The Efficacy of Contractual Provisions Prohibiting Assignment

Sydney Law Review, Vol. 26, No. 2, pp. 161-192, 2004

Sydney Law School Research Paper No. 06/38

33 Pages Posted: 24 Oct 2006  

Greg Tolhurst

The University of Sydney Law School

Abstract

In recent years, a line of decisions has recognised the legitimacy of prohibitions on assignment. Moreover, and despite holding that the effect of such prohibitions depends on construction, generally, it would appear that whatever words are used, the effect of a prohibition will be to render the attempted assignment ineffective. Nevertheless, it has never been fully explained how such provisions operate at a doctrinal level, that is, how a contractual provision inhibits a person dealing with their right of property. This paper suggests that the explanation lies with the ability of contracting parties to fashion the characteristics of the contractual rights they bring into existence not just in their character as contractual rights but also as choses in action.

Keywords: Assignment, Assignment of contractual rights, Prohibitions on Assignment

JEL Classification: K12

Suggested Citation

Tolhurst, Greg, The Efficacy of Contractual Provisions Prohibiting Assignment. ; Sydney Law School Research Paper No. 06/38. Available at SSRN: https://ssrn.com/abstract=939676

Greg Tolhurst (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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