condition or other restriction on the assignment of a receivable for the purposes of these Regulations.

The Regulations do not apply if the person to whom the receivable is owed is a large enterprise or a special purpose vehicle. These terms are both defined in regulation 3. For these purposes a large enterprise is an enterprise which is not a sole trader, partnership or unincorporated association or a company or LLP qualifying as small or medium-sized under the relevant legislation (including bodies incorporated overseas which would so qualify if incorporated in the U.K. ).

Regulation 4 excludes various types of contract from the scope of the Regulations, such as where none of the parties has entered into the contract in the course of carrying on a business in the United Kingdom. A contract is also excluded if it has been entered into in connection with or for the purpose of the transfer of all or part of a business (including transitional services agreements, which are contracts to provide services in order to facilitate the transition). For the latter exclusion to apply, the contract must include a statement to that effect.

A full regulatory impact assessment of the effect of these Regulations on the costs of business and the voluntary sector is available from the Department for Business, Energy and Industrial Strategy, 1 Victoria Street, London, SW1H 0ET or from www.gov.uk/beis .

• Insights & events

The Business Contract Terms (Assignment of Receivables) Regulations 2018 - back for good?

In an illustration that if at first you don’t succeed, you should try and try again, the UK government has published a revised draft of the regulations designed to prohibit contractual clauses which prevent one party from assigning its right to payment to a third party.

The first iteration of these regulations, designed to open up invoice finance to smaller businesses by removing contractual restrictions, was published back in December 2014. However they were viewed as having various flaws and the government went back to the drawing board. Last September saw the publication of The Business Contract Terms (Assignment of Receivables) Regulations 2017 only for the same to be withdrawn before year-end because of a perception that they still required further work.

Below we provide a summary of the key features of The Business Contract Terms (Assignment of Receivables) Regulations 2018. However before we continue it’s worth highlighting two specific exemptions from the draft legislation.

Two key exemptions

Firstly, the regulations do not apply to contracts to acquire a business or an interest in a firm. This removes the previous uncertainty as to whether or not the general prohibition outlined below would apply to restrictions on assignment contained in share and business sale agreements. Under the draft of the regulations, it will not.

Secondly, contracts entered into by a project company of a project which is a public-private partnership project, a utility project or a financed project are also exempt from the draft regulations. This may be in response to previous feedback on the earlier draft of the regulations. In particular, in its response to The Business Contract Terms (Assignment of Receivables) Regulations 2017, The City of London Law Society (CLLS) noted that prohibitions and restrictions on assignment (including assignment of receivables) are common in construction contracts, such as the JCT suite of contracts, because developers wish to ensure that the money they spend goes to the subcontractors and suppliers undertaking the work on a given project.

The CLLS expressed the view that the previous draft of the regulations had the potential to create uncertainty and market disruption in a wide range of transactions in the building infrastructure and energy construction markets in the UK. Whether the revised draft of the regulations adequately address such concerns remains to be seen (as at the date of this alert, the CLLS has not yet published any response to the latest regulations). 

Overview of The Business Contract Terms (Assignment of Receivables) Regulations 2018

If approved by Parliament, the regulations would provide as follows:

• General prohibition : regulation 2 of the draft regulations sets out a general prohibition which says that “ a term in a contract has no effect to the extent that it prohibits or imposes a condition, or other restriction, on the assignment of a receivable arising under that contract or any other contract between the same parties ”. In broad terms, this means that a term contained in a contract between parties A and B, under which party A pays sums to party B in return for the supply of goods or services by party B to party A, but which prevents party B from assigning that payment right to non-party C, will have no effect.
• Anti-avoidance : the draft regulations also include provisions which are designed to prevent contract parties from circumventing the general prohibition outlined above by preventing an assignee of a payment right from determining the validity or value of the receivable or their ability to enforce the receivable. To this end, the draft regulations list 13 different categories of information which, if the assignee is unable to obtain such information by reason of a restriction in a contract, then such contractual restriction will also be of no effect. These categories of information include (among other things) the names of the contract parties, the relevant goods, services or other assets which give rise to the receivable, the amount payable (including any VAT chargeable), any applicable discount and the credit period applicable to the receivable. So, using the previous example, if a contract entitled party B to assign its receivable to non-party C but did not allow party B to disclose any of the foregoing details regarding such receivable to non-party C, then under the draft regulations such contractual restriction would also be of no effect.
• Exception for suppliers which are large enterprises or SPVs : regulation 3 of the draft regulations provides that the general prohibition outlined above does not apply, and accordingly contractual restrictions which prevent the assignment of a receivable shall continue to have effect, if at the time of the assignment the supplier (i.e. the creditor) is a large enterprise or a special purpose vehicle. In practice, this will allow smaller businesses to continue to impose restrictions on assignment when contracting with large businesses. The regulations go on to clarify what is meant by a “large enterprise” which, in broad terms, includes any company or limited liability partnership unless it is a small or medium-sized business and is not a member of a large group. So, the regulations would apply if, using our previous example, party B (the supplier) is a company to which the small companies regime (within the meaning of sections 381-384 of the Companies Act 2006) applied in the last financial year (before the date on which the receivable is assigned) in respect of which the supplier filed accounts. The opposite would be true if party B failed to satisfy any one or more of the conditions which mark out a small or medium-sized business from a large one in regulation 3 of the draft regulations.   
• Exempt contracts : as with previous iterations of the proposed regulations, the draft regulations continue to exempt certain kinds of contracts from their scope. As well as those highlighted under the first heading above, the regulations do not apply to contracts for prescribed financial services, contracts concerning any interest in land, consumer contracts, petroleum licences, contracts concerning a matter of national security, securities options, forwards, swaps and other derivatives.
• Territorial application : the draft regulations would only apply to contracts governed by English law. There are deeming provisions which provide that the regulations would still apply where parties deliberately adopt the governing law of a country outside of the United Kingdom in order to evade the operation of the regulations.      

If the draft Business Contract Terms (Assignment of Receivables) Regulations 2018 do receive Parliamentary approval, they would apply to contracts entered into on or after 31 December 2018. Watch this space to see if they do finally make it past the finishing post in their latest guise. 

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