1. Proposal for a functional regulation

The OHADAC Principles govern the assignment of contractual rights, since in international business, it constitutes a significant means of financing of the obligee who receives the payment in advance, with the deduction of a portion which becomes the benefit of the assignee. The assignment may also play an important role as a guarantee of the obligee's performance in another contract.

In this context, the Principles are based on two standards: firstly, the need to find a minimum consensus among the laws of the OHADAC member States, and secondly, maximum observance of the freedom of the parties. The Principles therefore propose a functional regulation through seven articles, compared with the fifteen articles of the UNIDROIT Principles, the seventeen articles in PECL and the twenty articles in DCFR. The OHADAC Principles provide greater flexibility for the parties at this point in contrast with the rigidity of other international texts, more influenced by the idea of codification. They also try to provide a clear systematisation of easy handling which is based on the aspects of particular interest to practitioners: conditions of assignments (Article 8.1.1: scope; Article 8.1.2: objective conditions; and Article 8.1.3: subjective conditions) and effectiveness of such assignment, in general (Article 8.1.4) and in relation to each part (Article 8.1.5, concerning the obligor; Article 8.1.6., concerning the transferor, and Article 8.1.7, concerning the assignee). At any event, it should be noted that the full application of these principles requires that they are chosen in two contracts: in the original contract, primarily to determine the position of the obligor, and then in the assignment agreement proper, which deals with the assignor-assignee relationship.

2. Definition and scope

The Principles propose a definition of minimum and of consensus in the legal systems of the OHADAC, explaining the functioning of transfers of rights. The obligee transfers a right to a third party, the assignee, so that this right is excluded from the assets of the obligee in order to include in the assets of the assignee (Article 1690 Colombian Civil Code). Likewise, the obligee can offer its right as a guarantee to a third party.

The assignment shall meet two conditions. Firstly, the obligation, the right to performance of which is assigned, shall necessarily derive from a contract. Consequently, assignments of obligations under the law are excluded, as for instance, monetary rights in favour of a person injured by a non-contractual prejudice. Note that the systematisation of this chapter of the Principles is designed for the transfer of the contract as a whole, of any of its rights or its obligations. The obligation may be a monetary claim or other type of non-financial right, including an obligation to do or not do. As it will be analysed more in detail, to give maximum latitude to the will of the parties, the Principles remind that assignment may be total or partial as the transferor and transferee parties may wish, and grant a right to one or more third parties.

3. Assignments exclusions of the Section

As a starting point, the Principles only govern contractual assignments, i.e. those produced by an agreement between the obligee and the third party to whom the right is transferred. In the same line of the UP (section 9.1.1), legal assignments imposed by a legal system without the parties' participation are excluded. Transfers resulting from a unilateral act of the obligee are also excluded, such as a donation, in cases in which a bilateral act is not required, and in particular, the acceptance of the donor.

But, the Section lays down two exclusions even if the assignment is of contractual rights. First, the Section does not apply to transfers of rights arising from the transfer of business as a whole (in the same sense as Article 9.1.2 UP). Since it is a complete assignment, there are special rules that override the rules on contractual assignments, which have a different legal rationale. This does not prevent that the fact that, as a result of a transfer of business, an individual transfer of rights to a third party occurs alongside this transfer. This individual legal transfer shall be governed by these Principles.

Example: Company A has several claims against firms B, C and D. When company A is absorbed by company E, all the claims are transferred to E. This assignment is excluded from these Principles.

A second exclusion by reason of the subject must be stressed, insofar as the section does not apply to transfers of securities or of negotiable or financial instruments and documents of title (Article 1966 Colombian Civil Code; and among international texts, Art 9.1.2. UP; Article 11:101 PECL; Article III-5.101 DCFR). This is due to the special rules governing these instruments. Regarding the titles, they are often justified because the endorsement and the transfer of title automatically involve transferring the underlying right, regardless of this one. To this is added that, in relation to financial instruments, these are negotiated and transferred in financial markets, also independently of the underlying obligation. The above mentioned does not exclude that these underlying rights can be object of a legal transfer, regardless of such securities or instruments, which would be governed by the Principles.

Finally, it should be noted that the transfer of rights in a contract may be influenced by the existence of a dispute between the original parties. The rules of private international law will determine how the controversial or litigious nature of a right affects or not their possible assignment (Article 1107 Costa Rican Civil Code, Article 1.472 Haitian Civil Code).