Article 8.3.1
Scope
1. By the assignment of the contract, a contracting party, called the “assignor”, transfers to another person, called the “assignee”, its rights and obligations in a contract in respect of the other contracting party, called “counterparty”.
2. This Section does not apply to assignment of contracts governed by special rules on transfer of a business.
Article 8.3.2
Conditions relating to the parties
1. The assignment requires the consent of the other party.
2. That consent may be given expressly or tacitly and before, at the same time, and after the conclusion of the agreement of assignment.
Article 8.3.3
Effectiveness of the assignment
1. The assignment is effective against the counterparty:
- From the time when the consent is given by the counterparty, simultaneously or subsequently to the conclusion of the agreement of assignment.
- From the time when the notification of the assignment is received by the counterparty, if the consent has been given in advance.
2. After the assignment is effective, the counterparty is discharged only by performing in favour of the assignee.
3. When an assignee successively transfers the contract to another assignee, the counterparty is discharged by performing according to the last assignment that was effective.
Article 8.3.4
Legal framework of the assignment
1. To the extent that the assignment of contract involves a transfer of rights, Section 1 of this Chapter shall be applied.
2. To the extent that the assignment of contract involves a transfer of obligations, Section 2 of this Chapter shall be applied.
Downloads
OHADAC principles on international commercial contracts.pdf
1. Functioning of the Assignment of Contracts
The Principles, after regulating the assignment of a contractual right (Section 1) and a contractual obligation (Section 2), deals with the assignment of a contract as a whole, which has the added difficulty of transferring both rights and obligations [Section 2- 210 UCC; Article 6:159 of the Dutch and Suriname Civil Code; Article 9.3.1 UP].
In this context, many systems of the OHADAC States do not provide for independent rules for the assignment of contracts, which differs from the assignment of rights and obligations. Consequently, the minimum consensus is found in basic rules, accompanied by a reference, as appropriate, to the transfer of rights and obligations, along the lines of the UP (sections 9.3.6 and 9.3.7), the PECL (Article 12:201), the DCFR (Article III-5:302) and Article 244 of the Proposals for the Reform of the French law on Obligations of 2013. Other aspects, such as the conditions for modifying a contract subject to assignment (Section 9-405 UCC), shall be governed by national law in accordance with the rules of private international law.
It has to be noted that in order to make the OHADAC Principles entirely effective they should be chosen in both the original contract and the agreement of assignment.
2. Assignments excluded from the Section
Like the previous Sections on transfer of rights and transfer of obligations and in accordance with the UP (section 9.3.2) and the DCFR (Article III-5: 301), this Section on assignment of contracts does not apply to transfers under the special rules concerning the joint transfer of business or assets. In these cases, given that there is a complete assignment of the entire legal relations of one of the parties, the rules concerning the individual assignment of each of the contracts is applied.
Commentary