Assignment

Assignment is a form in Scots conveyancing, analogous to the English word Assignment (q.v.), by means of which the holder of any right, or the creditor in any obligation, or the proprietor of any subject not properly feudal (see FEUDALISM), transfers his right or estate to another. The party making the assignment is called the cedent, and the party in whose favour the assignment is made is called the assignee or cessionary, words which are derived from the French law. In the case of debts, there was originally no power in the creditor to assign his right, and, accordingly, the form of assignment still shows that the transaction was regarded as one of mandate to recover the money for the creditor. Now, however, it is recognised that, unless the assignment be in security, the whole right of the creditor is transferred to the assignee, who comes exactly in place of his author. It follows that the debtor can state against the assignee any defences (such as set-off) which, at the date of the assignment, he might have stated against the creditor; but the assignee, on the other hand, is not affected by any latent trust or agreement between the debtor and other parties. In order, however, to complete the assignment, it must be intimated to the common debtor—that is, the party originally indebted to the cedent—and so essential is this intimation, that in the case of competing claims against the right, interest, or estate assigned, the assignment first intimated will be preferred to one prior in date, but posterior in the date of intimation. Such intimation ought to be made by a Notary Public (q.v.), but other formal notices of the assignment have been admitted, as in the General Clauses Act, relating to railways and other companies, and in the Transmission of Movables Act, 1862. Between the parties, of course, mere private knowledge on the part of the debtor is sufficient, but this will not give a preference in a competition. But there are certain assignments which require no intimation, such as adjudication and other judicial assignments, marriages contracted before 1881, which are legal assignments of the wife's movable estate to the husband, and the statutory conveyance to a trustee in bankruptcy. The assignment of a debt implies and warrants that the debt is due, but not that the debtor is solvent. Bills and notes, though documents of debt, do not require assignment, but pass, by indorsation, without notice. Bonds, policies of assurance, protests of bills, &c. are generally, in Scotland, assigned according to certain short forms provided by statute in 1862. Special statutory provision is made for the assignment of such movable rights as patents, copyrights, and registered ships. Personal rights to land are also the subject of assignment, and every conveyance of land contains one clause assigning the rents, and another assigning the writs—that is, the title. In Scottish agricultural leases, assignees are generally excluded expressly.