Greg Tolhurst

PROHIBITIONS ON ASSIGNMENT: A CHOICE TO BE MADE

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.

'When You Got Nothing, You Got Nothing to Lose': Assignments of Choses of Action and Standing in the United States Supreme Court

The United States Supreme Court in Sprint Communications Co LP v APCC Services Inc divided on the question whether an assignee for collection of federal debts satisfied Article III standing. Both majority and minority approached the constitutional question by reference to the English historical background, in light of the 19th century statutory reforms, which took a very different form in the United States than in England (and elsewhere in the Commonwealth). The decision is an excellent example of the ongoing process of working out the legal consequences of statutory choices made more than a century ago.

Conditional Payments and Failure of Consideration: Contract or Restitution?

This paper is concerned with a short but fundamental point. In recent years much judicial and academic ink has been spilt in abrogating the implied contract theory of quasi-contract as the explanation for claims in restitution. Today we readily accept that restitution following discharge of a contract for breach or repudiation is based on the principle of unjust enrichment. That principle, when activated, imposes a personal obligation to make restitution. This, of course, does not prevent the parties themselves expressly or impliedly dealing with the issue of restitution within the contract. They may do this either by providing for restitution or by contracting out of any right to restitution imposed by law. For example, a term (express or implied) permitting the forfeiture of a payment made under a contract will exclude any right to restitution for total failure of consideration. If the parties expressly or impliedly provide for restitution of a payment, the impact, of course, is that the money becomes payable as a contract debt, rather than as restitution for unjust enrichment. However, there have been some recent suggestions in the context of a claim for restitution of a payment made under a contract which is subsequently discharged for breach or repudiation which base the payers right to recover the payment on what may be broadly described as the nature of the payment obligation, rather than the concept of total failure of consideration. Our view, however, is that in most cases it is not correct to base the payers right of recovery directly on the intention of the parties. Moreover, the better view is that the authority on which the recent suggestions are based does not support the suggestions. The issue is an important one, not only from a theoretical perspective, but also from at least one important practical perspective, namely, the assignment of contract rights.