Assignation

Assignation in Scottish law mirrors the English concept of assignment.

Assignment entails the transfer of ‘choses in action’, defined as ‘all personal rights of property that can only be claimed or enforced by action and not by taking physical possession’.

This definition encompasses benefits arising from a construction contract, such as the right to payment, but excludes burdens, such as the obligation to pay. It also covers claims for breach of contract.

The Law of Property Act 1925 stipulates that assignment must be documented in writing, the entire benefit must be assigned, and notice must be given from one contracting party to the other.

In contrast, Scottish law does not adhere to this Act, and assignation need not be in writing (unless it pertains to land), but can be intimated. Intimation is sufficient to establish an assignee’s right, which is binding against other parties. Additionally, there is no distinction between legal (statutory) and equitable assignments.

In 2011, the Scottish Law Commission noted that Scots and English law were broadly aligned regarding assignation, with contractual obligations remaining unassigned regardless of ‘delectus personae’ (the selection of a party suitable for a position entailing trust and confidence in their character and capabilities).

Similar to English law, novation is employed when both contractual rights and obligations are to be transferred to another party, rather than solely the benefits.