The widespread adoption of electronic invoicing does not alter the legal rules governing the assignment of receivables. However, it could transform the practical conditions. When a receivable is assigned while the corresponding invoice continues its digital lifecycle, the claimant is no longer the one identified by the system as the issuer. This initial separation is compounded by a second: the assignment notification, the information included on the invoice, and payment instructions must now be coordinated through a regulated electronic channel. From standard assignments to Dailly assignments, and including factoring, the suitability of a receivable for transferability could thus depend in the future not only on its legal assignability but also on its traceability and its digital contractual environment.
Electronic invoicing is generally presented as a fiscal and technical reform.
However, it organizes a new invoicing circuit that could have much broader consequences on contractual relationships and on the financing of companies.
The relationship between electronic invoicing and assignment of receivables provides a good illustration of this.
On the one hand, assignment allows the holder of a claim to transfer it to a third party.
On the other hand, electronic invoicing now organizes the circulation and processing of the invoice between its issuer and its recipient, via approved platforms.
As long as the supplier remains the holder of their claim, the two circuits overlap.
When he gives it up, they separate.
The debt changes hands.
The invoice, however, remains with the supplier and continues to follow its electronic cycle.
The question is therefore not whether electronic invoicing calls into question the assignment of receivables.
She doesn't.
The real question is how to make the legal change of claim holder coincide with the continuation of the digital invoice cycle.
This analysis primarily concerns receivables arising from transactions falling within the scope of the French electronic invoicing system. Assignments of receivables related to cross-border transactions raise additional questions, particularly regarding the interaction between the regime applicable to the assignment and the invoicing rules applicable to the transaction in question, which are beyond the scope of this study.
Electronic invoicing does not change the legal conditions under which a receivable can be assigned; however, it could change the contractual conditions under which an assignee agrees to acquire or finance it.
- Two mechanisms that obey different logics.
For operations falling within its scope, Article289 bis of the General Tax Code provides for the issuance, transmission and receipt of invoices in electronic form, via approved platforms.
The reform therefore does not only concern the format of the invoice.
It also organizes its life cycle.
Approved platforms must notably support four statuses: "deposit", "rejection", "refusal" and "cashed".
The "deposit" corresponds to the acceptance of the invoice by the issuer's platform; the "rejection" results from its technical non-acceptance by a platform; the "refusal" comes from the recipient; the "collected" status contains the information relating to the payment.
This distinction must be preserved.
A rejection is not a refusal.
Furthermore, a refusal of an invoice should not be confused with all the legal or commercial disputes that may affect the debt.
The law of assignment, on the other hand, follows a different logic.
Article 1321 of the Civil Code provides that the assigning creditor transfers his claim to a third assignee and that this transfer extends to its accessories.
However, the assignment of a debt does not constitute an assignment of the contract from which that debt arises.
The assignee acquires the right to payment.
But the supplier remains a party to the commercial contract and retains its status as the issuer of the invoice.
The same dissociation exists in the special mechanisms for mobilizing receivables, in particular the assignment of professional receivables provided for in Articles L. 313-23 et seq. of the Monetary and Financial Code.
The difficulty created by electronic invoicing therefore goes beyond factoring alone.
It exists whenever the claimant becomes distinct from the issuer of the invoice.
- Before the assignment: at what point is the receivable sufficiently "ripe" to be mobilized?
The first question arises even before the transfer.
The assignee must be able to identify the debt he is acquiring and assess its nature.
The invoice traditionally plays a vital role in this regard.
Electronic invoicing could give it added importance.
It is of course important to avoid a first shortcut: the fact that an invoice has been filed and admitted into the electronic circuit does not mean that the debtor acknowledges the debt.
The "submitted" status reflects the technical acceptance of the invoice by the issuer's platform, and not its legal acceptance by the recipient.
Nevertheless, from the point of view of the assignee, a difference may exist between an invoice simply generated by the supplier's accounting system and an invoice actually issued and entered into the regulatory circuit of electronic invoicing.
In the second case, the existence of the invoice in this circuit benefits from its own traceability.
The professional assignee could therefore be led to request not only the production of the invoice, but also justification of its actual issuance in the system.
This development could have very concrete consequences.
Institutions that regularly acquire or finance receivables could decide that a receivable is only eligible for their financing from a specific stage of the electronic cycle.
This step would not necessarily be fixed by law.
It could fall under their risk policy and the agreement concluded with the transferor.
Electronic invoicing would then reveal a distinction between the legal birth of the debt and its degree of informational maturity for the needs of its financing.
The specific case of the Dailly assignment.
The Dailly assignment makes this question particularly interesting.
Its regime allows the mobilization of professional receivables under the conditions provided for in Articles L. 313-23 et seq. of the Monetary and Financial Code, including future receivables, provided that they are sufficiently identified or identifiable in accordance with legal requirements.
The legal mobilization of the debt can therefore occur at a time that does not necessarily coincide with that of the corresponding electronic invoice.
The dissociation that the reform may create is then even clearer:
the claim may be included in a mobilization operation while the corresponding invoice has not yet completed — or even, depending on the claim concerned, begun — its electronic cycle.
The Dailly assignment therefore does not call into question the reasoning.
On the contrary, it provides a particularly strong illustration of this.
The transfer or legal mobilization of the debt and the informational maturity of the invoice can occur at distinct times.
It will then be up to the assignee to define contractually at what stage it actually agrees to finance the debt, even if the latter is already legally likely to be included in the scope of an assignment.
- Electronic invoicing and assignment of receivables: coordinating notification, invoice and payment
The relationship between electronic invoicing and assignment of receivables becomes particularly sensitive when the receivable changes hands.
The second difficulty concerns the very moment of the transfer.
Under common law, Article 1324 of the Civil Code provides that the assignment is enforceable against the debtor, if he has not already consented to it, only if it has been notified to him or if he has taken note of it.
Special mechanisms obey their own rules.
This is particularly the case with the Dailly assignment, for which the delivery of the slip produces the effects attached to the transfer between the actors of the assignment, while the specific provisions relating to the notification to the debtor organize the consequences of this on his payment.
Therefore, one should not confuse:
the transfer of the debt to the assignee;
And
informing the debtor of the conditions under which he must now settle his debt.
This distinction is particularly important in the context of electronic invoicing.
Regardless of the transfer technique used, one operational concern remains: the debtor must be able to correctly identify the person to whom the payment should be made.
The invoice can traditionally contribute to this information, particularly when it mentions the existence of the assignment or the contact details of the beneficiary of the payment.
With electronic invoicing, this relationship needs to be rethought.
Three elements must be distinguished:
the legal notification of the assignment or, more broadly, the formalities making it enforceable against the debtor;
the information contained in the invoice;
the payment instructions actually recorded and applied by the debtor.
These three elements can complement each other.
They are not the same.
A mention on an invoice is not necessarily, in itself, a legally sufficient notification of the transfer.
Conversely, an assignment may have been perfectly enforceable against the debtor through another channel even though the payment data stored in its system has not been updated.
Electronic invoicing can therefore present a risk of desynchronization.
The debtor may have been duly informed of the change of creditor while their system continues to reference the old payment details.
Conversely, the invoice may include the details of an assignee without the formalities specific to the assignment having yet produced all their effects with regard to the debtor.
The challenge then becomes one of consistency between the assigned debt, the invoice actually transmitted, the information provided to the debtor, and the payment instructions.
For a professional assignee, this consistency can become a determining factor in the quality of the acquired debt.
- After the assignment: the new creditor must be able to follow the events that affect their claim.
Once the transfer has been completed, the electronic invoicing cycle can continue.
A debt can be assigned the day after the invoice is issued, and the invoice can then be refused by its recipient.
The assignee then becomes the holder of the debt.
But the information relating to the refusal is generated in a circuit where the supplier remains the sender.
Therefore, there is a dissociation between:
the legal holder of the right to claim;
And
the one to whom the billing system assigns the functional role of issuer.
This difficulty cannot be entirely resolved by the regime of accessories to the claim.
Article 1321 of the Civil Code does indeed provide for their transfer to the assignee.
However, electronic invoices primarily constitute information and traceability elements related to the invoice. Under current law, their general classification as "accessories" to the debt appears uncertain.
The relevant question is therefore less about determining whether the assignee legally becomes the owner of this data than about how it obtains the information necessary to exercise its right to claim.
A refusal by the recipient may reveal a problem related to the invoice.
A contractual dispute may call into question the amount or enforceability of the debt.
Information relating to payment is directly relevant to its extinction.
The assignee therefore has a clear interest in having these events communicated to him quickly.
This does not mean that he has to become a party to the commercial contract.
This does not mean that it should replace the supplier in managing the billing cycle.
The transfer of the debt should not be confused with an assignment of the contract.
It is simply necessary to organize, in parallel with the legal transfer of the claim, an information circuit allowing its new holder to follow its progress.
- The contract becomes the point of connection between the two systems.
The main practical consequence of the reform probably lies in the relationship between electronic invoicing and assignment of receivables.
The law of assignment governs the transfer of the debt.
The electronic invoicing system organizes the processing of the invoice.
But their articulation does not automatically result from one or the other.
The contract then becomes the main instrument for making them coincide.
This contractual agreement must take place at two levels.
In the commercial contract
The contract that generates the debt can anticipate the consequences of an assignment on the processing of the invoice and payment.
A clause could, for example, stipulate:
« In the event of an assignment of the receivable corresponding to an invoice issued under this agreement, the supplier remains responsible, unless otherwise stipulated, for managing the lifecycle of said invoice. The supplier shall promptly transmit to the assignee any information received after the assignment that may affect the existence, amount, due date, or payment of the assigned receivable. The parties shall cooperate to ensure consistency between the notification of the assignment, the information appearing on the invoice, and the applicable payment terms. From the moment the assignment takes effect for the recipient under the applicable regulations, the recipient shall make the necessary updates to its data and payment instructions so that the corresponding payments are made to the designated beneficiary. »
Such a clause does not transform the assignee into a party to the contract.
It aims to prevent the operational processing of the invoice and payment from remaining disconnected from the legal situation resulting from the transfer.
In the transfer or financing agreement.
The professional assignee can, for its part, define the conditions under which the receivables will be considered eligible for its financing.
A stipulation could therefore include:
« Unless otherwise agreed by the assignee, only receivables for which the assignor is able to justify the actual issuance of the corresponding invoice in the applicable electronic invoicing system and to transmit to the assignee the information relating to its life cycle necessary for the monitoring and recovery of the receivable are eligible for financing. »
The buyer could naturally impose more demanding conditions.
For example, it could decide that certain categories of claims only become eligible after reaching a specific stage in the electronic cycle.
However, one should never attribute to a technical status a legal scope that it does not possess.
The "deposit" status, for example, may constitute a contractual eligibility criterion chosen by the funder.
However, this does not constitute an acknowledgment of the debt by the debtor.
Contractualization thus makes it possible to link two timeframes:
the legal time frame of the transfer;
And
the informational temporality of the electronic invoice.
- From legal transferability to "digital financeability".
Electronic invoicing does not call into question the right to assign a debt.
The ordinary transfer of rights remains governed by Articles 1321 et seq. of the Civil Code.
The mobilization of trade receivables can continue to take place according to the specific mechanisms provided for by the Monetary and Financial Code.
The reform could nevertheless modify the practical criteria according to which an assignee agrees to acquire or finance a debt.
The formula could ultimately be simple: electronic invoicing does not change the legal conditions under which a receivable can be assigned; it could, however, change the contractual conditions under which an assignee agrees to acquire or finance it.
Three questions could therefore become decisive:
Has the invoice corresponding to the debt actually been issued and entered into the regulatory process?
Are the notification or enforceability of the assignment, the invoice and the payment instructions consistent?
Will the assignee be able, after the assignment, to have access to information that could affect the existence, amount, enforceability or payment of its claim?
The quality of a mobilizable claim may therefore no longer depend solely on its legal existence, its enforceability, its assignability and the solvency of the debtor.
It could also depend on its level of informational maturity, its digital traceability, and the quality of the contractual organization enabling its new holder to track its life.
It is in this sense that a new notion could emerge: that of the "digital financeability" of the debt.
This development naturally concerns factors, credit institutions practicing Dailly assignment and, more broadly, all professionals who acquire or finance receivables on a recurring basis.
But its scope is more general.
The same difficulty can arise in the case of a simple assignment of receivables when this occurs before the completion of the electronic invoice cycle.
The link between electronic invoicing and assignment of receivables therefore does not call into question existing legal mechanisms.
The reform of electronic invoicing could thus produce an indirect but significant effect: encouraging assignees to take an interest not only in the receivable they are acquiring, but also in the electronic invoice that documents it, the stage it has reached in the system and the contractual stipulations that organize its life after the assignment.
For companies that regularly use their accounts receivable, the contractualization of electronic invoicing could therefore no longer be just a matter of compliance.
It could become a condition for the liquidity of their receivables and their access to financing.
