plc legal assignment

Legal Assignment: Everything You Need to Know

A legal assignment occurs when a party assigns their contractual rights to a third party. 3 min read updated on September 19, 2022

A legal assignment occurs when a party assigns their contractual rights to a third party. The benefit that the issuing party would have received from the contract is now assigned to the third party. The party appointing their rights is referred to as the assignor, while the party obtaining the rights is the assignee.

Assignment of Contract

A legal assignment occurs when:

• The rights in personal or real property are transferred from one party to another
• The transfer also gives the new owner the rights to the property that the prior owner held prior to the transfer occurring

In the Purman Estate case, the court stated that a legal assignment is a transfer of property, or of some right or interest, from one person to another. It also stated that it must be the proper transfer of one whole interest in that property.

An assignment of rights occurs when an assignor gives up or transfers their rights of a future benefit to another party. In other words, an assignment is the act of one party transferring, vesting, or causing to vest their interest in a property to another party. A valid legal assignment only occurs when all underlying elements of a lawfully binding contract are included in it, including intent. A trial court can determine if an assignment has occurred. To prevent disputes or miscommunications, it's important that the subject matter is clearly identified in the assignment.

A contract assignment occurs when a party assigns their contractual rights to a third party. The benefit the issuing party would have received from the contract is now assigned to the third party. The party appointing their rights is referred to as the assignor, while the party obtaining the rights is the assignee. Essentially, the assignor prefers that the assignee reverses roles and assumes the contractual rights and obligations as stated in the contract. Before this can occur, all parties to the original contract must be notified.

How Assignments Work

The specific language used in the contract will determine how the assignment plays out. For example , one contract may prohibit assignment, while another contract may require that all parties involved agree to it before proceeding. Remember, an assignment of contract does not necessarily alleviate an assignor from all liability. Many contracts include an assurance clause guaranteeing performance. In other words, the initial parties to the contract guarantee that the assignee will achieve the desired goal.

When Assignments Will Not Be Enforced

The following situations indicate when an assignment of a contract is not enforced:

• The contract specifically prohibits assignment
• The assignment drastically changes the expected outcome
• The assignment is against public policy or illegal

Delegation vs. Assignment

Occasionally, one party in a contract will desire to pass on or delegate their responsibility to a third party without creating an assignment contract. Some duties are so specific in nature that they cannot be delegated. Adding a clause in the contract to prevent a party from delegating their responsibilities and duties is highly recommended.

Three Steps to Follow if You Want to Assign a Contract

There are three main steps to take if you're looking to assign a contract:

• Make sure the current contract does not contain an anti-assignment clause
• Officially execute the assignment by transferring the parties' obligations and rights
• Notify the obligor of the changes made

Once the obligor is notified, the assignor will effectively be relieved of liability.

Anti-Assignment Clauses

If you'd prefer not to allow the party you're doing business with to assign a contract, you may be able to prevent this from occurring by clearly stating anti-assignment clauses in the original contract. The three most common anti-assignment clauses are:

• Consent required for assignment
• Consent not needed for new owners or affiliates
• Consent not unreasonably withheld

Based on these three clauses, no party in the contract is allowed to delegate or assign any obligations or rights without prior written consent from the other parties. Any delegation or assignment in violation of this passage shall be deemed void. It is not possible to write an anti-assignment clause that goes against an assignment that is issued or ordered by a court.

If you need help with a legal assignment, you can  post your job  on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb. 

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Content Approved by UpCounsel

• Assignment Law
• Assignment Contract Law
• Assignment of Rights and Obligations Under a Contract
• Assignment of Rights Example
• Consent to Assignment
• Assignment Legal Definition
• What Is the Definition of Assigns
• Delegation vs Assignment
• Assignment Of Contracts
• Assignment of Contract Rights

• Practical Law

Standard documents and drafting notes

Practical law uk help and information notes /resources/documents/uk-ip-it  (approx. 21 pages), communications.

• Fibre capacity agreement ( with integrated drafting notes )
• Information and communications systems policy (with integrated drafting notes )
• Managed services agreement ( with integrated drafting notes )
• Mobile application end-user licence agreement ( with integrated drafting notes )
• MVNO agreement ( with integrated drafting notes )
• Satellite procurement contract (checklist)
• Satellite launch contract (checklist)
• Telecommunications lease (with integrated drafting notes)
• Telecoms interconnection agreement (reciprocal VoIP) ( with integrated drafting notes )
• Terms and conditions for WiFi access ( with integrated drafting notes )
• Drafting note

Confidentiality

Contentious ip.

• Letter of claim (design right infringement) (with integrated drafting notes) Tabular or graphic material set at this point is not displayable.
• Letter of claim (patent infringement) (with integrated drafting notes) Tabular or graphic material set at this point is not displayable.
• Letter of claim (registered design infringement) (with integrated drafting notes) Tabular or graphic material set at this point is not displayable.

Copyright and designs

• Assignment of copyright (pro-assignee) Tabular or graphic material set at this point is not displayable.
• Assignment of copyright (pro-assignor) Tabular or graphic material set at this point is not displayable.
• Drafting note (relating to both versions of assignment)
• Assignment of industrial designs (pro-assignee) ( with integrated drafting notes ) Tabular or graphic material set at this point is not displayable.
• Assignment of industrial designs (pro-assignor) ( with integrated drafting notes ) Tabular or graphic material set at this point is not displayable.
• Copyright policy ( with integrated drafting notes )
• Database sale agreement (no personal data) ( with integrated drafting notes )
• Database sale agreement (personal data: transfer outside EEA) ( with integrated drafting notes )
• Database sale agreement (personal data, transfer within EEA) ( with integrated drafting notes )
• Character merchandising licence ( with integrated drafting notes )
• Licence of industrial designs ( with integrated drafting notes )
• Licence of photograph (pro-licensee) ( with integrated drafting notes )
• Licence of photograph (pro-licensor) ( with integrated drafting notes )

Corporate transactions: IP

Corporate transactions: it, data protection.

• Binding corporate rules: complaints handling procedure ( with integrated drafting notes )
• Binding corporate rules: main principles document ( with integrated drafting notes )
• Bring your own device to work (BYOD) policy
• Data licence agreement (financial services, personal data, transfer outside EEA) ( with integrated drafting notes )
• Data licence agreement (general, personal data, transfer outside EEA) ( with integrated drafting notes )
• Data protection policy: drafting note
• Data security breach notification: letter notifying a personal data breach to affected data subjects
• Data security breach notification: letter notifying a personal data breach to the Information Commissioner
• Data subject access: data controller's acknowledgement letter ( with integrated drafting notes )
• Data subject access: data controller's detailed response ( with integrated drafting notes )
• Data subject access: data controller seeking fee, identification or clarification ( with integrated drafting notes )
• Data subject access: data subject access request form ( with integrated drafting notes )
• Data subject access: general letter making a request ( with integrated drafting notes )
• Data subject access: third party request form ( with integrated drafting notes )
• Data VAR agreement ( with integrated drafting notes )
• Mobile application privacy policy ( with integrated drafting notes )
• Privacy policy (with integrated drafting notes )
• Safe harbor policy
• Standard clause for transfer of personal data to data controllers in third countries
• Standard clause for transfer of personal data to processors in third countries

Information technology

• General drafting note
• IT-specific drafting note
• Data licence (financial services) ( with integrated drafting notes )
• Data licence agreement (general) ( with integrated drafting notes )
• Data processing agreement (no personal data) ( with integrated drafting notes )
• Data processing agreement (no personal data, combined with Supplier data) ( with integrated drafting notes )
• Data processing agreement (personal data, transfer outside EEA) ( with integrated drafting notes )
• Data processing agreement (personal data, transfer within EEA) ( with integrated drafting notes )
• Data VAR agreement (personal data, transfer outside EEA) ( with integrated drafting notes )
• Data processing agreement (personal data, transfer outside EEA, combined with Supplier Data) ( with integrated drafting notes )
• Hardware maintenance agreement ( with integrated drafting notes )
• Invitation to tender (private sector): questions for tenderers ( with integrated drafting notes )
• Invitation to tender (private sector): the company's requirements ( with integrated drafting notes )
• Mobile application development agreement (pro-customer) ( with integrated drafting notes )
• Mobile application development agreement (pro-supplier) ( with integrated drafting notes )
• Service Level Agreement ( with integrated drafting notes )
• Software licence agreement (pro-customer) ( with integrated drafting notes )
• Software licence agreement (pro-supplier) ( with integrated drafting notes )
• Software VAR Agreement ( with integrated drafting notes )
• Web-wrap software licence ( with integrated drafting notes )
• Company guidelines for use of social media ( with integrated drafting notes )
• Information and communications systems policy ( with integrated drafting notes )
• Search engine optimisation services agreement ( with integrated drafting notes )
• Social media policy ( with integrated drafting notes )
• Website terms and conditions of supply ( with integrated drafting notes )
• Art loan agreement ( with integrated drafting notes )
• Band agreement ( with integrated drafting notes )
• Composer's agreement for film music ( with integrated drafting notes )
• Film actor's agreement ( with integrated drafting notes )
• Film crew member's agreement ( with integrated drafting notes )
• Film director's agreement ( with integrated drafting notes )
• Film distribution agreement ( with integrated drafting notes )
• Film equity investment agreement ( with integrated drafting notes )
• Film option agreement ( with integrated drafting notes )
• Film producer's agreement ( with integrated drafting notes )
• Location agreement ( with integrated drafting notes )
• Music publishing agreement ( with integrated drafting notes )
• Music publishing synchronisation licence agreement ( with integrated drafting notes )
• Master recording synchronisation licence agreement ( with integrated drafting notes )
• Notice and take-down letter (defamation) ( with integrated drafting notes )
• Product release ( with integrated drafting notes )
• Publishing agreement ( with integrated drafting notes )
• Screenplay writer's agreement ( with integrated drafting notes )
• Short-form film music commissioning agreement ( with integrated drafting notes )
• TV contributor's agreement ( with integrated drafting notes )
• TV format option and licence agreement ( with integrated drafting notes )
• TV presenter's agreement ( with integrated drafting notes )
• TV presenter's loan-out agreement ( with integrated drafting notes )
• Video-on-demand content licence agreement (with integrated drafting notes)
• Assignment of intellectual property rights (pro-assignee) Tabular or graphic material set at this point is not displayable.
• Intra-group assignment of intellectual property rights ( with integrated drafting notes )
• Intra-group licence of intellectual property rights ( with integrated drafting notes )
• IP, IT and communications due diligence questionnaire ( with integrated drafting notes )
• Luxury goods licence ( with integrated drafting notes )
• Assignment of patents (pro-assignee) ( with integrated drafting notes ) Tabular or graphic material set at this point is not displayable.
• Assignment of patents (pro-assignor) ( with integrated drafting notes ) Tabular or graphic material set at this point is not displayable.
• Patent and know-how licence agreement ( with integrated drafting notes ) Tabular or graphic material set at this point is not displayable.
• Patent recordal licence: short form

Research and development

Trade marks.

• Assignment of trade marks (pro-assignee) ( with integrated drafting notes ) Tabular or graphic material set at this point is not displayable.
• Assignment of trade marks (pro-assignor) ( with integrated drafting notes ) Tabular or graphic material set at this point is not displayable.
• Trade mark licence agreement ( with integrated drafting notes ) Tabular or graphic material set at this point is not displayable.

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UK – Legal Terms Explained: Assignment.

April 18, 2023 by Rohin Pujari

What is assignment?

An assignment is the transfer of an interest from one party (“ assignor ”) to another (“ assignee ”). Assignment allows the assignor to transfer the benefit of a contract to the assignee. For example, the tenant of recently built office premises may transfer the benefit of a collateral warranty originally granted in its favour to a subsequent tenant.

Without express words, assignment usually involves an assignment of accrued and future rights. Clear words are required to assign only future rights under a contract ( Energy Works (Hull) Ltd v MW High Tech Projects UK and others  [2020] EWHC 2537 (TCC)).

Assignment in a construction context typically refers to a legal or equitable assignment (although assignment can also occur by other means, e.g. operation of law). A key difference between legal and equitable assignments is that, in the case of a legal assignment, the assignee may enforce any assigned rights in its own name. In contrast, following an equitable assignment, the assignee would need to join the assignor in any action brought to enforce its rights.

To take effect as a legal assignment under English law, an assignment must comply with section 136(1) of the Law of Property Act 1925 (“ LPA 1925 “). This requires the assignment to be: (i) in writing; (ii) absolute; and (iii) expressly notified in writing to the other party to the contract (“ debtor “). In practice, parties tend to effect a legal assignment by way of an assignment agreement or deed of assignment to ensure that these requirements are satisfied.

However, if the parties fail to meet any of the requirements set out in LPA 1925 the assignment will usually have equitable effect. Equitable assignments may arise orally or in writing, and whilst recommended, there is no need to notify the debtor, provided a clear intention to assign can be established. Neither legal nor equitable assignments generally require the debtor’s consent.

  Assignment v novation

Although both terms are sometimes used interchangeably, assignment should be distinguished from novation. The most notable difference is that assignment only transfers the benefit of a contract (e.g. a warranty that works have been carried out to the required standard), whereas a novation transfers both the benefit and the burden (e.g. an obligation to pay for a service). As novation also requires the consent of all parties, it will typically be effected by a tripartite agreement between the novating party, the party to whom the contract is to be novated, and the counterparty to the relevant contract.

  Some issues concerning assignment

• Restrictions on assignment  – Unless there is an express prohibition in the contract, the parties will usually be free to assign the benefit of a contract. However, many standard form building contracts, including the JCT Design and Build Contract, prohibit assignment, or allow it only subject to certain conditions. In this regard, a developer may seek to amend the contract to reduce any restrictions on their ability to assign. In contrast, a contractor may seek to limit any rights to assign, for example by specifying the number of permitted assignments. This is often linked to the contractor’s professional indemnity insurance terms which may provide for restricted cover in respect of successive assignments.
• Ineffective assignment where prohibited  – If a party purports to assign a right in contravention of an assignment clause, the assignment will only be effective as between the assignee and the assignor, and will not be enforceable against the debtor.
• Means of assignment  – A clause in a contract permitting assignment is not sufficient to effect an assignment. There must be a separate document or oral agreement to show the assignor’s intention to assign ( Allied Carpets Group Plc v Macfarlane (t/a Whicheloe Macfarlane Partnership)  [2002] EWHC 1155 (TCC)).

* This is an updated version of an article originally published as part of the ‘Legal Terms Explained’ series of  Construction Law .

For further information, please contact:

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• Insights & events

Assigning debts and other contractual claims - not as easy as first thought

Harking back to law school, we had a thirst for new black letter law. Section 136 of the Law of the Property Act 1925 kindly obliged. This lays down the conditions which need to be satisfied for an effective legal assignment of a chose in action (such as a debt). We won’t bore you with the detail, but suffice to say that what’s important is that a legal assignment must be in writing and signed by the assignor, must be absolute (i.e. no conditions attached) and crucially that written notice of the assignment must be given to the debtor.

When assigning debts, it’s worth remembering that you can’t legally assign part of a debt – any attempt to do so will take effect as an equitable assignment. The main practical difference between a legal and an equitable assignment is that the assignor will need to be joined in any legal proceedings in relation to the assigned debt (e.g. an attempt to recover that part of the debt).

Recent cases which tell another story

Why bother telling you the above?  Aside from our delight in remembering the joys of debating the merits of legal and equitable assignments (ehem), it’s worth revisiting our textbooks in the context of three recent cases. Although at first blush the statutory conditions for a legal assignment seem quite straightforward, attempts to assign contractual claims such as debts continue to throw up legal disputes:

• In  Sumitomo Mitsui Banking Corp Europe Ltd v Euler Hermes Europe SA (NV) [2019] EWHC 2250 (Comm),  the High Court held that a performance bond issued under a construction contract was not effectively assigned despite the surety acknowledging a notice of assignment of the bond. Sadly, the notice of assignment failed to meet the requirements under the bond instrument that the assignee confirm its acceptance of a provision in the bond that required the employer to repay the surety in the event of an overpayment. This case highlights the importance of ensuring any purported assignment meets any conditions stipulated in the underlying documents.
• In  Promontoria (Henrico) Ltd v Melton [2019] EWHC 2243 (Ch) (26 June 2019) , the High Court held that an assignment of a facility agreement and legal charges was valid, even though the debt assigned had to be identified by considering external evidence. The deed of assignment in question listed the assets subject to assignment, but was illegible to the extent that the debtor’s name could not be deciphered. The court got comfortable that there had been an effective assignment, given the following factors: (i) the lender had notified the borrower of its intention to assign the loan to the assignee; (ii) following the assignment, the lender had made no demand for repayment; (iii) a manager of the assignee had given a statement that the loan had been assigned and the borrower had accepted in evidence that he was aware of the assignment. Fortunately for the assignee, a second notice of assignment - which was invalid because it contained an incorrect date of assignment - did not invalidate the earlier assignment, which was found to be effective. The court took a practical and commercial view of the circumstances, although we recommend ensuring that your assignment documents clearly reflect what the parties intend!
• Finally, in Nicoll v Promontoria (Ram 2) Ltd [2019] EWHC 2410 (Ch),  the High Court held that a notice of assignment of a debt given to a debtor was valid, even though the effective date of assignment stated in the notice could not be verified by the debtor. The case concerned a debt assigned by the Co-op Bank to Promontoria and a joint notice given by assignor and assignee to the debtor that the debt had been assigned “on and with effect from 29 July 2016”. A subsequent statutory demand served by Promontoria on the debtor for the outstanding sums was disputed on the basis that the notice of assignment was invalid because it contained an incorrect date of assignment. Whilst accepting that the documentation was incapable of verifying with certainty the date of assignment, the Court held that the joint notice clearly showed that both parties had agreed that an assignment had taken place and was valid. This decision suggests that mistakes as to the date of assignment in a notice of assignment may not necessarily be fatal, if it is otherwise clear that the debt has been assigned.

The conclusion from the above? Maybe it’s not quite as easy as first thought to get an assignment right. Make sure you follow all of the conditions for a legal assignment according to the underlying contract and ensure your assignment documentation is clear.

Contact our experts for further advice

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Assignments: why you need to serve a notice of assignment

It's the day of completion; security is taken, assignments are completed and funds move. Everyone breathes a sigh of relief. At this point, no-one wants to create unnecessary paperwork – not even the lawyers! Notices of assignment are, in some circumstances, optional. However, in other transactions they could be crucial to a lender's enforcement strategy. In the article below, we have given you the facts you need to consider when deciding whether or not you need to serve notice.

What's the issue?

Assignments are useful tools for adding flexibility to banking transactions. They enable the transfer of one party's rights under a contract to a new party (for example, the right to receive an income stream or a debt) and allow security to be taken over intangible assets which might be unsuitable targets for a fixed charge. A lender's security net will often include assignments over contracts (such as insurance or material contracts), intellectual property rights, investments or receivables.

An assignment can be a legal assignment or an equitable assignment. If a legal assignment is required, the assignment must comply with a set of formalities set out in s136 of the Law of Property Act 1925, which include the requirement to give notice to the contract counterparty.

The main difference between legal and equitable assignments (other than the formalities required to create them) is that with a legal assignment, the assignee can usually bring an action against the contract counterparty in its own name following assignment. However, with an equitable assignment, the assignee will usually be required to join in proceedings with the assignor (unless the assignee has been granted specific powers to circumvent that). That may be problematic if the assignor is no longer available or interested in participating.

Why should we serve a notice of assignment?

The legal status of the assignment may affect the credit scoring that can be given to a particular class of assets. It may also affect a lender's ability to effect part of its exit strategy if that strategy requires the lender to be able to deal directly with the contract counterparty.

The case of General Nutrition Investment Company (GNIC) v Holland and Barrett International Ltd and another (H&B) provides an example of an equitable assignee being unable to deal directly with a contract counterparty as a result of a failure to provide a notice of assignment. The case concerned the assignment of a trade mark licence to GNIC. The other party to the licence agreement was H&B. H&B had not received notice of the assignment. GNIC tried to terminate the licence agreement for breach by serving a notice of termination. H&B disputed the termination. By this point in time the original licensor had been dissolved and so was unable to assist. At a hearing of preliminary issues, the High Court held that the notices of termination served by GNIC, as an equitable assignee, were invalid, because no notice of the assignment had been given to the licensee. Although only a High Court decision, this follows a Court of Appeal decision in the Warner Bros Records Inc v Rollgreen Ltd case, which was decided in the context of the attempt to exercise an option.

In both cases, an equitable assignee attempted to exercise a contractual right that would change the contractual relationship between the parties (i.e. by terminating the contractual relationship or exercising an option to extend the term of a licence). The judge in GNIC felt that "in each case, the counterparty (the recipient of the relevant notice) is entitled to see that the potential change in his contractual position is brought about by a person who is entitled, and whom he can see to be entitled, to bring about that change".

In a security context, this could hamper the ability of a lender to maximise the value of the secured assets but yet is a constraint that, in most transactions, could be easily avoided.

Why not serve notice?

Sometimes it's just not necessary or desirable. For example:

• If security is being taken over a large number of low value receivables or contracts, the time and cost involved in giving notice may be disproportionate to the additional value gained by obtaining a legal rather than an equitable assignment.
• If enforcement action were required, the equitable assignee typically has the option to join in the assignor to any proceedings (if it could not be waived by the court) and provision could be made in the assignment deed for the assignor to assist in such situations. Powers of attorney are also typically granted so that a lender can bring an action in the assignor's name.
• Enforcement is often not considered to be a significant issue given that the vast majority of assignees will never need to bring claims against the contract counterparty.

Care should however, be taken in all circumstances where the underlying contract contains a ban on assignment, as the contract counterparty would not have to recognise an assignment that is made in contravention of that ban. Furthermore, that contravention in itself may trigger termination and/or other rights in the assigned contract, that could affect the value of any underlying security.

What about acknowledgements of notices?

A simple acknowledgement of service of notice is simply evidence of the notice having been received. However, these documents often contain commitments or assurances by the contract counterparty which increase their value to the assignee.

Each transaction is different and the weighting given to each element of the security package will depend upon the nature of the debt and the borrower's business. The service of a notice of assignment may be a necessity or an optional extra. In each case, the question of whether to serve notice is best considered with your advisers at the start of a transaction to allow time for the lender's priorities to be highlighted to the borrowers and captured within the documents.

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Assignments: why you need to serve a notice of assignment

Catherine phillips.

PSL Principal Associate

It's the day of completion; security is taken, assignments are completed and funds move. Everyone breathes a sigh of relief. At this point, no-one wants to create unnecessary paperwork - not even the lawyers! Notices of assignment are, in some circumstances, optional. However, in other transactions they could be crucial to a lender's enforcement strategy. In the article below, we have given you the facts you need to consider when deciding whether or not you need to serve notice of assignment.

What issues are there with serving notice of assignment?

Assignments are useful tools for adding flexibility to banking transactions. They enable the transfer of one party's rights under a contract to a new party (for example, the right to receive an income stream or a debt) and allow security to be taken over intangible assets which might be unsuitable targets for a fixed charge. A lender's security net will often include assignments over contracts (such as insurance or material contracts), intellectual property rights, investments or receivables.

An assignment can be a legal assignment or an equitable assignment. If a legal assignment is required, the assignment must comply with a set of formalities set out in s136 of the Law of Property Act 1925, which include the requirement to give notice to the contract counterparty.

The main difference between legal and equitable assignments (other than the formalities required to create them) is that with a legal assignment, the assignee can usually bring an action against the contract counterparty in its own name following assignment. However, with an equitable assignment, the assignee will usually be required to join in proceedings with the assignor (unless the assignee has been granted specific powers to circumvent that). That may be problematic if the assignor is no longer available or interested in participating.

Why should we serve a notice of assignment?

The legal status of the assignment may affect the credit scoring that can be given to a particular class of assets. It may also affect a lender's ability to effect part of its exit strategy if that strategy requires the lender to be able to deal directly with the contract counterparty.

The case of General Nutrition Investment Company (GNIC) v Holland and Barrett International Ltd and another (H&B) provides an example of an equitable assignee being unable to deal directly with a contract counterparty as a result of a failure to provide a notice of assignment.

The case concerned the assignment of a trade mark licence to GNIC . The other party to the licence agreement was H&B. H&B had not received notice of the assignment. GNIC tried to terminate the licence agreement for breach by serving a notice of termination. H&B disputed the termination. By this point in time the original licensor had been dissolved and so was unable to assist.

At a hearing of preliminary issues, the High Court held that the notices of termination served by GNIC , as an equitable assignee, were invalid, because no notice of the assignment had been given to the licensee. Although only a High Court decision, this follows a Court of Appeal decision in the Warner Bros Records Inc v Rollgreen Ltd case, which was decided in the context of the attempt to exercise an option.

In both cases, an equitable assignee attempted to exercise a contractual right that would change the contractual relationship between the parties (i.e. by terminating the contractual relationship or exercising an option to extend the term of a licence). The judge in GNIC felt that "in each case, the counterparty (the recipient of the relevant notice) is entitled to see that the potential change in his contractual position is brought about by a person who is entitled, and whom he can see to be entitled, to bring about that change".

In a security context, this could hamper the ability of a lender to maximise the value of the secured assets but yet is a constraint that, in most transactions, could be easily avoided.

Why not serve notice?

Sometimes it's just not necessary or desirable. For example:

• If security is being taken over a large number of low value receivables or contracts, the time and cost involved in giving notice may be disproportionate to the additional value gained by obtaining a legal rather than an equitable assignment.
• If enforcement action were required, the equitable assignee typically has the option to join in the assignor to any proceedings (if it could not be waived by the court) and provision could be made in the assignment deed for the assignor to assist in such situations. Powers of attorney are also typically granted so that a lender can bring an action in the assignor's name.
• Enforcement is often not considered to be a significant issue given that the vast majority of assignees will never need to bring claims against the contract counterparty.

Care should however, be taken in all circumstances where the underlying contract contains a ban on assignment, as the contract counterparty would not have to recognise an assignment that is made in contravention of that ban. Furthermore, that contravention in itself may trigger termination and/or other rights in the assigned contract, that could affect the value of any underlying security.

What about acknowledgements of notices?

A simple acknowledgement of service of notice is simply evidence of the notice having been received. However, these documents often contain commitments or assurances by the contract counterparty which increase their value to the assignee.

Best practice for serving notice of assignment

Each transaction is different and the weighting given to each element of the security package will depend upon the nature of the debt and the borrower's business. The service of a notice of assignment may be a necessity or an optional extra. In each case, the question of whether to serve notice is best considered with your advisers at the start of a transaction to allow time for the lender's priorities to be highlighted to the borrowers and captured within the documents.

For further advice on serving notice of assignment please contact Kirsty Barnes or Catherine Phillips  from our Banking & Finance team.

NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Gowling WLG professionals will be pleased to discuss resolutions to specific legal concerns you may have.

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Out-law / your daily need-to-know.

Out-Law Guide 4 min. read

Assignment and novation

19 Aug 2011, 4:40 pm

Assignment involves the transfer of an interest or benefit from one person to another. However the 'burden', or obligations, under a contract cannot be transferred.

Assignment in construction contracts

As noted above only the benefits of a contract can be assigned - not the burden. In the context of a building contract:

• the employer may assign its right to have the works constructed, and its right to sue the contractor in the event that the works are defective – but not its obligation to pay for the works;
• the contractor may assign its right to payment of the contract sum - but not its obligation to construct the works in accordance with the building contract or its obligation to meet any valid claims, for example for defects.

After assignment, the assignee is entitled to the benefit of the contract and to bring proceedings against the other contracting party to enforce its rights. The assignor still owes obligations to the other contracting party, and will remain liable to perform any part of the contract that still has to be fulfilled since the burden cannot be assigned. In practice, what usually happens is that the assignee takes over the performance of the contract with effect from assignment and the assignor will generally ask to be indemnified against any breach or failure to perform by the assignee.  The assignor will remain liable for any past liabilities incurred before the assignment.

In construction contracts, the issue of assignment often arises in looking at whether collateral warranties granted to parties outside of the main construction contract can be assigned.

Funders may require the developer to assign contractual rights against the contractor and the design team as security to the funder, as well as the benefit of performance bonds and parent company guarantees. The developer may assign such rights to the purchaser either during or after completion of the construction phase.

Contractual assignment provisions

Many contracts exclude or qualify the right to assignment, and the courts have confirmed that a clause which provides that a party to a contract may not assign the benefit of that contract without the consent of the other party is legally effective and will extend to all rights and benefits arising under the contract, including the right to any remedies. Other common qualifications on the right to assign include:

• a restriction on assignment without the consent of the other party, whether or not such consent is not to be unreasonably withheld or delayed;
• only one of the parties may assign;
• only certain rights may be assigned – for example, warranties and indemnities may be excluded;
• a limit on the number of assignments - as is almost always the case in respect of collateral warranties;
• a right to assign only to a named assignee or class of assignee.

Note that in some agreements where there is a prohibition on assignment, it is sometimes possible to find the reservation of specific rights to create a trust or establish security over the subject matter of the agreement instead.

Legal and equitable assignment

The Law of Property Act creates the ability to legally assign a debt or any other chose in action where the debtor, trustee or other relevant person is notified in writing. If the assignment complied with the formalities in the Act it is a legal assignment, otherwise it will be an equitable assignment.

Some transfers can only take effect as an equitable assignment, for example:

• an oral assignment;
• an assignment by way of charge;
• an assignment of only part of the chosen in action;
• an assignment of which notice has not been given to the debtor;
• an agreement to assign.

If the assignment is equitable rather than legal, the assignor cannot enforce the assigned property in its own name and to do so must join the assignee in any action. This is designed to protect the debtor from later proceedings brought by the assignor or another assignee from enforcing the action without notice of the earlier assignment.

Security assignments

Using assignment as a way of taking security requires special care, as follows:

• if the assignment is by way of charge, the assignor retains the right to sue for any loss it suffers caused by a breach of the other contract party;
• if there is an outright assignment coupled with an entitlement to a re-assignment back once the secured obligation has been performed, it is an assignment by way of legal mortgage.

Please see our separate Out-Law guide for more information on types of security.

Restrictions on assignment

There are restrictions on the assignment of certain types of interest on public policy grounds, as follows:

• certain personal contracts – for example, a contract for the employment of a personal servant or for the benefit of a motor insurance policy cannot be assigned;
• a bare cause of action or 'right to sue' where the assignee has no commercial interest in the subject matter of the underlying transaction cannot be assigned;
• certain rights conferred by statute – for example, a liquidator's powers to bring wrongful trading proceedings against a director – cannot be assigned;
• an assignment of a contract may not necessarily transfer the benefit of an arbitration agreement contained in the contract;
• the assignment of certain rights is regulated – for example, the assignment of company shares or copyright.

If you want to transfer the burden of a contract as well as the benefits under it, you have to novate. Like assignment, novation transfers the benefits under a contract but unlike assignment, novation transfers the burden under a contract as well.

In a novation the original contract is extinguished and is replaced by a new one in which a third party takes up rights and obligations which duplicate those of one of the original parties to the contract. Novation does not cancel past rights and obligations under the original contract, although the parties can agree to novate these as well.

Novation is only possible with the consent of the original contracting parties as well as the new party. Consideration (the 'price' paid, whether financial or otherwise, by the new party in return for the contract being novated to it) must be provided for this new contract unless the novation is documented in a deed signed by all three parties.

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English law assignments of part of a debt: Practical considerations

United Kingdom |  Publication |  December 2019

Enforcing partially assigned debts against the debtor

The increase of supply chain finance has driven an increased interest in parties considering the sale and purchase of parts of debts (as opposed to purchasing debts in their entirety).

While under English law part of a debt can be assigned, there is a general requirement that the relevant assignee joins the assignor to any proceedings against the debtor, which potentially impedes the assignee’s ability to enforce against the debtor efficiently.

This note considers whether this requirement may be dispensed with in certain circumstances.

Can you assign part of a debt?

Under English law, the beneficial ownership of part of a debt can be assigned, although the legal ownership cannot. 1  This means that an assignment of part of a debt will take effect as an equitable assignment instead of a legal assignment.

Joining the assignor to proceedings against the debtor

While both equitable and legal assignments are capable of removing the assigned asset from the insolvency estate of the assignor, failure to obtain a legal assignment and relying solely on an equitable assignment may require the assignee to join the relevant assignor as a party to any enforcement action against the debtor.

An assignee of part of a debt will want to be able to sue a debtor in its own name and, if it is required to join the assignor to proceedings against the debtor, this could add additional costs and delays if the assignor was unwilling to cooperate. 2

Kapoor v National Westminster Bank plc

English courts have, in recent years, been pragmatic in allowing an assignee of part of a debt to sue the debtor in its own name without the cooperation of the assignor.

In Charnesh Kapoor v National Westminster Bank plc, Kian Seng Tan 3 the court held that an equitable assignee of part of a debt is entitled in its own right and name to bring proceedings for the assigned debt. The equitable assignee will usually be required to join the assignor to the proceedings in order to ensure that the debtor is not exposed to double recovery, but the requirement is a procedural one that can be dispensed with by the court.

The reason for the requirement that an equitable assignee joins the assignor to proceedings against the debtor is not that the assignee has no right which it can assert independently, but that the debtor ought to be protected from the possibility of any further claim by the assignor who should therefore be bound by the judgment.

Application of Kapoor

It is a common feature of supply chain finance transactions that the assigned debt (or part of the debt) is supported by an independent payment undertaking. Such independent payment undertaking makes it clear that the debtor cannot raise defences and that it is required to pay the relevant debt (or part of a debt) without set-off or counterclaim. In respect of an assignee of part of an independent payment undertaking which is not disputed and has itself been equitably assigned to the assignee, we believe that there are good grounds that an English court would accept that the assignee is allowed to pursue an action directly against the debtor without needing the assignor to be joined, as this is likely to be a matter of procedure only, not substance.

This analysis is limited to English law and does not consider the laws of any other jurisdiction.

Notwithstanding the helpful clarifications summarised in Kapoor, as many receivables financing transactions involve a number of cross-border elements, assignees should continue to consider the effect of the laws (and, potentially court procedures) of any other relevant jurisdictions on the assignment of part of a debt even where the sale of such partial debt is completed under English law.

Legal title cannot be assigned in respect of part of a debt. A partial assignment would not satisfy the requirements for a legal assignment of section 136 of the Law of Property Act 1925.

If an assignor does not consent to being joined as a plaintiff in proceedings against the debtor it would be necessary to join the assignor as a co-defendant. However, where an assignor has gone into administration or liquidation, there may be a statutory prohibition on joining such assignor as a co-defendant (without the leave of the court or in certain circumstances the consent of the administrator).

[2011] EWCA Civ 1083

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Deed of assignment | Practical Law

Deed of assignment

Practical law anz standard document w-002-8276  (approx. 19 pages).

Assigning contracts—common scenarios and considerations

Published by a lexisnexis dispute resolution expert.

This Practice Note identifies a number of common assignment scenarios and key considerations when involved in such scenarios, such as intra-group assignment, assigning debts and warranties.

For guidance on what constitutes a valid assignment of a contract, see Practice Note: What constitutes a valid assignment of a contract?

For guidance on the key practical and commercial considerations when assigning contracts, see Practice Note: How to assign rights under a contract.

Intra-group assignment

Companies within a group will usually want the ability to transfer contractual rights between them without consent.

This may arise, in particular, where any assignee may subsequently cease to be a member of the assignor's group. It may be that, in such an instance, the assignee is required to assign the rights back to the assignor or another member of the assignor's group immediately upon ceasing to be a member of the relevant group.

For analysis of some of the issues that may arise as a result, see Practice Note: Common issues in an Intra-group reorganisation .

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Key definition:

Intra-group reorganisation definition, what does intra-group reorganisation mean.

It involves the transfer of group company share capital or group assets between two or more companies in the same corporate group. Intra-group reorganisations are carried out for a variety of reasons, although the key motivation is generally to boost administrative, operational or economic efficiencies.

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Legal & General Group Plc (LGGNY)

About Legal & General Group

Legal & General Group Plc provides various insurance products and services in the United Kingdom, the United States, and internationally. It operates in Legal & General Retirement Institutional (LGRI), Legal & General Investment Management (LGIM), Legal & General Capital (LGC), and Retail segments. The LGRI segment offers annuity contracts with guaranteed income for a specified time; and longevity insurance products. The LGIM segment offers index fund management; active fixed income funds and liquidity funds; active equity management; solution ... [Read more]

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Moscow drone attack: What we know about the strikes

Russia says Ukraine launched "a terrorist drone attack" on Moscow on Tuesday, with several buildings damaged.

It is the first time Moscow has been so heavily targeted in a single operation, but Ukraine denies carrying out the strikes.

What was hit by the drones?

The Russian military says eight drones were used in the strikes.

It says five were shot down and three stopped with signal jamming technology - causing them to lose control and miss their targets.

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• A residential building hit on the outskirts of Moscow
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• Another high-rise building, reportedly hit earlier this morning

We have also verified footage on the western outskirts of Moscow. It shows an unidentified drone flying over roofs in a village where affluent Muscovites live.

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Oil facilities, airfields and energy infrastructure have all been targeted.

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Additional reporting by: Daniele Palumbo, Paul Brown and Tural Ahmedzade

Read more about BBC Verify: Explaining the 'how' - the launch of BBC Verify

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The Law Firm Disrupted: Litigation Finance Goes Mainstream. That's No Accident

Funders like Burford Capital need to partner with lawyers to realize returns on their capital. That puts a premium on efforts to demystify their work.

September 12, 2024 at 06:08 PM

5 minute read

The Law Firm Disrupted

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Welcome to the Law Firm Disrupted, a briefing from Law.com editor Dan Packel that surveys new competitive pressures on law firms and how their managers are coping, plus insights on the tactics and tech employed by would-be disruptors. Have an opinion? Email me  here . Want to be alerted to this dispatch in your inbox every Thursday? Sign up  here .

A decade and a half is more than enough time for something that began on the fringes to go mainstream. 

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