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Com > 6. Assignment > Flashcards

6. Assignment Flashcards

1
Q

Novation

A

1) a –> x
2) b –> x

A-X contract replaced with new contract

NOT A TRANSFER - A’s right is not handed to B (it is a NEW MATCHING RIGHT created but effect is like a transfer)

  • consent of everyone required
  • B must provide consideration
  • B gets new rights directly against X
  • new contract might impose duties on B to X
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2
Q

Contract (Rights of Third Parties) Act 1999

A

1) a –> x
2) a –> x, b–> x

X makes contractual promise to A that payment will be made to B

B gets direct statutory claim against X

NO duties imposed on B

B does not need to provide consideration

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3
Q

Acknowledgement

A

1) a –> x
2) b –> x

If X holds specific fund from which X’s debt to A must be satisfied, A can instruct X to pay debt due from found to B

If X agrees, B can bring direct claim against X

B GAINS NEW RIGHTS DIRECTLY AGAINST X

B doesn’t need to provide consideration

X must be involved so it is hard to do this globally

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4
Q

Shamia v Joory

A

acknowledgement applied even though X didn’t hold a specific fund

BUT VERY hard to justify

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5
Q

Declaration of Trust

A

A declares he holds contractual right to payment against X on trust for B

  • consent of X not required
  • b doesn’t need to provide consideration
  • B doesn’t gain new right against X
  • but B can force A to sue X by joining A as defendant

NOT A TRANSFER

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6
Q

common law assignment

A

basic rule: choses in action cannot be transfered

exception:

  • debt owed to the crown
  • debts physically embodied by negotiable instruments
  • registered company shares and debentures
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7
Q

why no CL assignment

A

1) worry about 3P interfering with causes in action

2) fundamental nature of contractual rights (Chi Ho Tham)

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8
Q

Re McArdle

A

B does not need to provide consideration for equitable assignment

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9
Q

Brandt’s Son v Dulop Rubber (general)

A

A does not need to use the word “assignment”

Easy to express intention to make immediate transfer of benefit of right to B

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10
Q

Gorringe v Irwell

A

no need for notice for valid equitable assignment

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11
Q

Brandt’s Son v Dulop Rubber (acquiring rights)

A

B DOES NOT acquire a direct claim against X

B must join A to bring an action

but it was fine here (EXCEPTIONAL CASE) because no one raised this until it got to HL

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12
Q

Roberts v Gill

A

Lord Collins - unless it is an exceptional case (like Brandt’s) B must join A to sue X

  • requirement is NOT merely a procedural one
  • it is substantive (A is a bare trustee)
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13
Q

MH Smith v DL Mainwaring

A

subrogation case

  • asserting A’s right so B must join A
  • if A doesn’t exist anymore = no claim (A must be brought back to life)
  • requirement not just procedural
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14
Q

Effect of EA

A

1) B does not acquire direct claim against X
2) if X has not received notice of assignment, X will be discharged from X’s debt if X pays A
3) if A goes insolvent, A’s right against X is not available to A’s unsecured creditors (Holt v Heatherfield)

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15
Q

valid SA:

A

one - assignment

two - absolute (whole of A’s right)

three - in writing signed by A

four - express notice in writing to X

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16
Q

result of SA

A

from date of notice:

  • B gets a claim directly against X
  • A loses A’s rights against X

B is subject to prior equities affecting B’s right

17
Q

Torkington v Mcgee

A

s.136 is “merely machinery”

being able to sue = procedural benefit

18
Q

Durham Bros v Robertsom

A

assignment must be absolute for SA

ASSIGNMENT BY WAY OF MORTGAGE = fine

  • entire interest of A
  • when A redeems, transfer back to A from B under s.136 requires notice

ASSIGNMENT BY WAY OF CHARGE = not fine
- when B terminates right when A’s secured duty is performed, X might be unaware

ASSIGNMENT OF PART OF DEBT = NOT FINE
- X exposed to multiple actions with risk of conflicting decisions

19
Q

Curran v Newark Cinemas

A

same document can be written notice of X and writing signed by A

20
Q

Dearle v Hall

A

first in time = priority provided equities are equal

  • if notice is given, equities are not equal (equity favours the vigilant)
  • SA subject to this too so first in line can have priority over SA (unless SA gives notice)

CRUCIAL FACTOR = NOTICE (not whether statutory or equitable assignment)

21
Q

compaq computer

A

confirmed dearie v hall

even if 2nd assignment is SA

helps confirm SA is just EA plus mechanism

22
Q

Dawson v GN & City Railway

A

NO ADDITIONAL LIABILITY ON X

  • B cannot recover for additional loss suffered as a result of trade carried out by B (but not by A)
  • assignment does not increase burden on X
23
Q

Linden Gardens (HL case)

A

Staughton LJ (CA);

B cannot recover more than A could have if assignment didn’t happen and transfer didn’t happen

X cannot be in a worse position

24
Q

Offer-Hoar v Larkstone

A

X cannot rely on assignment to escape liability for breach

X taking advantage of Dawson (said A not suffering because B sold land to B)

X’s liability =measured to A on assumption of no assignment (not just A now)

25
Q

Young v Kitchen

A

if X’s claim against A arises out of the same contract as assigned debt, X can rely on that claim

26
Q

Business Computers v Anglo-African

A

if X’s claim arose out of different circumstances, X can rely on it against B if claim arose before notice of assignment given to X

27
Q

Noakes v Doncaster

A

can’t assign employment contracts (inherently non-assignable)

28
Q

Don King v Warren (inherently non-assignable)

A

can’t assign contracts involving personal confidence (e.g. managing contracts/licensing) it is inherently non-assignable

29
Q

Tohurst v Associated Portland

A

personal contract cannot be assigned

X must supply A chalk for 50 years

  • could be assigned
  • can be read to be made to A or anyone (not important)
30
Q

Kemp v Baeselman

A

personal contract cannot be assigned

X must supply eggs to A, A cannot buy from any other merchant

  • cannot be assigned
  • personal obligation on A
31
Q

Don King v Warren (first instance)

A

lighten J - if obligation involves personal elements, must consider if assignment is possible

1) if agreeing to do a particular thing, there is good reason to doubt A can change nature of obligation (without X’s consent)
2) if personal contract it is clear this obligation cannot be discharged by someone else

32
Q

Trendex v Credit Suisse

A

roskill: “the old saying that you cannot assign a bare right to litigate is gone”

MERE RIGHTS OF ACTION CAN BE ASSIGNED

  • genuine commercial interest
  • onus is on X to show it is champertous

(X could show that in this case, it was assigned so that enforcement of claim could be profitable)

33
Q

Glegg v Bromley

A

assigning proceeds of action is no problem

34
Q

Liden Gardens

A

NAC are valid

  • yes, you can’t limit property rights (e.g. freehold owner has inherent power to assign)
  • but choses in action are not property rights
35
Q

St Martin’s Dispute

A

if NAC is valid, this affects B

  • B = no right to sue because of NAC
  • even if no NAC, only A’s right is assigned so B cannot recover damages X wouldn’t have been liable to A for (Offer-Haul)

prohibition on assignment can protect X from claims that might be brought on B’s behalf BUT it can change X’s liability to A (A can recover damages for b)

36
Q

McAlpine v Panatown

A

If A enters contract with 3P, damages available to A is not restricted to those that reflect financial loss suffered by A as a result of 3P’s breach

  • but if X confers some direct rights to B (duty of care deed) this analysis cannot apply

NAC can increase liability to A (allow A to sue on B’s behalf but if X confers some rights to B, that limits X’s liability to A)

37
Q

Don King v Warren

A

no actual DOT but courts can find a DOT from the arrangements

NAC doesn’t prevent DOT arising

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