PROHIBITIONS ON ASSIGNMENT: A CHOICE TO BE MADE

In recent years two views have developed as to the efficacy of prohibitions on the assignment of contractual rights. One view, "the property view", dictates that such prohibitions characterise contractual rights as choses in action and robs them of their transferable nature. Another view,...

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Bibliographic Details
Published in:Cambridge law journal 2014-07, Vol.73 (2), p.405-434
Main Authors: Tolhurst, G.J., Carter, J.W.
Format: Article
Language:English
Subjects:
Beneficiaries
Commercial construction
Commercial law
Common law
Contract breaches
Contract law
Contract provisions
Contracts
Court decisions
Courts of appeals
Judicial process
Law
Personal property
Political planning
Prohibition
Property rights
Public policy
Restraint on alienation
Social support
Trust declarations
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Summary:In recent years two views have developed as to the efficacy of prohibitions on the assignment of contractual rights. One view, "the property view", dictates that such prohibitions characterise contractual rights as choses in action and robs them of their transferable nature. Another view, "the contract view", dictates that such prohibitions operate only at the level of contract and cannot prevent the equitable assignment of the benefit of a contract. Both views have judicial and academic support. The view that is ultimately adopted will have important implications for contract drafting and the law of assignment. This paper explains both views and puts forward an argument for adopting the property view.
ISSN:0008-1973
1469-2139
DOI:10.1017/S0008197314000440