Last edited 19 Jan 2018

Assignation

Assignation is the Scottish law equivalent of the English assignment.

Assignment is the right to transfer 'choses in action' defined as 'all personal rights of property which can only be claimed or enforced by action and not by taking physical possession'.

This definition includes benefits arising under a construction contract such as the right to payment, but not burdens such as the obligation to pay. The definition also includes claims for breach of contract.

The Law of Property Act 1925 states that assignment must be in writing, the whole benefit must be assigned, and notice must be given from one contracting party to the other.

By contrast, the Act does not apply in Scotland, and an assignation need not be in writing (unless it relates to land) but can be intimated, meaning that intimation is sufficient to create an assignee right that is effective and binding against the other parties. There is also no distinction between legal (statutory) and equitable assignments.

In 2011, the Scottish Law Commission stated that Scots and English law were broadly similar with regard to assignation, with contractual obligations not being assigned regardless of ‘delectus personae’ (selection of a party satisfactory for a position involving trust and confidence in the character and capabilities of that party).

As with English law, novation is used when both contractual rights and obligations are to be transferred from one party to another, rather than just the benefits.