Collecting Assigned Claims in Japan: How Can an Assignee Overcome Debtor Defenses?

Japanese Attorney at Law - Bengoshi L.L.

• 9 min read

The assignment of claims (債権譲渡 - saiken jōto) is a vital mechanism in modern commerce, facilitating financing, securitization, and debt recovery. However, an assignee (譲受人 - jōjunin or yuzuriukenin) in Japan seeking to collect an assigned claim from the debtor (債務者 - saimusha) must be prepared to navigate a complex web of potential defenses. This article explores the essential facts (要件事実 - yokenjijitsu) an assignee must prove to establish their claim and, crucially, how they can overcome common defenses raised by debtors under Japanese law.

I. Establishing the Assignee's Claim: The Essential Proof (譲受人の請求の立証：要件事実)

To initiate a claim for an assigned debt, the assignee must first establish their right to that debt.

A. Proving the Underlying (Original) Claim (譲受債権の発生原因事実)

The foundation of the assignee's case is the existence and validity of the original claim that was assigned. The assignee must prove all the essential facts that the original creditor (assignor - 譲渡人 jōtonin or yuzuriwatashinin) would have needed to prove against the debtor[cite: 222]. For instance, if the assigned claim is for a loan repayment, the assignee must prove:

  1. An agreement between the original creditor and the debtor for the repayment of money.
  2. The delivery of money by the original creditor to the debtor.
  3. Any agreed-upon repayment term.
  4. The maturity of that repayment term.

B. Proving the Valid Assignment of the Claim (債権の取得原因事実)

Next, the assignee must prove they validly acquired the claim from the original creditor[cite: 222]. This typically involves proving the conclusion of an assignment agreement (e.g., a sales contract for the claim) between the assignor and the assignee[cite: 223]. Under Japanese law, the act of assignment (transferring the claim) is generally considered effected by the underlying obligating contract itself (e.g., the sale of the claim); a separate "quasi-real right act" (jun-bukken kōi) specifically for the transfer is not usually required (supported by Supreme Court, August 2, 1968)[cite: 223].

Even if the original claim and the assignment agreement are proven, the debtor may raise defenses concerning the assignability of the claim or the perfection of the assignment.

A. The Anti-Assignment Clause (譲渡制限特約 - Jōto Seigen Tokuyaku)

Parties to the original contract (assignor and debtor) may have included a clause restricting or prohibiting the assignment of the claim (Article 466 of the Civil Code).

  1. Debtor's Right to Refuse Performance (履行拒絶の抗弁): Under the amended Civil Code, an assignment made in breach of an anti-assignment clause is generally effective (Article 466(2))[cite: 224]. However, the debtor can refuse to perform their obligation towards an assignee who, at the time of assignment, knew of the anti-assignment clause, or was grossly negligent in not knowing it (Article 466(3))[cite: 223, 224]. The debtor must prove the clause and the assignee's knowledge or gross negligence, and then assert their right to refuse[cite: 223, 224].
  2. Assignee's Counter-Arguments:
    • Demand for Performance to Assignor (履行催告の再抗弁): The assignee can counter by proving they demanded that the debtor perform their obligation towards the assignor within a reasonable period, and that period elapsed without performance. If this occurs, the debtor can no longer refuse performance to the assignee based on the assignee's knowledge/gross negligence of the anti-assignment clause (Article 466(4))[cite: 224].
    • Debtor's Consent (承諾の再抗弁): The assignee can prove that the debtor subsequently consented to the assignment (to either the assignor or the assignee), thereby waiving the benefit of the anti-assignment clause[cite: 225].
  3. Debtor's Performance to Assignor or Deposit as a Defense: If the conditions of Article 466(3) are met (assignee's knowledge/gross negligence), the debtor can also validly discharge the debt by performing towards the original assignor (e.g., paying the assignor) and assert this as a defense against the assignee[cite: 225]. The assignee might then counter by showing their demand under Article 466(4) occurred before the debtor's performance to the assignor[cite: 225, 226]. Furthermore, if a claim subject to an anti-assignment clause is assigned, the debtor may discharge the obligation by depositing the full amount with an official depository (Article 466-2(1))[cite: 226].

B. Perfection Requirements Against the Debtor (債務者対抗要件 - Saimusha Taikō Yōken)

For an assignment to be effective against the debtor, certain perfection steps are required (Article 467(1) of the Civil Code).

  1. The Need for Notice or Consent (通知または承諾の必要性): The assignment cannot be asserted against the debtor unless (a) the assignor has given notice (通知 - tsūchi) of the assignment to the debtor, or (b) the debtor has given their consent (承諾 - shōdaku) to the assignment[cite: 227].
  2. Debtor's Defense: The debtor can raise a defense asserting their right not to recognize the assignee as the creditor until such notice or consent is duly effected[cite: 226, 227]. This is considered a "rights-defense" (kenri kōben).
  3. Assignee's Proof of Perfection: The assignee must then prove that perfection against the debtor has occurred[cite: 227]:
    • Notice: The notice must come from the assignor (or their duly authorized agent/messenger); notice from the assignee alone is insufficient[cite: 227, 228]. It must be given after the assignment.
    • Consent: The debtor's consent can be given to either the assignor or the assignee, and it can be given before or after the assignment itself (Supreme Court, May 29, 1953)[cite: 227].
      Both notice and consent are considered "notifications of concept" (kannen no tsūchi), meaning they are notifications of factual matters.

III. Debtor Defenses Arising from the Relationship with the Original Creditor (Assignor) (譲渡人との関係から生じる債務者の抗弁)

The debtor generally does not lose defenses they had against the original creditor merely because the claim has been assigned.

A. Asserting Defenses Accrued Before Perfection (対抗要件具備前に生じた事由による抗弁)

Under Article 468(1) of the Civil Code, the debtor can assert against the assignee any defense that had arisen in relation to the assignor before the debtor received notice of the assignment or gave consent (i.e., before perfection against the debtor was completed)[cite: 229].

  • For example, if the debtor paid the assignor, or if a right of set-off against the assignor arose, before perfection, the debtor can assert these against the assignee. The debtor must prove the facts constituting this defense[cite: 229].

B. Assignee's Rebuttal: Perfection Occurred Before Defense Arose (先立つ債務者対抗要件具備の再抗弁)

The assignee can counter such a defense by proving that the perfection against the debtor (notice to or consent from the debtor) occurred before the facts constituting the defense arose (e.g., before the debtor paid the assignor)[cite: 229, 230].

The pre-amendment Civil Code had a rule where an "unreserved consent" by the debtor to the assignment would cut off most defenses they had against the assignor. This specific rule was abolished. However, it is still considered possible for a debtor to voluntarily waive defenses they might have[cite: 230].

IV. Navigating Double Assignments: Perfection Against Third Parties (二重譲渡：第三者対抗要件)

Matters become more complex if the assignor assigns the same claim to multiple assignees (二重譲渡 - nijō jōto). Here, perfection against third parties (他の譲受人等 - hoka no yuzuriukenin nado) becomes critical.

A. The "Fixed Date Stamp" Requirement for Third-Party Perfection (確定日付ある証書による通知・承諾)

To assert an assignment against third parties (including other assignees), the notice to the debtor or the debtor's consent must be effected by way of an instrument bearing a "fixed date stamp" (確定日付ある証書 - kakutei hizuke aru shōsho) (Article 467(2) of the Civil Code)[cite: 231]. A fixed date stamp is typically obtained from a notary public or through certain types of certified mail.

B. Debtor's Defense: Another Assignee's Competing Claim (他の譲受人の競合する請求)

If assignee 'X' sues debtor 'Y', and 'Y' is aware that the same claim was also assigned by 'A' to another assignee 'B', 'Y' might raise a defense based on 'B's potential rights.

  • If neither 'X' nor 'B' has perfected their assignment with a fixed date stamp, but both have achieved simple perfection against the debtor (simple notice/consent), courts have held that neither assignee can claim priority over the other. In such a situation, the debtor 'Y' can validly refuse to pay either assignee[cite: 231]. 'Y' would need to prove 'B's acquisition and perfection against 'Y', and then assert 'X's lack of third-party perfection[cite: 230, 231].
  • Assignee 'X's Rebuttal: 'X' would then need to prove their own perfection against third parties (i.e., notice or consent with a fixed date stamp)[cite: 232].

C. Loss of Claim Due to Another Assignee's Prior Perfected Right (第三者の優先的な対抗要件具備による債権喪失)

If assignee 'B' has perfected their assignment against third parties with a fixed date stamp, and assignee 'X' has not (or perfected later), 'B' generally has priority.

  • Debtor 'Y's Defense: 'Y' can assert that 'B' acquired the claim and perfected it against third parties, meaning 'X' has lost their claim or cannot assert it against 'Y'[cite: 233].
  • Assignee 'X's Rebuttal: 'X' can counter by proving they also perfected against third parties with a fixed date stamp[cite: 233].
  • Priority Rules: If both 'X' and 'B' have fixed date stamps, priority between them is determined not by the date on the stamp itself, nor the date of assignment, but by the time of arrival of the fixed-date-stamped notice to the debtor, or the time of the debtor's fixed-date-stamped consent (Judgment of the Supreme Court, March 7, 1974, Minshu Vol. 28, No. 2, p. 174)[cite: 233, 234]. The assignee whose fixed-date-stamped instrument reaches the debtor (or whose fixed-date-stamped consent is given) first generally prevails.
  • Simultaneous Arrival / Unclear Order: If fixed-date-stamped notices for both 'X' and 'B' arrive simultaneously, or if their order of arrival is unclear, neither assignee is considered to have priority over the other. In this unique situation, the Supreme Court has held that both assignees can independently demand the full amount of the claim from the debtor (Judgment of the Supreme Court, January 11, 1980, Minshu Vol. 34, No. 1, p. 42)[cite: 234]. The debtor would then typically discharge their obligation by paying one, or by depositing the amount if unsure.
  • Debtor 'Y's Further Rebuttal: If 'X' proves their third-party perfection, 'Y' can still defeat 'X's claim by proving that 'B's third-party perfection was prior in time to 'X's (based on arrival times)[cite: 235].

V. Debtor's Payment in the Context of Multiple Assignees (複数の譲受人がいる場合の債務者の弁済)

If the debtor pays one of multiple assignees, the validity of this payment as a discharge against another assignee depends on the perfection status.

A. Payment to an Assignee with Inferior Priority (劣後する譲受人への弁済)

If assignee 'X' has perfected their claim against third parties (fixed date stamp) and thus has priority over assignee 'B' (who either has no fixed date stamp or a later one), and the debtor 'Y' nevertheless pays 'B', this payment to 'B' generally does not discharge 'Y's obligation towards 'X'[cite: 236, 237].

  • Debtor 'Y's Defense: 'Y' proves payment to 'B'[cite: 236].
  • Assignee 'X's Rebuttal: 'X' proves their third-party perfection occurred before 'Y' paid 'B'[cite: 236, 237]. 'Y' might further counter by proving 'B' also had third-party perfection prior to payment, and 'X' would then need to prove 'X's perfection was prior to 'B's[cite: 238].

B. The Defense of Payment to a Person with Apparent Authority to Receive (受領権者としての外観を有する者に対する弁済)

Even if 'X' has priority, 'Y' might argue that their payment to 'B' (the assignee with inferior or no third-party perfection) should be deemed valid under Article 478 of the Civil Code. This article protects a debtor who, in good faith and without negligence, makes payment to someone who, though not the true creditor, has the appearance of being entitled to receive payment[cite: 239].

  • Debtor 'Y's Defense: 'Y' must prove:
    1. Payment to 'B'.
    2. Facts establishing that 'B' had the outward appearance of being the person entitled to receive payment.
    3. 'Y' believed in good faith that 'B' was so entitled.
    4. 'Y' was not negligent in holding this belief (i.e., had reasonable grounds to believe 'B' was the true creditor)[cite: 239].
      The Supreme Court has affirmed that Article 478 can apply to payments made to an assignee with inferior perfection in a double assignment scenario (Judgment of the Supreme Court, April 11, 1986, Minshu Vol. 40, No. 3, p. 558)[cite: 239, 240]. However, for the debtor to be deemed "without negligence," there usually needs to be substantial reason to believe the inferior assignee was the true creditor, such as flaws in the superior assignee's claim assertion or perfection[cite: 240].

VI. Conclusion: Key Strategies for Assignees (結論：譲受人のための主要戦略)

Collecting an assigned claim in Japan can be straightforward if the debtor acknowledges the assignment and has no defenses. However, when disputes arise, assignees must be prepared to prove not only the original debt and the assignment but also the necessary perfection against both the debtor and potentially other third parties. Understanding the debtor's potential defenses—ranging from anti-assignment clauses to claims of prior payment or competing assignments—is critical. Prompt and proper perfection of the assignment, particularly using instruments with a fixed date stamp when dealing with potential third-party competitors, is a key proactive measure for assignees to secure their rights.