Are you related to the construction industry? If yes, then you should have heard that transferring an interest in a construction agreement from one party to another is either done through assignment or novation. So, what’s the key difference between assignment and novation?
The lawful conception of novation and assignment has been established to reduce the limitations enforced by the policy. An assignment contract allows the transmission of one party’s rights and obligations to another. The party shifting their privileges and responsibilities is regarded as the assignor while the party receiving it is known as the assignee. While novation is a method in which one party transmits its full rights and responsibilities thru an agreement to the third party reflecting the approval of the original issuer.
Assignment
The transmission of a benefit or interest from one party to another is referred to as an assignment. We must understand that while the benefits are transferrable, the duties, responsibilities or liability behind the agreement cannot be.
A contract assignment happens when a party allocates their prescribed rights to a third party. The counterparty’s advantage due to the agreement is now allocated to the third party.
The assignor carries on to hold the load and can be held accountable by the assignee for their ignorance to accomplishing their duties according to the agreement. When buying an insurance article from the assignee may help safeguard the assignor from any forthcoming obligation. Contrasting to notation, assignment agreements don’t cancel the initial agreement or establish a new contract. So, the original agreement continues to be imposed.
The assignment agreement usually does not necessitate consent from all parties in the contract. Hence, according to the terms and conditions, the assignor is most probable to inform the non-assigning party.
Referring to a transferrable agreement, the courts have determined that the agreement is characteristically assignable if a contract appears to be mute or uncertain. However, it is not applicable for personal service agreements as consent is compulsory. According to the Supreme Court of Canada (SCC), a personal service agreement should be formulated for the original parties reflecting the distinct features, talents, or self-assurances that are exclusively illustrated among them. Several times, the court is required to mediate to ascertain whether a contract is indeed a personal service agreement or of some other nature.
Generally, the assignment is more appropriate for the assignor as compared to the novation. However, the assignor doesn’t need to take consent from a third party to allocate their interests in a contract to the assignee. The assignor must be mindful of the potential liability risk if the assignee does not fulfil their responsibilities according to the assigned agreement.
Novation
A novation happens when a party would be interested in transferring both the benefits and liabilities in an agreement to another party. Parallel to assignment, the advantages are reassigned, however, unlike assignment, the liability is also shifted. So, when a novation is accomplished, the original agreement is removed and substituted with a new one. In the new agreement, the third party is now accountable for the rights and responsibilities. Usually, novation doesn’t nullify any previous rights or responsibilities under the initial agreement, though it is likely to novate these also.
Novation has the likelihood to restrict approaching obligations to an assignor but is also typically more oppressive for the parties engaged. Moreover, it is not always accomplishable if a third party declines to approve.
It is imperative for the two parties in a contract to evaluate their association before shifting to novation. An assignment is favoured for parties that would be interested in continuing to fulfil their responsibilities, but also transfer some of their right to another party.
So, novation should be accepted by both parties of the initial agreement and the new one that joins in. Some deliberation must also be provided in the new contract to novate it unless the novation is quoted in a deed that is contracted by all parties to the agreement. In this situation, deliberation is denoted as something valuable being attained thru the agreement.
Novation commonly happens when the buyer of the original contract is trying to substitute the seller of the original contract. Once novated, the original trader is freed from any responsibilities under the initial agreement. The SCC has introduced a three-point trial to apply novation. Hence, the asserting party may corroborate:
- The buyer consents to full liability
- The creditor to the original agreement consents to the buyer as the official debtor, and not just a supporter or mediator of the seller
- The creditor of the original agreement consents to the new contract as the replacement of the old one
Moreover, the SCC asserted that if a new agreement does not exist, the court might not find novation unless the precedence was remarkably convincing.
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Is Deed Required for Assignment or Novation?
Though a document might be categorized as a Deed of Assignment, it has orientations to the transfer of duties and commitments and is a three-way or multilateral contract, a feature of a novation that distinguishes it from the other.
A major problem is such situations help determine whether using the words “assigning” or “assignment” actually impacts the individualities of the document. Court has considered this characterisation. For instance, in the Burdana v, Leeds Teaching Hospitals NHS Trust [2017] EWCA Civ 1980, mainstream the Court of Appeal determined the evidence of the case. Though the Deed of Assignment is regarded as an “assignment” of the benefit and burden, on the appropriate examination, there was certainly a novation.
Moreover, the Langston Group Corporation v Cardiff City FC [2008] EWHC 535, Briggs J court hearing made it clear that even though the variation contract in question did not make use of the terminology “novation” and did not define itself, the situation and impacts of the agreement was certainly a novation and a new agreement has been established.
It might be the instance that even if a document did not define itself as a novation, still has its main features of it. Hence, the courts would agree that the document takes effect as a novation.
What are the Main Characteristics of Novation?
When entering into an agreement that signals to be a Deed of Assignment, step cautiously as it may also be a novation, specifically if the following features are present:
- It is a three-way agreement
- All parties provide their consent
- The Novator has been freed from its duties
- The novatee and replaced party has agreed on the terms and conditions of the novation
- There is an entrusting of therapies
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Your Objective
Though a document may be well-defined as an assignment, it may reflect the features of and take effect as novation. So, parties need to be careful and consider what they want to achieve when evaluating whether to allocate rights or to novate them along with the responsibilities.
