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An assignment is 'an immediate transfer of an existing proprietary right, vested or contingent from one party to another'. Assignments can occur by consent or by operation of law.
A consensual assignment occurs by way of a gift or consideration. Assignments by law can occur during life or on death and will transfer the benefit of rights to the assignee but will not make the assignee personally liable. An attempt to transfer benefits under a contract of personal performance will not be effective.
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Drafting a building contract/schedule of amendments—checklist Once the procurement route and form of building contract has been selected (see Practice Note: Choosing the right procurement method—construction projects) the employer should consider the following matters and incorporate the appropriate drafting in the building contract particulars and schedule of amendments. This Checklist assumes that the parties are using a standard form of building contract, such as a JCT form, and that the employer is proposing the first draft including the completed contract particulars and a schedule of amendments, which amends the standard terms. This list is not exhaustive, however, and there may be other project specific matters/risks that need to be taken into account: Contractual matters • Carry out due diligence on the contractor The employer needs to carry out due diligence on the contractor at the outset to determine whether its financial position is acceptable. Confirm the contractor’s company number and name at Companies House. • Obtain consultants’ details Confirm the full details of the consultants engaged by the employer; some...
Seller's SPA drafting guide (unconditional completion)—checklist This Checklist serves as a guide of certain key matters for the seller’s solicitors to consider when drafting, or commenting on, a share purchase agreement (also known as SPA or share sale agreement) recording the sale and purchase of the entire issued share capital of a private limited company, where the transaction involves simultaneous exchange and completion. Parties The drafter should: • check to see if the legal and beneficial title to the sale shares is split, ie check to see if the seller's sale shares are held in the name of a nominee, requiring the beneficial owner to: ◦ be named as the seller in the SPA instead of the registered holder, and ◦ procure the sale of the sale shares to the buyer • check to see if the transaction involves any parties connected with company directors, which may constitute substantial property transactions requiring certain approvals (see Practice Note: Substantial property transactions—requirement to obtain members’ approval) • resist proposals to include in...
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This Practice Note examines the following legal and practical matters in relation to entering into a subcontract or when granting permission to subcontract:•What is subcontracting?•When is subcontracting permitted?•What is the legal effect of subcontracting?•Liability of subcontractor for consequential loss of contractor•Liability of subcontractor to customerWhat is subcontracting?Although contractual rights and benefits generally are (subject to express contractual provisions to the contrary) assignable, contractual obligations or burdens are not. However, in certain circumstances contractual obligations or burdens may be ‘vicariously’ performed by way of subcontracting.Subcontracting is the delegation by one party (the main contractor) of some or all of its obligations under a contract between it and a customer to a third party (the subcontractor) for performance by the subcontractor. Where subcontracted performance is permitted, there is no transfer of the contractor’s liability under the main contract with its customer to the subcontractor. The contractor remains liable to the customer under the main contract for the non-performance by the subcontractor, even where the customer consents to the vicarious performance.There is no...
This Practice Note identifies what can be transferred when assigning rights under a contract and how to effect a valid assignment of a contract.For guidance on common contract assignment scenarios, see Practice Note: Assigning contracts—common scenarios and considerations.For guidance on the key practical and commercial considerations when assigning contracts, see Practice Note: How to assign rights under a contract.Note also that when discussing assigning contractual rights, reference may also be made to assigning ‘chose in action’ in the sense that the benefit of a contract has been held to be a chose in action.When is assignment of contracts relevant for consideration?Contracts, or rather, rights under contracts, are frequently assigned as part of the way companies run their businesses. When advising a party in relation to a proposed or purported assignment (transfer) of a contractual right where there may be a dispute, you will need to consider:•what, when and how rights can be assigned•how an assignment can be challengedFor detail on how to vary or transfer rights and obligations under a...
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Notice of assignment of contractual rights from an assignor incorporated as a limited company in Ireland with a form of acknowledgement from the contract counterparty This is a Precedent Notice of Assignment which can be used to give notice of an assignment of contractual rights by way of security from an assignor to its contract counterparty. This drafting note explains the context in which this Precedent Notice of Assignment might be used as well as the features of this Precedent Notice of Assignment and the assumptions on which it is based. For information on taking security over contractual rights, see Practice Note: Ireland—Assignments by way of security. Parties to this Precedent Notice of Assignment This Precedent Notice of Assignment is designed for use in bilateral transactions (ie where there is only one lender) as opposed to syndicated transactions (ie where there is more than one lender). It has been drafted as being: • from a single security provider (defined as the ‘Assignor’) • to its contract counterparty and refers to...
Ireland—Deed of assignment and conveyance—unregistered—freehold and leasehold Commencement Section 64(2)(a) of the Land and Conveyancing Law Reform Act 2009 (Ireland) (LCLRA 2009 (IRL)), provides that one of the criteria for establishing if a document is a deed is whether the document is described at its head with the appropriate wording such as ‘Conveyance’, ‘Assignment’, ‘Indenture’, ‘Deed’, etc. Date While it is usual practice to date a deed on the date of completion a deed actually takes effect on the date of its delivery. The concept of delivery means that it is possible for a deed to be valid even if it has not been dated. If a deed is not dated, external evidence is admissible to prove the correct date from which it was intended to operate. Where a date is inserted, it is presumed that this date is the date on which the deed took effect. However, this presumption may be rebutted by evidence to the contrary. See: Browne v Burton (1847) 17 LJQB 49 (not reported by Lexis+® UK). It is good...
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Is it possible to novate one agreement into two separate agreements? If so, will this then duplicate terms, eg liability (if the original liability is £1m, will this then duplicate the exposure)? Can this be achieved without seeking express consent but instead notifying the parties through a communications notification piece and via conduct? This Q&A assumes that a commercial agreement between business entities is the subject of potential novation. Novation of one agreement into two agreements Novation occurs when A and B are party to an agreement and B 'transfers' its obligations and rights under the agreement to C, such that C can be said to 'step into the shoes' of B, with a resulting contractual relationship coming into effect between A and C. The effect of a novation is the extinction of the original contract, and its substitution with a new contract, under which the same rights and obligations are to be enjoyed and performed but by different parties, with the outgoing party released from all future ...
Who is responsible for tax liabilities resulting from an assignment of an agreement? The intention of the parties, together with the detail of the agreement and particular tax implications in question, will be relevant in considering the legal position. For the purposes of this Q&A, we assume that the arrangement in question does not concern any form of interest in land. The contractual approach and tax implications will also vary in different jurisdictions. Therefore, you may wish to seek a local legal opinion depending on the location of the parties involved. The general position is that, unless assignment is prohibited in a contract, a party may generally assign the rights (benefit) under a contract to a third party without the consent of the other party. Commercial contracts often restrict assignment, but if assignment is permitted and the benefits in question are independent of the burdens, an assignment would only transfer the benefit. In such case, a transfer of a burden/obligation (such as a tax liability) under the agreement would require...
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This week's edition of Commercial weekly highlights includes: commentary on the US imposition of unprecedented tariffs on imports and the resulting impact on commercial contracts and supply chains, analysis on a UK class action filed against Google for more than £15bn over allegations that it abused its dominant position in the search-advertising market, and news that the Committee of Advertising Practice has clarified the current regulatory position on artificial intelligence disclosure in UK advertising.
Restructuring & Insolvency analysis: In this judgment, the High Court considered together two related applications under the Insolvency (England and Wales) Rules 2016 (IR 2016), r 14.8 to reverse or vary decisions made by liquidators as to the admission and rejection (respectively) of two claims, and whether the liquidators should be held personally liable for the creditors' costs of those applications. Although the court ultimately reversed both of the liquidators’ decisions, it declined to order that the liquidators pay the applicants' costs. The liquidators' decision-making process was neither irrational nor unreasonable, they had acted fairly, in good faith, and without conscious bias, and they ‘did their best to give the correct answer’. Their conduct was, therefore, not ‘in substance so unreasonable or irrational, or so plainly contrary to the evidence as to attract an adverse costs consequence’. Thus, the 'starting point' under IR 2016, r 14.9(2 (that an office-holder is not personally liable for costs incurred by any person in respect of an application under IR 2016, rule 14.8 ‘unless...
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