Party Autonomy in International Property Law - Peace Palace Library

9. Party Autonomy and Assignment
States (e.g. United Kingdom), that assignments, or certain (security) assignments,
must be filed in a public register. This issue of public filing will
be discussed later. In this part of my contribution I shall examine whether
the first three substantive issues need to have an impact on the treatment
of assignment at the level of private international law, more in particular
on the desirability of allowing party autonomy in this area.
9.2.1. Notification
At the outset, I would like to emphasise that as far as notification serves to
inform the debtor of the assigned claim or has an impact on his ability to
invoke set-off and other defenses against the assignee, it is widely accepted
that the debtor should be able to rely on the proper law of the assigned
claim. This is reflected in Article 14(2) Rome I, which provides that
the law governing the assigned claim determines the conditions under
which the assignment can be invoked against the debtor and whether the
debtor’s obligations have been discharged. The assigned debtor is therefore
adequately protected under the present version of Article 14 Rome I
and need not further concern us here.
Let us now turn to the function of notification in the law of property.
While in many jurisdictions (e.g. Germany: § 398 BGB) notification to
the debtor is not required in order to transfer a claim by way of assignment,
this is not the case for every jurisdiction. Thus Article 1690 of the
French Code civil (Cc) requires that the assignor or the assignee formally
notify the debtor of the assignment via a bailiff (huissier). 12 Unless this
condition is fulfilled, the assignment cannot be invoked against third parties
(tiers). 13 The word ‘tiers’ in Article 1690 Cc includes not only the
debtor, but also any interested third party, such as other creditors of the
assignor or subsequent assignees. However, the substantive laws of many
European jurisdictions (including France) have been changed in the last
decades, in order to adapt to the new commercial reality that claims are
assigned on a large scale, within the framework of transactions such as factoring
and securitisation. In jurisdictions where notification to the debtor
12
Alternatively the assignment is acknowledged by the assigned debtor by way
of an ‘authentic’ deed.
13
P. Malaurie, L. Aynès & P. Stoffel-Munck, Les obligations, Paris: Lextenso
éditions 2007, p. 778-779.
Hendrik Verhagen
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