Conditions for the conclusion and enforcement of the assignment of right

Transfer of right does not entail a new obligation of the debtor, but through which the obligation decided upon by the creditor is transferred to a new creditor on the basis that this obligation is a right of the transferor creditor, and in which the obligation is transferred with all its characteristics, and this obligation after its transfer remains governed by the law that arose in sunshade.

The concept of transfer of right

It is a contract between a creditor and another person according to which the creditor’s right is transferred by the debtor to this person, and the original creditor is called (the assignor), the new creditor is called (the assignee) and the debtor is called (the assignee).

Conditions relating to the contract of the assignment of right

Assignment of right as a contract is subject in concluding it to the general rules for concluding contracts, so the satisfaction, the place and the reason must be available.

Satisfaction between the assignor and the assignee

The right is transferred with the consent of the assignor and the assignee only, and the consent of the debtor is not required to be transferred to the transfer, because it is equal for the debtor to replace a creditor with another creditor, because this change does not result in an increase in the burden of obligation for him. (Provisions of Obligation – Dr. El-Sayed Muhammad Omran, Professor of Civil Law, p. 220).

Where the creditor may assign to another person what he has from his debtor, unless a provision in the law, the agreement of the contracting parties, or the nature of the obligation prevents this from doing so.

Transfer Subrogation

It is the personal right that is intended to be transferred to the assignee, and the right is transferable regardless of its place, whether it is a sum of money or other like things, or work or refusal to act, with the exception of rights in which attachment is not permitted.

Conditions relating to the effectiveness of the assignment of right

The assignment is effective between its two parties as soon as it is concluded. As for the debtor and others, the law requires the following conditions:

Expiry of the transfer in the right of the debtor

In order for the transfer to be effective against the debtor or against others, it is required that the debtor accept it and announce it through the official way, either at the request of the transferor or the transferee.

Expiry of the transfer in respect of others

For the assignment to be effective against the third party whose right is attached to it, the debtor’s acceptance must be fixed in date, in order to prevent the complicity of the assignor (the original creditor) and the assignee (the debtor) to harm others by changing the actual date of the debtor’s acceptance of the assignment.

The new creditor (the assignee) must also take measures to preserve the assigned right in the event that he accepts the enforcement of the assignment in respect of the debtor and third parties.

Conditions for the transfer to be effective in the Kuwaiti Court of Cassation

The court of the Kuwaiti Court of Cassation decided in Appeal No. 418 of 2001 dated 4/13/2002, the Commercial Department, that the assignment of right, even if it is concluded by mutual consent between the assignor and the assignee, without the need for the consent of the debtor, but this transfer is not effective against the debtor without his acceptance of it, and this is Acceptance is an argument against others as the date was fixed.

If the debtor does not accept the assignment, it will not be executed against him or with others unless it is notified to him in accordance with the conditions established in the Code of Procedure, i.e. an official document by the representative of the announcement, and its enforcement in the right of others is the same as its enforcement in the right of the debtor from the date of the announcement or acceptance, as long as The debtor has not been officially notified of the transfer or accepted by him, so his knowledge of its occurrence through any other way is not sufficient to make the transfer effective against him, even if he acknowledges it or if he is notified of its issuance by a registered letter from the transferee or assignor, because when the law draws a specific path for the knowledge of a disposition Certain knowledge may not be memorized except in this way.

It is decided that the enforcement of the transfer entails that the transferee shall replace the transferor in relation to the transferee in the same right as the transferee in the condition it was in at the time of the announcement or acceptance of the transfer.

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