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In contracts. 1. The act by which one person transfers to another, or causes to vest in that other, the whole of the right, interest, or property which he has in any realty or personalty, in possession or in action, or any share, interest, or subsidiary estate therein. Seventh Nat. Bank v. Iron Co. (C. C.) 35 Fed. 440; Haug v. Riley, 101 Ga. 372, 29 S. E. 44, 40 In In A. 244. More particularly, a written transfer of property, as distinguished from a transfer by mere delivery. 2. In a narrower sense, the transfer or making over of the estate, right, or title which one has in lands and tenements; and, in an especially technical sense, the transfer of the unexpired residue of a term or estate for life or years. Assignment does not include testamentary transfers. The idea of an assignment is essentially that of a transfer by one existing party to another existing party of some species of propertv or valuable interest, except in the case of an executor. Hight v. Sackett, 34 N. Y. 447. 3. A transfer or making over by a debtor of all his property and effects to one or more assignees in trust for the benefit of his creditors. 2 Story, Eq. Jur. § 1036. 4. The instrument or writing by which such a transfer of property is made. 5. A transfer of a bill, note, or check, not negotiable. 6. In bankruptcy proceedings, the word designates the setting over or transfer of the bankrupt's estate to the assignee. —Assignment for benefit of creditors. An assignment whereby a debtor, generally an insolvent, transfers to another his property, in trust to pay his debts or apply the property upon their payment. Van Patten v. Burr, 52 Iowa, 518, 3 N. W. 524. —Assignment of dower. Ascertnining a widow's right of dower by laying out or marking off one-third of her deceased husband's lands, and setting off the same for her use during life. Bettis v. Mc-Nider, 137 Ala. 588, 34 South. 813, 97 Am. St Rep. 59. —-Assignment of error. See Error. —Assignment with preferences. An assignment for the benefit of creditors, with directions to the assignee to prefer a specified creditor or class of creditors, by paying their clnims in full before the others receive any dividend, or in some other manner. More usually termed a "preferential assignment." —Foreign assignment. An assignment made in a foreign country, or in another state. 2 Kent, Comm. 405, et seq. —General assignment. An assignment made for the benefit of all the assignor's creditors, instead of a few only; or one which transfers the whole of his estate to the assignee, instead of a part only. Royer Wheel Co. v. Fielding, 101 N. Y 504, 5 N. E. 431; Halsey v. Co.nnell, 111 Ala. 221. 20 South. 445; Mussey v. Noyes, 26 Vt. 471, —Voluntary assignment. An assignment for the benefit of his creditors made by a debtor voluntarily; as distinguished from a compulsory assignment which takes place by operation of law in proceedings in bankruptcy or insolvency. Presumably it means an assignment of a debtor's property in trust to pay his debts generally, in distinction from a transfer of property to a particular creditor in payment of his demand, or to a conveyance by way of collateral security or mortgage. Dias v. Bouchaud, 10 Paige. (N. Y.) 445.

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Black's law dictionary : definitions of the terms and phrases of American and English jurisprudence, ancient and modern

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Black's Law Dictionary: Deluxe 5th Edition: Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern Hardcover – January 1, 1979

• Language English
• Publisher West Publishing Company
• Publication date January 1, 1979
• ISBN-10 0829920455
• ISBN-13 978-0829920451
• See all details

Product details

• Publisher ‏ : ‎ West Publishing Company; 5th edition (January 1, 1979)
• Language ‏ : ‎ English
• ISBN-10 ‏ : ‎ 0829920455
• ISBN-13 ‏ : ‎ 978-0829920451
• Item Weight ‏ : ‎ 4.35 pounds
• #124 in Law Dictionaries & Terminology (Books)
• #641 in English Dictionaries & Thesauruses

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Black’s Law Dictionary, unabridged 10th edition, 2014

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The making or spreading of defamatory statements about another person, typically of a scandalous, vulgar and denigrating nature, with the intention of damaging the victim’s reputation. Slanderous of defamatory statements that are intended to be malicious in nature.

A fee (such as a “ filing fee “) which may be imposed upon a litigant in order begin a lawsuit or start a legal dispute resolution case. The fee may represent covering administrative costs.

In India this can refer to stamps that may be attached to court documents which instruct the payment of fees. It may also refer to collections matters.

See also “ Court Costs “.

Latin meaning literally “it is known from its associates.” A word whose meaning is uncertain, questionable or doubtful can be understood and defined by its association with surrounding words and its context. This concept is frequently used in canons of construction or interpreting and understanding the meaning of the words in a legal statute, ordinance or law.

Example of Noscitur A Sociis

A law required that explosives must be held within a “case or canister.” The matter before the court involved a defendant who used a bag made of cloth. By reading words that appear around the statute and from a discussion of the matter by legislature, it became clear that the intent of legislature was that the container for carrying should be at least as strong the canister. See Foster v Diphwys Casson (1887) 18 QBD 428.

The “actual malice” defines the level of proof needed to establish a libel case for defamatory statements made regarding public figures or public officials. Actual Malice requires intent or reckless disregard for the truth – “knowledge that the information was false” or published “with reckless disregard of whether it was false or not.” Reckless disregard for the truth requires more than negligence and failure to follow up with generally acceptable reporting standards. It also requires a belief that the statements made were reasonably false. The actual malice standard is most well known from its use in New York Times Co. v. Sullivan , 376 U.S. 254 (1964), where the U.S. Supreme Court ruled that public officials who sued a defendant for making defamatory statements needed to prove that the defendants made them with actual malice in order to succeed in a libel lawsuit. The U.S. Supreme Court gave this case Constitutional importance by highlighting the extent of First Amendment rights of free speech and the power of the press.

Excerpt from New York Times v. Sullivan

We are required in this case to determine for the first time the extent to which the constitutional protections for speech and press limit

Generally the upper or top interior surface of a room or area. In contract law a ceiling is usually intended to refer to a highest price or level to occur under an agreement. See also “ floor ” referring to the lowest or bottom price or level of a contractual agreement.

An action taken to cure or fix a legal defect. For example, under the Code of Federal Regulations (25 CFR 150.7 – Curative action to correct title defects) which deals with real estate law. The Land Titles and Records Office can initiate an action to “cure” or fix defects in the record which are discovered during the recording of title documents or examination of titles. See also “ curative “.

The Zubulake Factors are used by a court to determine whether cost shifting is appropriate to shift the burden of costs of compliance with an electronic discovery request from the receiving party to the requesting party. (See Federal Rule 26(b)(2) more specifically.) The factors are the product of a series of decisions in Zubulake v. UBS Warburg LLC , 216 F.R.D. 280 (S.D.N.Y. 2003) and which are often referred to by number, including specifically Zubulake I, 217 F.R.D. at 322 and Zubulake III, 216 F.R.D. at 284.

• The extent to which the request is specifically tailored to discover relevant information;
• The availability of such information from other sources;
• The total costs of production compared to the amount in controversy;
• The total costs of production, compared to the resources available to each party;
• The relative ability of each party to control costs and its incentive to do so;
• The importance of the issues at stake in the litigation; and
• The relative benefits to the parties of obtaining the information.

The first two factors are also known as the “Marginal Utility Test” which concerns the necessity of requiring the receiving party to provide the requested electronic evidence and whether it may be more easily available via alternatives. The middle three are known as the “cost

Shifting fees to be paid by one party to another party. Typically it refers to the action of a court awarding legal costs associated with something from one party to another. For example, a court may award legal costs of the successful party to a lawsuit upon the losing party to the lawsuit (so that the losing party must pay both its own legal costs as well as the attorneys’ fees and costs of the winning party.) S ee also “ cost shifting ” – often used concerning legal issues surrounding electronic evidence and discovery.  

When a court imposes or shifts the costs associated with legal compliance from one party to another. A good example of cost shifting occurs with electronic evidence and electronic discovery compliance. The general presumption under the Federal Rules of Civil Procedure is that the party responding to a request for electronic discovery will bear the costs of compliance with the request. (A receiving party receives a subpoena to provide e-mails to the requesting party.) However, a court can shift the costs associated with the electronic discovery request from the receiving party to the requesting party if the discovery does not pass the Federal Rule Federal Rule 26(b)(2) proportionality test (which includes the “ Zubulake Factors “).

See also “ fee shifting “.

Cyberstalking is the use of electronic or online communications technology to stalk, harass or intimidate another person or party. Most frequently it is used in reference to activities on the Internet or via mobile telecommunications networks. Cyberstalking activities may include threats or may just constitute monitoring of another without their knowledge and consent. It may also include defamatory statements or accusations and is frequently a means of a stalker intending to unduly influence, intimidate or control the victim.

Cyberstalking is a criminal offense under various state statutes which can include stalking, slander and harassment laws. Some states have specifically enacted Cyberstalking laws, such as Florida 784.048(d) which defines the term as follows:

“Cyberstalk” means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.

To insert between two parts, to introduce an obstacle. In legal parlance it usually means to file something so that it stands as an obstacle to something else being accomplished (usually by an adversary.) For example to “ interpose a claim” or to  interpose an objection, which would then stand in the way of the first motion from being accomplished. Also common is to “ interpose a defense.”

In compliance or accord with existing laws and regulations (the statutes) – adherence to and compliance with the letter of the law. Popular examples of statutory compliance including Sarbanes-Oxley and HIPPA laws in the United States.

Latin meaning “universal thing.” Something that is shared with and owned by the community for public purposes and cannot be acquired by any individual or private entity. It has been understood to also mean something in the “ public domain “. It may also refer to something shared with and owned by a specific community of which all members can freely use independently.

Conducting a trial in the absence of a party. Trial “ in absentia ” typically refers to a criminal proceeding in a court of law in which the defendant is not physically present to present a defense and testify on behalf of one’s self. In many jurisdictions the concept of “trial in absentia” is understood to refer to a defendant’s right to be present in a courtroom during criminal proceedings or a criminal trial. Such a conviction where a defendant is not present to defend and answer charges in person may be considered a violation of the principles of natural justice and notions of fair play.

Latin meaning “absence”. Usually used in terms such as “ in absentia ” or in the absence of the physical presence of a party. See also “ death in absentia ” and “ trial in absentia “.

The declaration of someone’s death in absence of their physical dead body, corpse or skeletal remains. One who is presumed dead. “ In absentia ” is Latin for the term “in absence”.

Such a declaration may be made when a person is missing for an extended period of time and the evidence overwhelmingly supports the belief that the person has perished. For example, ticketed and verified passengers aboard an airplane that has crashed. Jurisdictions vary with regard to the length of time and procedure for legally declaring someone dead in absentia or “ death in absentia “.

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• assignments basic law

Assignments: The Basic Law

The assignment of a right or obligation is a common contractual event under the law and the right to assign (or prohibition against assignments) is found in the majority of agreements, leases and business structural documents created in the United States.

As with many terms commonly used, people are familiar with the term but often are not aware or fully aware of what the terms entail. The concept of assignment of rights and obligations is one of those simple concepts with wide ranging ramifications in the contractual and business context and the law imposes severe restrictions on the validity and effect of assignment in many instances. Clear contractual provisions concerning assignments and rights should be in every document and structure created and this article will outline why such drafting is essential for the creation of appropriate and effective contracts and structures.

The reader should first read the article on Limited Liability Entities in the United States and Contracts since the information in those articles will be assumed in this article.

Basic Definitions and Concepts:

An assignment is the transfer of rights held by one party called the “assignor” to another party called the “assignee.” The legal nature of the assignment and the contractual terms of the agreement between the parties determines some additional rights and liabilities that accompany the assignment. The assignment of rights under a contract usually completely transfers the rights to the assignee to receive the benefits accruing under the contract. Ordinarily, the term assignment is limited to the transfer of rights that are intangible, like contractual rights and rights connected with property. Merchants Service Co. v. Small Claims Court , 35 Cal. 2d 109, 113-114 (Cal. 1950).

An assignment will generally be permitted under the law unless there is an express prohibition against assignment in the underlying contract or lease. Where assignments are permitted, the assignor need not consult the other party to the contract but may merely assign the rights at that time. However, an assignment cannot have any adverse effect on the duties of the other party to the contract, nor can it diminish the chance of the other party receiving complete performance. The assignor normally remains liable unless there is an agreement to the contrary by the other party to the contract.

The effect of a valid assignment is to remove privity between the assignor and the obligor and create privity between the obligor and the assignee. Privity is usually defined as a direct and immediate contractual relationship. See Merchants case above.

Further, for the assignment to be effective in most jurisdictions, it must occur in the present. One does not normally assign a future right; the assignment vests immediate rights and obligations.

No specific language is required to create an assignment so long as the assignor makes clear his/her intent to assign identified contractual rights to the assignee. Since expensive litigation can erupt from ambiguous or vague language, obtaining the correct verbiage is vital. An agreement must manifest the intent to transfer rights and can either be oral or in writing and the rights assigned must be certain.

Note that an assignment of an interest is the transfer of some identifiable property, claim, or right from the assignor to the assignee. The assignment operates to transfer to the assignee all of the rights, title, or interest of the assignor in the thing assigned. A transfer of all rights, title, and interests conveys everything that the assignor owned in the thing assigned and the assignee stands in the shoes of the assignor. Knott v. McDonald’s Corp ., 985 F. Supp. 1222 (N.D. Cal. 1997)

The parties must intend to effectuate an assignment at the time of the transfer, although no particular language or procedure is necessary. As long ago as the case of National Reserve Co. v. Metropolitan Trust Co ., 17 Cal. 2d 827 (Cal. 1941), the court held that in determining what rights or interests pass under an assignment, the intention of the parties as manifested in the instrument is controlling.

The intent of the parties to an assignment is a question of fact to be derived not only from the instrument executed by the parties but also from the surrounding circumstances. When there is no writing to evidence the intention to transfer some identifiable property, claim, or right, it is necessary to scrutinize the surrounding circumstances and parties’ acts to ascertain their intentions. Strosberg v. Brauvin Realty Servs., 295 Ill. App. 3d 17 (Ill. App. Ct. 1st Dist. 1998)

The general rule applicable to assignments of choses in action is that an assignment, unless there is a contract to the contrary, carries with it all securities held by the assignor as collateral to the claim and all rights incidental thereto and vests in the assignee the equitable title to such collateral securities and incidental rights. An unqualified assignment of a contract or chose in action, however, with no indication of the intent of the parties, vests in the assignee the assigned contract or chose and all rights and remedies incidental thereto.

More examples: In Strosberg v. Brauvin Realty Servs ., 295 Ill. App. 3d 17 (Ill. App. Ct. 1st Dist. 1998), the court held that the assignee of a party to a subordination agreement is entitled to the benefits and is subject to the burdens of the agreement. In Florida E. C. R. Co. v. Eno , 99 Fla. 887 (Fla. 1930), the court held that the mere assignment of all sums due in and of itself creates no different or other liability of the owner to the assignee than that which existed from the owner to the assignor.

And note that even though an assignment vests in the assignee all rights, remedies, and contingent benefits which are incidental to the thing assigned, those which are personal to the assignor and for his sole benefit are not assigned. Rasp v. Hidden Valley Lake, Inc ., 519 N.E.2d 153, 158 (Ind. Ct. App. 1988). Thus, if the underlying agreement provides that a service can only be provided to X, X cannot assign that right to Y.

Novation Compared to Assignment:

Although the difference between a novation and an assignment may appear narrow, it is an essential one. “Novation is a act whereby one party transfers all its obligations and benefits under a contract to a third party.” In a novation, a third party successfully substitutes the original party as a party to the contract. “When a contract is novated, the other contracting party must be left in the same position he was in prior to the novation being made.”

A sublease is the transfer when a tenant retains some right of reentry onto the leased premises. However, if the tenant transfers the entire leasehold estate, retaining no right of reentry or other reversionary interest, then the transfer is an assignment. The assignor is normally also removed from liability to the landlord only if the landlord consents or allowed that right in the lease. In a sublease, the original tenant is not released from the obligations of the original lease.

Equitable Assignments:

An equitable assignment is one in which one has a future interest and is not valid at law but valid in a court of equity. In National Bank of Republic v. United Sec. Life Ins. & Trust Co. , 17 App. D.C. 112 (D.C. Cir. 1900), the court held that to constitute an equitable assignment of a chose in action, the following has to occur generally: anything said written or done, in pursuance of an agreement and for valuable consideration, or in consideration of an antecedent debt, to place a chose in action or fund out of the control of the owner, and appropriate it to or in favor of another person, amounts to an equitable assignment. Thus, an agreement, between a debtor and a creditor, that the debt shall be paid out of a specific fund going to the debtor may operate as an equitable assignment.

In Egyptian Navigation Co. v. Baker Invs. Corp. , 2008 U.S. Dist. LEXIS 30804 (S.D.N.Y. Apr. 14, 2008), the court stated that an equitable assignment occurs under English law when an assignor, with an intent to transfer his/her right to a chose in action, informs the assignee about the right so transferred.

An executory agreement or a declaration of trust are also equitable assignments if unenforceable as assignments by a court of law but enforceable by a court of equity exercising sound discretion according to the circumstances of the case. Since California combines courts of equity and courts of law, the same court would hear arguments as to whether an equitable assignment had occurred. Quite often, such relief is granted to avoid fraud or unjust enrichment.

Note that obtaining an assignment through fraudulent means invalidates the assignment. Fraud destroys the validity of everything into which it enters. It vitiates the most solemn contracts, documents, and even judgments. Walker v. Rich , 79 Cal. App. 139 (Cal. App. 1926). If an assignment is made with the fraudulent intent to delay, hinder, and defraud creditors, then it is void as fraudulent in fact. See our article on Transfers to Defraud Creditors .

But note that the motives that prompted an assignor to make the transfer will be considered as immaterial and will constitute no defense to an action by the assignee, if an assignment is considered as valid in all other respects.

Enforceability of Assignments:

Whether a right under a contract is capable of being transferred is determined by the law of the place where the contract was entered into. The validity and effect of an assignment is determined by the law of the place of assignment. The validity of an assignment of a contractual right is governed by the law of the state with the most significant relationship to the assignment and the parties.

In some jurisdictions, the traditional conflict of laws rules governing assignments has been rejected and the law of the place having the most significant contacts with the assignment applies. In Downs v. American Mut. Liability Ins. Co ., 14 N.Y.2d 266 (N.Y. 1964), a wife and her husband separated and the wife obtained a judgment of separation from the husband in New York. The judgment required the husband to pay a certain yearly sum to the wife. The husband assigned 50 percent of his future salary, wages, and earnings to the wife. The agreement authorized the employer to make such payments to the wife.

After the husband moved from New York, the wife learned that he was employed by an employer in Massachusetts. She sent the proper notice and demanded payment under the agreement. The employer refused and the wife brought an action for enforcement. The court observed that Massachusetts did not prohibit assignment of the husband’s wages. Moreover, Massachusetts law was not controlling because New York had the most significant relationship with the assignment. Therefore, the court ruled in favor of the wife.

Therefore, the validity of an assignment is determined by looking to the law of the forum with the most significant relationship to the assignment itself. To determine the applicable law of assignments, the court must look to the law of the state which is most significantly related to the principal issue before it.

Assignment of Contractual Rights:

Generally, the law allows the assignment of a contractual right unless the substitution of rights would materially change the duty of the obligor, materially increase the burden or risk imposed on the obligor by the contract, materially impair the chance of obtaining return performance, or materially reduce the value of the performance to the obligor. Restat 2d of Contracts, § 317(2)(a). This presumes that the underlying agreement is silent on the right to assign.

If the contract specifically precludes assignment, the contractual right is not assignable. Whether a contract is assignable is a matter of contractual intent and one must look to the language used by the parties to discern that intent.

In the absence of an express provision to the contrary, the rights and duties under a bilateral executory contract that does not involve personal skill, trust, or confidence may be assigned without the consent of the other party. But note that an assignment is invalid if it would materially alter the other party’s duties and responsibilities. Once an assignment is effective, the assignee stands in the shoes of the assignor and assumes all of assignor’s rights. Hence, after a valid assignment, the assignor’s right to performance is extinguished, transferred to assignee, and the assignee possesses the same rights, benefits, and remedies assignor once possessed. Robert Lamb Hart Planners & Architects v. Evergreen, Ltd. , 787 F. Supp. 753 (S.D. Ohio 1992).

On the other hand, an assignee’s right against the obligor is subject to “all of the limitations of the assignor’s right, all defenses thereto, and all set-offs and counterclaims which would have been available against the assignor had there been no assignment, provided that these defenses and set-offs are based on facts existing at the time of the assignment.” See Robert Lamb , case, above.

The power of the contract to restrict assignment is broad. Usually, contractual provisions that restrict assignment of the contract without the consent of the obligor are valid and enforceable, even when there is statutory authorization for the assignment. The restriction of the power to assign is often ineffective unless the restriction is expressly and precisely stated. Anti-assignment clauses are effective only if they contain clear, unambiguous language of prohibition. Anti-assignment clauses protect only the obligor and do not affect the transaction between the assignee and assignor.

Usually, a prohibition against the assignment of a contract does not prevent an assignment of the right to receive payments due, unless circumstances indicate the contrary. Moreover, the contracting parties cannot, by a mere non-assignment provision, prevent the effectual alienation of the right to money which becomes due under the contract.

A contract provision prohibiting or restricting an assignment may be waived, or a party may so act as to be estopped from objecting to the assignment, such as by effectively ratifying the assignment. The power to void an assignment made in violation of an anti-assignment clause may be waived either before or after the assignment. See our article on Contracts.

Noncompete Clauses and Assignments:

Of critical import to most buyers of businesses is the ability to ensure that key employees of the business being purchased cannot start a competing company. Some states strictly limit such clauses, some do allow them. California does restrict noncompete clauses, only allowing them under certain circumstances. A common question in those states that do allow them is whether such rights can be assigned to a new party, such as the buyer of the buyer.

A covenant not to compete, also called a non-competitive clause, is a formal agreement prohibiting one party from performing similar work or business within a designated area for a specified amount of time. This type of clause is generally included in contracts between employer and employee and contracts between buyer and seller of a business.

Many workers sign a covenant not to compete as part of the paperwork required for employment. It may be a separate document similar to a non-disclosure agreement, or buried within a number of other clauses in a contract. A covenant not to compete is generally legal and enforceable, although there are some exceptions and restrictions.

Whenever a company recruits skilled employees, it invests a significant amount of time and training. For example, it often takes years before a research chemist or a design engineer develops a workable knowledge of a company’s product line, including trade secrets and highly sensitive information. Once an employee gains this knowledge and experience, however, all sorts of things can happen. The employee could work for the company until retirement, accept a better offer from a competing company or start up his or her own business.

A covenant not to compete may cover a number of potential issues between employers and former employees. Many companies spend years developing a local base of customers or clients. It is important that this customer base not fall into the hands of local competitors. When an employee signs a covenant not to compete, he or she usually agrees not to use insider knowledge of the company’s customer base to disadvantage the company. The covenant not to compete often defines a broad geographical area considered off-limits to former employees, possibly tens or hundreds of miles.

Another area of concern covered by a covenant not to compete is a potential ‘brain drain’. Some high-level former employees may seek to recruit others from the same company to create new competition. Retention of employees, especially those with unique skills or proprietary knowledge, is vital for most companies, so a covenant not to compete may spell out definite restrictions on the hiring or recruiting of employees.

A covenant not to compete may also define a specific amount of time before a former employee can seek employment in a similar field. Many companies offer a substantial severance package to make sure former employees are financially solvent until the terms of the covenant not to compete have been met.

Because the use of a covenant not to compete can be controversial, a handful of states, including California, have largely banned this type of contractual language. The legal enforcement of these agreements falls on individual states, and many have sided with the employee during arbitration or litigation. A covenant not to compete must be reasonable and specific, with defined time periods and coverage areas. If the agreement gives the company too much power over former employees or is ambiguous, state courts may declare it to be overbroad and therefore unenforceable. In such case, the employee would be free to pursue any employment opportunity, including working for a direct competitor or starting up a new company of his or her own.

It has been held that an employee’s covenant not to compete is assignable where one business is transferred to another, that a merger does not constitute an assignment of a covenant not to compete, and that a covenant not to compete is enforceable by a successor to the employer where the assignment does not create an added burden of employment or other disadvantage to the employee. However, in some states such as Hawaii, it has also been held that a covenant not to compete is not assignable and under various statutes for various reasons that such covenants are not enforceable against an employee by a successor to the employer. Hawaii v. Gannett Pac. Corp. , 99 F. Supp. 2d 1241 (D. Haw. 1999)

It is vital to obtain the relevant law of the applicable state before drafting or attempting to enforce assignment rights in this particular area.

Conclusion:

In the current business world of fast changing structures, agreements, employees and projects, the ability to assign rights and obligations is essential to allow flexibility and adjustment to new situations. Conversely, the ability to hold a contracting party into the deal may be essential for the future of a party. Thus, the law of assignments and the restriction on same is a critical aspect of every agreement and every structure. This basic provision is often glanced at by the contracting parties, or scribbled into the deal at the last minute but can easily become the most vital part of the transaction.

As an example, one client of ours came into the office outraged that his co venturer on a sizable exporting agreement, who had excellent connections in Brazil, had elected to pursue another venture instead and assigned the agreement to a party unknown to our client and without the business contacts our client considered vital. When we examined the handwritten agreement our client had drafted in a restaurant in Sao Paolo, we discovered there was no restriction on assignment whatsoever…our client had not even considered that right when drafting the agreement after a full day of work.

One choses who one does business with carefully…to ensure that one’s choice remains the party on the other side of the contract, one must master the ability to negotiate proper assignment provisions.

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Assign is the act of transferring rights , property , or other benefits to another party (the assignee ) from the party who holds such benefits under contract (the assignor). This concept is used in both  contract  and property law . 

Contract Law  

Under contract law, when one party assigns a  contract , the assignment represents both: (1) an assignment of rights; and (2) a delegation of  duties . 

• For example, if A contracts with B to teach B guitar for $50, A can assign this contract to C. 
• Here, A has both: (1) assigned A’s rights under the contract to the $50; and (2) delegated A’s  duty  to teach guitar, to C. 
• In this example, A is both the “assignor” and the “delegee” who delegates  the duties to another (C), C is known as the “ obligor ” who must perform the  obligations  to the  assignee , and B is the assignee who is owed duties and is liable to the obligor.

Assigning of Rights/Duties Under Contract Law

There are a few notable rules regarding assignments under contract law. 

First, if an individual has not yet secured the contract to perform duties to another, they cannot assign their future right to an assignee. 

• That is, if A has not yet contracted with B to teach B guitar, A cannot assign their rights to C. 

Second, rights cannot be assigned when they  materially change the obligor’s duty and rights. 

Third, the obligor can sue the assignee directly if the assignee does not pay them. 

• Following the previous example, this means that C ( obligor ) can sue B ( assignee ) if C teaches guitar to B, but B does not pay C $50 in return.

Delegation of Duties

If the promised performance requires a rare genius or skill, then the delegee cannot delegate it to the obligor. It can only be delegated if the promised  performance  is more commonplace. Further, an obligee can sue if the  assignee  does not perform.  However, the delegee is  secondarily liable  unless there has been an  express   release  of the delegee. 

• Meaning if B does want C to teach guitar but C refuses to, then B can sue C. If C still refuses to perform, then B can compel A to fulfill the duties under secondary liability.

Lastly, a related concept is  novation , which is when a new obligor substitutes and releases an old obligor.  If novation occurs, then the original obligor’s duties are wiped out. Novation requires an original obligee’s  consent . 

Property Law

Under  property law , assignment typically arises in landlord-tenant situations.

• For example, A might be renting from landlord B but wants another party (C) to take over the property. 
• In this scenario, A might choose between  assigning  and  subleasing  the property to C. 
• If  assigning , A would give C the entire balance of the term , with no reversion to anyone; whereas if  subleasing , A would give C the property for a limited period of the remaining term.
• Under assignment, C would have  privity  of  estate  with the landlord while under a sublease, C would not. 

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May 9, 2014

Thomson Reuters Launches 10th Edition of Black’s Law Dictionary

EAGAN, Minn.  – Thomson Reuters has just released  Black’s Law Dictionary, 10th Edition . For more than a century, Black’s Law Dictionary has been the gold standard for ensuring a common understanding of the growing language of law. It is also the most widely cited resource in legal arguments and judicial opinions.

Edited by Bryan A. Garner, the world’s leading legal lexicographer, the 10th Edition is the most authoritative, comprehensive law dictionary ever published. It contains more than 50,000 terms, including 7,500 new entries. Some are likely familiar to a casual newspaper reader, such as bioweapon, hacker, and zero-tolerance law. Others are legal slang or terms of art used in courts, law firms, law schools, and government offices, including affluenza defense, cryptanalysis, gazump, legaldegook, intrapreneur, mommy track, one-bite rule, psephology, and unperson.

“My team and I have tried hard to make  Black’s Law Dictionary  the most thorough, scholarly work ever to have marshaled the legal vocabulary,” said Garner. “It is crucial for every lawyer to understand how legal terms are used. And of course that knowledge is the hallmark of a cultivated mind.”

In addition to the new terms – each reviewed for accuracy by attorneys across the country – there are also more than 16,000 new definitions and expanded bibliographic coverage, with more than twice as many sources quoted and cited than in the 9th Edition. The new Black’s is the only legal dictionary to include the earliest known dates in English-language contexts for nearly all terms. Its coverage of Latin maxims has also been greatly expanded, with 900 new maxims added.

“We’re pleased to be able to offer such a major revision to our most popular and esteemed title,” said Andy Martens, global head of Product and Editorial for Thomson Reuters. “The law is understood and enforced according to the words that define it, making Black’s Law Dictionary as important to the practice of law as is our common understanding of its language.”

To learn more about  Black’s Law Dictionary  and to see definitions of the terms mentioned above, please visit  legalcurrent.com .

Thomson Reuters Thomson Reuters is the world's leading source of intelligent information for businesses and professionals. We combine industry expertise with innovative technology to deliver critical information to leading decision makers in the financial and risk, legal, tax and accounting, intellectual property and science and media markets, powered by the world's most trusted news organization. Thomson Reuters shares are listed on the Toronto and New York Stock Exchanges. For more information, go to  www.thomsonreuters.com .

Bryan A. Garner Professor Garner is president of LawProse, Inc. of Dallas and serves as distinguished research professor of law at Southern Methodist University. He is the author of more than 20 books, including  Garner’s Dictionary of Legal Usage  (3d ed. 2011),  Garner’s Modern American Usage  (3d ed. 2009), and Legal Writing in Plain English  (2d 2013). For Thomson Reuters, he has coauthored two books with Justice Antonin Scalia,  Making Your Case: The Art of Persuading Judges  (2008) and  Reading Law: The Interpretation of Legal Texts  (2012). For more information, go to  www.lawprose.org .

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The Law Dictionary

Your Free Online Legal Dictionary • Featuring Black’s Law Dictionary, 2nd Ed.

EQUITABLE ASSIGNMENT Definition & Legal Meaning

Definition & citations:.

A result that falls short of meeting the requirements of a legal assignment, yet, in the interest of fairness and justice, will be enforced by the courts, and documented as valid.

This article contains general legal information but does not constitute professional legal advice for your particular situation. The Law Dictionary is not a law firm, and this page does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.

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ASSIGNMENT - Black's Law Dictionary

What is ASSIGNMENT? Definition of ASSIGNMENT in Black's Law Dictionary

A transfer or making over to another of the whole of any property, real or personal, in possession or in action, or of any estate or right therein. Bostrom v. Bostrom, 60 N.D. 792, 236 N.W. 732, 734. It includes transfers of all kinds of property, Higgins v. Monckton, 28 Cal.App.2d 723, 83 P.2d 516, 519. But is ordinarily limited to transfers of choses in action and to rights in or connected with property, as distinguished from the particular item of property. In re Beffa's Estate, 54 Cal.App. 186, 201 P. 616, 617. It is generally appropriate to the transfer of equitable interests. Kavanaugh v. Cohoes Power & Light Corporation, 187 N.Y.S. 216, 228, 114 Misc. 590.

To constitute valid "assignment," there must be perfected transaction between parties intended to vest in assignee present right in thing assigned. In re Lynch's Estate, 272 N.Y.S. 79, 85, 151 Misc. 549. It is contract, and is subject to same requisites as to validity as other contracts, such as proper parties, mutual assent, consideration, and legal subject-matter. Hutsell v. Citizens' Nat. Bank, 166 Tenn. 598, 64 S.W.2d 188.

The transfer of the interest one has in lands and tenements; more particularly applied to the unexpired residue of a term or estate for life or years; Cruise, Dig. tit. xxxii. (Deed) c. vii, § 15; 1 Steph.Com. 507.

The distinction between an "assignment" and a "sublease" is that an assignment transfers the entire unexpired term. Sandford v. Ambassador Restaurant Co., 247 N.Y.S. 655, 657, 139 Misc. 3.

The deed by which the transfer is made. Humphrey v. Coquillard Wagon Works, 37 Okl. 714, 132 P. 899, 902, 49 L.R.A.,N.S., 600.

A transfer of the title to a bill, note, or check.

An assignment at common law differs from an indorsement in that by an assignment the assignor passed title to the assignee but did not subject himself to any contractual liability, whereas an indorser, in addition to passing title, impliedly contracts to pay note at maturity on demand and notice on maker's failure to so do. Johnson v. Beickey, 64 Utah, 43, 228 P. 189, 191.

In patent law, the transfer of the entire interest in a patented invention or of an undivided portion of such entire interest as to every section of the United States. Rob.Pat. § 762. It differs from grant in relation to the territorial area to which they relate. A grant is the transfer of the exclusive right in a specific part of the United States. It is an exclusive sectional right. A license is a transfer of a less or different interest than either the interest in a whole patent or an undivided part of such whole interest or an exclusive sectional interest. Littlefield v. Perry, 21 Wall. 205, 22 L.Ed. 577.

A license is distinguished from an assignment and a grant in that the latter transfers the monopoly as well as the invention, while a license transfers only the invention and does not affect the monopoly otherwise than by estopping the licensor from exercising his prohibitory powers in derogation of the privileges conferred by him upon the licensee. Rob. Pat. § 806. See Pope Mfg. Co. v. Mfg. Co., 144 U.S. 248, 12 S.Ct. 641, 36 L.Ed. 423.

• Assignment for benefit of creditors. An assignment in trust made by insolvent and other debtors for the payment of their debts. These are usually regulated by state statutes. Woodard v. Morrissey, 115 Kan. 511, 223 P. 306, 307.

The distinctive test between an "assignment" and a sale, where another creditor is to be paid off, is that in the former case such other creditor is to receive some of the property or its proceeds, and in the latter the creditor to whom title is passed takes for himself the whole property, stipulating to pay the other creditor out of his own means and not out of the property or its proceeds. Silver & Goldstein v. Chapman, 163 Ga. 604, 136 S.E. 914, 919.

• Assignment of account. Transfer to assignee giving him a right to have moneys when collected applied to payment of his debt. Nanny v. H. E. Pogue Distillery Co., 56 Cal.App.2d 817, 133 P.2d 686, 688.
• Assignment of dower. The act by which the share of a widow in her deceased husband's real estate is ascertained and set apart to her. Bettis v. McNider, 137 Ala. 588, 34 So. 813, 97 Am.St.Rep. 59.
• Assignment of error. See Error.
• Assignment pro tanto. Where an order is drawn upon a third party and made - payable out of a particular fund then due or to become due to the drawer, the delivery of the order to the payee operates as an assignment pro tanto of the fund. Doyle v. East New York Say. Bank, 44 N.Y.S.2d 318, 323.

Under Mechanics' Lien Law a workman or materialman who serves on owner a stop notice becomes an assignee pro tanto of debt due from owner to contractor. Commonwealth Roofing Co. v. Riccio, 81 N.J.Eq. 486, 87 A. 114, 115.

Check drawn on a bank operates as an assignment pro tanto of depositor's funds in favor of holder. Nat. Bank of America v. Indiana Banking Co., 114 Ill. 483, 2 N.E. 401.

• Assignment with preferences. An assignment for the benefit of creditors, with directions to the assignee to prefer a specified creditor or class of creditors, by paying their claims in full before the others receive any dividend, or in some other manner. More usually termed a "preferential assignment."
• Foreign assignment. An assignment made in a foreign country, or in another state. 2 Kent, Comm. 405, et seq.
• General assignment. An assignment made for the benefit of all the assignor's creditors, instead of a few only; or one which transfers the whole of his estate to the assignee, instead of a part only. Royer Wheel Co. v. Fielding, 101 N.Y. 504, 5 N.E. 431.
• Voluntary assignment. An assignment for the benefit of his creditors made by a debtor voluntarily; as distinguished from a compulsory assignment which takes place by operation of law in proceedings in bankruptcy or insolvency. Presumably it means an assignment of a debtor's property in trust to pay his debts generally, in distinction from a transfer of property to a particular creditor in payment of his demand, or to a conveyance by way of collateral security or mortgage. Dias v. Bouchaud, 10 Paige (N.Y.) 445.

That's the definition of ASSIGNMENT in Black's Law Dictionary - Courtesy of Cekhukum.com .

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