Agency, Assignation and third party rights

Question 1

res inter alios acta aliis non nocet prodest

Answer 1

The privity of contract … literally … ‘a thing done between others does not harm or benefit others’

Question 2

Assignation

Answer 2

general process for the transfer of incorporeal property rights ie. debt.

X lends Tom £300
X wants the money back before it’s due
X sells the debt to Y for £280
– Y gets profit and X gets the money sooner

Question 3

Cession

Answer 3

The old name for assignation

Question 4

Assignor/Cedent

Answer 4

The person who is giving the rights away

Question 5

Assignee/Cessionary

Answer 5

The person who is receiving the rights

Question 6

Creditor

Answer 6

The person who can demand something

Question 7

Debtor

Answer 7

The person who can be demanded something of

Question 8

Henderson v Robb 1889

Answer 8

Authority for privity of contract

Question 9

Process of Assignation (3 points)

Answer 9

1. Agreement to assign (i.e. a contract)
2. Assignation (i.e. conveyance, i.e. deed of transfer plus delivery of deed to assignee)
3. Intimation to debtor (effects transfer of right)

Question 10

Definition of Assignation (5 points)

Answer 10

• • transfer of rights, not liabilities
• • does not require consent of debtor
• • not effective until intimation of the assignation to the debtor
• • defences: assignatus utitur jure auctoris
• • prohibitions on assignation - contract term; deletes personae

Question 11

Slattadale Ltd v Tilbury Homes (Scotland) Ltd, 1997

Answer 11

A claim for damages may be assigned, such as a claim for damages for breach of contract

Question 12

Aurdal v Estrella 1916

Answer 12

Spanish company sold ship to Swedish company - Spanish King issued order saying that Spanish people weren’t allowed to sell Spanish ships to foreigners - Spanyards wanted to withdraw - Swedes didn’t, the ship had increased in value by a great deal - Swedes assigned the right to receive the ship to another Spanish company so that there was no contravention of the law

Question 13

Delectus personae

Answer 13

the choice of a particular person

Question 14

Cole v Handasyde & Co 1910

Answer 14

Whether an obligation stipulated in a contract is assignable or not depends upon whether there is an element of delectus personae in it

Question 15

Scottish Homes v Inverclyde 1997 (3-part test for deletes personae)

Answer 15

1. The particular selection of an individual to perform personally certain specified services
2. In circumstances in which the identification of an individual with the services implies a linkage so peculiar
3. That no form of substitution of performance could be within contemplation.

–Housing Authority – put out a tender for technical repairs – the company sub-contracted – was found that the fact that the company had put out tenders and had been selected to do highly technical work meant that deletes personae was a feature of the contract

Question 16

James Scott v Apollo Engineering 2000

Answer 16

Limits on assignation - contractual prohibition

“The sub-contractor shall not assign the benefit of the sub-contract nor sublet the whole or any part of the sub-contract works without the prior written consent of [the pursuers]”

Question 17

Assignatus utitur jure auctoris

Answer 17

Defence:

X buys a car, taks out a loan to do so
The debt is assigned
The car turns out to be faulty
Liability for the faulty car has not been transferred - the original debtor must still be held accountable

Question 18

Jus quaesitum tertio (4 points)

Answer 18

• Cannot impose an obligation upon 3rd party without their consent
• can confer a benefit on a 3rd party
• under JQT the 3rd party acquires AN ENFORCEABLE RIGHT
• the 3rd party can sue to enforce their contractual rights ( Alfred McAlpine Construction Ltd v Panatown Ltd [2001] )

Question 19

Carmichael v Carmichael’s Exx 1920 (3-part test)

Answer 19

1. There must be an intention by the contracting parties to confer a right upon the 3rd party
2. The right must have been intended to be irrevocable
3. The 3rd party must be clearly identified as individual or class of persons

Question 20

Alfred McAlpine Construction Ltd v Panatown Ltd [2001]

Answer 20

A third party, that had been conferred with rights in the contract, sued in order to enforce those rights