Assignment Of Loan Agreement

Assignment Of Loan Agreement-29
For instance, it may be that, from a personal or business perspective, the debtor is entirely comfortable with the particular creditor with whom he is transacting.

For instance, it may be that, from a personal or business perspective, the debtor is entirely comfortable with the particular creditor with whom he is transacting.

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Accordingly, in such circumstances, appropriate professional advice should be sought and obtained, in a prudent endeavour to avoid what might otherwise prove to be a costly and onerous outcome that might well have been averted.

Trustees are appointed to safeguard funds in a trust, and are duty-bound to act in the best interests of the beneficiaries.

It has been suggested however, that this decision should be narrowly regarded, by way of exception, as being restricted and applicable to its own particular facts, and that, as a general proposition it should, in such circumstances, be ordinarily incumbent on the borrower to effect payment only to the assignor as trustee, and not to the assignee as beneficiary .

The upshot of the foregoing is that due care should be exercised by all parties to a loan arrangement, be they borrowers, lenders or assignees, to be vigilant in ensuring that, in the context of appreciating and understanding the nature and extent of their general contractual rights and obligations, there is also clarity as to the legal implications and potentially far-reaching consequences of assignments.

Despite an admission by the litigants themselves that the letter of assignment was a badly drafted document of randomly selected boilerplate clauses, the court held that it was nevertheless an assignment which thereby contravened the non-assignment clause contained in the initial contract between SAMIR and BP.

The key aspect of the case which was to be judicially addressed, was the resultant impact that the prohibited implementation of the non-assignment clause would have on the letter of assignment, as regards the contractual obligations that BP and NBAD had towards each other.

This approach was subsequently favoured by the majority of the court, per Walter LJ and Rix LJ, in Barbados Trust Co Ltd (formerly known as C I Trustees (Asia Pacific) Limited v Bank of Zambia and Bank of Americana (2007) EWCA Civ 14 ( although Hooper LJ dissented on the basis that this was diametrically opposed to the prohibition against assignment).

In the Barbados, the court saw no problem in permitting an assignee of rights under a syndicated loan, which embodied a non-assignment clause, to claim as beneficiary of a declared trust, directly from the borrower.

By the same token, in Linden Garden Trust Ltd v Lenesta Sludge Disposal Ltd (19940 A C 85, the identity of the contractor (Lenesta) was important to the employer (SCL) who, without the written consent of the former, duly assigned his contract (for the removal of asbestos) to one Linden, such assignment being contrary to a non-assignment clause in the applicable JCT standard form terms and conditions of contract.

When Linden subsequently instituted a claim against Lenesta for breach of contract and negligence (in failing to remove asbestos from the designated site), the House of Lords, in addressing the effectiveness of the assignment, concluded, inter alia, that, under the circumstances, the particular contractual relationship between SCL and Lenesta, was such that it had to be preserved, and that accordingly, the non-assignment clause would thereby be regarded as valid and not against public policy.


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