Equitable assignment meaning

Points to consider What is the most appropriate method of transfer? Consider: Think about whether you are transferring rights alone (eg drawn commitments) or also obligations (eg undrawn commitments). An assignment passes only rights, whereas a novation passes both rights and obligations. Novation is usually favoured for loan transfers because it conveys rights and duties together. If assignment is adopted, the obligations can be moved by novation. For more detail, see Practice Note: Transferring a loan by assignment. Whether consent can be obtained from the borrower? By law, an assignment does not require the counterparty’s consent. However, the facility agreement will often require borrower consent for an assignment, and for a novation as well. Sub-participation is sometimes used to transfer loans on syndicated transactions where borrower consent cannot be obtained. That said, some deals may still require borrower consent for sub-participation. Whether the intention is for the transfer to be kept confidential from...

Alphier Capital LLP v Blyvoor Gold Capital (Pty) Ltd [2024] EWHC 2649 (Ch) What are the practical implications of this case? The High Court’s ruling delivers key takeaways for companies and commercial advisers dealing with transfers of contractual entitlements and duties, especially where no-assignment provisions appear. Drafting: The decision underscores the need for meticulous wording in assignment provisions and the precedence given to a contract’s exact language. Practitioners should, where appropriate, make a clear distinction between assigning ‘rights’ and the ‘fruits’ of those rights, and ensure terms are precisely defined. Statutory definitions—such as ‘Group’—are likely to be read strictly by the courts. Thompsell J’s application of clause 17.6, barring assignments absent the debtor’s written approval, shows the courts will not sidestep clear terms unless statute or compelling policy expressly allows. Structuring assignments: When arranging assignments, it is vital to comply expressly with statutory and common law rules for legal and equitable assignments. If those routes fail, a trust may nonetheless arise...

In this issue: Transferring property Property management Statutory compliance Environment, energy and buildings Property in Scotland LexTalk®Property: a Lexis®Nexis community Additional property updates this week Daily and weekly news alerts New and updated content Trackers Transferring property Validity of an assignment entered into by an attorney In Frischmann v Vaxeal Holdings SA [2023] EWHC 2698 (Ch), Master McQuail examined the effectiveness and legal status of an assignment of certain loans, executed by the assignee signing on the assignor’s behalf as his attorney. She determined that section 136 of the Law of Property Act 1925 requires the assignor’s personal signature for legal validity; consequently, no legal assignment was created. Nevertheless, in the particular circumstances, an equitable assignment was found. See News Analysis by David Juckes, barrister at Hailsham Chambers: Validity of an assignment entered into by an attorney (Frischmann v Vaxeal Holdings SA). Adverse possession claim fails In Brown v Ridley [2024]...

The court determined that either or both of the following applied: the signed TR1 functioned as an assignment of the respondent’s equitable interest in the property; and the court would cure the imperfect gift, it being unconscionable for the respondent to retreat from the intended gift. Written by John Aldis, barrister at St Philips Chambers, who appeared for the appellant. Khan v Mahmood [2021] EWHC 597 (Ch). What are the practical implications of this case? To begin with, this judgment joins the small body of authorities in which the courts have validated an imperfect gift even though the donor had not taken every step within his power to bring the transfer about. The orthodox position in Milroy v Lord [1861–73] All ER Rep 783 is that the settlor must have done all that, given the character of the property in the settlement, needed to be done to pass the property and bind himself to the settlement. Yet, applying Pennington v Waine...

The use of invoice discounting and factoring of receivables as business finance has expanded markedly in the UK over the past 25 years. Introduction to receivables purchase transactions Invoice discounting and factoring fall within receivables purchase arrangements under which a supplier of goods and/or services (often called the seller or the supplier) transfers, typically by way of assignment, debts owed to it by the purchaser of those goods and/or services (commonly referred to as the buyer or the account debtor), usually together with all associated rights. These receivables purchases are frequently completed at a discounted purchase price. That said, receivables can also be acquired for an amount equal to their face value, with the supplier paying the purchaser a purchase fee. For a variety of reasons, suppliers may opt to sell receivables (on a no recourse or limited recourse basis) in preference to borrowing...

Practice Note This Practice Note consists of two strands created to help dispute resolution practitioners remain up to date with developments in case law that affect their field, or which influence civil litigation procedure more generally: selected forthcoming appeals to the Supreme Court are highlighted below; see Key forthcoming appeals to the Supreme Court—2022 summaries of significant appeal decisions in England and Wales (ie rulings of the Court of Appeal and Supreme Court and, where appropriate, certain judgments of the Competition Appeal Tribunal, Judicial Committee of the Privy Council, Court of Justice of the European Union), and ECtHR, which we have covered; see: Key forthcoming appeal cases—2022 You can navigate this content using the table of contents in the left-hand margin. Alternatively, search this tracker using [CTRL]+[F]. This material is not intended to be a comprehensive register of every appeal or major decision relevant to dispute resolution practitioners. Key forthcoming appeals to the Supreme Court—2022 Tort and negligence ...

What is an assignment An assignment involves passing a right or interest held by one party (the assignor) to another (the assignee), such as transferring an employer’s rights under a building contract to the buyer of the finished works. In this Practice Note, the party required to perform the contractual obligations is called the 'obligor'. A properly effected assignment allows the assignee to require performance of contractual duties—for instance, to request rectification of defects and/or to commence proceedings. This Practice Note explores the various mechanisms available by which parties may implement an assignment within construction documentation (eg construction contracts, appointments and collateral warranties), together with the consequences of doing so. It also clarifies the practical impact of each method for parties seeking to secure or enforce rights effectively...

Date provision Substitute the date clause in the share purchase agreement (SPA) with the following updated wording to read: This Agreement is delivered on [ insert day and month ] 20[ insert year ] Recitals Recital (B) Remove ‘legal and beneficial’ from Recital (B) entirely. Definitions Revise the following existing definitions set out in clause 1 (Definitions and interpretation) of the relevant precedent SPA (where used in the SPA): Definition of ‘Business’ Replace ‘the City of London’ with ‘[ Edinburgh OR Glasgow OR Aberdeen ]’ instead. Definition of ‘CRTP’ Replace the definition of ‘CRTP’ with the following new definition: CTPRS means Contract (Third Party Rights) (Scotland) Act 2017; Definition of ‘Encumbrance’ Delete ‘assignment’ immediately preceding ‘right of first refusal’, as Scots law uses assignation rather than assignment. Delete ‘legal or equitable’ immediately preceding ‘third party right’, as Scots law does not recognise this separation of ownership...

This Agreement is entered into on [ date ] Parties [ insert name of party ] [ of OR a company incorporated in [ England and Wales ] with registration number [ insert registered number ], whose registered office is at [ insert address ] ] (the Principal); and [ insert name of party ] [ of OR a company incorporated in [ England and Wales ] with registration number [ insert registered number ], whose registered office is at [ insert address ] ] (the Agent), (each of the Principal and the Agent is a party and, taken together, the Principal and the Agent are the parties). Background The Principal provides the Services (as defined below). The Principal intends to appoint the Agent as its non-exclusive agent within the Territory (as defined below) for the [ marketing OR marketing and sale ] of the Services, on the terms of this Agreement. The Agent has agreed...

1 Definitions and interpretation 1.1 Within these Conditions, the terms below shall have the following meanings: Adequate Procedures – to be interpreted in accordance with BA 2010 and the guidance issued under it; Affiliate – any entity that, directly or indirectly, Controls, is Controlled by, or is under common Control with, another entity; Applicable Law – all applicable laws, legislation, statutory instruments, regulations, and governmental guidance having binding effect, whether local or national [ or international in any relevant jurisdiction ]; Associated Person – means any or all of: (a) a party’s officers, employees, agents, subcontractors, subsidiaries, and persons Associated With that party (the Associates); and (b) persons Associated With any of the Associates, in each case engaged in performing services for or on behalf of that party, the Services and/or the Contract; Associated With – when used: (a) in clause 10 and in respect of bribery, shall be read in accordance with BA 2010 and the guidance published under it; (b)...

When A and B make a covenant regulating the use of B’s freehold land (presently owned by B or to be conveyed to B) for the benefit of land kept or held by A, it is, as a contractual promise, immediately enforceable. If, however, either A or B disposes of the interest in their respective parcels, the covenant is enforceable only where the equitable rules governing the enforceability of freehold covenants are fulfilled. Where A, being the original covenantee, has transferred the interest in the benefitted land to C, C may enforce the covenant solely if it is demonstrable that the covenant benefits that land and that the benefit has passed by assignment. The latter element will, in most cases, arise automatically by virtue of section 78 of the Law of Property Act 1925 (LPA 1925), as provided under that statute in equity...

What are the formality requirements for assigning a commercial lease? There are three principal formalities for assigning a lease. First, the agreement to assign must be in writing and signed, and it must contain all terms expressly agreed by the parties in a single document or, if contracts are exchanged, in each counterpart (section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 (LP(MP)A 1989)). Second, the assignment must be carried out by deed, even where the lease itself was originally granted orally (section 53 of the Law of Property Act 1925; Crago v Julian). Third, if the lease being transferred is a registered lease, the assignment only completes once it has been registered at HM Land Registry (section 27(1)(a) of the Land Registration Act 2002 (LRA 2002))...