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The transfer of an obligation by an agreement between the original obligor and the new obligor requires the consent of the obligee.

 

COMMENT

 

1. Agreement between the original and the new obligor

 

As stated in Article 9.2.1(a), the transfer of an obligation may occur by an agreement between the original obligor and the person who will become the new obligor.

 

2. Obligee’s consent required

 

This agreement, however, does not suffice to transfer the obligation. It is also necessary for the obligee to give its consent. 

 

This is different from the corresponding rule on the assignment of rights, where the operation is in principle effective without the consent of the obligor (see Article 9.1.7). The assignment of a right does not affect the obligor’s situation, except that the obligor will have to deliver performance to another person. On the contrary, a change of obligor may considerably affect the obligee’s position, as the new obligor may be less reliable than the original one. The change may therefore not be imposed on the obligee, who must consent to it.

 

Illustration

 

Company A owes USD 150,000 to company X, located in Asia, for services rendered. Due to a reorganisation of the group, A’s activities in Asia are taken over by affiliate company B. A and B agree that B will take over A’s debt towards X. The obligation is transferred only if X gives its consent.

 

3. Original obligor not necessarily discharged

 

With the obligee’s consent, the new obligor becomes bound by the obligation. It does not necessarily follow that the original obligor is discharged (see Article 9.2.5).

 

4. Lack of consent by the oblige

 

If the obligee refuses to consent to the transfer, or if its consent is not solicited, an arrangement for a third party performance is possible under Article 9.2.6.

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