Transfer of Rights and Obligations Under DCFR and CESL: Interactions with English and German Law
Warwick School of Law
Copenhagen Business School - Department of Law; University of Oxford - Faculty of Law
March 8, 2013
The Common European Sales Law in Context – Interactions with English and German Law, Gerhard Dannemann and Stefan Vogenauer, eds., Oxford University Press, 2013
Oxford Legal Studies Research Paper No. 17/2013
Warwick School of Law Research Paper 2013/10
The rules on assignment and transfer of rights and obligations are currently outside the scope of the proposed CESL. In contrast, the original DCFR from 2009 includes a chapter on these issues. Questions outside the scope of CESL are left to be solved by the ‘domestic’ provisions of the national law that is applicable under the relevant conflict-of-laws provisions. This paper is part of the larger CFR Context research project and explores interactions of the system of assignment of receivables under a future European contract instrument with both English and German national laws. This concerns above all other areas of law, for example the rules that apply upon the insolvency of one of the parties (in particular that of the assignor) and the rules on public policy. Key differences between the jurisdictions include, inter alia, the proprietary aspects of the assignor’s insolvency where the assignor is paid by the debtor, the priority rule for competing assignments, and the effects of a non-assignment clause. Here, the choice of the optional instrument rather than either English or German law will lead to diverging results and may therefore prejudice any of the parties involved.
Number of Pages in PDF File: 58
Keywords: CESL, DCFR, assignment, receivables, prohibition on assignment, insolvency, public policy
JEL Classification: F15, G32, G33, H73, K12
Date posted: March 10, 2013 ; Last revised: June 13, 2013
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