An assignment and delegation provision is the clause that specifies a party’s ability to assign its rights or delegate its duties under an agreement. It is a provision that is often placed in the “miscellaneous” or “general” sections of commercial contracts, but it should not be thought of as standard “boilerplate” language that never changes.
Contracting parties should carefully consider the potential situations where an assignment would be desired or required, and should carefully draft the clause to address issues of transferability. Below is an overview of some of the key issues that should be considered when drafting an assignment provision for commercial and technology agreements. Note that, technically, a party assigns its rights and delegates its duties. This overview generally refers to assignments for shorthand.
- Yes or no to assignment. The first step is fairly straightforward. Does a party want to allow assignment or prohibit it? Most jurisdictions permit the free transferability of contracts if the contract is silent on assignment, so if there is a desire to restrict assignment, an anti-assignment clause must be included.
- Assignment of entire contract vs. individual rights and obligations. Consider whether the goal is to restrict or allow the assignment of the entire contract or individual rights or obligations. If the clause generally prohibits assignment of the agreement, courts commonly read that language to restrict only the delegation of performance, while permitting a party to assign its rights under the contract (such as license rights or the right to receive payment). To restrict such assignment of individual rights, it is important to include language such as “neither this Agreement, nor any rights or obligations hereunder, shall be assignable or otherwise transferable.”
- Specify when assignment is permitted and what rights and duties may be assigned. Generally, if specific assignment rights are to be granted, best practices are to include the general restriction highlighted above and then to provide any permitted assignment rights (e.g., “provided that either party may assign . . .”). The provision would specify the situations where assignment is permitted and what rights and duties may be assigned, such as an assignment of rights to a party’s affiliates, to an entity into which the party has merged, or to a successor organization.
- Notice and consent. If assignment is permitted, does the assigning party need to obtain the non-assigning party’s consent to the assignment? Or is notice sufficient? If consent is required, consider whether the non-assigning party has complete discretion to withhold consent or whether consent must not be unreasonably withheld or delayed.
- Impermissible transfers. Another key issue to address is what happens when there is an assignment in violation of an anti-assignment clause. Because courts generally interpret anti-assignment clauses narrowly, in the absence of additional language, an assignment that violates an anti-assignment provision will likely be considered a valid assignment in breach of the agreement. In other words, the non-assignment party can claim breach, but cannot prevent the actual assignment. To avoid this scenario, additional language should be included to void the impermissible transfer, such as: “Any attempted assignment in violation of the provisions of this Section shall be null and void.”
- Divested entities, mergers, acquisitions, and change of control. Organizations are likely to undergo a change in structure at some point. It is important to consider such situations and to specify a party’s ability to transfer its rights or duties to a divested entity or through an M&A transaction or other change of control. Frequently, issues related to competition and intellectual property will need to be considered, and these exceptions to an anti-assignment provision can be nuanced and require specific language to achieve the desired results. As part of the drafting process, parties should carefully analyze the types of transactions that could trigger an anti-assignment provision and include language to address the intended outcomes.
This Contract Corner highlights the importance of not assuming the assignment provision in the final “Miscellaneous” section of an agreement is standard language that needs no review. Each of the issues discussed above should be carefully considered and the assignment provision should be drafted to address these issues.
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