Contractual non-assignment clauses
with regard to claims
Can Dutch law learn from the German or English approach?
Amsterdam, 30 June 2015
Regarding: Thesis European Property Law Student: Daphne Wichard
Studentnr.: 5875625
Master: European Private Law
Table of content
1. Introduction………...3
1.1 Introduction………3
1.2 Methodology and reading guide………5
1.3 Scope and terminology………6
2. The different approaches……….8
2.1 Dutch law………8 2.1.1 Qualification of claims………..………8 2.1.2 Assignment of claims………10 2.1.3 Non-assignment clauses………..………12 2.2 German law………..17 2.2.1 Qualification of claims………17 2.2.2 Assignment of claims………..………19 2.2.3 Non-assignment clauses………..………21 2.3 English law………..26 2.3.1 Qualification of claims………26 2.3.2 Assignment of claims ……….………29 2.3.3 Non-assignment clauses………..………32 3. Comparison……….…………...35 3.1 Case………...35 3.1.1 Dutch law………36 3.1.2 German law………37 3.1.3 English law………38 3.2 Comparison………..39
3.1.1 Dutch law versus German law………39
3.1.2 Dutch law versus English law………40
4. Evaluation..………...41
4.1 Main critisicm on the Dutch approach ………....41
4.1.1 The isolation of the Dutch legal system………41
4.1.2 The absolute effect of non-assignment clauses resulting in financial blockages.………41
4.1.3 The possibility for third parties to invoke non-assignment clauses……..…42
4.1.4 The interpretation standard in Coface Finanz/Intergamma………42
4.2 Can Dutch law learn something from the German or English approach?...42
4.2.1 The German approach………42
4.2.2 The English approach……….44
5. Conclusion………….……….…………...…47
6. Sources…………..………...49
1. Introduction
1.1 Introduction and purpose of this thesis
All modern legal systems provide for the assignability of claims as a result of long historical development. For both civil and common law legal systems the assignability of a claim was originally not possible.1 The reasoning behind this was the highly personal character of a claim together with intangibility, and stems from classical Roman law. As Gaius said:
‘Obligations, in whatever way contracted, are incapable of transfer by either method. For if I wish to transfer to you my claim against a third person, none of the modes whereby corporeal things are transferred is effective: but it is necessary that at my order the debtor should bind himself to you by stipulation: whereupon my debtor is discharged of its debt to me and becomes liable to you; which transformation is called novation of an obligation.’2
Nevertheless, several devices were created in both civil and common law that had in essence the same effect as assignment. Examples are the procurare in rem suam in Roman law and the “power of attorney” in English law. These devices already show that there existed a certain need for allowing the assignment of claims. As time passed, claims were more and more seen as mobile items of wealth and capital in economic sense. This led to the idea that claims should be transferable, without special devices being needed, just like other assets.3 Optimal modern trade requires assets to be easily traded.4
A famous quote of Oditah shows the importance of the possibility to assign claims: ‘In developed economies the bulk of corporate wealth is locked up in debts.’5
Notwithstanding the general accepted idea in modern law that claims should be assignable, parties often include a term in their contract that prohibits or restricts assignment of the concerned claim: a non-assignment clause. This clause is almost always included for the sake of the debtor, since it can have an interest in not wanting to be confronted with a creditor that is different than the original creditor. Debtors want to avoid administrative expenses and the risk of having to pay a second time when they first paid the wrong creditor. Other interests they have in the non-assignability of claims are that their defences and their right to set-off remain intact.6 Often, creditors seem to have an
opposite interest to debtors in this situation. For them the underlying value of a claim can serve as an
1H. Kötz, ‘Rights of third parties, third party beneficiaries and assignment’, Chapter 13 in: A. von Mehren. International 2 Orginal Latin: Obligationes quoquo modo contractae nihil eorum recipient: nam quod mihi ab aliquot debetur, id si velim
tibi deberi, nullo eorum modo, quibus res corporals ad alium transferuntur, id efficere possum; Zwalve 2006, p. 377.
3H. Kötz, ‘Rights of third parties, third party beneficiaries and assignment’, Chapter 13 in: A. von Mehren. International
Encyclopedia of Comparative Law, Volume VII 1992, nr. 60-62.
4 F.E.J. Beekhoven van den Boezem, Onoverdraagbaarheid van vorderingen krachtens partijbeding, Kluwer: Deventer 2003,
p. 51.
5 Oditah 1991, p vii. 6 Kötz 1992, nr. 73.
important asset in commercial relations. Claims can be used as a means of financing, for example in the case of factoring7, securitization8 or other forms of ‘receivables financing’.9
The use of a non-assignment clause in a contract raises the question of what will happen if the creditor acts contrary to this clause and assigns the claim to a third party. The difficulties have to do with the particular position that claims take in patrimonial law10, and the different approaches that legal systems take towards patrimonial law and claims. Within Europe, the law on this subject is not harmonized, neither is there (great) convergence among the European systems.11
In different legal systems, at least five different effects of a non-assignability clause can be distinguished. These effects are absolute third party effect (1), relative third party effect (2), the effect that the debtor can continue to pay in the hands of the assignor (3), obligatory effect (4) and no effect at all (5).12 (1) Absolute third party effect means that the non-assignability is seen as part of the
material content of a claim, therefore a non-assignability clause will work against anyone. (2) Relative third party effect means that the non-assignability clause only has effect towards the debtor. An assignment in violation of the non-assigment clause has the effect that the assignee is not able to ask performance from the debtor. Instead, the assignee has to approach the assignor. (3) The effect that the debtor can continue to pay in the hands of the assignor is different from the relative third party effect in the sense that the assignee is in principle authorized to ask performance from the debtor, since the assignee became the owner of the claim. The debtor can however, under circumstances, choose to keep performing to the assignor if the assignment has been made in violation of a non-assignment clause. At the same time the assignor is not able to ask performance anymore. (4) Obligatory effect means that the non-assignability clause only has effect between the debtor and the assignor. If the assignor assigns the claim contrary to a non-assignment clause, the claim will be transferred but the assignor can be held liable by the debtor. (5) When the non-assignment clause has no effect at all, it is as if it has not been inserted in the contract. There may be different reasons why
7 P.H. Weil gives the following definition to factoring: ‘Factoring, in its purest form … involves only the purchase of
accounts receivable (or “receivables”) by the factor from the party (called the “client”) with whom it has a factoring contract. The client assumes all risks of non-payment of the receivable except the “financial inability of the account debtor (customer) to pay.”… The factor agrees to pay on a monthly basis for purchased receivables at a rate computed under the contract, usually called the “average maturity rate” or adjusted average maturity rate. The customer is immediately notified of the sale of the receivable to the factor and is instructed to make all payments directly to the factor.’ in: Weil 1985
8 J.C. Lipson gives the following definition to securitization: ‘Re: Defining Securitization’ in: Lipson 2012 p. 1271: “A
purchase of primary payment rights by a special purpose entity that legally isolates such payment rights from a bankruptcy (or similar insolvency) estate of the originator, and results, directly or indirectly, in the issuance of securities whose value is determined by the payment rights so purchased.” According to Schwarz, the differences between factoring and securitization are not rigid. However, he states that the differences are mostly found in the use of an SPV in securitization that purchases claims from the originator and issues asset-backed securities into capital markets, whereas in factoring mostly a pre-existing finance company is used that realizes profits by buying claims from clients at a discount. Another difference is that factors rely on their expertise in collection to reduce their risk of loss, and an SPV minimizes its’ risk through the purchase of quality receivables with predictable rates of default. Schwarz 1994-1995.
9 Rongen & Verhagen, p. 101-102.
10 Patrimonial law comprises what in common law are called property rights, torts and contracts. 11 Orval 2009, p. 994.
such clauses are included in contracts notwithstanding its lack of effect in one jurisdiction. For example; the contract could be a cross-border contract; it could be unclear where the contract will be enforced; or the lack of effect could stem from the wording of the clause.
In international instruments there seems to be a tendency towards granting obligatory effect and/or relative third party effect to non-assignment clauses.13 This development, together with the aforementioned idea that in modern trade claims should be easily transferable, leads to concerns with regard to the Dutch approach towards non-assignment clauses. The Dutch Civil Code (hereinafter referred to as: BW) contains a provision that gives parties the possibility to include a non-assignability clause in their contract.14 The effects of such a clause are not expressly regulated in the text of the BW,
and are left to case law. Case law is not unambiguous on this point. The result of such a clause will depend on the interpretation of the contract. However, as will be seen more extensively below, it is in principle always possible for parties to give the clause absolute third party effect by formulating the clause the right way.15 Critics say that Dutch law is out of line with the approach taken by other
jurisdictions and by international instruments, and this leads to isolation. Therefore, Dutch law should be changed.16
This critical approach to Dutch law will be the starting point of this thesis. Dutch law will be compared to English and German law to find out if Dutch law can learn something from their approach. Paragraph 1.2 will further elaborate on the structure and methodology used in this thesis.
1.2 Methodology and reading guide
First of all, this thesis intends to make a comparison between on the one hand Dutch law and German law, and on the other hand Dutch law and English law. The comparison will subsequently form the basis of the evaluation part of this thesis, in which this thesis will evaluate whether Dutch law can learn something from the German or English approach towards non-assignment clauses. Furthermore, the starting point of the evaluation will be the criticism on the Dutch approach. Since this thesis will conduct its investigation by looking at whether different legal systems know any principles that fulfil the function of regulating the validity and effect of non-assignment clauses and how these regulations are being shaped, this thesis uses a functional institutional method of research.17 By looking into the
13 In art. 9.1.9 of the Unidroit Principles of International Commercial Contracts 2010, art. 9 of the United Nations
Convention on the Assignment of Receivables and art. 6 of the Unidroit Convention on International Factoring 1988, the effect of a contractual non-assignment clause is limited to an obligatory effect. In art 11:301 of the Principles of European Contract Law a similar approach is being followed with regard to the obligatory effect, but on top of that it is also stated that an assignment in violation of a non-assignment clause, does not have effect towards the debtor unless certain criteria have been met (relative third party effect); see Orval 2009, p. 994.
14 Art. 3:83 par 2 BW.
15 HR 21 maart 2014, JOR 2004/5 met nt. B.A. Schuijling (hereinafter reffered to as: Coface Finanz v Intergamma), HR par.
3.4.2.
16 Coface Finanz v Intergamma), AG par. 2.12-2.13; Beekhoven van den Boezem 2003, chapter 9, Rongen 2012, p. 690 and
further; Rongen 2014, p. 333; Verhagen & Rongen 2000, p. 103-104; Wibier 2015, par. 5; Hartman 2014, par. ‘Belangen van partijen’; Kleyweg & Alipour 2014, p. 76-77; Van Boom 2014, p. 929-931.
Dutch, German and English legal system, this thesis will try to find out if rules on non-assignment clauses in the German and English legal system give an answer to the criticism on the Dutch approach. As this thesis will analyse the way in which the three legal systems resolve the issue of non-assignment clauses, it will also be necessary to look into the qualification of claims and the assignment of claims in all three legal systems, after which non-assignment clauses will be dealt with. To this end, as sources of investigation this thesis will use statutes, case law and other academic texts that are of relevance.
In chapter two this thesis will first describe all three legal systems. To get a good understanding of non-assignment clauses, for each legal system chapter two will first deal with the qualification of claims, second with the assignment of claims and third with non-assignment clauses. Chapter three will subsequently present a case that has regard to a non-assignment clause, which will be dealt with by all three legal systems. After all three legal systems have dealt with the case, the approach of Dutch law will be compared to the approach of resp. German law and English law. Thereafter, chapter four will set forth the main points criticism on the Dutch approach towards non-assignment clauses, after which it will assess whether the German approach or the English approach are able to offer a response to this main criticism. When reading this thesis, it must be kept in mind that the complexity of a legal system does not usually make it easy to just copy something from another legal system and incorporate it in its own. Though any direct transplant would not be easy or not even recommended due to this complexity, the evaluation in this thesis will first of all consider any criticism of the Dutch approach in a comparative perspective, in order to put it in a wider context and to see whether either German or English law provide a better answer to those critical assumptions.
1.3 Scope and terminology
Since this thesis deals with three different legal systems, it is important to make some general notions as to the scope and terminology that this thesis uses. Frequently used terms are (i) claims, (ii) debtor, (iii) assignment, (iv) creditor/assignor, (v) assignee and (vi) non-assignment clause.
(i) Claims
This thesis will only deal with monetary claims. Unless it appears otherwise from the text, the term claim(s) will mean monetary claim(s). A monetary claim is a monetary obligation owed by one person to another, which is an item of value because it can be transferred to a third party by way of sale or security for a loan. Furthermore, the focus of this thesis will mainly lie on monetary claims under commercial contracts between professional parties. In Dutch law, claims are referred to as ‘(geld)vorderingen’, in German law as ‘(Geld)vorderungen’ and in English law – next to ‘claims’- as ‘receivables’ or ‘debts’.
A debtor in the context of this thesis is the party that is obliged to perform in the hands of the creditor, i.e. the party that has to pay money to the creditor, which on its turn has a claim against the debtor. In Dutch law, a debtor is referred to as a ‘debiteur’ or a ‘schuldenaar’. German law refers to a ‘Debitor’ or a ‘Schuldner’. In English law a debtor is referred to as either debtor or ‘obligor’.
(iii) Assignment
The term assignment is used for the transfer of claims from the assignor/creditor against the debtor to the assignee. Dutch law uses the term ‘cessie’ when referring to assignment, whereas German law uses the term ‘Zession’ or ‘Abtretung’. In English law the term assignment is usually used.
(iv) Creditor/Assignor
In this thesis, a creditor is the party that has a claim on the debtor and the assignor is the creditor that assigns the claim to the assignee. In Dutch law, a creditor is referred to as a ‘crediteur’ or a ‘schuldeiser’, in German law as a ‘Gläubiger’ and in English law ususally as a creditor. Furthermore, Dutch law uses the term ‘cedent’ when referring to the assignor, German law the term ‘Zedent’ and English law the term assignor.
(v) Assignee
The assignee is the party to which the claim is assigned, i.e. the new creditor after assignment. In Dutch law, an assignee is referred to as a ‘cessionaris’, in German law as a ‘Zessionar’ and in English law as assignee.
(vi) Non-assignment clause
A non-assignment clause is a contractual clause that intends to prevent the assignment of a claim, also known as a ‘pactum de non cedendo’. A non-assignment clause forms part of the contractual agreement between the debtor and the creditor. In Dutch law, a non-assignment clause is referred to as an ‘onoverdraagbaarheidsbeding’. German law refers to a ‘(vertraglicher) Abtretungsverbote’, whereas English law usually refers to a non-assignment clause or a non-assignability clause. Please note that even though in Dutch law a non-assignment clause mostly also has a certain effect on the possibility to encumber a claim with a right of pledge, this thesis will not specifically deal with the effect of non-assignment clauses on the pledge ability of a claim.
2.1 Dutch law
2.1.1 Qualification of claims
In Dutch law, claims find themselves on the borderline of the sharp distinction between the law of obligations and the law of property. On the one hand, a claim qualifies as a contractual right that is created in the law of obligations. On the other hand, a claim is seen as an asset that can be assigned and encumbered in the law of property.18 The hybrid character of a claim raises questions as to how the effects and principles of both areas of law interact with each other.
A right originated in the law of obligations is called a personal right and has obligatory effect. The starting point is that personal rights can only be enforced against one or more persons.19 Main principles underpinning the law of obligations are party autonomy and freedom of contract. Party autonomy entails the presence and guarantee of the opportunity for parties to fully pursue their interests. As an the extension thereof, the freedom of contract holds that parties are free to determine the content, conditions and form of a contract.
On the other hand, a right originated in the law of property has absolute effect. Absolute effect is also known as third party effect, meaning that a property right can be enforced against any person, i.e. erga omnes.20 Main principles of property law are the numerus clausus principle and the transparency principle. The numerus clausus principle limits the number and content of property rights and the way in which they can be created, transferred or destroyed.21 The transparency principle consists of the
requirements of specificity and publicity, and holds that objects of property rights are clearly defined and that any property rights vested in those objects are clear to the outside world.22
The Dutch property law system distinguishes between two types of property, corporeal objects (zaken) and incorporeal objects (vermogensrechten).23 Claims qualify as incorporeal objects.24 Other examples
of incorporeal objects are shares in a company or long lease (recht van erfpacht).25 Furthermore, Dutch law distinguishes between two types of property rights, the right of ownership (eigendom) and limited property rights (beperkte rechten). The right of ownership is the most comprehensive right that a person can have on a corporeal object. Limited property rights are rights that are derived from a
18 Beekhoven van den Boezem 2003, p. 3; See HR 3 March 1905 (Blaauboer/Berlips) for the sharp distinction between
contract law and property law.
19 The law, both written and unwritten, gives several exceptions to this starting point. Examples of exceptions are rights
attached to a certain capacity (kwalitatieve rechten) and stipulations entered into on behalf of third parties (bedingen ten
behoove van een derde); Pitlo 2006, p. 13; Struycken 2007, p. 93.
20 Pitlo 2006, p. 13. 21 Struycken 2007, p. 11.
22 Van Erp 2013, p. 314; Van Erp & Akkermans 2012, p. 75-76. 23 Article 3:1 BW.
24 Art. 3:6 BW. 25 Pitlo 2006, p. 4.
more comprehensive right; either the right of ownership or another limited property right. The right of ownership can only be attached to corporeal objects, whilst limited property rights can exist in both corporeal and incorporeal objects.26 Claims can thus only be encumbered with limited property rights, they cannot be owned. Both the right of ownership and limited property rights qualify as the abovementioned incorporeal objects of property law.27
To a greater or lesser extent, Dutch law considers corporeal objects to be equivalent to incorporeal objects.28 Some authors criticize this equal treatment in the context of claims because of the
fundamental difference between corporeal objects and claims. Whereas corporeal objects are tangible and can exist without any right attached to it, claims are metaphysical abstractions that are the product of human will and cannot be seen without their contractual context.29 The criticism mainly holds that
the property law system takes an undesirable corporeal object-approach towards claims.30 However, the legislator was well aware of corporeal objects and claims being ‘unequal quantities’, and that considering them as equals is logically inaccurate. Instead, claims are equivalent to the right of ownership. For practical reasons, mainly language usage, the legislator has nevertheless decided to amalgamate corporeal and incorporeal objects under ‘property’, and stated that it has to be kept in mind that where the law speaks of ‘property’ in general, only corporeal objects are eligible as object of ownership.31 In many cases, the right of ownership identifies with the corporeal object.32 The
identification of the right of ownership with corporeal objects might lead to confusion when considering that both the right of ownership and limited property rights qualify as incorporeal objects. Several authors suggest that ‘property’ equates with ‘incorporeal objects’, and that ownership is a specialis of ‘incorporeal objects’.33
The interaction of the law of property and the law of obligations when it comes to claims is as follows. The creation of a claim takes place in the law of obligations. Claims are therefore not subject to the numerus clausus principle, unlike the right of ownership and limited property rights. Parties are in principle free to determine the content, conditions and form of the contract that serves as a basis for the claim due to the principles of party autonomy and the freedom of contract. Furthermore, a claim is a personal right. A claim can only be enforced against one or more persons and only counterparties can violate each other’s contractual rights. That contrasts again with the right of ownership and limited property rights, which have absolute effect and can be enforced against any person.
26 Art. 3:8 BW; Pitlo 2006, p. 457. 27 Pitlo 2006, p. 4-5; Struycken 2007, p. 99. 28 Wibier 2007, par. 4.
29 Wibier 2007, par. 4; Zwalve 2006, p. 434. 30 Wibier, 2007, par. 4; Wibier 2013, par. 2. 31 Parl. Gesch. p. 61.
32 Pitlo 2006, p. 5.
However, in spite of the obligatory effect of a claim and the personal right that a creditor of a claim has, a claim can be the object of an absolute right. A claim can first of all be encumbered with certain limited property rights, like the right of usufruct (recht van vruchtgebruik) and the right of pledge (pandrecht). Next to that, the assignee to an assignment has an absolute right on the concerned claim, because the law of property regulates the assignment of claims. The difference between the creditor having a personal right against one or more persons and the ‘absolute entitled’ person to a claim should thus be recognized.34
2.1.2 Assignment of claims
A. Assignability – default rule and exceptions
Starting point in Dutch law is that claims are assignable. 35 The thought behind this principle is that
property, including claims, should remain on the market so that it can be transferred and be subject to foreclosure. 36 The BW contains three exceptions to this starting point, namely (1) exceptions by way of law, (2) exceptions due to the nature of the claim and (3) exceptions due to a non-assignment clause.37 All this is laid down in Article 3:83 BW, which reads as follows.
“Article 3:83 BW
1. Ownership, limited rights and claims are transferable, unless this is precluded by law or by the nature of the right
2. Transferability of claims can also be excluded by agreement between the creditor and the debtor. 3. Other rights are only transferable where the law so provides.”
Exceptions by way of law exist when formal law precludes the assignment of a claim.38 Examples are
claims for payment of non-pecuniary damage39 and claims for wages40. Exceptions due to the nature
of the claim exist when the claim is connected to the person of the creditor to a significant degree.41 Examples of claims that are significantly connected to the person of the creditor are claims in the context of a pension right and claims for maintenance.42 Monetary claims will usually not preclude assignment since a change of creditor will not affect the content of the claim. By its nature, a current-account claim does not, for example, preclude assignment.43 However, the special nature of a
debtor-creditor relation can result in an exception to the assignability of a monetary claim. Examples can be
34 Pitlo 2006, p. 15. 35 Art. 3:83 par. 1 BW.
36 Parlementaire Geschiedenis Boek 3, p. 315 (M.v.A. II.); Beekhoven van den Boezem 2003, p. 5. 37 Art. 3:83 par. 1 and 2 BW.
38 Beekhoven van den Boezem 2003, p. 5, footnote 6. 39 Art. 6:106 par. 2 BW.
40 Art. 7:633 par. 1 BW.
41 Parlementaire Geschiedenis Boek 3, p. 314 (T.M.). 42 Pitlo 2006, p. 76.
found in case law, such as claims in the context of a credit support relationship between the State and individual companies in which the State acts as a creditor44 and claims of an insolvency administrator
against a company director in the context of insolvency45. In these cases, the Dutch Supreme Court (hereinafter referred to as ‘Hoge Raad’) decided that the claim was so strongly connected to the person of the creditor, resp. the State and the insolvency administrator, that the claims could not be assigned.
Exceptions to the starting point of assignability due to a non-assignment clause can exist when parties have contractually, either explicitly or implicitly46, agreed that a claim is unassignable or have limited the assignability of a claim by formulating conditions that have to be met. A clause that falls under the scope of Article 3:83 par. 2 has absolute effect. Thus, a creditor cannot assign a claim in violation of a non-assignment clause.47 Non-assignment clauses lie at the core of this thesis and will be treated more extensively in 2.3.
B. Requirements for assignment
The requirements for a valid assignment are laid down in Article 3:84 BW. The article reads as follows:
“Article 3:84 BW
1. Transfer of property requires delivery pursuant to a valid title by the person who has the right to dispose of the property.
2. The title must describe the property in a sufficiently precise manner.
3. A legal act aiming at the transfer of a good for security purposes or that lacks the purpose to bring the good after the transfer into the patrimony of the transferee is no valid title for the transfer of that good.”
Three constitutive requirements can be deduced from this article: (1) delivery, (2) a valid title and (3) the power of disposal of the assignor.48
The delivery of a claim can take place in two legally equal manners, public or silent. In case of a public delivery, the delivery is effected by means of a deed intended for that purpose (een daartoe bestemde akte) and by notice (mededeling) thereof given by the assignor or the assignee to the debitor cessus.49 A silent delivery will consist of an authentic deed or registered private document, without
any notification to the debitor cessus.50 Until the debitor cessus is notified of the assignment, the
44 HR 12 January 1990, NJ 1990, 766, m. nt. Kleijn (De Staat/Appels), par. 3.4. 45 HR 7 September 1990, NJ 1991, 52, m. nt. Maeijer (Den Toom/De Kreek), par. 3.2. 46 Parlementaire Geschiedenis Boek 3 BW, p. 314 (T.M.).
47 Pitlo 2006, p. 80. 48 Pitlo 2006, p. 82. 49 Article 3:94 par. 1 BW. 50 Article 3:94 par. 3 BW.
assignment cannot be invoked against him. However, the assignment has full proprietary effect, also before notification. 51
A valid title to the assignment of a claim will be either the deed intended for the purpose of delivery, the authentic deed or the registered private document as mentioned under (I). The deed or registered private document will be considered as being the underlying legal relationship to the delivery.52Article 3:84 par. 2 prescribes that a title must be described in a sufficiently precise manner (voldoende bepaalbaarheid). Following from the requirement of determinability, the deed or document needs to determine the concerned claims ‘sufficiently’. The Hoge Raad has ruled that this requirement is fulfilled if by means of the information laid down in the deed or instrument, the concerned claim(s) can be identified. In order for the requirement to be fulfilled, it is sufficient if the deed or document contains information allowing for future identifiability.53 Dutch law does furthermore not recognize an agreement to assign a claim for security purposes, i.e. a fiduciary assignment, as a valid title according to Article 3:84(3) BW. Case law has weakened the fiducia prohibition somewhat by ruling that a sale-and-leaseback operation does not constitute fiducia.54 Also, in the context of the implementation of the Financial Collateral Directive55, the Dutch legislator has introduced a provision
that states that a transfer pursuant to a title transfer financial collateral arrangement is not a transfer for security purposes or a transfer lacking the effect that the good is part of the estate of the transferee in the sense of Article 3:84(3) BW.56
An assignor will have the power of disposal when the claim belongs to him, i.e. when the claim forms a part of its assets. The power of disposal cannot be separated from the person to whom the claim belongs.57
2.1.3 Non-assignment clauses
As already briefly addressed in paragraph 2.1.2, parties can deviate from the principle of assignability of claims by agreeing on a non-assignment clause based on Article 3:83 par. 2. This paragraph will treat non-assignment clauses more extensively by first discussing the requirements and the effects of a non-assignment clause that falls within the scope of Article 3:83 par. 2. Afterwards, this paragraph discusses the reasons why the legislator implemented this provision. The paragraph ends with a short conclusion on the current status of non-assignment clauses in Dutch law.
51 Article 3:94 par. 3 BW; Pitlo 2006, p. 231. 52 Pitlo 2006, p. 92.
53 HR 14 October 1994, NJ 1995, 447, m.nt. WMK (Spaarbank Rivierenland/Gispen q.q.); Art. 3:84 par 2 BW. 54 HR 19 May 1995, NJ 1996, 119 (Sogolease).
55 Directive 2002/47/EC of the European Parliament and of the Council of 6 June 2002 on financial colleteral arrangements. 56 Article 7:55 BW.
A. Effect and interpretation of non-assignment clauses
In practice, clauses that intend to prevent the assignment of a claim exist in all shapes and sizes. Not every clause that intends to prevent assignment falls within the scope of Article 3:83 par. 2 BW. If the clause does not fall within the scope of art. 3:83 par. 2 BW, it will only have obligatory effect. The debtor will then not be protected against assignment of the claim, he can only claim damages from the assignor.58 Clauses that only have obligatory effect are directed towards the creditor, by limiting or
prohibiting the creditor’s to assign. In literature these clauses are sometimes referred to as ‘assignment prohibitions’ (cessieverboden), as opposed to ‘non-assignment clauses’ a term that is used to refer to clauses with absolute effect.59 Non-assignment clauses are not directed towards the creditor, but
characterize the entire claim.60
It is important for contracting parties to be aware of the requirements of a clause in the sense of art. 3:83 par. 2 BW if they wish for the clause the have absolute effect. With regard to the formal requirements of a non-assignment clause, it can be pointed out that the clause can be agreed upon either explicitly or implicitly.61 However, neither the legislative text of Article 3:83 par.2 BW, nor the parliamentary history provide clarity with regard to the substantive requirements of a non-assignment clause. Whether or not a clause can be substantively qualified as a non-assignment clause, is left to case law. In two fairly recent cases the Hoge Raad decided on the effect and the interpretation of clauses that intend to prevent the assignment of a claim.
In the first case, Oryx/Van Eesteren62 , the Hoge Raad decided on the effect of non-assignment
clauses. The Hoge Raad ruled that a clause that falls within the scope of Article 3:83 par. 2 BW has as a consequence that the claim will be inherently unassignable. Such a clause does not deprive the assignor of its power of disposal.63 Furthermore, the Hoge Raad ruled that an assignment in violation
of a non-assignment clause does not only constitute a default by the assignor, but also leads to an invalid assignment.64 The Hoge Raad did not, however, review the formulation of the clause, but
58 Rongen 2012, p. 328;
59 Kleyweg & Alipour 2014, p. 73.
60 Please note that not all authors attach a different meaning to the terms ‘assignment prohibition’ and ‘non-assignment
clause’. Some authors, like Wibier and Rongen, use these terms interchangeably without inherently attaching relative or absolute effect to them. However, when discussing Dutch law, this thesis will use the distinction between ‘assignment prohibition’ when referring to a clause with obligatory effect and ‘non-assignment clause’ when referring to a clause with absolute effect for the readability.
61 Parlementaire Geschiedenis Boek 3 BW, p. 314.
62 HR 17 January 2003, NJ 2004/281, with annotation of Snijders, JOR 2003/52, with annotation of Rongen (‘Oryx/Van
Eesteren’).
63 Oryx/Van Eesteren HR par. 3.4.1; Beekhoven van den Boezem 2003, p. 55-56. Beekhoven van den Boezem refers to
some authors who incorrectly state that a non-assignability clause leads to the assignor having no power of disposal. This would have as a consequence that the constitutive requirements of an assignment would not have been fulfilled, and thus an invalid assignment (see par. 2.2.2).
assumed that the clause fell within the scope of art. 3:83 par. 2 BW.65 The clause was however formulated as follows:
“It is prohibited for the subcontractor to assign, pledge or transfer the ownership of claims arising under this subcontracting agreement against the main contractor without the consent of the main contractor.”
A review of the formulation was done in the second case of the HR, Coface Finanz/Intergamma66, in
which the Hoge Raad formulated an interpretation standard and an interpretation rule with regard to clauses that intend to prevent assignment. The clause in Coface Finanz/Intergamma read as follows: “Without prior written consent of Intergamma, the Seller shall not transfer its rights and obligations under the agreement with Intergamma in part or in whole .’
As to the interpretation rule, it entails that when interpreting a clause, the default meaning is that the clause has obligatory effect only. Whether or not the clause can be considered as a non-assignment clause and not just as an assignment prohibition depends on the interpretation of the clause. In this case, the Hoge Raad formulated an interpretation standard that holds that the clause must be interpreted objectively, but in accordance with the so-called ‘Haviltex’-yardstick.67
The Haviltex-yardstick is an interpretation standard established in case law.68 Based on the Haviltex-yardstick, what is decisive for the interpretation of a contractual clause is the meaning that both parties could reasonably have attributed to the clause in the given circumstances, and what they could reasonably expect from each other in this respect. Contractual clauses cannot be interpreted in a purely textual way. Interpretation in accordance with the Haviltex-yardstick is thus quite subjective, with the notion that the term ‘reasonably’ provides room for some objectification. Next to the Haviltex-yardstick, there is another interpretation standard called the ‘yardstick’. The CAO-yardstick is an interpretation standard established for the interpretation of collective agreements that have effects on the position of persons that are not part of the collective bargaining. When interpreting in accordance with the CAO-yardstick, in principle the wording of the clause in the context of the entire text of the contract is decisive.69 The CAO-yardstick is thus more objective than the
Haviltex-yardstick, which is justified by the idea that third parties whose legal positions are affected by the contract are not necessarily aware of the subjective intentions of the contracting parties.
65 Wibier 2015, par. 4.2.
66 HR 21 March 2014, JOR 2014/151, with annotation of Schuijling (‘Coface Finanz/Intergamma’).
67 Coface Finanz/Intergamma HR par. 3.4.2; By formulating this interpretation standard, the HR refers to on earlier case :
HR 20 February 2004, NJ 2005/493, JOR 2004/157 (‘Pensioenfonds DSM-Chemie/Fox’).
68 HR 13 March 1981 (Haviltex).
An objective interpretation in accordance with the Haviltex-yardstick lies somewhere between the CAO-yardstick and the Haviltex-yardstick. In practice this means that, in contrast with the ‘normal’ Haviltex-yardstick, more importance is attached to the wording of the clause.70 The Hoge Raad justifies a more objective interpretation in Coface Finanz/Intergamma by pointing out that a non-assignment clause has effect on the legal position of third parties who are unaware of the intentions of the contracting parties.71 Next to that, also the ratio of the contract, the reasonableness of the
interpretation and the extent to which this interpretation fits the system of the entire contract needs to be taken into account.72
As a result, the relevant clause in Coface Finanz/Intergamma needed to be reviewed by the Court of Appeal and did not automatically have absolute effect. The clause did however look quite similar to the clause in Oryx/Van Eesteren. Even though the Hoge Raad had not explicitly looked into the clause in Oryx/Van Eesteren, almost the entire legal practice assumed that it followed from Oryx/Van Eesteren that clauses that intended to prevent the assignment had as a starting point absolute effect.73
Coface Finanz/Intergamma has therefore caused some turmoil, since parties had to review the formulation of their non-assignment clauses.
The position of the assignee in case of a valid non-assignment clause in the sense of Article 3:83 par. 2 BW is rather weak from a property law perspective, since the claim will not be assigned to him due to the absolute effect of the clause. The most obvious way to try to protect the position of the assignee can be found in Article 3:36 BW. Based on Article 3:36 BW, an assignment in violation of a non-assignment clause will yet be valid if the assignee can prove that the debtor created the appearance that the claim was assignable and if the assignee’s expectations were legitimate. The appearance created by the debtor created must have been decisive for the assignee to enter into the agreement with the assignor.74
It is generally assumed that a non-assignment clause does not prevent a claim from being seized.75
Also, a non-assignment clause does not stand in the way of the claim being collected by a bankruptcy trustee.76
An interesting point is that the
Hoge Raad
also commented on criticism that arose in literature after Oryx/Van Eesteren. TheHoge Raad
stated that the decision in Oryx/Van Eesteren was in accordance with the law and the legislative history and that the HR is not in the position to choose from70 Coface Finanz/Intergamma, Annotation par. 5. 71 Coface Finanz/Intergamma HR par. 3.4.2. 72 Pensioenfonds DSM-Chemie/Fox HR par. 5.1. 73 Wibier 2015, par.2.3.
74 See Beekhoven van den Boezem 2003, p. 85-90; annotation of Rongen under 6. with regard Oryx/Van Eesteren, JOR
2003/52.
75 Rongen 2012, p. 720; Parliamentary History Book 3 BW, p. 314.
alternative approaches towards the effect of non-assignment clauses; that would be a task for the legislator.77 It seems as if the HR asked the legislator to look into this subject.
B. Legislative history and reasons for the legislator’s choice
The idea of the legislator behind implementing the possibility to exclude assignability of a claim by way of a non-assignment clause as an exception to the starting point of assignability lies mainly in the principles of party autonomy and freedom of contract. Since claims are created in the law of obligations, parties are in principle free to determine the content of the claim. Including a non-assignment clause in a contract is a matter of determination of its content. The distinctive nature of ownership and limited rights on the one hand and claims on the other hand explains why it is not possible to include a non-transferability clause with regard to ownership and limited rights. As already discussed in paragraph 2.1, ownership and limited rights are created in the law of property and have absolute effect. These rights are therefore subject to the numerus clausus principle, as a result of which contractual deviations from the content of the general transferable type are not allowed.78
The absolute effect of a non-assignment clause used to be explained by the thought that the debtor and creditor can contractually agree that the debtor only binds itself against the creditor, and not also against one of its legal successors. By including a non-assignment clause in the contract, contracting parties could give the claim a highly personal character. This would result in an exception to assignability due to the nature of the claim.79 However, contemporary doctrine holds that it is not necessary for a claim to have gained a ‘highly personal character’ by way of a clause in order for the non-assignment clause to have absolute effect. A non-assignment clause can have absolute effect also if parties agreed to include the clause for other reasons than the ‘person of the creditor’. Other reasons are for examples administrative and accounting reasons on the side of the debtor.80
C. Conclusion on the status of non-assignment clauses
Non-assignment clauses can have two different effects under Dutch law, either obligatory or absolute. The effect will be determined by the interpretation of the clause. The starting point is that non-assignment clauses will only have obligatory effect. Only if an objective interpretation in accordance with the Haviltex-yardstick gives rise to it, will the clause have absolute effect. A clause with obligatory effect only does not affect the possibility to assign the claim. After an assignment in breach of an obligatory non-assignment clause, the assignee will be entitled to the claim. The debtor can only hold the assignor liable for breach of contract. A clause with absolute effect renders the claim inherently not-assignable. An assignment in breach of an absolute non-assignment clause will be void,
77 Coface Finanz/Intergamma, HR par. 3.3.2. 78 Parlementaire Geschiedenis Boek 3 BW, p. 314.
79 Rongen 2012, p. 681; Beekhoven van den Boezem 2003, p. 53; See par. 2.2.1.
as a result of which the assignee never became entitled to the claim. The position of third parties is rather weak in case of absolute non-assignment clauses, since the strict requirements of Article 3:36 BW will not easily allow third parties to keep the value of the received claim anyway.
2.2 German law
2.2.1 Qualification of claims
Before treating the German approach to the subject of this thesis, it must be pointed out that some principles that already emerged in the previous chapter on Dutch law are present also in German law.81 Whenever this is the case, it will be explicitly mentioned.
Principles that are however specific to German law, are the principle of separation (Trenningsgrundsatz) and the abstraction principle (Abstraktionprinzip). German law makes a sharp distinction between the law of obligations and the law of property, which is known as the principle of separation.82 Claims are not considered to be objects of property law. The creation and the assignment
of claims is regulated in the general law of obligations.83 Claims can however be charged with
property rights, namely a right of usufruct (Niessbrauchs)84 or a pledge (Pfandrecht)85.
An important principle of both the law of obligations and the law of property is the abstraction principle (Abstraktionprinzip). This principle is closely related to the already mentioned principle of separation. Based on the abstraction principle, German law distinguishes between the act that creates an obligation (Verpflichtungsgeschäft) and the act determining the actual disposition of a right (Verfügungsgeschäft), and perceives these as two separate acts that are abstracted from one another. As a consequence, if a contract is rescinded, for example on the grounds of mistake, this does not automatically result in a rescission of the dispositive act.86
Rights originated in the law of obligations have obligatory effect, meaning that they can be called into against one or more specific person(s) 87, just as already seen in respect to the Dutch legal system. A main principle of the law of obligations is the freedom of contract, which can be divided into the freedom to enter into a contract (Abschlussfreiheit) and the freedom to shape its conditions (Gestaltungsfreiheit), including the liberty to invent new types of contracts. It should be noted that even though assignment is regulated in the law of obligations, assignment resorts both relative and
81 The reason being that Dutch law stems from the German legal tradition with influences from other traditions and with the
novelties of the BW; see for example Zweigert & Kotz 2011, p. 102-103.
82 Schwab & Prütting 2006, p. 10-11. 83 Van Erp & Akkermans 2012, p. 377. 84 Par. 1068 BGB.
85 Par. 1279 BGB. 86 Markesinis 2001, p. 20. 87 Schwab & Prütting 2006, p. 7.
absolute effect according to German doctrine.88 It is thus not the case that just because assignment is regulated in the law of obligations, the assignment has obligatory effect only. This means that the assignee can enforce the assignment against third parties.
Rights originated in the law of property have absolute effect, meaning that property rights have effect against anyone else. Main principles of the law of property linked to the absolute effect are the numerus clausus principle and the principle of transparency (Publizitätsprinzip or Offenkundigkeitsprinzip). The German numerus clausus principle distinguishes between Typenzwang and Typenfixierung. Typenzwang limits the number of property rights and Typenfixierung limits the content of these property rights.89 The transparency principle holds that legal relationships in property
law and changes hereto must be clearly known to anybody.90
As already mentioned in the first subparagraph, German law does not consider claims as objects of property law. The German property law system only deals with corporeal objects (Sachen), either movable or immovable.91 Furthermore, German law distinguishes between three types of property
rights, namely (1) ownership (Eigentum), (2) rights similar to ownership (eigentumsähnliche Rechte) and (3) limited property rights (beschränkte dingliche Rechte).92 The BGB does not explicitly define
ownership, instead it states that the owner of a corporeal object can do with the object what he wishes and has the right to exclude others from interfering, as long as this does not interfere with the law or other rights of third parties.93 Rights similar to ownership are limited property rights that an owner can have on its own (immovable) object. That person is then both the owner and the holder of a limited property right over the same object at the same time.94 Limited property rights are seen as rights that
are derived from a superior right that they burden.95 Claims can only be burdened with specific limited property rights, the right of usufruct and the right of pledge.
From the above, the following can be concluded. Claims are created in the law of obligations, as a result of which parties are free to shape the content of the claim and the conditions to exercise it. Furthermore, the assignment of claims also takes place in the law of obligations, which means that the assignee to an assignment does not have an absolute right on the claim by way of property law. However, according to German doctrine assignment still resorts both relative and absolute effect. The exact effects of assignment will be discussed in paragraph 3.2. Even though claims are not seen as assets in the German system of property law, they can be burdened with the right of usufruct and the right of pledge. These limited property rights do have absolute effect.
88 Van Erp & Akkermans 2012, p. 389. 89 Schwab & Prütting, 2006, p. 8. 90 Schwab & Prütting, 2006, p. 14.
91 Van Erp & Akkermans 2012, p. 377; Par. 90 BGB. 92 Schwab & Prütting, p. 7.
93 Par. 903 BGB.
94 Van Erp & Akkermans 2012, p. 214. 95 Van Erp & Akkermans 2012, p. 903.
2.2.2 Assignment of claims
A. Assignability – default rule and exceptions
The default rule in German law is that claims are assignable.96 The BGB contains three exceptions to this 97, namely (1) exceptions due to the highly personal character of a claim98, (2) exceptions due to a
non-assignment clause99 and (3) exceptions with regard to claims that cannot be subject to attachment.100 The exceptions are laid down in par. 399 BGB and par. 400 BGB, which read as
follows:
“Par. 399 BGB: Exclusion of assignment in case of change of contents or by agreement A claim may not be assigned either if performance cannot be made to a person other than the original creditor without a change of the contents of claim or if the assignment is excluded by agreement with the debtor.”
and
“Par. 400 BGB: Unassignability of claims
A claim may not be assigned to the extent that it cannot be subject of an attachment.”
Exceptions to the principle of assignability due to the highly personal character of a claim exist when performance cannot be made to a person other than the original creditor without a change of the contents of the claim. The nature of monetary claims will usually not preclude assignment since a change of creditor will not affect the content of the claim. However, an example of a monetary claim with a highly personal character is the claim of a debtor under a loan agreement intended for the financing of a specific economic purpose.101
Exceptions due to a non-assignment clause exist when parties have contractually agreed on exclusion or limitation of assignability of the claim. A non-assignment clause in this sense has absolute effect.102 However German law on contractual limitations is rather complicated103 and will be further elaborated
upon in paragraph 3.3.
Finally, exceptions to the assignability with regard to claims that cannot be subject to attachment relate to par. 850 et seq. of the German Code on Civil Procedure (Zivilprozessordnung). According to
96 Leible & Lehmann 2014, p. 612. 97 Leible & Lehmann 2014, p. 635. 98 Par. 399 Alt. 1 BGB.
99 Par. 399 Alt. 2 BGB. 100 Par. 400 BGB.
101 Leible & Lehmann 2014, p. 634-635.
102 Van Erp & Akkermans 2012, p. 404; See: Armgardt 2009, in which Armgardt states that the absolute effect of
non-assignment clauses is not adequate for the interpretation of German Law.
these provisions, claims for the payment of money under labour contracts cannot be subject to seizure to the extent that the debtor is dependent on the payment for subsistence.104 Claims for the payment of
money under labour contracts can thus also not be assigned if they cannot be subject to seizure. B. Requirements for assignment
The requirements for a valid assignment are laid down in par. 398 BGB. The provision reads as follows:
“Par. 398 BGB: Assignment
A claim may be transferred from the creditor to another party by contractual agreement (Assignment). The assignment agreement renders the assignee creditor of the assigned claim.”
The only requirement for assignment that can be deduced from this provision is the assignment agreement. In this context both the abstraction principle and the principle of separation should be considered. Thus, next to the assignment agreement, there is also an agreement obliging the assignor to assign the claim. The obligatory agreement and the assignment agreement are clearly separated and have to be legally distinguished. This has as a consequence that when the obligatory agreement turns out to be invalid, the assignment agreement is not, in principle, affected.105
German law does not contain any formal or material requirements prescribing how to shape the assignment agreement. However, the assignor has to provide the assignee with a notarial deed of assignment upon the assignee’s demand. This notarial deed is only meant for the assignee to enforce the claim against the debtor.106 The absence of formal requirements for the assignment agreement can
be linked to the assignment being regulated by the law of obligations and the application of the principle of freedom of contract.
Furthermore, German law does not require a notification of the assignment to the debtor for the assignment to be valid.107 The only has consequence of a notification is that the notified debtor can
only discharge its obligation by performing to the new creditor.108 As long as the debtor has no knowledge of the assignment, it may discharge its obligations by performing to the original creditor.109
104 Leible & Lehmann 2014, p. 635.
105 Schwab & Prütting 2006, p. 11; Leible & Lehmann 2014, p. 610; Van Erp & Akkermans 2012, p. 831, where they refer to
the explanations for the draft of the BGB;
106 Par. 410 BGB; Leible & Lehmann 2014 p. 630. 107 Van Erp & Akkermans 2012, p. 389.
108 Par. 409 BGB. 109 Par. 407 BGB.
As already mentioned in paragraph 3.1, assignment resorts both relative and absolute effect. There is however one nuance to the absolute effect, namely when a debtor demands from the assignee a deed of assignment issued by the assignor after the assignee has unilaterally declared the assignment. Until receipt of such a deed of assignment, the debtor may refuse a request for performance.110
German law, moreover, allows the assignment of a claim for security purposes (Sicherungsabtretung), even though this is not regulated in the BGB but is the result of court practice backed by scholars.111
2.2.3 Non-assignment clauses
As already briefly addressed in paragraph 2.2.2, parties can deviate from the principle of assignability of claims by agreeing on a non-assignment clause based on par. 399 BGB. This raises question when looking at par. 137 BGB, which states that the owner of a title may not exclude the alienability of the title with absolute effect, but may only be held liable for damages in case of breach of such a contractual limitation. In other words, an exclusion of alienability may only have obligatory effect according to par. 137 BGB. On top of that, German law knows an exception to par. 399 BGB in par. 354a (1) HGB (Handelsgesetzbuch), by way of which non-assignment clauses agreed on between two merchants cannot prevent assignment. Also, par. 354a HGB itself contains an exception in (2), by stating that par. 354a (1) HGB does not apply to assignment of claims under loan agreements by credit institutions within the meaning of the German Banking Act. This rather complex system will be further discussed in the following paragraph, after which the legislative history and dogmatic underpinnings will be dealt with.
A. Effect and interpretation of non-assignment clauses I. Par. 137 BGB and Par. 399 BGB
Par. 137 BGB reads as follows:
“Par. 137 BGB Prohibition of dispositions in a legal transaction
The power to dispose of an alienable right may not be excluded or restricted by a legal transaction. This effectiveness of an obligation not to dispose of such a right is not affected by this provision.”
With par. 137 BGB the legislator has ruled against the possibility to contractually exclude or limit alienability of a right with absolute effect. At first sight this provision raises questions as to how it relates to par. 399 BGB. In par. 399 BGB the legislator has explicitly allowed non-assignment clauses with absolute effect:
110 Par. 410 BGB..
“Par. 399 BGB Exclusion of assignment in case of change of contents or by agreement A claim may not be assigned either if performance cannot be made to a person other than the original creditor without a change of the contents of claim or if the assignment is excluded by agreement with the debtor.”
According to case law and prevailing scholarly opinions, a non-assignment clause in the sense of par. 399 BGB is not an exclusion or restriction of alienability in the sense of par. 137 BGB. Instead, it is a clause that takes away the characteristic of assignability from a claim. These two provisions do thus not conflict with each other based on the prevailing view.112 However, there are also authors who take
on a different view and see par. 399 BGB as an exception to113 or violation of114 to par. 137 BGB.
The non-assignment clauses under par. 399 BGB have absolute effect and can effectually hinder transfer of the relevant claim. The BGB does not provide for any formal or substantive requirements for a non-assignment clause. With regard to the formal requirements, freedom of contract is applied. With regard to the substantive requirements, it seems as if there is no discussion on the idea that every contractual clause that intends to exclude assignment, falls within the scope of par. 399 BGB and therefore has absolute effect. German case law did however held that confidentiality undertakings entered into by banks that oblige banks not to disclose any information about their clients to third parties are not to be understood as contractual exclusions of assignment under par. 399 BGB.115 So
far, courts have given non-assignment clauses full proprietary effects.116 However, in certain cases courts did not recognize the effects of a non-assignment clause, while still acknowledging that it was a non-assignment clause in the sense of par. 399 BGB. In these cases the effect of non-assignment clauses was denied because the debtor did not have a reasonable interest in the non-assignment clause.117
The position of the assignee is rather weak. Only in rare cases will he be protected against the absolute effect of a non-assignment clause and may become entitled to the claim. Based on par. 405 BGB, the assignee will only become entitled to a claim that is subject to a non-assignment claim if three cumulative requirements are met: (1) the debtor issued a written deed in which the claim is specified and the limitation is not mentioned; (2) the assignment was entered into upon presentation of the deed of which the assignee was aware and (3) the assignee acted in good faith, meaning that he did not know and ought not to have known of the limitation.118
112 Armgardt 2009, p. 319-320, where he refers to this view being the prevailing view even though he does not agree;
Schmidt 1999, p. 651.
113 Leible & Lehmann 2014, p. 633. 114 Armgardt 2009, p. 320.
115 Freitag in Leible & Lehmann 2014 p. 633. 116 Beekhoven van den Boezem 2003, p. 196.
117 Rongen 2012, p. 685; Münchener Kommentar BGB 2012 par. 399, nr.35. 118 Leible & Lehmann 2014, p. 633-634.
