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Assignments: The Basic Law

The assignment of a right or obligation is a common contractual event under the law and the right to assign (or prohibition against assignments) is found in the majority of agreements, leases and business structural documents created in the United States.

As with many terms commonly used, people are familiar with the term but often are not aware or fully aware of what the terms entail. The concept of assignment of rights and obligations is one of those simple concepts with wide ranging ramifications in the contractual and business context and the law imposes severe restrictions on the validity and effect of assignment in many instances. Clear contractual provisions concerning assignments and rights should be in every document and structure created and this article will outline why such drafting is essential for the creation of appropriate and effective contracts and structures.

The reader should first read the article on Limited Liability Entities in the United States and Contracts since the information in those articles will be assumed in this article.

Basic Definitions and Concepts:

An assignment is the transfer of rights held by one party called the “assignor” to another party called the “assignee.” The legal nature of the assignment and the contractual terms of the agreement between the parties determines some additional rights and liabilities that accompany the assignment. The assignment of rights under a contract usually completely transfers the rights to the assignee to receive the benefits accruing under the contract. Ordinarily, the term assignment is limited to the transfer of rights that are intangible, like contractual rights and rights connected with property. Merchants Service Co. v. Small Claims Court , 35 Cal. 2d 109, 113-114 (Cal. 1950).

An assignment will generally be permitted under the law unless there is an express prohibition against assignment in the underlying contract or lease. Where assignments are permitted, the assignor need not consult the other party to the contract but may merely assign the rights at that time. However, an assignment cannot have any adverse effect on the duties of the other party to the contract, nor can it diminish the chance of the other party receiving complete performance. The assignor normally remains liable unless there is an agreement to the contrary by the other party to the contract.

The effect of a valid assignment is to remove privity between the assignor and the obligor and create privity between the obligor and the assignee. Privity is usually defined as a direct and immediate contractual relationship. See Merchants case above.

Further, for the assignment to be effective in most jurisdictions, it must occur in the present. One does not normally assign a future right; the assignment vests immediate rights and obligations.

No specific language is required to create an assignment so long as the assignor makes clear his/her intent to assign identified contractual rights to the assignee. Since expensive litigation can erupt from ambiguous or vague language, obtaining the correct verbiage is vital. An agreement must manifest the intent to transfer rights and can either be oral or in writing and the rights assigned must be certain.

Note that an assignment of an interest is the transfer of some identifiable property, claim, or right from the assignor to the assignee. The assignment operates to transfer to the assignee all of the rights, title, or interest of the assignor in the thing assigned. A transfer of all rights, title, and interests conveys everything that the assignor owned in the thing assigned and the assignee stands in the shoes of the assignor. Knott v. McDonald’s Corp ., 985 F. Supp. 1222 (N.D. Cal. 1997)

The parties must intend to effectuate an assignment at the time of the transfer, although no particular language or procedure is necessary. As long ago as the case of National Reserve Co. v. Metropolitan Trust Co ., 17 Cal. 2d 827 (Cal. 1941), the court held that in determining what rights or interests pass under an assignment, the intention of the parties as manifested in the instrument is controlling.

The intent of the parties to an assignment is a question of fact to be derived not only from the instrument executed by the parties but also from the surrounding circumstances. When there is no writing to evidence the intention to transfer some identifiable property, claim, or right, it is necessary to scrutinize the surrounding circumstances and parties’ acts to ascertain their intentions. Strosberg v. Brauvin Realty Servs., 295 Ill. App. 3d 17 (Ill. App. Ct. 1st Dist. 1998)

The general rule applicable to assignments of choses in action is that an assignment, unless there is a contract to the contrary, carries with it all securities held by the assignor as collateral to the claim and all rights incidental thereto and vests in the assignee the equitable title to such collateral securities and incidental rights. An unqualified assignment of a contract or chose in action, however, with no indication of the intent of the parties, vests in the assignee the assigned contract or chose and all rights and remedies incidental thereto.

More examples: In Strosberg v. Brauvin Realty Servs ., 295 Ill. App. 3d 17 (Ill. App. Ct. 1st Dist. 1998), the court held that the assignee of a party to a subordination agreement is entitled to the benefits and is subject to the burdens of the agreement. In Florida E. C. R. Co. v. Eno , 99 Fla. 887 (Fla. 1930), the court held that the mere assignment of all sums due in and of itself creates no different or other liability of the owner to the assignee than that which existed from the owner to the assignor.

And note that even though an assignment vests in the assignee all rights, remedies, and contingent benefits which are incidental to the thing assigned, those which are personal to the assignor and for his sole benefit are not assigned. Rasp v. Hidden Valley Lake, Inc ., 519 N.E.2d 153, 158 (Ind. Ct. App. 1988). Thus, if the underlying agreement provides that a service can only be provided to X, X cannot assign that right to Y.

Novation Compared to Assignment:

Although the difference between a novation and an assignment may appear narrow, it is an essential one. “Novation is a act whereby one party transfers all its obligations and benefits under a contract to a third party.” In a novation, a third party successfully substitutes the original party as a party to the contract. “When a contract is novated, the other contracting party must be left in the same position he was in prior to the novation being made.”

A sublease is the transfer when a tenant retains some right of reentry onto the leased premises. However, if the tenant transfers the entire leasehold estate, retaining no right of reentry or other reversionary interest, then the transfer is an assignment. The assignor is normally also removed from liability to the landlord only if the landlord consents or allowed that right in the lease. In a sublease, the original tenant is not released from the obligations of the original lease.

Equitable Assignments:

An equitable assignment is one in which one has a future interest and is not valid at law but valid in a court of equity. In National Bank of Republic v. United Sec. Life Ins. & Trust Co. , 17 App. D.C. 112 (D.C. Cir. 1900), the court held that to constitute an equitable assignment of a chose in action, the following has to occur generally: anything said written or done, in pursuance of an agreement and for valuable consideration, or in consideration of an antecedent debt, to place a chose in action or fund out of the control of the owner, and appropriate it to or in favor of another person, amounts to an equitable assignment. Thus, an agreement, between a debtor and a creditor, that the debt shall be paid out of a specific fund going to the debtor may operate as an equitable assignment.

In Egyptian Navigation Co. v. Baker Invs. Corp. , 2008 U.S. Dist. LEXIS 30804 (S.D.N.Y. Apr. 14, 2008), the court stated that an equitable assignment occurs under English law when an assignor, with an intent to transfer his/her right to a chose in action, informs the assignee about the right so transferred.

An executory agreement or a declaration of trust are also equitable assignments if unenforceable as assignments by a court of law but enforceable by a court of equity exercising sound discretion according to the circumstances of the case. Since California combines courts of equity and courts of law, the same court would hear arguments as to whether an equitable assignment had occurred. Quite often, such relief is granted to avoid fraud or unjust enrichment.

Note that obtaining an assignment through fraudulent means invalidates the assignment. Fraud destroys the validity of everything into which it enters. It vitiates the most solemn contracts, documents, and even judgments. Walker v. Rich , 79 Cal. App. 139 (Cal. App. 1926). If an assignment is made with the fraudulent intent to delay, hinder, and defraud creditors, then it is void as fraudulent in fact. See our article on Transfers to Defraud Creditors .

But note that the motives that prompted an assignor to make the transfer will be considered as immaterial and will constitute no defense to an action by the assignee, if an assignment is considered as valid in all other respects.

Enforceability of Assignments:

Whether a right under a contract is capable of being transferred is determined by the law of the place where the contract was entered into. The validity and effect of an assignment is determined by the law of the place of assignment. The validity of an assignment of a contractual right is governed by the law of the state with the most significant relationship to the assignment and the parties.

In some jurisdictions, the traditional conflict of laws rules governing assignments has been rejected and the law of the place having the most significant contacts with the assignment applies. In Downs v. American Mut. Liability Ins. Co ., 14 N.Y.2d 266 (N.Y. 1964), a wife and her husband separated and the wife obtained a judgment of separation from the husband in New York. The judgment required the husband to pay a certain yearly sum to the wife. The husband assigned 50 percent of his future salary, wages, and earnings to the wife. The agreement authorized the employer to make such payments to the wife.

After the husband moved from New York, the wife learned that he was employed by an employer in Massachusetts. She sent the proper notice and demanded payment under the agreement. The employer refused and the wife brought an action for enforcement. The court observed that Massachusetts did not prohibit assignment of the husband’s wages. Moreover, Massachusetts law was not controlling because New York had the most significant relationship with the assignment. Therefore, the court ruled in favor of the wife.

Therefore, the validity of an assignment is determined by looking to the law of the forum with the most significant relationship to the assignment itself. To determine the applicable law of assignments, the court must look to the law of the state which is most significantly related to the principal issue before it.

Assignment of Contractual Rights:

Generally, the law allows the assignment of a contractual right unless the substitution of rights would materially change the duty of the obligor, materially increase the burden or risk imposed on the obligor by the contract, materially impair the chance of obtaining return performance, or materially reduce the value of the performance to the obligor. Restat 2d of Contracts, § 317(2)(a). This presumes that the underlying agreement is silent on the right to assign.

If the contract specifically precludes assignment, the contractual right is not assignable. Whether a contract is assignable is a matter of contractual intent and one must look to the language used by the parties to discern that intent.

In the absence of an express provision to the contrary, the rights and duties under a bilateral executory contract that does not involve personal skill, trust, or confidence may be assigned without the consent of the other party. But note that an assignment is invalid if it would materially alter the other party’s duties and responsibilities. Once an assignment is effective, the assignee stands in the shoes of the assignor and assumes all of assignor’s rights. Hence, after a valid assignment, the assignor’s right to performance is extinguished, transferred to assignee, and the assignee possesses the same rights, benefits, and remedies assignor once possessed. Robert Lamb Hart Planners & Architects v. Evergreen, Ltd. , 787 F. Supp. 753 (S.D. Ohio 1992).

On the other hand, an assignee’s right against the obligor is subject to “all of the limitations of the assignor’s right, all defenses thereto, and all set-offs and counterclaims which would have been available against the assignor had there been no assignment, provided that these defenses and set-offs are based on facts existing at the time of the assignment.” See Robert Lamb , case, above.

The power of the contract to restrict assignment is broad. Usually, contractual provisions that restrict assignment of the contract without the consent of the obligor are valid and enforceable, even when there is statutory authorization for the assignment. The restriction of the power to assign is often ineffective unless the restriction is expressly and precisely stated. Anti-assignment clauses are effective only if they contain clear, unambiguous language of prohibition. Anti-assignment clauses protect only the obligor and do not affect the transaction between the assignee and assignor.

Usually, a prohibition against the assignment of a contract does not prevent an assignment of the right to receive payments due, unless circumstances indicate the contrary. Moreover, the contracting parties cannot, by a mere non-assignment provision, prevent the effectual alienation of the right to money which becomes due under the contract.

A contract provision prohibiting or restricting an assignment may be waived, or a party may so act as to be estopped from objecting to the assignment, such as by effectively ratifying the assignment. The power to void an assignment made in violation of an anti-assignment clause may be waived either before or after the assignment. See our article on Contracts.

Noncompete Clauses and Assignments:

Of critical import to most buyers of businesses is the ability to ensure that key employees of the business being purchased cannot start a competing company. Some states strictly limit such clauses, some do allow them. California does restrict noncompete clauses, only allowing them under certain circumstances. A common question in those states that do allow them is whether such rights can be assigned to a new party, such as the buyer of the buyer.

A covenant not to compete, also called a non-competitive clause, is a formal agreement prohibiting one party from performing similar work or business within a designated area for a specified amount of time. This type of clause is generally included in contracts between employer and employee and contracts between buyer and seller of a business.

Many workers sign a covenant not to compete as part of the paperwork required for employment. It may be a separate document similar to a non-disclosure agreement, or buried within a number of other clauses in a contract. A covenant not to compete is generally legal and enforceable, although there are some exceptions and restrictions.

Whenever a company recruits skilled employees, it invests a significant amount of time and training. For example, it often takes years before a research chemist or a design engineer develops a workable knowledge of a company’s product line, including trade secrets and highly sensitive information. Once an employee gains this knowledge and experience, however, all sorts of things can happen. The employee could work for the company until retirement, accept a better offer from a competing company or start up his or her own business.

A covenant not to compete may cover a number of potential issues between employers and former employees. Many companies spend years developing a local base of customers or clients. It is important that this customer base not fall into the hands of local competitors. When an employee signs a covenant not to compete, he or she usually agrees not to use insider knowledge of the company’s customer base to disadvantage the company. The covenant not to compete often defines a broad geographical area considered off-limits to former employees, possibly tens or hundreds of miles.

Another area of concern covered by a covenant not to compete is a potential ‘brain drain’. Some high-level former employees may seek to recruit others from the same company to create new competition. Retention of employees, especially those with unique skills or proprietary knowledge, is vital for most companies, so a covenant not to compete may spell out definite restrictions on the hiring or recruiting of employees.

A covenant not to compete may also define a specific amount of time before a former employee can seek employment in a similar field. Many companies offer a substantial severance package to make sure former employees are financially solvent until the terms of the covenant not to compete have been met.

Because the use of a covenant not to compete can be controversial, a handful of states, including California, have largely banned this type of contractual language. The legal enforcement of these agreements falls on individual states, and many have sided with the employee during arbitration or litigation. A covenant not to compete must be reasonable and specific, with defined time periods and coverage areas. If the agreement gives the company too much power over former employees or is ambiguous, state courts may declare it to be overbroad and therefore unenforceable. In such case, the employee would be free to pursue any employment opportunity, including working for a direct competitor or starting up a new company of his or her own.

It has been held that an employee’s covenant not to compete is assignable where one business is transferred to another, that a merger does not constitute an assignment of a covenant not to compete, and that a covenant not to compete is enforceable by a successor to the employer where the assignment does not create an added burden of employment or other disadvantage to the employee. However, in some states such as Hawaii, it has also been held that a covenant not to compete is not assignable and under various statutes for various reasons that such covenants are not enforceable against an employee by a successor to the employer. Hawaii v. Gannett Pac. Corp. , 99 F. Supp. 2d 1241 (D. Haw. 1999)

It is vital to obtain the relevant law of the applicable state before drafting or attempting to enforce assignment rights in this particular area.

Conclusion:

In the current business world of fast changing structures, agreements, employees and projects, the ability to assign rights and obligations is essential to allow flexibility and adjustment to new situations. Conversely, the ability to hold a contracting party into the deal may be essential for the future of a party. Thus, the law of assignments and the restriction on same is a critical aspect of every agreement and every structure. This basic provision is often glanced at by the contracting parties, or scribbled into the deal at the last minute but can easily become the most vital part of the transaction.

As an example, one client of ours came into the office outraged that his co venturer on a sizable exporting agreement, who had excellent connections in Brazil, had elected to pursue another venture instead and assigned the agreement to a party unknown to our client and without the business contacts our client considered vital. When we examined the handwritten agreement our client had drafted in a restaurant in Sao Paolo, we discovered there was no restriction on assignment whatsoever…our client had not even considered that right when drafting the agreement after a full day of work.

One choses who one does business with carefully…to ensure that one’s choice remains the party on the other side of the contract, one must master the ability to negotiate proper assignment provisions.

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Assignment clause defined.

Assignment clauses are legally binding provisions in contracts that give a party the chance to engage in a transfer of ownership or assign their contractual obligations and rights to a different contracting party.

In other words, an assignment clause can reassign contracts to another party. They can commonly be seen in contracts related to business purchases.

Here’s an article about assignment clauses.

Assignment Clause Explained

Assignment contracts are helpful when you need to maintain an ongoing obligation regardless of ownership. Some agreements have limitations or prohibitions on assignments, while other parties can freely enter into them.

Here’s another article about assignment clauses.

Purpose of Assignment Clause

The purpose of assignment clauses is to establish the terms around transferring contractual obligations. The Uniform Commercial Code (UCC) permits the enforceability of assignment clauses.

Assignment Clause Examples

Examples of assignment clauses include:

• Example 1 . A business closing or a change of control occurs
• Example 2 . New services providers taking over existing customer contracts
• Example 3 . Unique real estate obligations transferring to a new property owner as a condition of sale
• Example 4 . Many mergers and acquisitions transactions, such as insurance companies taking over customer policies during a merger

Here’s an article about the different types of assignment clauses.

Assignment Clause Samples

Sample 1 – sales contract.

Assignment; Survival .  Neither party shall assign all or any portion of the Contract without the other party’s prior written consent, which consent shall not be unreasonably withheld; provided, however, that either party may, without such consent, assign this Agreement, in whole or in part, in connection with the transfer or sale of all or substantially all of the assets or business of such Party relating to the product(s) to which this Agreement relates. The Contract shall bind and inure to the benefit of the successors and permitted assigns of the respective parties. Any assignment or transfer not in accordance with this Contract shall be void. In order that the parties may fully exercise their rights and perform their obligations arising under the Contract, any provisions of the Contract that are required to ensure such exercise or performance (including any obligation accrued as of the termination date) shall survive the termination of the Contract.

Reference :

Security Exchange Commission - Edgar Database,  EX-10.29 3 dex1029.htm SALES CONTRACT , Viewed May 10, 2021, <  https://www.sec.gov/Archives/edgar/data/1492426/000119312510226984/dex1029.htm >.

Sample 2 – Purchase and Sale Agreement

Assignment . Purchaser shall not assign this Agreement or any interest therein to any Person, without the prior written consent of Seller, which consent may be withheld in Seller’s sole discretion. Notwithstanding the foregoing, upon prior written notice to Seller, Purchaser may designate any Affiliate as its nominee to receive title to the Property, or assign all of its right, title and interest in this Agreement to any Affiliate of Purchaser by providing written notice to Seller no later than five (5) Business Days prior to the Closing; provided, however, that (a) such Affiliate remains an Affiliate of Purchaser, (b) Purchaser shall not be released from any of its liabilities and obligations under this Agreement by reason of such designation or assignment, (c) such designation or assignment shall not be effective until Purchaser has provided Seller with a fully executed copy of such designation or assignment and assumption instrument, which shall (i) provide that Purchaser and such designee or assignee shall be jointly and severally liable for all liabilities and obligations of Purchaser under this Agreement, (ii) provide that Purchaser and its designee or assignee agree to pay any additional transfer tax as a result of such designation or assignment, (iii) include a representation and warranty in favor of Seller that all representations and warranties made by Purchaser in this Agreement are true and correct with respect to such designee or assignee as of the date of such designation or assignment, and will be true and correct as of the Closing, and (iv) otherwise be in form and substance satisfactory to Seller and (d) such Assignee is approved by Manager as an assignee of the Management Agreement under Article X of the Management Agreement. For purposes of this Section 16.4, “Affiliate” shall include any direct or indirect member or shareholder of the Person in question, in addition to any Person that would be deemed an Affiliate pursuant to the definition of “Affiliate” under Section 1.1 hereof and not by way of limitation of such definition.

Security Exchange Commission - Edgar Database,  EX-10.8 3 dex108.htm PURCHASE AND SALE AGREEMENT , Viewed May 10, 2021, < https://www.sec.gov/Archives/edgar/data/1490985/000119312510160407/dex108.htm >.

Sample 3 – Share Purchase Agreement

Assignment . Neither this Agreement nor any right or obligation hereunder may be assigned by any Party without the prior written consent of the other Parties, and any attempted assignment without the required consents shall be void.

Security Exchange Commission - Edgar Database,  EX-4.12 3 dex412.htm SHARE PURCHASE AGREEMENT , Viewed May 10, 2021, < https://www.sec.gov/Archives/edgar/data/1329394/000119312507148404/dex412.htm >.

Sample 4 – Asset Purchase Agreement

Assignment . This Agreement and any of the rights, interests, or obligations incurred hereunder, in part or as a whole, at any time after the Closing, are freely assignable by Buyer. This Agreement and any of the rights, interests, or obligations incurred hereunder, in part or as a whole, are assignable by Seller only upon the prior written consent of Buyer, which consent shall not be unreasonably withheld. This Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and permitted assigns.

Security Exchange Commission - Edgar Database,  EX-2.1 2 dex21.htm ASSET PURCHASE AGREEMENT , Viewed May 10, 2021, < https://www.sec.gov/Archives/edgar/data/1428669/000119312510013625/dex21.htm >.

Sample 5 – Asset Purchase Agreement

Assignment; Binding Effect; Severability

This Agreement may not be assigned by any party hereto without the other party’s written consent; provided, that Buyer may transfer or assign in whole or in part to one or more Buyer Designee its right to purchase all or a portion of the Purchased Assets, but no such transfer or assignment will relieve Buyer of its obligations hereunder. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the successors, legal representatives and permitted assigns of each party hereto. The provisions of this Agreement are severable, and in the event that any one or more provisions are deemed illegal or unenforceable the remaining provisions shall remain in full force and effect unless the deletion of such provision shall cause this Agreement to become materially adverse to either party, in which event the parties shall use reasonable commercial efforts to arrive at an accommodation that best preserves for the parties the benefits and obligations of the offending provision.

Security Exchange Commission - Edgar Database,  EX-2.4 2 dex24.htm ASSET PURCHASE AGREEMENT , Viewed May 10, 2021, < https://www.sec.gov/Archives/edgar/data/1002047/000119312511171858/dex24.htm >.

Common Contracts with Assignment Clauses

Common contracts with assignment clauses include:

• Real estate contracts
• Sales contract
• Asset purchase agreement
• Purchase and sale agreement
• Bill of sale
• Assignment and transaction financing agreement

Assignment Clause FAQs

Assignment clauses are powerful when used correctly. Check out the assignment clause FAQs below to learn more:

What is an assignment clause in real estate?

Assignment clauses in real estate transfer legal obligations from one owner to another party. They also allow house flippers to engage in a contract negotiation with a seller and then assign the real estate to the buyer while collecting a fee for their services. Real estate lawyers assist in the drafting of assignment clauses in real estate transactions.

What does no assignment clause mean?

No assignment clauses prohibit the transfer or assignment of contract obligations from one part to another.

What’s the purpose of the transfer and assignment clause in the purchase agreement?

The purpose of the transfer and assignment clause in the purchase agreement is to protect all involved parties’ rights and ensure that assignments are not to be unreasonably withheld. Contract lawyers can help you avoid legal mistakes when drafting your business contracts’ transfer and assignment clauses.

ContractsCounsel is not a law firm, and this post should not be considered and does not contain legal advice. To ensure the information and advice in this post are correct, sufficient, and appropriate for your situation, please consult a licensed attorney. Also, using or accessing ContractsCounsel's site does not create an attorney-client relationship between you and ContractsCounsel.

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Understanding an assignment and assumption agreement

Need to assign your rights and duties under a contract? Learn more about the basics of an assignment and assumption agreement.

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by   Belle Wong, J.D.

Belle Wong, is a freelance writer specializing in small business, personal finance, banking, and tech/SAAS. She ...

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Updated on: November 24, 2023 · 3 min read

The assignment and assumption agreement

The basics of assignment and assumption, filling in the assignment and assumption agreement.

While every business should try its best to meet its contractual obligations, changes in circumstance can happen that could necessitate transferring your rights and duties under a contract to another party who would be better able to meet those obligations.

If you find yourself in such a situation, and your contract provides for the possibility of assignment, an assignment and assumption agreement can be a good option for preserving your relationship with the party you initially contracted with, while at the same time enabling you to pass on your contractual rights and duties to a third party.

An assignment and assumption agreement is used after a contract is signed, in order to transfer one of the contracting party's rights and obligations to a third party who was not originally a party to the contract. The party making the assignment is called the assignor, while the third party accepting the assignment is known as the assignee.

In order for an assignment and assumption agreement to be valid, the following criteria need to be met:

• The initial contract must provide for the possibility of assignment by one of the initial contracting parties.
• The assignor must agree to assign their rights and duties under the contract to the assignee.
• The assignee must agree to accept, or "assume," those contractual rights and duties.
• The other party to the initial contract must consent to the transfer of rights and obligations to the assignee.

A standard assignment and assumption contract is often a good starting point if you need to enter into an assignment and assumption agreement. However, for more complex situations, such as an assignment and amendment agreement in which several of the initial contract terms will be modified, or where only some, but not all, rights and duties will be assigned, it's a good idea to retain the services of an attorney who can help you draft an agreement that will meet all your needs.

When you're ready to enter into an assignment and assumption agreement, it's a good idea to have a firm grasp of the basics of assignment:

• First, carefully read and understand the assignment and assumption provision in the initial contract. Contracts vary widely in their language on this topic, and each contract will have specific criteria that must be met in order for a valid assignment of rights to take place.
• All parties to the agreement should carefully review the document to make sure they each know what they're agreeing to, and to help ensure that all important terms and conditions have been addressed in the agreement.
• Until the agreement is signed by all the parties involved, the assignor will still be obligated for all responsibilities stated in the initial contract. If you are the assignor, you need to ensure that you continue with business as usual until the assignment and assumption agreement has been properly executed.

Unless you're dealing with a complex assignment situation, working with a template often is a good way to begin drafting an assignment and assumption agreement that will meet your needs. Generally speaking, your agreement should include the following information:

• Identification of the existing agreement, including details such as the date it was signed and the parties involved, and the parties' rights to assign under this initial agreement
• The effective date of the assignment and assumption agreement
• Identification of the party making the assignment (the assignor), and a statement of their desire to assign their rights under the initial contract
• Identification of the third party accepting the assignment (the assignee), and a statement of their acceptance of the assignment
• Identification of the other initial party to the contract, and a statement of their consent to the assignment and assumption agreement
• A section stating that the initial contract is continued; meaning, that, other than the change to the parties involved, all terms and conditions in the original contract stay the same

In addition to these sections that are specific to an assignment and assumption agreement, your contract should also include standard contract language, such as clauses about indemnification, future amendments, and governing law.

Sometimes circumstances change, and as a business owner you may find yourself needing to assign your rights and duties under a contract to another party. A properly drafted assignment and assumption agreement can help you make the transfer smoothly while, at the same time, preserving the cordiality of your initial business relationship under the original contract.

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Assign is the act of transferring rights , property , or other benefits to another party (the assignee ) from the party who holds such benefits under contract (the assignor). This concept is used in both  contract  and property law . 

Contract Law  

Under contract law, when one party assigns a  contract , the assignment represents both: (1) an assignment of rights; and (2) a delegation of  duties . 

• For example, if A contracts with B to teach B guitar for $50, A can assign this contract to C. 
• Here, A has both: (1) assigned A’s rights under the contract to the $50; and (2) delegated A’s  duty  to teach guitar, to C. 
• In this example, A is both the “assignor” and the “delegee” who delegates  the duties to another (C), C is known as the “ obligor ” who must perform the  obligations  to the  assignee , and B is the assignee who is owed duties and is liable to the obligor.

Assigning of Rights/Duties Under Contract Law

There are a few notable rules regarding assignments under contract law. 

First, if an individual has not yet secured the contract to perform duties to another, they cannot assign their future right to an assignee. 

• That is, if A has not yet contracted with B to teach B guitar, A cannot assign their rights to C. 

Second, rights cannot be assigned when they  materially change the obligor’s duty and rights. 

Third, the obligor can sue the assignee directly if the assignee does not pay them. 

• Following the previous example, this means that C ( obligor ) can sue B ( assignee ) if C teaches guitar to B, but B does not pay C $50 in return.

Delegation of Duties

If the promised performance requires a rare genius or skill, then the delegee cannot delegate it to the obligor. It can only be delegated if the promised  performance  is more commonplace. Further, an obligee can sue if the  assignee  does not perform.  However, the delegee is  secondarily liable  unless there has been an  express   release  of the delegee. 

• Meaning if B does want C to teach guitar but C refuses to, then B can sue C. If C still refuses to perform, then B can compel A to fulfill the duties under secondary liability.

Lastly, a related concept is  novation , which is when a new obligor substitutes and releases an old obligor.  If novation occurs, then the original obligor’s duties are wiped out. Novation requires an original obligee’s  consent . 

Property Law

Under  property law , assignment typically arises in landlord-tenant situations.

• For example, A might be renting from landlord B but wants another party (C) to take over the property. 
• In this scenario, A might choose between  assigning  and  subleasing  the property to C. 
• If  assigning , A would give C the entire balance of the term , with no reversion to anyone; whereas if  subleasing , A would give C the property for a limited period of the remaining term.
• Under assignment, C would have  privity  of  estate  with the landlord while under a sublease, C would not. 

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• > Journals
• > The Cambridge Law Journal
• > Volume 73 Issue 2
• > PROHIBITIONS ON ASSIGNMENT: A CHOICE TO BE MADE

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Prohibitions on assignment: a choice to be made.

Published online by Cambridge University Press:  19 May 2014

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.

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1 [1994] 1 A.C. 85.

2 See also, Mulkerrins v PricewaterhouseCoopers [2003] UKHL 41 at [13], [2003] 1 W.L.R. 1937, 1941.

3 Another often used restriction is an express requirement of consent to an assignment. Usually consent is expressed as “not to be unreasonably withheld”. Based on the property view put forward in this paper, a unilateral waiver of a prohibition cannot of itself change the nature of a chose in action and give it the character of transferability although it may operate as a form of estoppel. Hence the importance of an express or implied provision for assignment with consent to be incorporated into the contract from the moment of formation.

4 Goode , Roy , “ Contractual Prohibitions against Assignment ” [ 2009 ] L.M.C.L.Q. 300 Google Scholar .

5 [1994] 1 A.C. 85.

6 Ibid. , p. 105.

7 Ibid. , p. 108. In Parmalat Australia Ltd. v Pauls Ice Cream & Milk Pty Ltd. [2006] QCA 129 at [14], Williams J.A. suggested that Lord Browne-Wilkinson only upheld prohibitions where there was a “genuine commercial interest in ensuring that the contractual relations with the party selected were preserved”. It is not clear that that was the intention of Lord Browne-Wilkinson. That formulation is one used to determine whether an assignment savours of maintenance or champerty and appears at the end of that section of his speech dealing with prohibitions and public policy generally, see [1994] 1 A.C. 85, 107. He did not introduce it into the statement quoted in the text as to the operation of such clauses.

8 See also, [1994] 1 A.C. 85, 104, where Lord Browne-Wilkinson suggests that rarely would a prohibition be intended to operate as a mere promise not to assign. Usually prohibitions are drafted in such a way as to negate the power to assign. Logically, it would follow in the case of a promise not to assign that an assignment would be valid but result in a breach of contract, cf., R v Chester and North Wales Legal Aid Area Office (No. 12) [1998] 1 W.L.R. 1496, 1501 per Millett L.J. However, the case law suggests that a mere promise not to assign will usually be construed as intended to have the effect of negating the power to assign, e.g., Devefi Pty Ltd. v Mateffy Pearl Nagy Pty Ltd. (1993) 113 A.L.R. 225. Indeed, Linden Gardens was itself an example. An example of where the law gives effect to a promise not to assign is a pre-emptive right. A transfer of property to a third party in the face of a pre-emptive right is effective, leaving the grantee with a remedy for damages, Pata Nominees Pty Ltd. v Durnsford Pty Ltd. [1988] W.A.R. 36. This assumes the third party is not guilty of some fraud or other misconduct, and that the interest of the grantee does not become a proprietary interest when triggered so that the dispute becomes one of priority. Prior to the transfer, the grantee may obtain injunctive relief and there will be situations, such as a sale of shares in the face of a pre-emptive right, where the grantee can prevent the registration of the transfer, see Rathner v Lindholm [2005] VSC 399, (2005) 194 F.L.R. 291. Another example would be a clause drafted as a promise not to assign which has an express right to terminate for breach of that promise as opposed to a general right to terminate for any breach of the contract.

9 This is an important point. If Lord Browne-Wilkinson was adopting the contract view so that the assignment was effective, it would be necessary to explain in some detail how the assignor was nevertheless liable in damages to the assignee for failing in its obligation to assign. It could be based on the promise being one to put the assignee into a direct legal relationship with the obligor, such as a legal assignment. It could also be a failure to assign in equity if one takes the view that today an equitable assignment is a true transfer and does not simply provide the assignee with rights against the assignor. However, if the position is that equitable assignments of contractual rights only ever operate as between the assignor and assignee, it is difficult to see how the assignor will breach its promise to assign as most commercial assignments are grounded in a simple intention to assign (often without notice). Commercial people generally do not hold an intention to assign “at law” or “in equity”; these are just the legal effects of their intentions.

10 [1994] 1 A.C. 85, 109 per Lord Browne-Wilkinson.

11 Cf., Pacific Brands Sport & Leisure Pty Ltd. v Underworks Pty Ltd. [2006] FCAFC 40 at [41], (2006) 230 A.L.R. 56, 67.

12 A prohibition on assignment is for the benefit of the obligor and generally cannot be raised by anyone else to defeat an assignment, e.g., as between competing assignees. In theory an obligor could inhibit assignability for all purposes, but the circumstances in which an obligor would have an interest in doing so are rare and even then there is a policy issue as to whether that interest should be recognised, see further, Burck v Taylor (1894) 152 U.S. 634; Fortunato v Patten (1895) 41 N.E. 572. However, an assignment even as between the assignor and assignee that had the effect of upsetting the allocation of agreed risk between the obligor and assignor may be void for being at odds with the rule preventing the assignment from varying the agreed burden between the assignor and obligor.

13 There are situations where an obligor will be concerned to prevent the promisee assigning accrued rights under a contract, see Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1994] 1 A.C. 85, 106 per Lord Browne-Wilkinson; Explora Group plc v Hesco Bastion Ltd. [2005] EWCA (Civ) 646.

14 [1994] 1 A.C. 85, 107.

15 Ibid. , p. 108.

16 Lord Browne-Wilkinson explained away the one English case that stood in the way of recognising the efficacy of prohibitions on assignment, Tom Shaw and Co v Moss Empires Ltd. (1908) 25 T.L.R. 190, on the basis that it was either an example of how a prohibition cannot prevent an accounting between assignor and assignee when the fruits of the contract are in the hands of the assignor or was wrongly decided.

17 (1932) 258 N.Y.S. 254.

18 Ibid. , pp. 261–62 (emphasis added).

19 Ibid. , p. 264.

20 As quoted, that provision stated: “Where a claim or demand can be transferred, the transfer thereof passed [sic] an interest, which the transferee may enforce by an action or special proceeding, or interpose as a defense or counterclaim, in his own name, as the transferrer might have done; subject to any defense or counterclaim, existing against the transferrer, before notice of the transfer, or against the transferee.”

21 (1932) 258 N.Y.S. 262–63.

22 Property Law Act 1925 (UK), s. 136. See also Goode , Roy , “ Contractual Prohibitions against Assignment ” [ 2009 ] L.M.C.L.Q. 300 , 305 Google Scholar .

23 Tolhurst , G.J. , The Assignment of Contractual Rights ( Oxford 2006 ) Google Scholar , paras. [8.14]–[8.15].

24 At a theoretical level there is a view that a contract is created by a transfer of promises such that the parties own the promise made to them. The law is then required to protect that ownership and this is one way of explaining why a simple exchange of promises without reliance is enforceable, see Weinrib , E. , “ The Juridical Classification of Obligations ”, in Birks , P. (ed.), The Classification of Obligations ( Oxford 1997 ), 52 –3 Google Scholar ; Benson , P. , “ The Unity of Contract Law ”, in Benson , P. (ed.), The Theory of Contract Law ( Cambridge 2001 ) CrossRef Google Scholar , ch. 4. Cf., The Commissioner of Stamp Duties (New South Wales) v Yeend (1929) 43 C.L.R. 235, 241.

25 (1993) 113 A.L.R. 225, 234–7. Cf., Pacific Brands Sport & Leisure Pty Ltd. v Underworks Pty Ltd. [2006] FCAFC 40 at [32]; (2006) 230 A.L.R. 56, 64.

26 (1993) 113 A.L.R. 225, at p. 239.

27 Ibid. , p. 236.

28 Ibid. , pp. 237, 239.

29 See note 22 above, at p. 304.

30 [2000] Ch. 291 (affirmed [2000] Ch. 291, 324).

31 [2007] EWCA Civ 148, [2007] 1 Lloyd's Rep. 495.

32 Ibid. , at pp. 305–6.

33 See note 22 above, at p. 305.

34 This is based on the view that an equitable assignment only operates as between the assignor and assignee. It necessarily follows on this view that it is not possible to prohibit equitable assignments, cf., Friary Holroyd and Healey's Breweries Ltd. v Singleton [1899] 1 Ch. 86 (reversed on the facts [1899] 2 Ch. 261, (1899) 81 L.T. 101).

35 [2007] EWCA Civ 148, [2007] 1 Lloyd's Rep. 495.

36 [2000] Ch. 291 (affirmed [2000] Ch. 291, 324).

37 [2007] EWCA Civ 148, [2007] 1 Lloyd's Rep. 495. See also Secure Parking (WA) Pty Ltd. v Wilson [2008] WASCA 268 at [101]. Cf., Australian Zircon NL v Austpac Resources NL (No 2) [2011] WASC 186 at [192]–[199]. See further Atwell v Roberts (No 3) [2009] WASC 96 at [79].

38 [2007] EWCA Civ 148 at [43], [2007] 1 Lloyd's Rep. 495, 506.

39 Ibid. , at [44], and at p. 506.

40 Vandepitte v Preferred Accident Insurance Corp of New York [1933] A.C. 70.

41 [2007] EWCA Civ 148 at [45], [47], [2007] 1 Lloyd's Rep. 495, 506–507. See generally on this procedure, Smith , Marcus , “ Locus Standi and the Enforcement of Legal Claims by Cestuis Que Trust and Assignees ”, ( 2008 ) 22 Trust Law International 140 Google Scholar .

42 [2007] EWCA Civ 148 at [89], 1 Lloyd's Rep. 495, at p. 513.

43 Ibid. , at [112], and p. 516.

44 Ibid. , at [118], and p. 518.

45 Ibid. , at [102], and p. 515.

46 Ibid. , at [139], and pp. 520–21.

47 A possible alternative that may not be at odds with the property view is to interpret the assignment as an assignment of the “right” to the fruits of the contract. Where that right is future property it will take effect when the fruits are received by the assignor. However, it is not a simple assignment of the fruits but an agreement to assign the right to the fruits and so the interest of the assignee is more than merely contractual, see Meagher , R.P. , Heydon , J.D. and Leeming , M.J. , Meagher, Gummow and Lehane's Equity, Doctrines and Remedies , 4th ed. , ( Sydney 2002 ) Google Scholar , paras 6.275–6.330. This will not work where the “right” is not future property, see Tolhurst , G.J. , The Assignment of Contractual Rights ( Oxford 2006 ) Google Scholar , paras 6.33–6.47. See further, Smith , Marcus and Leslie , Nico , The Law of Assignment , 2nd ed. , ( Oxford , 2013 ), p. 532 Google Scholar , para. 25.32, point (6).

48 See Heydon , J.D. and Leeming , M.J. , Jacob's Law of Trusts in Australia , 7th ed. , ( Sydney 2006 ) Google Scholar , at [23.03].

49 [2007] EWCA Civ 148 at [29], [2007] 1 Lloyd's Rep. 495, 503.

50 See Goode , Roy , “ Contractual Prohibitions Against Assignment ” [ 2009 ] L.M.C.L.Q. 300 , 305 Google Scholar .

51 E.g., Re General Horticultural Company (1886) 32 Ch. D. 512, 515 per Chitty J.; Gorringe v Irwell India Rubber and Gutta Percha Works (1886) 34 Ch. D. 128, 132 per Cotton L.J.; Anning v Anning (1907) 4 C.L.R. 1049, 1064 per Isaacs J.; Re Westerton [1919] 2 Ch. 104, 111 per Sargant J.; Re City Life Assurance Co Ltd. [1926] Ch. 191, 215 per Pollock M.R., at 220 per Warrington L.J.; Comptroller of Stamps (Vic) v Howard-Smith (1936) 54 C.L.R. 614, 622 per Dixon J.; Holt v Heatherfield Trust Ltd. [1942] 2 K.B. 1, 4 per Atkinson J.; Corin v Patton (1990) 169 C.L.R. 540, 577 per Deane J.; Showi Shoji Australia Pty Ltd. v Oceanic Life Ltd. (1994) 34 N.S.W.L.R. 548, 561; Mid-City Skin Cancer & Laser Centre v Zahedi-Anarak (2006) 67 N.S.W.L.R. 569, 607–8.

52 [2007] EWCA Civ 148 at [88], [2007] 1 Lloyd's Rep. 495, 513.

53 See, Drew & Co v Josolyne (1887) 18 Q.B.D. 590; Tooth v Hallett (1869) L.R. 4 Ch. App. 242.

54 E.g., Unidroit Principles of International Commercial Contracts, 2010, Art. 9.1.9. See also Unidroit Convention on International Factoring, 1988, Art. 6; United Nations Convention on Assignment of Receivables in International Finance, 2001, Art. 9; Personal Property Securities Act 2009 (Cth), s. 81; UNCITRAL Legislative Guide on Secured Transactions (U.N. New York 2010), paras. [106]–[110]. See further Akseli , Orkun , “ Contractual Prohibitions on Assignment of Receivables: An English and UN Perspective ” [ 2009 ] J.B.L. 650 Google Scholar . Cf., McCormack , Gerard , “ Debts and non-assignable clauses ” [ 2000 ] J.B.L. 422 Google Scholar .

55 E.g., Personal Property Securities Act, 2009 (Cth) s. 79. See also, The Law Commission, Company Security Interests (Law Com., No. 296, 2005), at 4.35–4.40.

56 International Swaps and Derivatives Association, Inc.

57 See further, Sacks v Neptune Meter Co (1932) 258 N.Y.S. 254, 268 per Frankenthaler J. See above note 8 .

58 E.g., Cowell v Rosehill Racecourse Co Ltd. (1936) 56 C.L.R. 605; Hounslow London Borough Council v Twickenham Garden Developments Ltd. [1971] 1 Ch. 233; Decro-Wall International SA v Practitioners in Marketing Ltd. [1971] 1 W.L.R. 361, [1971] 2 All ER 216. Cf., the position with options even if drafted in the form of an irrevocable offer as opposed to a conditional contract, see generally, Goldsbrough Mort & Co Ltd. v Quinn (1910) 10 C.L.R. 674.

59 Cf., the treatment of pre-emptive rights, see note 8 above.

60 One might answer this by saying that the transaction which results, an equitable assignment, does not give the assignee rights against the obligor and so the obligor continues to account to the assignor. Apart from whether that is a correct understanding of an equitable assignment of a contractual right, there are two problems with this answer. First, it is an answer that is not based on the contract view. Second, upon receipt of notice of an equitable assignment the obligor cannot obtain a discharge by accounting to the assignor.

61 This is distinct from partially assigning an assignable right which is effective in equity to constitute the assignor and assignee co-owners.

62 See also Rhone v Stephens [1994] 2 A.C. 310, 317 per Lord Templeman; Bahr v Nicolay [No. 2] (1988) 164 C.L.R. 604, 648 per Brennan J. See further Owners of Strata Plan 5290 v C.G.S. & Co Pty Ltd. [2011] NSWCA 168, (2011) 281 A.L.R. 575.

63 See further, Performing Right Society Ltd. v London Theatre of Varieties Ltd. [1924] A.C. 1, 29 per Lord Sumner.

64 That debate is linked to whether the joinder of the assignor in an action is a matter of procedure or a matter of substantive law and whether that varies with whether the assignee claims a common law remedy, an equitable remedy to protect legal rights or an equitable remedy to protect equitable rights. There are also issues around whether there is an incongruity in the law between when the assignee calls for performance as opposed to commencing an action for non-performance. A similar incongruity arises with the notion that upon notice the obligor cannot obtain a discharge from the assignor but the assignee cannot obtain a remedy in its own name against the obligor. Related issues concern differences to approaches to enforcement when the assignment is of a legal interest not assignable at law. Despite strong doctrinal arguments for joinder being substantive where the assignee seeks a common law remedy, in the context of assignment the weight of modern English authority is that the joinder of the assignor is procedural, it is to ensure the assignor is bound by the decision and has his or her chance to contest the assignment rather than to have the legal title holder before the court, see Roberts v Gill & Co [2010] UKSC 22, [2011] 1 A.C. 240, 263 per Lord Collins, at 278 per Lord Clarke, cf., Barbados Trust Company Ltd. v Bank of Zambia [2007] EWCA Civ 148 at [102], [2007] 1 Lloyd's Rep. 495, 515 per Rix L.J.; Long Leys Co Pty Ltd. v Silkdale Pty Ltd. (1991) 5 B.P.R. 11,512, 11,518; Jennings v Credit Corp Australia Pty Ltd. (2000) 48 N.S.W.L.R. 709; Hazard Systems Pty Ltd. v Car-Tech Services Pty Ltd. [2013] NSWCA 314 at [16]. Although rarely departed from, the fact that a departure is possible shows that joinder is not a substantive requirement under the present law and that assignment operates in a fused system. Although the substantive need for joinder appeared in early cases it disappeared and interestingly only resurfaced in recent years, see Smith , Marcus , “ Locus Standi and the Enforcement of Legal Claims by Cestuis Que Trust and Assignees ” ( 2008 ) 22 Trust Law International 140 Google Scholar , 144ff. It was during this intervening period that not only did the procedural view of joinder come to the fore but also equity began to recognise that these transactions are true assignments and not merely binding between the assignor and assignee. These are related events. The result is commercially sensitive and avoids the complexity that one must engage in to provide that result through a strict doctrinal route, see Tolhurst , G.J. , “ Equitable Assignment of Legal Rights: A Resolution to a Conundrum ” ( 2002 ) 118 L.Q.R. 98 Google Scholar . It reflects the impact of a gradual development of the law of assignment over many decades. This is not a case of lost knowledge. Care must therefore be taken before characterising the approach of equity to assignment by reference to old decisions.

65 Roberts v Gill & Co [2010] UKSC 22, [2011] 1 A.C. 240, 263 per Lord Collins.

66 Fitzroy v Cave [1905] 2 K.B. 364, 372–3 per Cozens-Hardy L.J. Indeed even when equity merely intervened to hold the assignor to his or her promise, it is possible to find statements that the court considered this to be a method of conveying title, see Wright v Wright (1749) 1 Ves. Sen. 410, 412, 27 E.R. 1111, 1112. To insist there is no transfer on the basis that equitable assignments of legal rights merely create rights puts too high a premium on doctrine, or an aspect of doctrine, at the expense of the intention and expectation of the parties of the parties and the legal effect of the transaction.

67 Commissioner of Stamp Duties (Queensland) v Livingston [1965] A.C. 694, 712; Cooney v Burns (1922) 30 C.L.R. 216, 232–3 per Isaacs J. See also, Smith Kline & French Laboratories (Australia) Ltd. v Secretary, Department of Community Services and Health (1990) 95 A.L.R. 87, 135–6 per Gummow J. (affirmed (1991) 99 A.L.R. 679).

68 Norman v Federal Commissioner of Taxation (1963) 109 C.L.R. 9, 33–4 per Windeyer J.

69 The need to recognise a trust in order to give effect to equitable doctrine in such circumstances is relevant in a small number of situations and generally not necessary even when this traditional approach is resorted to, e.g. FCT v Everett (1980) 143 C.L.R. 440. Statements can be found that equitable assignments took effect by way of trust. Such an approach made perfect sense in a period where equity did not recognise the chose as property for the purposes of transfer and instead was at a stage of using its remedies and institutions to hold the assignor to its promise. However, equity has long passed that point and, as noted, rarely has to resort to a trust to give effect to an assignment. It is a totally different thing for equity to require the assignor to hold the fruits of a contract on trust for the benefit of an assignee: that merely protects the assignee, the trust is not giving effect to the assignment. Cf., James Edleman and Steven Elliot, “Two Conceptions of Equitable Assignment” (a paper delivered at the TC Beirne School of Law Current Legal Issues Seminar Series, 2013: http://www.law.uq.edu.au/cli-2013-program ).

70 R v Chester and North Wales Legal Aid Area Office (No 12) [1998] 1 W.L.R. 1496, 1501 per Millett L.J. In theory if the efficacy of an assignment is not dependent on specific performance then an assignment in the face of a promise not to assign might be effective, but whether equity would enforce it at the suit of the assignee is a distinct issue. Much depends on the circumstances, as noted in note 8 above, in the case of a transfer in breach of a pre-emptive right the transferee will obtain good title to the subject property if it was not involved in any wrongdoing.

71 Being a matter of construction the extent to which a right is personal depends on the facts; it may be assignable to a certain group or it might be personal for the purposes of ensuring some counter-performance or position and when that performance is received or the position obtained it can then be assigned.

72 Ames , J.B. , Lectures on Legal History ( Cambridge, Mass. 1913 ), 210 pp. 211 –12 Google Scholar . See also Bailey , S.J. , “ Assignments of Debts in England from the Twelfth to the Twentieth Century ” ( 1932 ) 48 L.Q.R. 248 Google Scholar at p. 257 and 547 at pp. 549–50.

73 Peters v General Accident Fire & Life Assurance Corporation Ltd. [1938] 2 All E.R. 267, 269, 270 per Sir Wilfred Greene M.R. See also, Mid-City Skin Cancer & Laser Centre v Zahedi-Anarak (2006) 67 N.S.W.L.R. 569, 604.

74 Tolhurst v The Associated Portland Cement Manufacturers (1900) Ltd. [1903] A.C. 414.

75 Devefi Pty Ltd. v Mateffy Pearl Nagy Pty Ltd. (1993) 113 A.L.R. 225, 235; Pacific Brands Sport & Leisure Pty Ltd. v Underworks Pty Ltd. [2006] FCAFC 40 at [32]; (2006) 230 A.L.R. 56, 64.

76 For an academic argument see Corbin , A.L. , Corbin on Contracts ( St Paul, Minn , West Publishing 1951 ), vol. 4 , para. 865. Google Scholar

77 Meagher , R.P. , Heydon , J.D. and Leeming , M.J. , Meagher, Gummow and Lehane's Equity, Doctrines and Remedies , 4th ed. , ( Sydney 2002 ) Google Scholar , para. 6.445. See also, Holdsworth , W.S. , “ The History of the Treatment of Choses in Action by the Common Law ” ( 1920 ) 33 Harv. L. Rev . 997, 1022 –3 Google Scholar (reprinted with minor amendments in Holdsworth , W.S. , A History of English Law , 2nd ed. , ( London 1937 ), vol. 7 , 515 pp 538 –9 Google Scholar ).

78 (2006) 67 N.S.W.L.R. 569, 606–608.

79 See further as to whether a prohibition on assignment and a clause that seeks to make the benefit of a contract personal are analogous, distinct or whether the latter encompasses the former and is broader, Turner , P.G. , “ Charges of Unassignable Rights ” ( 2004 ) 20 J.C.L. 97, 111 – 116 Google Scholar .

80 Indeed the fact the conscience of the obligor is bound upon notice suggests that such assignments are not merely operative as between the assignor and assignee.

81 Brice v Bannister (1888) 3 Q.B.D. 569.

82 Tolhurst , G.J. , The Assignment of Contractual Rights ( Oxford 2006 ) Google Scholar , paras 8.38–8.48.

83 See Ashby v Tolhurst [1937] 2 K.B. 242.

84 See e.g., Fiona Trust and Holding Corp v Privalov [2007] UKHL 40, [2007] Bus. L.R. 1719.

85 See, Watford Electronics Ltd. v Sanderson CFL Ltd . [2001] EWCA Civ 317 at [41], [2001] 1 All E.R. (Comm) 696, 711; Raiffeisen Zentralbank Osterreich AG v Royal Bank of Scotland plc [2010] EWHC 1392 (Comm) at [316], [2011] 1 Lloyd's Rep. 123, 177.

86 See e.g., Pacific Brands Sport & Leisure Pty Ltd. v Underworks Pty Ltd. [2006] FCAFC 40, (2006) 230 A.L.R. 56.

87 Goode , Roy , “ Contractual Prohibitions against Assignment ” [ 2009 ] L.M.C.L.Q. 300, 306 Google Scholar .

88 Thus, modern personal property securities legislation deems some non-security assignments to be security interests in order to ensure that they are perfected by registration and subject to the legislative priorities regime, see e.g., Personal Property Securities Act 2009 (Cth), s. 12(3).

89 See, eBay International A.G. v Creative Festival Entertainment Pty Ltd. [2006] FCA 1768 at [36]–[37], (2006) 170 F.C.R. 450, 461. Another approach to limit scalping is to draft the provision as a promise not to assign with an express right to terminate where there has been an assignment, see Hospitality Group Pty Ltd. v Australian Rugby Union [2001] FCA 1040 at [98]–[105], (2001) 110 F.C.R. 157 at 183–84.

90 That view has been forcefully argued, see Di Matteo , L.A. , “ Depersonalization of Personal Service Contracts: The Search for a Modern Approach to Assignability ” ( 1994 ) 27 Akron L. Rev . 407 Google Scholar . Cf., Tolhurst , G.J. , “ Assignment of Contractual Rights: The Apparent Reformulation of the Personal Rights Rule ” ( 2007 ) 29 ( 1 ) Australian Bar Review 4 Google Scholar .

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• Volume 73, Issue 2
• G.J. Tolhurst (a1) and J.W. Carter (a2)
• DOI: https://doi.org/10.1017/S0008197314000440

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Expressions and operators

This chapter describes JavaScript's expressions and operators, including assignment, comparison, arithmetic, bitwise, logical, string, ternary and more.

At a high level, an expression is a valid unit of code that resolves to a value. There are two types of expressions: those that have side effects (such as assigning values) and those that purely evaluate .

The expression x = 7 is an example of the first type. This expression uses the = operator to assign the value seven to the variable x . The expression itself evaluates to 7 .

The expression 3 + 4 is an example of the second type. This expression uses the + operator to add 3 and 4 together and produces a value, 7 . However, if it's not eventually part of a bigger construct (for example, a variable declaration like const z = 3 + 4 ), its result will be immediately discarded — this is usually a programmer mistake because the evaluation doesn't produce any effects.

As the examples above also illustrate, all complex expressions are joined by operators , such as = and + . In this section, we will introduce the following operators:

Assignment operators

Comparison operators, arithmetic operators, bitwise operators, logical operators, bigint operators, string operators, conditional (ternary) operator, comma operator, unary operators, relational operators.

These operators join operands either formed by higher-precedence operators or one of the basic expressions . A complete and detailed list of operators and expressions is also available in the reference .

The precedence of operators determines the order they are applied when evaluating an expression. For example:

Despite * and + coming in different orders, both expressions would result in 7 because * has precedence over + , so the * -joined expression will always be evaluated first. You can override operator precedence by using parentheses (which creates a grouped expression — the basic expression). To see a complete table of operator precedence as well as various caveats, see the Operator Precedence Reference page.

JavaScript has both binary and unary operators, and one special ternary operator, the conditional operator. A binary operator requires two operands, one before the operator and one after the operator:

For example, 3 + 4 or x * y . This form is called an infix binary operator, because the operator is placed between two operands. All binary operators in JavaScript are infix.

A unary operator requires a single operand, either before or after the operator:

For example, x++ or ++x . The operator operand form is called a prefix unary operator, and the operand operator form is called a postfix unary operator. ++ and -- are the only postfix operators in JavaScript — all other operators, like ! , typeof , etc. are prefix.

An assignment operator assigns a value to its left operand based on the value of its right operand. The simple assignment operator is equal ( = ), which assigns the value of its right operand to its left operand. That is, x = f() is an assignment expression that assigns the value of f() to x .

There are also compound assignment operators that are shorthand for the operations listed in the following table:

Assigning to properties

If an expression evaluates to an object , then the left-hand side of an assignment expression may make assignments to properties of that expression. For example:

For more information about objects, read Working with Objects .

If an expression does not evaluate to an object, then assignments to properties of that expression do not assign:

In strict mode , the code above throws, because one cannot assign properties to primitives.

It is an error to assign values to unmodifiable properties or to properties of an expression without properties ( null or undefined ).

Destructuring

For more complex assignments, the destructuring assignment syntax is a JavaScript expression that makes it possible to extract data from arrays or objects using a syntax that mirrors the construction of array and object literals.

Without destructuring, it takes multiple statements to extract values from arrays and objects:

With destructuring, you can extract multiple values into distinct variables using a single statement:

Evaluation and nesting

In general, assignments are used within a variable declaration (i.e., with const , let , or var ) or as standalone statements.

However, like other expressions, assignment expressions like x = f() evaluate into a result value. Although this result value is usually not used, it can then be used by another expression.

Chaining assignments or nesting assignments in other expressions can result in surprising behavior. For this reason, some JavaScript style guides discourage chaining or nesting assignments . Nevertheless, assignment chaining and nesting may occur sometimes, so it is important to be able to understand how they work.

By chaining or nesting an assignment expression, its result can itself be assigned to another variable. It can be logged, it can be put inside an array literal or function call, and so on.

The evaluation result matches the expression to the right of the = sign in the "Meaning" column of the table above. That means that x = f() evaluates into whatever f() 's result is, x += f() evaluates into the resulting sum x + f() , x **= f() evaluates into the resulting power x ** f() , and so on.

In the case of logical assignments, x &&= f() , x ||= f() , and x ??= f() , the return value is that of the logical operation without the assignment, so x && f() , x || f() , and x ?? f() , respectively.

When chaining these expressions without parentheses or other grouping operators like array literals, the assignment expressions are grouped right to left (they are right-associative ), but they are evaluated left to right .

Note that, for all assignment operators other than = itself, the resulting values are always based on the operands' values before the operation.

For example, assume that the following functions f and g and the variables x and y have been declared:

Consider these three examples:

Evaluation example 1

y = x = f() is equivalent to y = (x = f()) , because the assignment operator = is right-associative . However, it evaluates from left to right:

• The y on this assignment's left-hand side evaluates into a reference to the variable named y .
• The x on this assignment's left-hand side evaluates into a reference to the variable named x .
• The function call f() prints "F!" to the console and then evaluates to the number 2 .
• That 2 result from f() is assigned to x .
• The assignment expression x = f() has now finished evaluating; its result is the new value of x , which is 2 .
• That 2 result in turn is also assigned to y .
• The assignment expression y = x = f() has now finished evaluating; its result is the new value of y – which happens to be 2 . x and y are assigned to 2 , and the console has printed "F!".

Evaluation example 2

y = [ f(), x = g() ] also evaluates from left to right:

• The y on this assignment's left-hand evaluates into a reference to the variable named y .
• The function call g() prints "G!" to the console and then evaluates to the number 3 .
• That 3 result from g() is assigned to x .
• The assignment expression x = g() has now finished evaluating; its result is the new value of x , which is 3 . That 3 result becomes the next element in the inner array literal (after the 2 from the f() ).
• The inner array literal [ f(), x = g() ] has now finished evaluating; its result is an array with two values: [ 2, 3 ] .
• That [ 2, 3 ] array is now assigned to y .
• The assignment expression y = [ f(), x = g() ] has now finished evaluating; its result is the new value of y – which happens to be [ 2, 3 ] . x is now assigned to 3 , y is now assigned to [ 2, 3 ] , and the console has printed "F!" then "G!".

Evaluation example 3

x[f()] = g() also evaluates from left to right. (This example assumes that x is already assigned to some object. For more information about objects, read Working with Objects .)

• The x in this property access evaluates into a reference to the variable named x .
• Then the function call f() prints "F!" to the console and then evaluates to the number 2 .
• The x[f()] property access on this assignment has now finished evaluating; its result is a variable property reference: x[2] .
• Then the function call g() prints "G!" to the console and then evaluates to the number 3 .
• That 3 is now assigned to x[2] . (This step will succeed only if x is assigned to an object .)
• The assignment expression x[f()] = g() has now finished evaluating; its result is the new value of x[2] – which happens to be 3 . x[2] is now assigned to 3 , and the console has printed "F!" then "G!".

Avoid assignment chains

Chaining assignments or nesting assignments in other expressions can result in surprising behavior. For this reason, chaining assignments in the same statement is discouraged .

In particular, putting a variable chain in a const , let , or var statement often does not work. Only the outermost/leftmost variable would get declared; other variables within the assignment chain are not declared by the const / let / var statement. For example:

This statement seemingly declares the variables x , y , and z . However, it only actually declares the variable z . y and x are either invalid references to nonexistent variables (in strict mode ) or, worse, would implicitly create global variables for x and y in sloppy mode .

A comparison operator compares its operands and returns a logical value based on whether the comparison is true. The operands can be numerical, string, logical, or object values. Strings are compared based on standard lexicographical ordering, using Unicode values. In most cases, if the two operands are not of the same type, JavaScript attempts to convert them to an appropriate type for the comparison. This behavior generally results in comparing the operands numerically. The sole exceptions to type conversion within comparisons involve the === and !== operators, which perform strict equality and inequality comparisons. These operators do not attempt to convert the operands to compatible types before checking equality. The following table describes the comparison operators in terms of this sample code:

Note: => is not a comparison operator but rather is the notation for Arrow functions .

An arithmetic operator takes numerical values (either literals or variables) as their operands and returns a single numerical value. The standard arithmetic operators are addition ( + ), subtraction ( - ), multiplication ( * ), and division ( / ). These operators work as they do in most other programming languages when used with floating point numbers (in particular, note that division by zero produces Infinity ). For example:

In addition to the standard arithmetic operations ( + , - , * , / ), JavaScript provides the arithmetic operators listed in the following table:

A bitwise operator treats their operands as a set of 32 bits (zeros and ones), rather than as decimal, hexadecimal, or octal numbers. For example, the decimal number nine has a binary representation of 1001. Bitwise operators perform their operations on such binary representations, but they return standard JavaScript numerical values.

The following table summarizes JavaScript's bitwise operators.

Bitwise logical operators

Conceptually, the bitwise logical operators work as follows:

• The operands are converted to thirty-two-bit integers and expressed by a series of bits (zeros and ones). Numbers with more than 32 bits get their most significant bits discarded. For example, the following integer with more than 32 bits will be converted to a 32-bit integer: Before: 1110 0110 1111 1010 0000 0000 0000 0110 0000 0000 0001 After: 1010 0000 0000 0000 0110 0000 0000 0001
• Each bit in the first operand is paired with the corresponding bit in the second operand: first bit to first bit, second bit to second bit, and so on.
• The operator is applied to each pair of bits, and the result is constructed bitwise.

For example, the binary representation of nine is 1001, and the binary representation of fifteen is 1111. So, when the bitwise operators are applied to these values, the results are as follows:

Note that all 32 bits are inverted using the Bitwise NOT operator, and that values with the most significant (left-most) bit set to 1 represent negative numbers (two's-complement representation). ~x evaluates to the same value that -x - 1 evaluates to.

Bitwise shift operators

The bitwise shift operators take two operands: the first is a quantity to be shifted, and the second specifies the number of bit positions by which the first operand is to be shifted. The direction of the shift operation is controlled by the operator used.

Shift operators convert their operands to thirty-two-bit integers and return a result of either type Number or BigInt : specifically, if the type of the left operand is BigInt , they return BigInt ; otherwise, they return Number .

The shift operators are listed in the following table.

Logical operators are typically used with Boolean (logical) values; when they are, they return a Boolean value. However, the && and || operators actually return the value of one of the specified operands, so if these operators are used with non-Boolean values, they may return a non-Boolean value. The logical operators are described in the following table.

Examples of expressions that can be converted to false are those that evaluate to null, 0, NaN, the empty string (""), or undefined.

The following code shows examples of the && (logical AND) operator.

The following code shows examples of the || (logical OR) operator.

The following code shows examples of the ! (logical NOT) operator.

Short-circuit evaluation

As logical expressions are evaluated left to right, they are tested for possible "short-circuit" evaluation using the following rules:

• false && anything is short-circuit evaluated to false.
• true || anything is short-circuit evaluated to true.

The rules of logic guarantee that these evaluations are always correct. Note that the anything part of the above expressions is not evaluated, so any side effects of doing so do not take effect.

Note that for the second case, in modern code you can use the Nullish coalescing operator ( ?? ) that works like || , but it only returns the second expression, when the first one is " nullish ", i.e. null or undefined . It is thus the better alternative to provide defaults, when values like '' or 0 are valid values for the first expression, too.

Most operators that can be used between numbers can be used between BigInt values as well.

One exception is unsigned right shift ( >>> ) , which is not defined for BigInt values. This is because a BigInt does not have a fixed width, so technically it does not have a "highest bit".

BigInts and numbers are not mutually replaceable — you cannot mix them in calculations.

This is because BigInt is neither a subset nor a superset of numbers. BigInts have higher precision than numbers when representing large integers, but cannot represent decimals, so implicit conversion on either side might lose precision. Use explicit conversion to signal whether you wish the operation to be a number operation or a BigInt one.

You can compare BigInts with numbers.

In addition to the comparison operators, which can be used on string values, the concatenation operator (+) concatenates two string values together, returning another string that is the union of the two operand strings.

For example,

The shorthand assignment operator += can also be used to concatenate strings.

The conditional operator is the only JavaScript operator that takes three operands. The operator can have one of two values based on a condition. The syntax is:

If condition is true, the operator has the value of val1 . Otherwise it has the value of val2 . You can use the conditional operator anywhere you would use a standard operator.

This statement assigns the value "adult" to the variable status if age is eighteen or more. Otherwise, it assigns the value "minor" to status .

The comma operator ( , ) evaluates both of its operands and returns the value of the last operand. This operator is primarily used inside a for loop, to allow multiple variables to be updated each time through the loop. It is regarded bad style to use it elsewhere, when it is not necessary. Often two separate statements can and should be used instead.

For example, if a is a 2-dimensional array with 10 elements on a side, the following code uses the comma operator to update two variables at once. The code prints the values of the diagonal elements in the array:

A unary operation is an operation with only one operand.

The delete operator deletes an object's property. The syntax is:

where object is the name of an object, property is an existing property, and propertyKey is a string or symbol referring to an existing property.

If the delete operator succeeds, it removes the property from the object. Trying to access it afterwards will yield undefined . The delete operator returns true if the operation is possible; it returns false if the operation is not possible.

Deleting array elements

Since arrays are just objects, it's technically possible to delete elements from them. This is, however, regarded as a bad practice — try to avoid it. When you delete an array property, the array length is not affected and other elements are not re-indexed. To achieve that behavior, it is much better to just overwrite the element with the value undefined . To actually manipulate the array, use the various array methods such as splice .

The typeof operator returns a string indicating the type of the unevaluated operand. operand is the string, variable, keyword, or object for which the type is to be returned. The parentheses are optional.

Suppose you define the following variables:

The typeof operator returns the following results for these variables:

For the keywords true and null , the typeof operator returns the following results:

For a number or string, the typeof operator returns the following results:

For property values, the typeof operator returns the type of value the property contains:

For methods and functions, the typeof operator returns results as follows:

For predefined objects, the typeof operator returns results as follows:

The void operator specifies an expression to be evaluated without returning a value. expression is a JavaScript expression to evaluate. The parentheses surrounding the expression are optional, but it is good style to use them to avoid precedence issues.

A relational operator compares its operands and returns a Boolean value based on whether the comparison is true.

The in operator returns true if the specified property is in the specified object. The syntax is:

where propNameOrNumber is a string, numeric, or symbol expression representing a property name or array index, and objectName is the name of an object.

The following examples show some uses of the in operator.

The instanceof operator returns true if the specified object is of the specified object type. The syntax is:

where objectName is the name of the object to compare to objectType , and objectType is an object type, such as Date or Array .

Use instanceof when you need to confirm the type of an object at runtime. For example, when catching exceptions, you can branch to different exception-handling code depending on the type of exception thrown.

For example, the following code uses instanceof to determine whether theDay is a Date object. Because theDay is a Date object, the statements in the if statement execute.

Basic expressions

All operators eventually operate on one or more basic expressions. These basic expressions include identifiers and literals , but there are a few other kinds as well. They are briefly introduced below, and their semantics are described in detail in their respective reference sections.

Use the this keyword to refer to the current object. In general, this refers to the calling object in a method. Use this either with the dot or the bracket notation:

Suppose a function called validate validates an object's value property, given the object and the high and low values:

You could call validate in each form element's onChange event handler, using this to pass it to the form element, as in the following example:

Grouping operator

The grouping operator ( ) controls the precedence of evaluation in expressions. For example, you can override multiplication and division first, then addition and subtraction to evaluate addition first.

You can use the new operator to create an instance of a user-defined object type or of one of the built-in object types. Use new as follows:

The super keyword is used to call functions on an object's parent. It is useful with classes to call the parent constructor, for example.

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Assignment of Rights Contract Clauses (121)

Grouped into 3 collections of similar clauses from business contracts.

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• Legal Dictionary

Assignment is a legal definition that refers to the transfer of rights, property, or other benefits between two parties. The party allocating the rights is known as the “assignor”, while the one receiving them is called the “assignee”. The other original party to the contract is known as the “ obligor ”.

A burden, duty, or detriment cannot be transferred as an assignment without the agreement of the assignee . Furthermore, the assignment can be carried out as a gift, or it may be paid for with a contractual consideration .

Keep reading to learn how this important legal term is used both in contract and property law and to see relevant examples.

• Assignment Examples

A common example of assignment within property law can be seen in rental agreements between landlords and tenants. For example, a tenant may be renting from a landlord but wants another party to take over the property . In this scenario, the tenant may be able to choose between assigning the lease to a new tenant or subleasing it.

If assigning it, the new tenant will be given the entire balance of the term, with no reversion to anyone else being possible. In other words, the new tenant would have a legal relationship with the landlord. On the other hand, if subleasing the property, the new tenant would be given a limited term and no legal responsibility towards the property owner, only towards the original tenant.

Another example of assignment can be seen within contract law . Let’s say that a school hires a piano teacher for a monthly employment contract with a salary of $2000 per month. As long as there is consent from all parties, the teacher could assign their contract to another qualified piano instructor.

This would be an assignment both of the piano teacher’s rights to receive $2000 per month, and a delegation of their duty to teach piano lessons. This illustrates the fact that under contract law, assignment always includes a transfer of both rights and duties between the parties. If a breach of contract is made by either party, for example for defective performance, then the new teacher or the school can sue each other accordingly.

• Legal Requirements for Assignment

For an assignment to be legally valid, it must meet certain requirements . If these are not met, a trial court can determine that the transfer of rights did not occur. The legal requirements for assignment are as follows:

• All parties must consent and be legally capable to carry out the assignment.
• The objects, rights, or benefits being transferred must be legal.
• The assignment is not against public policy or illegal.
• Some type of consideration is included if necessary.
• The contract in question must already be in place and doesn’t prohibit assignment.
• If a duty is being transferred, and it requires a rare genius or skill, then it cannot be delegated.
• The assignment doesn’t significantly change the expected outcome of a contract.
• Assignment Steps

To successfully assign a contract, certain steps must be followed to ensure the process is legally valid. The necessary assignment steps are listed below:

• Ensuring there is no anti-assignment clause in the contract.
• Executing the assignment by transferring the obligations and rights to a third party.
• Notifying the obligor of the transfer, which in turn relieves the assignor of any liability.
• Avoiding Assignment

In certain situations, one of the two parties may not want to allow their counterpart to assign the contract. This can be prevented by setting anti-assignment clauses in the original contract. An example of this is making it necessary for prior written consent to be attained from the other parties before the assignment is approved. Nevertheless, an anti-assignment clause cannot be included in an assignment that was issued or ordered by a court.

• Assignment vs. Novation

Novation occurs when a party would like to transfer both the benefits and burden of a contract to another party. This is similar to assignment in the sense that the benefits are transferred, but in this case, the burden is also passed on. When novation is finalized, the original contract is deleted and a new one is created, in which a third party becomes responsible for all the obligations and rights of the original contract.

• Assignment vs. Delegation

Although delegation and assignment are similar in purpose, they are two different concepts. Delegation refers to transferring the obligation to a third party without an assignment contract . While in assignment an entire contract and its rights and benefits can be passed on, in delegation only a particular contractual task or activity is transferred.

Let’s look at an example . Lisa is a homeowner that wants to hire Michael with an independent contractor agreement to remodel her garage. He plans to do all the work himself, but he’s not a painter, so he wants to delegate the painting work to his friend Valentina.

In this example, the contract is between Lisa, the obligor, and Michael, the delegator. Valentina would then be known as a delegatee, she doesn’t assume responsibility for the contract nor does she receive the contractual benefits, which in this case would be monetary compensation. However, Michael may have a separate agreement with Valentina to pay her in return for her work.

It’s also important to note that some duties are so specific in nature that it’s not possible to delegate them. In addition, if a party wants to avoid delegation , it’s recommended to add a clause to prevent the other party from delegating their duties.

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Difference Between Assignment and Transfer

The difference between assignment and transfer is that assign means it's legal to transfer property or a legal right from one person to another. 3 min read updated on February 01, 2023

The difference between assignment and transfer is that assign means it's legal to transfer property or a legal right from one person to another, while transfer means it's legal to arrange for something to be controlled by or officially belong to another person.

When used as verbs, assign means to set apart or designate something for a purpose while transfer means to pass or move from one person, place, or thing to someone or someplace else. When used as nouns, assign means the assignee and transfer is the act of removing or conveying something from one person, thing, or place to another. Transfer generally refers to titles whereas assignment is used with obligations and rights.

Definitions of Assignment and Transfer

• Assignment: Assignment is used in real estate law and contracts law. It covers the transfer of rights held by the assignor to the assignee.
• Transfer: To remove or convey from one person or place to someone or somewhere else.

Distinction Between Assignment and Transfer

When distinguishing between assignment and transfer, take licenses, for example. Licenses are contracts that don't allow legal action for infringement. They fall under state law. Therefore, state law will decide whether the license is an obligation or right that can be transferred or assigned legally.

One way to distinguish this example is that an individual contract under an agreement cannot be assigned, like entitlement to grant back royalties . In addition, the contract cannot be transferred. You need to break it down and figure out what the actual issue is — the parties' intent. An additional distinction is when the contract holder is an entity and the business owners want to transfer a portion or all of their stock. This can be seen as an implied transfer of the whole contract. However, it would not likely be an assignment of the rights covered under this agreement.

Difference Between Assign and License

The key difference between assign and license is that with a license, the person who grants permission, known as the licensor, keeps an interest in the product being licensed . In an assignment, the assignor will transfer his or her rights to the product or property being assigned.

Another difference is that assignments must be in writing and a license can be executed without being written. Consider, for example, intellectual property such as patents. Patents can be licensed verbally in some instances, but assignments for patents must be in writing and filed with the United States Patent and Trademark Office .

Assignments grant the assignee full ownership of a product or property. Therefore, an assignment will typically cost more to acquire than a license.

Frequently Asked Questions

Are there ever situations in which a license can be transferred but is not assignable?

• Yes, in the case of allowing an assignment to one of your affiliates, the assignor would still be liable for the performance of the agreement under general assignment law. In this situation, you would not typically permit a transfer, because in a transfer, the person transferring would not maintain any obligations related to performance. Don't rely solely on this general understanding, but still expressly detail your agreement on what a licensee can legally do.

How will transfer and assignment rights affect someone's ability to sublicense?

• In theory, if a licensee has the authority to assign license rights to someone else, you could argue that it also provides the right to sublicense it. The issue here is that with a sublicense, the person sublicensing it keeps a license right, therefore effectively creating two licensees. With an assignment, only one right is assigned, and the assignee is the one who has possession of the license. With well-drafted licenses, the right to sublicense is not typically implied, as the licensor is the one who reserves all rights that are not expressly granted.

What is the effect of poorly drafted licenses?

• A poorly drafted license could result in giving someone implied rights to also sublicense. An example is a software license that allows a licensee to access the software without clarifying any restrictions or clearly defining the word “use.” This means that, depending on what this software is supposed to do, someone could think the term “use” means the licensee has permission to grant a sublicense as part of their usage rights.

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Content Approved by UpCounsel

• Assignment Law
• Assignment and Novation Agreement: What You Need to Know
• Legal Assignment
• Assignment Legal Definition
• Assignment Of Contracts
• Assignment of Rights and Obligations Under a Contract
• Partial Assignment of Contract
• Assignment of Rights Example
• What Is the Definition of Assigns
• Transfer of Intellectual Property

• Drafting a Workable Contract
• Contract Tips
• Startup law
• Common Draft
• Choice of law
• Patent apps
• Marketing legal review
• Engagement agreement
• UH class notes
• Arbitration

Assignment provisions in contracts

Author’s note, Nov. 22, 2014: For a much-improved update of this page, see the Common Draft general provisions article .

(For more real-world stories like the ones below, see my PDF e-book, Signing a Business Contract? A Quick Checklist for Greater Peace of Mind , a compendium of tips and true stories to help you steer clear of various possible minefields. Learn more …. )

Table of Contents

Legal background: Contracts generally are freely assignable

When a party to a contract “ assigns ” the contract to someone else, it means that party, known as the assignor , has transferred its rights under the contract to someone else, known as the assignee , and also has delegated its obligations to the assignee.

Under U.S. law, most contract rights are freely assignable , and most contract duties are freely delegable, absent some special character of the duty, unless the agreement says otherwise. In some situations, however, the parties will not want their opposite numbers to be able to assign the agreement freely; contracts often include language to this effect.

Intellectual-property licenses are an exception to the general rule of assignability. Under U.S. law, an IP licensee may not assign its license rights, nor delegate its license obligations, without the licensor’s consent, even when the license agreement is silent. See, for example, In re XMH Corp. , 647 F.3d 690 (7th Cir. 2011) (Posner, J; trademark licenses); Cincom Sys., Inc. v. Novelis Corp. , 581 F.3d 431 (6th Cir. 2009) (copyright licenses); Rhone-Poulenc Agro, S.A. v. DeKalb Genetics Corp. , 284 F.3d 1323 (Fed. Cir. 2002) (patent licenses). For additional information, see this article by John Paul, Brian Kacedon, and Douglas W. Meier of the Finnegan Henderson firm.

Assignment consent requirements

Model language

[Party name] may not assign this Agreement to any other person without the express prior written consent of the other party or its successor in interest, as applicable, except as expressly provided otherwise in this Agreement. A putative assignment made without such required consent will have no effect.

Optional: Nor may [Party name] assign any right or interest arising out of this Agreement, in whole or in part, without such consent.

Alternative: For the avoidance of doubt, consent is not required for an assignment (absolute, collateral, or other) or pledge of, nor for any grant of a security interest in, a right to payment under this Agreement.

Optional: An assignment of this Agreement by operation of law, as a result of a merger, consolidation, amalgamation, or other transaction or series of transactions, requires consent to the same extent as would an assignment to the same assignee outside of such a transaction or series of transactions.

• An assignment-consent requirement like this can give the non-assigning party a chokehold on a future merger or corporate reorganization by the assigning party — see the case illustrations below.

• A party being asked to agree to an assignment-consent requirement should consider trying to negotiate one of the carve-out provisions below, for example, when the assignment is connection with a sale of substantially all the assets of the assignor’s business {Link} .

Case illustrations

The dubai port deal (ny times story and story ).

In 2006, a Dubai company that operated several U.S. ports agreed to sell those operations. (The agreement came about because of publicity and political pressure about the alleged national-security implications of having Middle-Eastern companies in charge of U.S. port operations.)

A complication arose in the case of the Port of Newark: The Dubai company’s lease agreement gave the Port Authority of New York and New Jersey the right to consent to any assignment of the agreement — and that agency initially demanded $84 million for its consent.

After harsh criticism from political leaders, the Port Authority backed down a bit: it gave consent in return for “only” a $10 million consent fee, plus $40 million investment commitment by the buyer.

Cincom Sys., Inc. v. Novelis Corp., No. 07-4142 (6th Cir. Sept. 25, 2009) (affirming summary judgment)

A customer of a software vendor did an internal reorganization. As a result, the vendor’s software ended up being used by a sister company of the original customer. The vendor demanded that the sister company buy a new license. The sister company refused.

The vendor sued, successfully, for copyright infringement, and received the price of a new license, more than $450,000 as its damages. The case is discussed in more detail in this blog posting.

The vendor’s behavior strikes me as extremely shortsighted, for a couple of reasons: First, I wouldn’t bet much on the likelihood the customer would ever buy anything again from that vendor. Second, I would bet that the word got around about what the vendor did, and that this didn’t do the vendor’s reputation any good.

Meso Scale Diagnostics, LLC v. Roche Diagnostics GmbH, No. 5589-VCP (Del. Ch. Apr. 8, 2011) (denying motion to dismiss).

The Delaware Chancery Court refused to rule out the possibility that a reverse triangular merger could act as an assignment of a contract, which under the contract terms would have required consent. See also the discussion of this opinion by Katherine Jones of the Sheppard Mullin law firm.

Assignment with transfer of business assets

Consent is not required for an assignment of this Agreement in connection with a sale or other disposition of substantially all the assets of the assigning party’s business.

Optional: Alternatively, the sale or other disposition may be of substantially all the assets of the assigning party’s business to which this Agreement specifically relates.

Optional: The assignee must not be a competitor of the non-assigning party.

• A prospective assigning party might argue that it needed to keep control of its own strategic destiny, for example by preserving its freedom to sell off a product line or division (or even the whole company) in an asset sale.

• A non-assigning party might argue that it could not permit the assignment of the agreement to one of its competitors, and that the only way to ensure this was to retain a veto over any assignment.

• Another approach might be to give the non-assigning party, instead of a veto over asset-disposition assignments, the right to terminate the contract for convenience . (Of course, the implications of termination would have to be carefully thought through.)

Assignment to affiliate

[Either party] may assign this Agreement without consent to its affiliate.

Optional: The assigning party must unconditionally guarantee the assignee’s performance.

Optional: The affiliate must not be a competitor of the non-assigning party.

Optional: The affiliate must be a majority-ownership affiliate of the assigning party.

• A prospective assigning party might argue for the right to assign to an affiliate to preserve its freedom to move assets around within its “corporate family” without having to seek approval.

• The other party might reasonably object that there is no way to know in advance whether an affiliate-assignee would be in a position to fulfill the assigning party’s obligations under the contract, nor whether it would have reachable assets in case of a breach.

Editorial comment: Before approving a blanket affiliate-assignment authorization, a party should consider whether it knew enough about the other party’s existing- or future affiliates to be comfortable with where the agreement might end up.

Consent may not be unreasonably withheld or delayed

Consent to an assignment of this Agreement requiring it may not be unreasonably withheld or delayed.

Optional: For the avoidance of doubt, any damages suffered by a party seeking a required consent to assignment of this Agreement, resulting from an unreasonable withholding or delay of such consent, are to be treated as direct damages.

Optional: For the avoidance of doubt, any damages suffered by a party seeking a required consent to assignment of this Agreement, resulting from an unreasonable withholding or delay of such consent, are not subject to any exclusion of remedies or other limitation of liability in this Agreement.

• Even if this provision were absent, applicable law might impose a reasonableness requirement; see the discussion of the Shoney case in the commentary to the Consent at discretion provision.

• A reasonableness requirement might not be of much practical value, whether contractual or implied by law. Such a requirement could not guarantee that the non-assigning party would give its consent when the assigning party wants it. And by the time a court could resolve the matter, the assigning party’s deal could have been blown.

• Still, an unreasonable-withholding provision should make the non-assigning party think twice about dragging its feet too much, becuase of the prospect of being held liable for damages for a busted transaction. Cf. Pennzoil vs. Texaco and its $10.5 billion damage award for tortious interference with an M&A deal.

• Including an unreasonable-delay provision might conflict with the Materiality of assignment breach provision, for reasons discussed there in the summary of the Hess Energy case.

Consent at discretion

A party having the right to grant or withhold consent to an assignment of this Agreement may do so in its sole and unfettered discretion.

• If a party might want the absolute right to withhold consent to an assignment in its sole discretion, it would be a good idea to try to include that in the contract language. Otherwise, there’s a risk that court might impose a commercial-reasonableness test under applicable law (see the next bullet). On the other hand, asking for such language but not getting it could be fatal to the party’s case that it was implicitly entitled to withhold consent in its discretion.

• If a commercial- or residential lease agreement requires the landlord’s consent before the tentant can assign the lease, state law might impose a reasonableness requirement. I haven’t researched this, but ran across an unpublished California opinion and an old law review article, each collecting cases. See Nevada Atlantic Corp. v. Wrec Lido Venture, LLC, No. G039825 (Cal. App. Dec. 8, 2008) (unpublished; reversing judgment that sole-discretion withholding of consent was unreasonable); Paul J. Weddle, Pacific First Bank v. New Morgan Park Corporation: Reasonable Withholding of Consent to Commercial Lease Assignments , 31 Willamette L. Rev. 713 (1995) (first page available for free at HeinOnline ).

Shoney’s LLC v. MAC East, LLC, No. 1071465 (Ala. Jul. 31, 2009)

In 2009, the Alabama Supreme Court rejected a claim that Shoney’s restaurant chain breached a contract when it demanded a $70,000 to $90,000 payment as the price of its consent to a proposed sublease. The supreme court noted that the contract specifically gave Shoney’s the right, in its sole discretion , to consent to any proposed assignment or sublease.

Significantly, prior case law from Alabama was to the effect that a refusal to consent would indeed be judged by a commercial-reasonableness standard. But, the supreme court said, “[w]here the parties to a contract use language that is inconsistent with a commercial-reasonableness standard, the terms of such contract will not be altered by an implied covenant of good faith. Therefore, an unqualified express standard such as ‘sole discretion’ is also to be construed as written.” Shoney’s LLC v. MAC East, LLC , No. 1071465 (Ala. Jul. 31, 2009) (on certification by Eleventh Circuit), cited by MAC East, LLC v. Shoney’s [LLC] , No. 07-11534 (11th Cir. Aug. 11, 2009), reversing No. 2:05-cv-1038-MEF (WO) (M.D. Ala. Jan. 8, 2007) (granting partial summary judgment that Shoney’s had breached the contract).

Termination by non-assigning party

A non-assigning party may terminate this Agreement, in its business discretion , by giving notice to that effect no later than 60 days after receiving notice, from either the assigning party or the assignee, that an assignment of the Agreement has become effective.

Consider an agreement in which a vendor is to provide ongoing services to a customer. A powerful customer might demand the right to consent to the vendor’s assignment of the agreement, even in strategic transactions. The vendor, on the other hand, might refuse to give any customer that kind of control of its strategic options.

A workable compromise might be to allow the customer to terminate the agreement during a stated window of time after the assignment if it is not happy with the new vendor.

Assignment – other provisions

Optional: Delegation: For the avoidance of doubt, an assignment of this Agreement operates as a transfer of the assigning party’s rights and a delegation of its duties under this Agreement.

Optional: Promise to perform: For the avoidance of doubt, an assignee’s acceptance of an assignment of this Agreement constitutes the assignee’s promise to perform the assigning party’s duties under the Agreement. That promise is enforceable by either the assigning party or by the non-assigning party.

Optional: Written assumption by assignee: IF: The non-assigning party so requests of an assignee of this Agreement; THEN: The assignee will seasonably provide the non-assigning party with a written assumption of the assignor’s obligations, duly executed by or on behalf of the assignee; ELSE: The assignment will be of no effect.

Optional: No release: For the avoidance of doubt, an assignment of this Agreement does not release the assigning party from its responsibility for performance of its duties under the Agreement unless the non-assigning party so agrees in writing.

Optional: Confidentiality: A non-assigning party will preserve in confidence any non-public information about an actual- or proposed assignment of this Agreement that may be disclosed to that party by a party participating in, or seeking consent for, the assignment.

The Delegation provision might not be necessary in a contract for the sale of goods governed by the Uniform Commercial Code, because a similar provision is found in UCC 2-210

The Confidentiality provision would be useful if a party to the agreement anticipated that it might be engaging in any kind of merger or other strategic transaction.

Materiality of assignment breach

IF: A party breaches any requirement of this Agreement that the party obtain another party’s consent to assign this Agreement; THEN: Such breach is to be treated as a material breach of this Agreement.

A chief significance of this kind of provision is that failure to obtain consent to assignment, if it were a material breach, would give the non-assigning party the right to terminate the Agreement.

If an assignment-consent provision requires that consent not be unreasonably withheld , then failure to obtain consent to a reasonable assignment would not be a material breach, according to the court in Hess Energy Inc. v. Lightning Oil Co. , No. 01-1582 (4th Cir. Jan. 18, 2002) (reversing summary judgment). In that case, the agreement was a natural-gas supply contract. The customer was acquired by a larger company, after which the larger company took over some of the contract administration responsibilities such as payment of the vendor’s invoices. The vendor, seeking to sell its gas to someone else at a higher price, sent a notice of termination, on grounds that the customer had “assigned” the agreement to its new parent company, in violation of the contract’s assignment-consent provision. The appeals court held that, even if the customer had indeed assigned the contract (a point on which it expressed considerable doubt) without consent, the resulting breach of the agreement was not material, and therefore the vendor did not have the right to terminate the contract.

See also (list is generated automatically) :

• Notebook update: Reverse triangular merger might be an assignment of a contract, requiring consent Just updated the Notebook with a citation to a case in which the Delaware Chancery Court refused to rule out the possibility that a reverse...
• Assignment-consent requirements can cause serious problems in future M&A transactions A lot of contracts provide that Party A must obtain the prior written consent of Party B if it wishes to assign the agreement to a...
• SCOTX rejects implied obligation not to unreasonably withhold consent to assignment of contract In a recent Texas case, two sophisticated parties in the oil and gas busi­ness — let’s call them Alpha and Bravo — were negotiating a contract....
• Ken Adams and the marketplace of ideas I (used to) comment occasionally at Ken Adams’s blog. Recent examples: Here, here, here, here, and here. Ken and I disagree on a number of issues; some...

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Takeda Announces New Assignments of Directors

OSAKA, Japan, June 26, 2024 – Takeda (TSE:4502/NYSE:TAK) has announced new assignments of directors, determined at the Board of Directors meeting and at the Audit and Supervisory Committee meeting, following the 148th Ordinary Meeting of Shareholders, held in Osaka today.

Takeda's Board of Directors has 11 members serving as external directors out of a total of 14 members, helping to ensure transparency and objectivity. An external director will continue to chair the Board of Directors. The Audit and Supervisory Committee, the Nomination Committee and the Compensation Committee will be composed solely of external directors including their chairs.

Takeda highly values strong, independent governance and its Board of Directors helps to ensure that all decisions and actions are in the best interests of global stakeholders and aligned with the company’s values. This robust corporate governance model has been, and will continue to be, critical to Takeda's success.

Details of the new assignments are as follows:

1. New Assignment of Directors Who Are Not Audit and Supervisory Committee Members (Effective June 26, 2024)

2. Directors Who Are Audit and Supervisory Committee Members

3. New Assignment of Nomination Committee and Compensation Committee Members (Effective June 26, 2024)

Nomination committee:.

Masami Iijima (Chairperson), Jean-Luc Butel, Steven Gillis, Michel Orsinger, and Yoshiaki Fujimori

(Observer: Christophe Weber)

Compensation committee:

Emiko Higashi (Chairperson), John Maraganore, Michel Orsinger, and Kimberly A. Reed

About Takeda

Takeda is focused on creating better health for people and a brighter future for the world. We aim to discover and deliver life-transforming treatments in our core therapeutic and business areas, including gastrointestinal and inflammation, rare diseases, plasma-derived therapies, oncology, neuroscience and vaccines. Together with our partners, we aim to improve the patient experience and advance a new frontier of treatment options through our dynamic and diverse pipeline. As a leading values-based, R&D-driven biopharmaceutical company headquartered in Japan, we are guided by our commitment to patients, our people and the planet. Our employees in approximately 80 countries and regions are driven by our purpose and are grounded in the values that have defined us for more than two centuries. For more information, visit www.takeda.com .

Media Contacts:

Japanese media.

Shoko Honda [email protected] +81 (0) 70-2687-3620

U.S. and International Media

Brendan Jennings [email protected] +81 (0) 80-2705-8259

Important Notice

For the purposes of this notice, “press release” means this document, any oral presentation, any question and answer session and any written or oral material discussed or distributed by Takeda Pharmaceutical Company Limited (“Takeda”) regarding this press release. This press release (including any oral briefing and any question-and-answer in connection with it) is not intended to, and does not constitute, represent or form part of any offer, invitation or solicitation of any offer to purchase, otherwise acquire, subscribe for, exchange, sell or otherwise dispose of, any securities or the solicitation of any vote or approval in any jurisdiction. No shares or other securities are being offered to the public by means of this press release. No offering of securities shall be made in the United States except pursuant to registration under the U.S. Securities Act of 1933, as amended, or an exemption therefrom. This press release is being given (together with any further information which may be provided to the recipient) on the condition that it is for use by the recipient for information purposes only (and not for the evaluation of any investment, acquisition, disposal or any other transaction). Any failure to comply with these restrictions may constitute a violation of applicable securities laws. The companies in which Takeda directly and indirectly owns investments are separate entities. In this press release, “Takeda” is sometimes used for convenience where references are made to Takeda and its subsidiaries in general. Likewise, the words “we”, “us” and “our” are also used to refer to subsidiaries in general or to those who work for them. These expressions are also used where no useful purpose is served by identifying the particular company or companies.

Forward-Looking Statements

This press release and any materials distributed in connection with this press release may contain forward-looking statements, beliefs or opinions regarding Takeda’s future business, future position and results of operations, including estimates, forecasts, targets and plans for Takeda. Without limitation, forward-looking statements often include words such as “targets”, “plans”, “believes”, “hopes”, “continues”, “expects”, “aims”, “intends”, “ensures”, “will”, “may”, “should”, “would”, “could”, “anticipates”, “estimates”, “projects”, “forecasts”, “outlook” or similar expressions or the negative thereof. These forward-looking statements are based on assumptions about many important factors, including the following, which could cause actual results to differ materially from those expressed or implied by the forward-looking statements: the economic circumstances surrounding Takeda’s global business, including general economic conditions in Japan and the United States; competitive pressures and developments; changes to applicable laws and regulations; challenges inherent in new product development, including uncertainty of clinical success and decisions of regulatory authorities and the timing thereof; uncertainty of commercial success for new and existing products; manufacturing difficulties or delays; fluctuations in interest and currency exchange rates; claims or concerns regarding the safety or efficacy of marketed products or product candidates; the impact of health crises, like the novel coronavirus pandemic; the success of our environmental sustainability efforts, in enabling us to reduce our greenhouse gas emissions or meet our other environmental goals; the extent to which our efforts to increase efficiency, productivity or cost-savings, such as the integration of digital technologies, including artificial intelligence, in our business or other initiatives to restructure our operations will lead to the expected benefits; and other factors identified in Takeda’s most recent Annual Report on Form 20-F and Takeda’s other reports filed with the U.S. Securities and Exchange Commission, available on Takeda’s website at: https://www.takeda.com/investors/sec-filings-and-security-reports/ or at www.sec.gov Go to http://www.sec.gov . Takeda does not undertake to update any of the forward-looking statements contained in this press release or any other forward-looking statements it may make, except as required by law or stock exchange rule. Past performance is not an indicator of future results and the results or statements of Takeda in this press release may not be indicative of, and are not an estimate, forecast, guarantee or projection of Takeda’s future results.

Team Biden’s Debate Assignment: Don’t Let Trump Win the Spin

No matter what happens, the right is going to lie about thursday’s debate. biden’s camp better be ready to push back aggressively..

A long time ago, a debate was just a debate. The media analyzed and dissected it, of course—but for a day or two in the print press, and a few hours on the television networks, after which the world moved on to the next thing. But that was back when we had three television networks giving America 30 minutes of news a night, no nonstop cable news, two big national newspapers, no websites, no social media, and a small handful of prominent columnists like David Broder of The Washington Post ; they’d render their verdict, and that was that.

Today, a presidential “debate” is a much larger phenomenon. It lasts, really, several days now. Cable news started with debate previews last Thursday, a week before Joe Biden and Donald Trump will square off in CNN’s Atlanta studios. The postmortems will surely last through the weekend, making for a debate-a-palooza that will clock in at 11 days.

And in those 11 days, the conventional wisdom may shift several times. Hence, my debate prognostication: On the night itself, the conventional wisdom and the flash polls will probably show Biden winning. But by the time Fox News and the rest of them are finished spinning it, they may well have convinced your average swing voter that Trump dominated Biden.

A little history will help explain this. I’ve looked up “Who won the debate?” results for the full twenty-first century. Interestingly, the Democrat won almost every debate, according to the snap polls I could find. Even John Kerry—the only Democrat in this century to lose the popular vote, by about three million votes in 2004—prevailed. He won the first and third debates handily, while George W. Bush tied him in the second. As for these two contestants, Biden swept Trump in 2020. He won the first debate 54–39 , according to one insta-poll. Another had it Biden 60–28 . On the second and final debate, Biden won 53–39 , according to one poll.

The only clear Democratic debate loss in this century was the first 2012 debate, when Mitt Romney aggressively repositioned himself to the center, defenestrating conservative positions he’d been espousing for months, while Barack Obama looked like his mind was on something else. ( CNN’s flash poll gave that one to Romney by a whopping 67 to 25 percent.) Otherwise, Democrats tend to win, and often, win big.

I submit there’s a simple reason for that: Democratic positions on things are a lot more popular. When pundits and political insiders watch a debate, we tend to watch for style. The substance is old hat to us. We’ve heard it a thousand times, so pundits need something new to focus on. It’s shallow, but there it is. 

Voters, however, haven’t heard the candidates espouse their positions a thousand times. They’ve probably heard them a few times. Maybe they haven’t heard them at all. So they’re listening closely to the substance—to what the candidates have to say about taxes, investment, public education, abortion rights, climate, and so on, and majorities support Democratic positions on most major policy issues.

So Democrats tend to win. Republicans get this, so they know the task they have at hand—to spin things postdebate to try to change the result. The first time I remember seeing this in action was the very first debate of this century, between George W. Bush and Al Gore. Gore seemed to win on substance, but he used the word “lockbox” seven times, and he sighed too much. That did it. Here was Gore adviser Bob Shrum, speaking later : “I didn’t think Gore’s sighs were a really big deal until I got to the spin room. Reporters kept asking about sighs, reactions, exaggerations.” That weekend, Saturday Night Live ’s cold open mocked Gore mercilessly on these points. Soon enough, the conventional wisdom was that Bush won, and it gave him some momentum. 

What does this mean for Thursday? Let’s stipulate that Biden doesn’t do something egregious like fall down, fall asleep, forget the name of the guy who runs China, that sort of thing. If he clears those relatively low hurdles, he’ll probably do well enough to win. He knows a lot more about substance and policy and the world than Trump does, and his positions are a lot more mainstream. I hope also that he’s been prepped to get under Trump’s skin. Call him a convicted felon, mention Stormy Daniels’s name, mock some of his weird Hannibal Lecter–style comments—just rattle him.

Biden has certainly lost a step or three since 2020, but if he does some version of all the above, he’ll probably be judged the winner by most of those who watched. But then Fox News and MAGA TikTok and all the rest will throttle into gear and grab selected 12-second clips that show Biden stuttering a little or losing his train of thought. Also, Trump will undoubtedly get the better of him on an exchange or two. Finally, Trump, as Greg Sargent wrote last week , will go hard at Biden on immigration, and especially the “Migrant Killers” Trump proclaims to be an epidemic blighting the nation. That’s the moment MAGA world is going to be focused on. If Biden is caught flat-footed there, not only will postdebate MAGA spin work, but Biden might indeed just lose the debate outright.

That is Team Biden’s job this week: to have him  be  ready  not only  for the event itself but for a broad and multiplatform postdebate spin assault that will keep Fox and Trumpworld from dominating the news cycles. Their job will be made more difficult by the familiarity of both candidates—which means that the media will be even more focused on optics and less focused on policy than usual.  

I hope that Team Biden will have hundreds or even thousands of people ready to get to work from 10:31 p.m. Thursday through about the following 96 hours, blasting out their own 12-second clips that make Biden look like Abraham Lincoln and Trump look foolish and/or dangerous. Sad to say, the fate of the country may depend on who wins the TikTok debate battle, but that’s where we are.  

Michael Tomasky is the editor of The New Republic.

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MLB Trade Rumors

Athletics Designate Aaron Brooks For Assignment

By Darragh McDonald | June 25, 2024 at 4:15pm CDT

The Athletics announced that they have recalled left-hander Jack O’Loughlin , with right-hander Aaron Brooks designated for assignment in a corresponding move. The club’s 40-man roster count drops to 39.

Brooks, 34, signed a minor league deal with the A’s in the offseason and has twice been selected to their roster. The second such selection just occurred on Sunday and Brooks went on to perform some mop-up duty for the club last night. Luis Medina started the game but was removed after recording just nine outs. Brooks then came in and covered five frames, tossing 65 pitches and letting the rest of the bullpen have a night off.

That effective yeoman’s work was likely an ironic contributor to him losing his roster spot, as he surely wasn’t going to be available for a few days. Since he’s out of options, the club had to remove him from the 40-man roster in order to get a fresh arm into the bullpen.

The A’s will now have a week to trade Brooks or pass him through waivers. The last time he lost his roster spot, earlier this month, he cleared waivers and was sent outright to Triple-A Las Vegas. It’s possible that the same scenario plays out again in the days to come. He has an earned run average of 5.06 over his five appearances in the majors this year, as well as a 4.30 ERA in ten appearances for the Aviators.

18 hours ago

Ahhh. The old bring a guy up for one last start before you DFA him trick. Oldie but Goodie.

15 hours ago

“smoke’em if you got’em”. baseball’s harsh realities.

The one A’s should designated they do not, like Diaz for example. We know Díaz is making 7mm this season but c’mon it’s common sense to keep Brooks in the folder he was doing a good job!

Call him CJ from GTA San Andreas, aww crap, here we go again.

17 hours ago

Brooks and done.

What’s the point in bringing in a unproven fresh arm? The team still sucks and all these meaningless moves don’t change that. I think Brooks was one of the more reliable arms on the roster. Certainly better than Media, Sears and Estes. Hope we see him again.

13 hours ago

He was better as the quarterback for the Saints

How in the world is he still in the league? He won a WS ring with the Royals for crying out loud.

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Former Dodgers Pitcher Returns to Big Leagues With AL East Squad

Sam garcia | 18 hours ago.

• Los Angeles Dodgers

The Tampa Bay Rays designated right-handed pitcher Chris Devenski for assignment, recalling right-handed pitcher Edwin Uceta from Triple-A. The Rays Communication Department announced the bullpen swap via Twitter/X on Tuesday morning.

The Tampa Bay Rays have recalled RHP Edwin Uceta from Triple-A Durham and designated RHP Chris Devenski for assignment. — Rays Communications (@RaysPR) June 25, 2024

Devenski demonstrated great potential in his first two MLB seasons with the Houston Astros, achieving a career-best 2.16 ERA in his rookie season. His career has gone downhill from there. He has not recorded an ERA below 4.18 since 2018. 

This season, Devenski has struggled with a 6.75 ERA, allowing 28 hits, 25 runs, and striking out 24 in 26.2 innings. In April, he was placed on the 15-day injured list with tendinitis in his right knee. 

This is not Uceta’s first appearance in the Major Leagues this season. He was called up from Triple-A by the Rays on May 6 before being optioned back on May 11 when right-handed pitcher Pete Fairbanks returned from injury. Uceta pitched four scoreless innings in that time frame, allowing one hit, two walks, and striking out five.  

The right-hander began his career in the Major Leagues with the Dodgers in 2021. He had a rough rookie season, going 0-3 and posting a 6.67 ERA with 19 runs and 18 hits through 20.1 innings. 

The following season, Uceta joined the Arizona Diamondbacks. Showing slight improvement, he allowed 14 hits, 12 runs, seven walks, and struck out 13 batters, posting a 5.82 ERA across 17 innings. 

After one season with the Diamondbacks, Uceta played one season with the Mets and now one with the Rays. Across the 2023 and 2024 seasons, Uceta has pitched a total of seven scoreless innings, conceding one hit, four walks, and striking out eight batters. He has not batted since his rookie season in 2021, when he went 1-5. 

Samantha Garcia is a student at the University of California, Los Angeles. She is majoring in Psychology and minoring in Professional Writing. She is also a sports writer for the Daily Bruin at UCLA.

Rays designate reliever Chris Devenski for assignment

• Kristie Ackert Times staff

ST. PETERSBURG — The Rays designated struggling reliever Chris Devenski for assignment Tuesday and recalled right-hander Edwin Uceta from Triple A to take his spot in the taxed bullpen.

“I mean, tough decision,” manager Kevin Cash said before the Rays beat the Mariners 11-3 at Tropicana Field . “Devo’s a pro and I think given where our bullpen was, we’ve really been taxed from Minnesota and Pittsburgh and now here. Given what took place, it just felt like we needed a fresh arm. You hate ... to lose a guy like that; we’ll see what happens as he goes through waivers and everything but certainly wish him well. If we get him back that would be great.”

What “happened” was that Devenski had given up home runs in three straight games, including Monday’s comeback win over Seattle. It was the second time this season he’s had such a streak.

Devenski, 33, has a 6.75 ERA in 19 appearances this season with 24 strikeouts over 26 ⅔ innings. He has walked 14.

“I think there’s been a little bit of an inconsistency with the velocity,” Cash said. “He probably hasn’t had the most crisp changeup that he normally has. I think the home run has kind of beat him up here a little bit as of late.”

Devenski signed a $1.1 million, one-year deal with the Rays with a team option for 2025 last offseason. He will be on waivers now for seven days, and teams can trade for him.

Uceta made two scoreless appearances with the Rays earlier this season over two innings. At Triple A, Uceta had a 5.77 ERA over 22 appearances. He struck out 47 in 34 1/3 innings pitched.

“He really impressed us in spring training,” Cash said. “It’s kind of a power arm (which comes) from a low slot. He can throw his fastball, and slider and mix in the occasional changeup. But as much as anything right now he’s got some coverage to be able to go three (innings).”

The Rays bullpen had pitched 308 1/3 innings going into Tuesday, fifth most in the majors.

Day 3 without Lowe, Rosario

Brandon Lowe and Amed Rosario did not play for a third straight game. Lowe fractured his right pinkie toe and Rosario was hit in the face by a pitch Saturday.

Cash said both were OK.

“They’re both okay. B-Lowe is much better today. So I’m encouraged by that,” Cash said. “He will continue to get treatment. He was taking swings in the cage (Monday). ... And Rosie, to my knowledge, he’s fine. Just still probably a little sore.”

Rosario was in the cage preparing to pinch hit Monday night.

Yandy streaking

Yandy Diaz is starting to look more like the hitter the Rays saw win the American League batting title last year. In Tuesday’s win, the first baseman notched his 15th career leadoff home run, extending his hitting streak to 18 games. Over that span Diaz is hitting .358 with six extra-base hits and 10 RBIs.

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“Maybe he’s making up for some lost time,” Cash said of Diaz rebounding after a slow start to the season. “I certainly hope he’s not putting pressure on himself to carry a load, but we know when Yandy’s right, that’s what he does for our offense certainly. Sitting at the top of the lineup, getting on base at a high rate, having good at-bats and the hits have kind of followed along with that.”

Diaz’s streak is the second longest in Rays history and the second longest active streak in the majors. Pittsburgh’s Bryan Reynolds extended his MLB-best streak to 22 mark Tuesday.

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Kristie Ackert is a sports reporter who writes about professional sports in Tampa Bay. Reach her at [email protected].

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