| 释义 |
assignment
n. 1. The transfer of a chose in action by one person (the assignor) to another (the assignee). By the rules of the common law, this was not permissible. If, for example, A was owed a contract debt by B, he could not transfer his right to C so as to enable C to sue B for the money owed. The assignment of certain choses in action is now authorized and governed by statute. For example, the Companies Act allows shares in a company to be transferred in the manner prescribed by the company’s articles of association. These, however, are special cases; in general, choses in action, whether legal (e.g. the benefit of a contract) or equitable (e.g. a right under a trust), can be transferred either by equitable assignment or, under the Law of Property Act 1925, by statutory assignment. For an equitable assignment, no formality is required. It is sufficient that the assignor shows a clear intention to transfer ownership of his right to the assignee. If, however, it is a legal chose that is assigned, the assignor must be made a party to any proceedings by the assignee to enforce the right. In the above example, C can sue B for the debt, but he must join A as co-claimant or (if A refuses to lend his name to the action in this way) as co-defendant. A statutory assignment under the Law of Property Act 1925 is sometimes referred to as a legal assignment, but since it may relate to an equitable chose in action as well as a legal one this is not wholly accurate. It enables the assignee to enforce the right assigned in his own name and without joining the assignor to the proceedings even if it is a legal chose. There are three requirements for its validity: it must be absolute; it must be in writing; and written notice of it must be given to the person against whom the right is enforceable. For these purposes, an absolute assignment is one that transfers the assignor’s entire interest to the assignee unconditionally. If less than his entire interest (e.g. part of a debt) is transferred, or if any condition is attached to the transfer (e.g. that the consent of a third party be obtained), the assignment is not absolute. An assignment need not, however, be permanent to be absolute, and this is exemplified by the mortgage of a chose in action. If A, who owes money to C, assigns to C as security for that debt a debt due to him from B, with the proviso that C will reassign the debt if A settles what is due to him, the assignment is absolute despite the proviso for reassignment. The assignment of contractual rights (which must be distinguished from novation) is subject to restrictions. For reasons of public policy, the holder of a public office must not assign his or her salary nor a spouse his or her right to maintenance payments awarded in matrimonial proceedings. Rights to the performance of personal services, as under contracts of employment, are also incapable of being assigned. Intellectual property rights must be assigned or transferred by document in writing signed by the assignor. Stamp duty land tax is payable on assignments of property if the value transferred is over the prescribed limit. 2. The transfer of the whole of the remainder of the term of a lease. A tenant may assign his lease unless there is a covenant against it: there is often a covenant against assignment without the landlord’s consent. The landlord cannot charge a fee for giving his consent unless there is express provision for this in the lease and he may not withhold his consent unreasonably. Less commonly, a lease may contain a covenant that prohibits any assignment at all. Where a lease contains a covenant against assigning without the landlord’s consent, such consent not to be unreasonably withheld, the landlord has statutory duties. He must give the tenant notice of his decision within a reasonable time of the tenant requesting consent; the notice must give reasons for any refusal of consent, or conditions attached to acceptance; and the conditions themselves must not be unreasonable (Landlord and Tenant (Covenants) Act 1995). See also business tenancy. |