Agency, Assignation and third party rights Flashcards
res inter alios acta aliis non nocet prodest
The privity of contract … literally … ‘a thing done between others does not harm or benefit others’
Assignation
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
Cession
The old name for assignation
Assignor/Cedent
The person who is giving the rights away
Assignee/Cessionary
The person who is receiving the rights
Creditor
The person who can demand something
Debtor
The person who can be demanded something of
Henderson v Robb 1889
Authority for privity of contract
Process of Assignation (3 points)
- Agreement to assign (i.e. a contract)
- Assignation (i.e. conveyance, i.e. deed of transfer plus delivery of deed to assignee)
- Intimation to debtor (effects transfer of right)
Definition of Assignation (5 points)
- 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
Slattadale Ltd v Tilbury Homes (Scotland) Ltd, 1997
A claim for damages may be assigned, such as a claim for damages for breach of contract
Aurdal v Estrella 1916
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
Delectus personae
the choice of a particular person
Cole v Handasyde & Co 1910
Whether an obligation stipulated in a contract is assignable or not depends upon whether there is an element of delectus personae in it
Scottish Homes v Inverclyde 1997 (3-part test for deletes personae)
- The particular selection of an individual to perform personally certain specified services
- In circumstances in which the identification of an individual with the services implies a linkage so peculiar
- 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
James Scott v Apollo Engineering 2000
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]”
Assignatus utitur jure auctoris
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
Jus quaesitum tertio (4 points)
- 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] )
Carmichael v Carmichael’s Exx 1920 (3-part test)
- There must be an intention by the contracting parties to confer a right upon the 3rd party
- The right must have been intended to be irrevocable
- The 3rd party must be clearly identified as individual or class of persons
Alfred McAlpine Construction Ltd v Panatown Ltd [2001]
A third party, that had been conferred with rights in the contract, sued in order to enforce those rights
