Rights And Duties?

Question

The rights and duties of parties in assignments or delegations

&

The remedies available in situations of breach of contract

Answer 1

Assignment

1. Definition

(a) manifestation of intent by owner of right to transfer the right

(b) owner of right transfers right to another; selling one’s right(s) under a contract



2. Assignment is executed (completed) transaction – analogous to sale of goods or conveyance of land


3. Other issues

(a) Gratuitous assignment –
(i) no defense for the obligor
(ii) executed transaction requires no consideration

(b) Assignment may be voidable just like a contract (e.g., infancy, duress, fraud, etc.)


4. Non-assignable rights

An assignment will not be enforced where the assignment:

(a) materially changes duty of the other party

(b) materially varies burden of risk of the other party

(c) is against public policy




Delegation

1. Definition: Obligor-Delegant appoints another person (Delegate) to render performance due to a third person.


2. Delegant liability: Delegant cannot free itself from liability without obligee’s consent


3. Delegate liability

(a) Delegate is liable to third party only if delegate makes promise that is for benefit of third party (i.e., obligee is third-party beneficiary).

(b) Delegate is liable to delegant.


4. Non-delegable duties

(a) Test: Does obligee have a substantial interest in having the original obligor perform or control performance? (Does contract expressly or impliedly require performance or supervision by the original obligor?)

(b) Contract between obligor and obligee may prohibit delegation




Third-Party Beneficiaries


1. Principle: Except for intended beneficiaries, persons not in privity may not recover on a contract.

2. Privity: A person to whom a contracting party has made a promise

3. Intended Beneficiary: A person for whom a promisee extracted the benefits of the promisor’s promise

4. Tests

(a) Did promisee intend to benefit third party?
(i) Note:
(1) “Promisor” is the one whose performance is to benefit the third party
(2) “Promisee” is the one who got the promise for the benefit of the third party

(b) To whom does performance go?
(i) if directly to third party _ intended third-party beneficiary


5. Incidental beneficiary: A person who receives a benefit from the promisor’s promise but was not
intended (by the promisee) to be a beneficiary

(a) has no rights in the contract; cannot enforce the contract


6. Types of Third-Party Beneficiaries

(a) Creditor beneficiary: third-party beneficiary is a creditor of the promisee

(b) Donee beneficiary: promisee intended a gift to the third-party beneficiary


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Answer 2

Could you be any more vague with you question?