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Part VIII Conflict Of Laws, 33 Assignment and The Conflict of Laws »

From: The Law of Assignment (3rd Edition)
Marcus Smith, Nico Leslie
This chapter discusses the conflict of laws. Conflict of laws questions are typically analysed under three heads: jurisdiction; choice of law; and the enforcement of foreign judgments. Questions of jurisdiction refer to the rules that determine whether or not an English court will assume jurisdiction over a particular dispute. Choice of law questions arise where an English court (having jurisdiction to determine a dispute) is presented with a dispute, or issues arising out of a dispute, having a foreign law element; choice of law rules provide the mechanism for determining what law should apply to which issue. Meanwhile, issues relating to the enforcement of foreign judgments refer to the rules which determine when a foreign judgment is enforceable in an English court. Since no special issues of enforcement arise in the assignment context, this chapter focuses on questions of jurisdiction and choice of law.

Part IV Intangible Property that is Incapable of Transfer, 23 The Assignment of Bare Rights to Litigate: Champerty and Maintenance »

From: The Law of Assignment (3rd Edition)
Marcus Smith, Nico Leslie
This chapter examines the doctrines of champerty and maintenance—the most prominent examples of a public policy limitation on the ability to assign. The doctrines of champerty and maintenance trace their origins back to the earliest days of the common law, and indeed were the basis for the common law's traditional antipathy to all assignments. Champerty is traditionally described as a species of maintenance or ‘an aggravated form of maintenance’ that is said to occur ‘when the person maintaining another stipulates for a share of the proceeds or the action or dispute or other contentious proceedings where property is in dispute’. The chapter then explains the effect of champerty and maintenance on an assignment or other contract.

Part IV Intangible Property that is Incapable of Transfer, 21 Assignment of Burdens »

From: The Law of Assignment (3rd Edition)
Marcus Smith, Nico Leslie
This chapter studies the assignment of burdens. In general, while a benefit or right under a contract is assignable, a burden or obligation under that same contract will not be assignable. The rule that burdens cannot be assigned needs to be considered in the context of those choses—notably contracts, but also leases and shares—that contain both benefits and burdens. However, there are a number of limited exceptions to the general rule. These include the unpaid vendor's lien over land; the rule that the burden of a restrictive covenant over freehold land can bind successive owners of that land; the transfer of obligations contained in leases through successive landlords and tenants; the assumption of obligations by a new shareholder on the transfer of the legal title in the shares to him; and the doctrine of ‘conditional benefits’ which applies to the assignment of rights under a contract.

Part II The Transfer of Intangible Property, 16 Assignments under Section 136 of the Law of Property Act 1925 »

From: The Law of Assignment (3rd Edition)
Marcus Smith, Nico Leslie
This chapter focuses on section 136 of the Law of Property Act 1925, which entitles an assignee of a debt or other legal chose in action to recover it by way of proceedings brought in his own name, provided the conditions of the section are met. For an assignment to fall under section 136, the assignment must be of a debt or other legal chose in action; the assignment must be absolute and not purport to be by way of charge only; the assignment must be in writing under the hand of the assignor; and the debtor must be given express notice in writing of the assignment. Section 136 has no effect in rendering assignable choses that could not otherwise be assigned in equity, nor does it have the effect of expanding the circumstances in which a chose in action can properly be assigned.

Part II The Transfer of Intangible Property, 11 Conceptual Underpinnings »

From: The Law of Assignment (3rd Edition)
Marcus Smith, Nico Leslie
This chapter examines the manner in which choses in action can be assigned when they are not embodied in a negotiable instrument. Assigning a chose in action involves the transfer of that chose from the assignor to the assignee. Leaving aside the legal consequences of such an act, the legal requirements necessary to effect an assignment ought to be straightforward and easy to state. However, this is not the case. The English law of assignment is highly and unnecessarily complex. This is for a number of reasons: complexity arising out of the number of different ways in which a chose in action can be transferred; complexity arising out of the interrelationship between the various forms of equitable assignment; complexities arising out of the interrelationship between the various different statutory modes of assignment; and complexity arising out of the interrelationship between equitable and statutory assignments.

Part V The Effects of Assignment, The Persistence of Property Rights, and The Vindication of An Owner’s Rights, 26 Consequences and Effects of An Assignment »

From: The Law of Assignment (3rd Edition)
Marcus Smith, Nico Leslie
This chapter discusses the consequences and effects of an assignment. Although the paradigm of transfer applies clearly to multilateral intangible property, it applies much less easily to bilateral intangible property. Interests in multilateral intangible property are fully fledged property rights, good against ‘all the world’. Bilateral intangible property, whilst undoubtedly having some of the characteristics of property, lacks this characteristic of universal enforceability. In the case of bilateral intangible property, the right that is transferred remains, for all its transferability, a personal right as against an identified debtor. There is no question of a right subsisting against ‘all the world’. Rather, there is a right—originally owed by the debtor to the assignor—that is transferred from the assignor to the assignee.

Part I The Nature of Intangible Property, 4 Debts »

From: The Law of Assignment (3rd Edition)
Marcus Smith, Nico Leslie
This chapter focuses on debts. A debt is a right to demand payment of money at a stipulated time. That stipulated time may be a future specific date, or the debt may be payable on demand or on the occurrence of some defined future event. In order to be a debt, the money must be due as a matter of legal obligation, that is, arising out of a contract or a deed. At times—particularly for accounting and tax purposes—attempts are made to further classify debts. One classification of debt is known as ‘book debt’. Book debts are best defined as debts in some way connected with the creditor's trade, or debts connected with and growing out of the creditor's trade. The chapter then looks at syndicated loans, where two or more banks severally lend to a single borrower, and the nature of debts as property.

Detailed Contents »

From: The Law of Assignment (3rd Edition)
Marcus Smith, Nico Leslie

Part I The Nature of Intangible Property, 9 Documentary Intangibles and Negotiable Instruments »

From: The Law of Assignment (3rd Edition)
Marcus Smith, Nico Leslie
This chapter studies documentary intangibles and negotiable instruments. An intangible thing, by its nature, is not a physical object. However, there are instances where intangibles are equated to physical objects. Examples are bills of exchange, promissory notes, bearer shares, depository receipts, and certificates of deposit. There are two different kinds of documentary intangibles: negotiable instruments and transferable instruments. Negotiable instruments are documents embodying obligations which are not only transferable on the transfer of the document, but which have the attribute of ‘negotiability’. Meanwhile, transferable instruments are documents which embody obligations which are transferable, but which do not have the attribute of negotiability. The chapter then considers the implications for documentary intangibles of technological developments such as dematerialization, where paper documents are replaced by electronic documents or electronic systems.

Part II The Transfer of Intangible Property, 13 Equitable Assignment of Choses in Action »

From: The Law of Assignment (3rd Edition)
Marcus Smith, Nico Leslie
This chapter studies the requirements that are necessary for an effective assignment of choses in action. In order to effect the assignment or a chose in action: the assignor must have manifested an intention to transfer the chose; the thing being assigned must be a chose in action, in present existence, certain or capable of being ascertained; the identity of the assignee must be clear; and the appropriate forms and formalities must have been satisfied. These requirements apply both to legal and equitable assignments. However, since legal assignments can only be affected by statute, the forms and formalities required for a legal assignment are those set out in the relevant legislation, and addressed elsewhere.

Part I The Nature of Intangible Property, 6 Equity and Debt Securities »

From: The Law of Assignment (3rd Edition)
Marcus Smith, Nico Leslie
This chapter discusses securities. Securities are an important and complex category of intangible. A ‘security’ is defined as a fungible financial instrument, offered for sale on identical terms to multiple investors on first issue, and thereafter generally traded in a market that facilitates its free transfer. Securities can broadly be classified into shares, debt securities, and hybrid securities. The chapter then looks at the legal incidents of securities, and how securities are allotted and held. Allotment describes the process whereby the issuer of securities agrees to issue those securities to a particular person and that person agrees to buy those securities. Meanwhile, the question of how securities are held has become an increasing complex area. Originally, securities were held in paper form. Such paper-based systems are increasingly becoming redundant but their operation remains important because they are relevant to the electronic systems by which securities are held today.

Part V The Effects of Assignment, The Persistence of Property Rights, and The Vindication of An Owner’s Rights, 28 Extinction of Intangible Property »

From: The Law of Assignment (3rd Edition)
Marcus Smith, Nico Leslie
This chapter focuses on the extinction of intangible property. The transfer of an intangible does not involve the extinction of that intangible. It does, or should, entail the extinction of the assignor's interest in the intangible. The chapter looks at those circumstances in which an intangible is extinguished or lost against all the world: in other words, those cases where the intangible ceases to exist. In such a case, it is self-evident that rights in the thing must also cease: rights cannot exist in vacuo. Intangible property is, obviously, very different from tangible property, and the manner in which it can be extinguished differs in fundamental respects. Intangible property can be extinguished in one of three ways: through destruction, abandonment, or combination.

Index »

From: The Law of Assignment (3rd Edition)
Marcus Smith, Nico Leslie

Part VI Special Regimes for Transfer, 30 Insolvency and Assignment »

From: The Law of Assignment (3rd Edition)
Marcus Smith, Nico Leslie
This chapter discusses insolvency. Insolvency is significant in the law of assignment in a number of respects. In the first place, individual bankruptcy—although not the insolvency of companies—causes the bankrupt to be divested of his property, which automatically becomes vested in his trustee in bankruptcy upon the latter's appointment. So far as choses in action are concerned, this involves what can be termed a statutory assignment. The onset of insolvency—both individual and corporate—also causes the rules regarding assignments generally to change in certain respects. Thus, with the onset of insolvency: the rules regarding the assignability of present rights enforceable in the future change; the rules of champerty and maintenance change; and the rules of set-off change.

Part IV Intangible Property that is Incapable of Transfer, 22 Intangibles Not Transferable by Reason of Public Policy »

From: The Law of Assignment (3rd Edition)
Marcus Smith, Nico Leslie
This chapter discusses intangibles not transferable by reason of public policy. In the case of certain sums receivable in the future, reasons of public policy preclude their assignment. The cases in this area tend to have a Dickensian feel to them—such as the rule that no effectual assignment can be made of the salaries or pensions of public officers payable to them for the purpose of keeping the dignity of their office or to ensure the due discharge of their duties—but the same sort of policy underlies the current statutory prohibitions on the assignment of social security benefits and pay in respect of a person's service in Her Majesty's military forces.

Part I The Nature of Intangible Property, 7 Intellectual Property »

From: The Law of Assignment (3rd Edition)
Marcus Smith, Nico Leslie
This chapter examines intellectual property. The governing principles relating to intellectual property are very different from the principles that underlie other choses, like rights under contracts or debts. Like shares, intellectual property rights are characterized by specific statutory rules relating to their creation, as well as to their transfer. Intellectual property rights can be divided under six heads: patents; copyright; moral rights; industrial design rights; trademarks; and confidential information. In each case, the holder of the right is able—by virtue of ownership—to prevent others from doing what they otherwise could do. Each of these intellectual property rights has four different aspects: the intellectual property right itself; rights of action for infringement; validity challenges; and licensing.

1 Introduction »

From: The Law of Assignment (3rd Edition)
Marcus Smith, Nico Leslie
This introductory chapter provides an overview of the book, describing the law of assignment and intangible property. The law of assignment is concerned with intangible property. Traditionally, English law has tended to use the label choses (or things) in action to describe this species of property, and this term is still widely used. As a result, in order to understand the historical development of the law of assignment, it is at times necessary to make use of the term ‘chose in action’. Intangible property is classified into six different types: rights or causes of action; debts; rights under a contract; securities; intellectual property; and leases. It comprises both legal and equitable property. The distinction between law and equity looms large in assignment, and is one of the reasons for the subject's complexity.

Part VI Special Regimes for Transfer, 31 Involuntary Transfers »

From: The Law of Assignment (3rd Edition)
Marcus Smith, Nico Leslie
This chapter examines involuntary transfers, that is, assignments or transfers that occur not by virtue of a party's or parties' choice, but by operation of law. Involuntary transfers occur in a number of contexts. One of these has already been considered, namely the statutory assignment of a bankrupt's property to his trustee in bankruptcy. A further type of statutory assignment that occurs in an insurance context—the assignment of an insured's rights against his liability insurer to a third party, to the extent of the insured's liability to that third party by virtue of the Third Parties (Rights Against Insurers) Act 1930—has also been examined. As such, the chapter focuses on three types of involuntary transfer: subrogation; divorce and dissolution; and succession.

The Law of Assignment »

Marcus Smith, Nico Leslie

Part I The Nature of Intangible Property, 8 Leases »

From: The Law of Assignment (3rd Edition)
Marcus Smith, Nico Leslie
This chapter focuses on leases. Leases are most commonly associated with transactions involving land, and have been a feature of the law of real property since the Middle Ages. However, other forms of lease have become increasingly prominent in modern times. There are now major industries concerned with the leasing of chattels, such as vehicles or aircraft, and leases of intangible rights have become commonplace in the world of intellectual property. The key feature of such leases is that the lessee obtains the right to exclude others from using the relevant chattel or intellectual property. This is in contrast to a mere licence, by which the licensee obtains only the right to use the chattel or property himself. The chapter looks specifically at leases over land—its nature, historical origins, and whether they can be properly classified as choses in action.