Bridge, Michael G.
(2016)
The nature of assignment and non-assignment clauses.
Law Quarterly Review, 132 (Jan).
47 - 67.
ISSN 0023-933X
Abstract
The purpose of this article is to examine the nature of assignment as it relates to contractual debts and contractual rights in general, before addressing problems presented by non-assignment clauses.1 The assignment of things in action sits precariously between contract law and property law and non-assignment clauses cannot properly be understood without an appreciation of this hybrid character of assignment.2 Non-assignment clauses pose the question whether and in what circumstances contractual rights are items of property. They also demand an examination of the doctrine of privity of contract and a response to the question whether one contracting party has the right unilaterally to vary the contract. Finally, non-assignment clauses set two primary values at odds with each other, namely freedom of contract and the free alienation of items of property. To a significant extent, the practical problems presented by non-assignment clauses will diminish when expected secondary legislation nullifying non-assignment clauses in the field of receivables (or book debts) comes into force,3 but some of the leading cases do not involve receivables and the subject therefore continues to merit attention for practical as well as for theoretical reasons.
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