delegation/ assignment Flashcards
What type of contracts can and cannot be delegated?
The only type of contracts that cannot be delegated are personal service contracts. If the contract does not say they cannot delegate it, it is delegate-able.
What is the dominant factor test?
Must distinguish between the dominant character tests between goods and services to determine whether it falls into common law or UCC.
What is the most important part of assigning a right?
Manifestation of intent
Restatement 316: Scope of assignment and delegation.
References to assignment of a right or delegation of a duty or condition, to the obligee or obligor of an assigned right or delegated duty, or to an assignor or assignee, are limited to rights, duties and conditions arising under a contract or breach of contract.
Restatement 317: Assignment of Rights
How to read this statute?
1 is the general rule
2 are the exceptions to 1
a is emphasis on materially altering the contract.
b is emphasis on statute or public policy grounds.
c is emphasis on contractually invalid.
(1) An assignment of a right is a manifestation of the assignor’s intention to transfer it by virtue of which the assignor’s right to performance by the obligor is extinguished in whole or in part and the assignee acquires a right to such performance.
(2) A contractual right can be assigned unless:
(a) the substitution of a right of the assignee for the right of the assignor would materially change the duty of the obligor, or materially increase the burden or risk imposed on him by his contract, or materially impair his chance of obtaining return performance, or materially reduce its value to him, or
(b) the assignment is forbidden by statute or is otherwise inoperative on grounds of public policy, or
(c) assignment is validly precluded by contract.
What is the difference between personal service contracts and regular service contracts?
Service which does not rest heavily on the ability of the persons skill/ taste/ judgement can be assigned to others.
What is an assignment?
an act or manifestation by owner of a right (assignor) indicating his intent to transfer that right to another person (assignee).
Restatement 318: Delegation of Performance of Duty
(1) An obligor can properly delegate the performance of his duty to another unless the delegation is contrary to public policy or the terms of his promise.
General Rule: Obligor can properly delegate the performance of his duty to another.
Exception: unless the delegation is contrary to public policy or the terms of his promise.
(3) Unless the obligee agrees otherwise, neither delegation of performance nor a contract to assume the duty made with the obligor by the person delegated discharges any duty or liability of the delegating obligor.
Restatement 333: Warranties of an Assignor
(1) Unless a contrary intention is manifested, one who assigns or purports to assign a right by assignment under seal or for value warrants to the assignee
(a) that he will do nothing to defeat or impair the value of the assignment and has no knowledge of any fact which would do so;
(b) that the right, as assigned, actually exists and is subject to no limitations or defenses good against the assignor other than those stated or apparent at the time of the assignment.
(c) that any writing evidencing the right which is delivered to the assignee or exhibited to him to induce him to accept the assignment is genuine and what it purports to be.
Restatement 336: Defenses Against an Assignee
(1) By an assignment the assignee acquires a right against the obligor only to the extent that the obligor is under a duty to the assignor; …
(2) The right of an assignee is subject to any defense or claim of the obligor which accrues before the obligor receives notification of the assignment, …
