(1) A right is assigned by mere agreement between the assignor and the assignee, without notice to the obligor. 

 

(2) The consent of the obligor is not required unless the obligation in the circumstances is of an essentially personal character.

 

COMMENT

 

In the definition of Article 9.1.1 the assignment of a right is described as a “transfer by agreement”. Articles 9.1.7 to 9.1.15 govern the respective legal positions of assignor, assignee and obligor.

 

1. Mere agreement between assignor and assignee

 

According to paragraph (1) of this Article, the assignment of a right is effective, i.e. the right is transferred from the assignor’s assets to the assignee’s assets, by mere agreement between these two parties. The provision is an application to the assignment of a right of the general principle laid down in Article 1.2 according to which nothing in the Principles requires a contract to be concluded in a particular form. Yet it does not affect the possible application of mandatory rules of the otherwise applicable law according to Article 1.4: thus, for instance, an assignment for security purposes may be subject to special requirements as to form. 

 

As already stated in Comment 4 on Article 9.1.1, the rule laid down in paragraph (1) remains subject to third party rights, which are partly covered by other provisions of this Section (see Articles 9.1.10 and 9.1.11 concerning the obligor and successive assignees), and may in some instances be governed by mandatory rules of the otherwise applicable law (e.g. the law of bankruptcy) according to Article 1.4. However, it should be stressed that notice to the obligor as provided for by Article 9.1.10 is not a condition for the effectiveness of the transfer of the right(s) between the assignor and the assignee.

 

2. Consent of the obligor in principle not required

 

Paragraph (2) states explicitly what is already implied in paragraph (1), i.e. that the obligor’s consent is not required for the assignment to be effective between the assignor and the assignee.

 

3. Exception: obligation of an essentially personal character

 

An exception is made for the case in which the right to be assigned relates to an obligation of an essentially personal character, i.e. a right that has been granted by the obligor specifically to the person of the obligee. This characteristic prevents the right from being assigned without the consent of the obligor, since it would be inappropriate to oblige the obligor to perform in favour of another person.

 

Illustrations

 

1. Company X promises to sponsor activities organised by organisation A, engaged in the defence of human rights. A wishes to assign the right to organisation B, active in the protection of the environment. The assignment can only take place with X’s agreement.

 

2. A famous soprano has made a contract with agent A to sing in concerts organised by A. A sells its claims against the soprano to agent B. This transfer will require the soprano’s consent, if the circumstances reveal that she was willing to sing only for A.

 

4. Effect of other provisions

 

The possibility to assign a right without the obligor’s consent may be affected by the presence of a non-assignment clause in the contract between the assignor and the obligor (see Article 9.1.9), although such a clause does not in itself necessarily imply the essentially personal character of the obligation. 

 

This Article does not address the issue of the necessity to give notice of the assignment to the obligor in order to avoid that the obligor pay the assignor after the assignment has taken place. On these issues, see Articles 9.1.10 and 9.1.11.

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