Ownership of a territory may be acquired by assignment, that is, by the peaceful transfer of sovereignty over the territory by one State to another, usually by contract, or by gift, purchase or exchange.1 An assignment agreement is followed by the transfer of territory2. The assignment is subject to the consent of the States concerned.3 In the past, conquest, followed by annexation with or without a surrender treaty, gave the territory a good title.4 Since it is a consequence of the use of force by a State, a typical security may be formulated as follows, in a manner that does not speak to the nature of the assignment: since the subject matter of the assignment has been the subject of a dispute, the assignment itself does not transfer the right to continue the action to which the claim had prescribed: (i) at the time of assignment of the receivable to Z at the time of the assignment; (ii) when issuing the relevant Notice of Intent to Amend, or (iii) the amendment replacing Z instead of X. However, the SCA noted that there was nothing to give at the time the bank ceded the guilty verdict, as GD Brews had paid the debt under its agreement with Brayton and JP Brews. In law, the transfer of a non-existent right by assignment is null and void. The SCA also reviewed the admissible correspondence between the bank`s lawyers and GD Brews` lawyers. It concluded that the parties clearly intended the bank to assign its claim for full payment. GD Brews attempted to change its case by claiming that assignment was a prerequisite for payment, but the court dismissed this attempt as inconsistent with the deed of assignment, among other things. In the recent case of Natal Rubber Compunders (Pty) Ltd v. Bernard Fisher (13172/2010) [2014] KZD, in which Eversheds was active, the court was asked to rule on the effects of the assignment with respect to the claims that are the subject of a dispute.
In the event of a full assignment of the beneficiary`s rights under the security, the effect would be simple: one beneficiary is simply replaced by another, and from that point on, the entity making the claim must be the assignment and not the assignor. However, things are not always that simple. Depending on the respective terms of the assignment, the employer generally reserves the right to make a claim of the guarantee until, for example, there is a default in the loan agreement if the employer`s rights to the guarantee are transferred to the lender. The transfer of intangible rights is a legal principle according to which large sums of money are settled in the South African market. This seemingly innocuous wording can potentially lead to uncertainty as to who is entitled to make a claim under the guarantee – the lender or the employer. While the terms of the assignment agreement between the employer and the lender may resolve this impasse, it is not always clear whether the guarantor is obligated or even authorized to review the assignment agreement. In that case, X brought an action against Y within the limitation period of three years from the due date of the claimed claim. At the end of the pleadings and after the expiry of the limitation period, X entered into an agreement with Z under which Z acquired and assigned X`s claims against Y, including the claim arising from the action that X had brought against Y. In the context of project financing, the assignment of its rights under a guarantee by an employer is usually carried out as security for its obligations towards project suppliers.
The decision contains important lessons for the parties and their lawyers who rely on the mission to create security. An assigned claim must be an existing claim. The claim giving rise to the claim shall be settled upon payment. Therefore, if a receivable is to be assigned, it is important to ensure that the debt is not settled before the assignment of the receivable. 1966The problems of private international law arising from the cession of territories and the accession of territories to independence. Where a guarantee relates to an assignment of the employer`s rights, but the terms of the guarantee and the claim do not indicate whether the employer or lender has the right to make a claim at the relevant time, the guarantor may refuse payment in order to avoid a breach of the terms of the guarantee. If the terms of the warranty and claim clarify the nature of the assignment, but this does not correspond to the rights of the parties under the assignment contract, the claim may be barred (omitted) due to fraud. The CSA has decided, as noted above, that an assignment is a bilateral act by which the assignor transfers its rights to the assignor.
No formalities are required for the undertaking agreement or the deed of assignment itself, although the parties may agree on formalities that the assignment must complete. The assignment may be express or implied or may arise from the conduct of the parties. Although the assignment should not be reduced to the written form, the parties may agree that it must be made in writing, in which case it is valid only if it is reduced to writing. The CSA reviewed the deed of assignment to determine the intentions of the parties. One principle of contract interpretation is that the terms in the agreement must be meaningful and must be applied to the subject matter to which they relate. The parties, according to the SCA, intended that by signing the deed of assignment, the bank would transfer the right to find guilty to GD Brews. The SCA criticised the Court`s a quo approach, in which it treated GD Brews as collateral, and criticised the fact that it had not distinguished between the assignment agreement and the assignment itself. We distinguish in law between non-existent rights and future rights. A future right is one that does not exist at the time of assignment, but may arise.
Our law allows for the assignment of future rights. An often overlooked principle is that assignment is incidental in nature. Their validity depends not only on compliance with the common law, but also on the existence of a valid primary obligation. In the case of an assignment by way of security, the assignment guarantees the discharge of the secured claim. These principles date back to a 1931 decision of the Appeals Division (as it was at the time) in Kilburn v. Kilburn and may even have existed before. It is the ancillary nature of the assignment that the Supreme Court of Appeal (CSA) recently upheld in Brayton Carlswald (Pty) Ltd and Another v Brews (245/2016) [2017] ZASCA 68. The court considered whether it had legal jurisdiction to assign a claim after the expiry of the underlying obligation through payment.
1996 State succession: codification examined on the basis of the facts. For the sake of clarity, in response to the notice of assignment, the guarantor should issue a confirmation confirming the respective rights of the parties in accordance with the terms of the warranty, the contract of assignment and the declaration of assignment. The guarantor may not “fall behind” the guarantee to oppose payment due to reservations regarding the rights or rights of a party to make a claim arising from other agreements or other circumstances or facts unrelated to the guarantee or the claim itself.