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An assignment is 'an immediate transfer of an existing proprietary right, vested or contingent from one party to another'. Assignments can occur by consent or by operation of law.
A consensual assignment occurs by way of a gift or consideration. Assignments by law can occur during life or on death and will transfer the benefit of rights to the assignee but will not make the assignee personally liable. An attempt to transfer benefits under a contract of personal performance will not be effective.
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Drafting a building contract/schedule of amendments鈥攃hecklist Once the procurement route and form of building contract has been selected (see Practice Note: Choosing the right procurement method鈥攃onstruction projects) the employer should consider the following matters and incorporate the appropriate drafting in the building contract particulars and schedule of amendments. This Checklist assumes that the parties are using a standard form of building contract, such as a JCT form, and that the employer is proposing the first draft including the completed contract particulars and a schedule of amendments, which amends the standard terms. This list is not exhaustive, however, and there may be other project specific matters/risks that need to be taken into account: Contractual matters 鈥 Carry out due diligence on the contractor The employer needs to carry out due diligence on the contractor at the outset to determine whether its financial position is acceptable. Confirm the contractor鈥檚 company number and name at Companies House. 鈥 Obtain consultants鈥 details Confirm the full details of the consultants engaged by the employer; some...
What to think about before bringing a private competition action鈥攃hecklist Is there an actionable claim? Note: private competition actions remain largely regulated by national law and procedural and substantive rules across the EU may vary significantly, therefore assessments in individual jurisdictions will need to be made when planning competition litigation. Possible causes of action 鈥 Consider if there is an infringement of UK competition law (or EU competition law prior to the end of the Brexit transition period). 鈼 Consider whether the loss suffered can be attributed to an agreement or concerted action between undertakings, especially competing undertakings (see further, The prohibition on restrictive agreements). 鈼 Consider whether the loss might have been caused by an entity that is arguably dominant typically with a large share of a relevant market, and could be said to have abused its dominance contrary to Chapter II of the Competition Act 1998 (and/or Article 102 TFEU if prior to the end of the Brexit transition period) (see further, The prohibition on abuse of dominance)....
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This Practice Note examines the following legal and practical matters in relation to entering into a subcontract or when granting permission to subcontract:鈥hat is subcontracting?鈥hen is subcontracting permitted?鈥hat is the legal effect of subcontracting?鈥iability of subcontractor for consequential loss of contractor鈥iability of subcontractor to customerWhat is subcontracting?Although contractual rights and benefits generally are (subject to express contractual provisions to the contrary) assignable, contractual obligations or burdens are not. However, in certain circumstances contractual obligations or burdens may be 鈥榲icariously鈥 performed by way of subcontracting.Subcontracting is the delegation by one party (the main contractor) of some or all of its obligations under a contract between it and a customer to a third party (the subcontractor) for performance by the subcontractor. Where subcontracted performance is permitted, there is no transfer of the contractor鈥檚 liability under the main contract with its customer to the subcontractor. The contractor remains liable to the customer under the main contract for the non-performance by the subcontractor, even where the customer consents to the vicarious performance.There is no...
This Practice Note identifies what can be transferred when assigning rights under a contract and how to effect a valid assignment of a contract.For guidance on common contract assignment scenarios, see Practice Note: Assigning contracts鈥攃ommon scenarios and considerations.For guidance on the key practical and commercial considerations when assigning contracts, see Practice Note: How to assign rights under a contract.Note also that when discussing assigning contractual rights, reference may also be made to assigning 鈥榗hose in action鈥 in the sense that the benefit of a contract has been held to be a chose in action.When is assignment of contracts relevant for consideration?Contracts, or rather, rights under contracts, are frequently assigned as part of the way companies run their businesses. When advising a party in relation to a proposed or purported assignment (transfer) of a contractual right where there may be a dispute, you will need to consider:鈥hat, when and how rights can be assigned鈥ow an assignment can be challengedFor detail on how to vary or transfer rights and obligations under a...
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Consultancy agreement鈥攃ompany and individual鈥攑ro-client (short form) [ON HEADED NOTEPAPER OF CLIENT COMPANY] [Insert consultant鈥檚 name] [Insert consultant鈥檚 address] [Insert date] Dear [insert consultant鈥檚 name] [ Consultancy agreement OR Insert name of project ] Further to our recent discussions, I am pleased to confirm the terms of our agreement regarding the provision of your consultancy services to [insert name of client company] (Company). 1 Term 1.1 [Subject to the terms set out in this letter, your engagement [will commence OR commenced] on [insert date] and will continue unless or until either party gives to the other not less than [insert number] [weeks鈥 OR months鈥橾 prior notice in writing. OR 1.2 Your engagement will be for a fixed period of [insert number] months from [insert date], subject to the terms of this letter and subject to the right of either the Company or you to give to the other not less than [number] [weeks鈥 OR months鈥橾 notice in writing during such fixed period terminating the...
Distribution agreement鈥攏on-exclusive鈥攕hort form This Agreement is made on [date] Parties 1 [insert name of party] [of OR a company incorporated in England and Wales under number [insert registered number] whose registered office is at] [insert address] (Manufacturer); and 2 [insert name of party] [of OR a company incorporated in England and Wales under number [insert registered number] whose registered office is at] [insert address] (Distributor); each of the Manufacturer and the Distributor being a party and together they are the parties. Background (A) The Manufacturer manufactures [and supplies] the Products. (B) The Distributor has agreed to distribute the Products on a non-exclusive basis in the Territory in accordance with the provisions of this Agreement. The parties agree: 1 Definitions 1.1 In this Agreement: Active Sales 鈥 has the meaning given in Article 8(7) of VABEO; Affiliate 鈥 means any entity that directly or indirectly controls, is controlled by, or is in under common control with, another entity where 鈥渃ontrol鈥 means the beneficial ownership of...
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Construction analysis: The Technology and Construction Court (TCC) refused to an enforce an adjudicator鈥檚 decision, made in favour of a contractor against an assignee of the employer. The court found that the adjudicator lacked jurisdiction, because a dispute between the contractor and assignee could not be a dispute 鈥榰nder鈥 the construction contract. Further, the assignee was not liable for the employer鈥檚 obligations under the construction contract.
This week鈥檚 edition of Private Client highlights includes: (1) A Local Authority v JB, in which the Supreme Court for the first time considers in detail what it means to have or lack capacity; (2) The DHSC publishes adult social care charging reform documents to Build Back Better plan; (3) A v M, which provides clear guidance on the treatment of private equity funds during financial remedy proceedings, including how to calculate the marital element to be shared; (4) HMRC publishes its Agent Update for November 2021; (5) JTC Employer Solutions Trustees v Khadem, which concerns the rescission of a member's entitlement to a pension lump sum on the grounds of mistake; (6) HMCTS announces a new publication and information service, and (7) The European Parliament Think Tank discusses UK鈥檚 possible re-joining of Lugano Convention.
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