Jump to Content Jump to Main Navigation
The Law of Assignment, 3rd Edition by Smith, Marcus; Leslie, Nico (8th March 2018)

Part VI Special Regimes for Transfer, Preliminary Material

From: The Law of Assignment (3rd Edition)

Marcus Smith, Nico Leslie

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 25 August 2019

(p. 779) Overview of Part VI

Part VI.01  Part VI is concerned with what are termed ‘special regimes for the transfer of intangible property’. These are rules of transfer that arise in particular contexts, such as upon bankruptcy, divorce, or death. The rationale for treating these forms of transfer separately is that in each case the circumstances of the transfer are imposed by law, rather than by voluntary agreement of the parties. Thus, an individual may find that an involuntary transfer of his rights is made, or that the rules governing the transfer of his rights are altered for reasons wholly extrinsic to the rights themselves.

Part VI.02  Chapter 30 addresses the special rules that apply where an individual is made bankrupt, or a company enters insolvency. Thus, upon bankruptcy an individual’s assets are automatically assigned by statute to the trustee in bankruptcy. By contrast, where a company enters a formal insolvency process, its assets do not become vested in its receiver or liquidator. However, the rules of assignment do undergo a number of important changes: future rights cease to be automatically assignable; the prior assignment of certain future book debts will be void; and the rules of champerty and maintenance are noticeably softened. Chapter 30 also considers the special rules of set-off that apply in a bankruptcy or insolvency context.

Part VI.03  Chapter 31 deals with three specific forms of involuntary transfer. Addressed first is subrogation, a restitutionary remedy that allows a claimant to be substituted to the rights of another vis-à-vis a third party. Subrogation is of particular importance in the field of insurance law. Although not all forms of subrogation involve an actual transfer of rights, the effect of subrogation is in some respects similar to that of an assignment. Chapter 31 then briefly considers the rules governing the automatic transfer of assets that occurs upon divorce or the dissolution of a marriage, and also upon an individual’s death.(p. 780)