1. Proposal for a functional regulation

The OHADAC Principles on the assignment of obligations are structured, as in the case of the assignment of rights, on two objectives. The first objective is to give the maximum importance to the freedom of choice of the parties, which is essential in systems such as Belize, Guyana and Trinidad and Tobago, and in general in systems, which, due to their common law tradition, have no legal provisions on the transfer of obligations. The second is to collate the rules on which there is a consensus in comparative law of the OHADAC, ignoring matters where there is no lowest common denominator. Consequently, a functional rule is proposed, which does not have too much of an effect on the codification of the assignments of obligations, as much on its effectiveness in respect of the non-contracting third parties.

With this idea, the Principles are proposing rules structured into seven articles, organised according to the points of special interest to the parties: conditions for the conclusion of the assignment (Article 8.2.1 on the definition, Article 8.2.2. about the permitted terms of assignment, and Arts. 8.2.3 and 8.2.4 about the objective and subjective conditions, respectively) and effectiveness of such assignment (Article 8.2.5 on the obligor's discharge conditions, Article 8.2.6 on its subsidiary obligations, and Article 8.2.7 on joint and several obligations). In any case, the full application of the Principles requires that they are chosen in the original contract, especially for determining the position of the obligor, and also in the assignment agreement in order to regulate the relationship between the transferor and the transferee.

For the rules to be useful to operators without imposing non-consensual solutions in the OHADAC States, important points have not been treated, concerning the scope of information provided to the obligee in order to accept the assignment or situations that result from the assignment such as confusion of debts or concurrence in the same person of the status of obligor and obligee. Legal consequences arising from the situation of invalidity or nullity of legal relations concerned are not regulated either, except with regard to the transmission of the defences of the transferor or the transferee. Thus, provisions concerning the nullity or invalidity of the contract from which the debt arises (object of the assignment) are not included, as well as the effect of the nullity of the main contract between the original obligor and the assignee (cause of the assignment), since few systems contain a regulation in this regard, with exceptions such as the Dutch and Suriname Civil Code (Article 6: 158). Voidness and invalidity of the proper assignment contract are not considered either, particularly if original obligor's obligation resurfaces, except with respect to third parties in good faith. Consequently, the case where the obligee may claim compensation from the transferee for damages resulting from the defective assignment (e.g. by extension of guarantees of third parties in good faith) is also not addressed. There is no unanimity on this point, although some articles can be noted as paradigmatic, such as Article 816 of the Costa Rican Civil Code; Article 1.468 of the Guatemalan Civil Code; Article 2.057 of the Mexican Civil Code; Articles 2.097 and 2.103 of the Nicaraguan Civil Code; Article 1.162 of the Puerto Rican Civil Code; and Article 1.094 of the Panamanian Civil Code. Compensation will be determined by the law applicable under the rules of private international law.

2. Definition and scope

The Principles do not exclusively focus on the assignment of monetary debt, but refer to any obligation contractually determined (e.g. Article 1.690 of the Colombian Civil Code; Article 9.2.1 UP). This assignment of obligations has two types. On the one hand, it may refer to the agreement in which the original obligor assigns its obligation to assume the debt to the assignee. On the other hand, it can be pointed out the agreement of expromissio whereby it is the obligee, not the obligor, which makes an agreement of assumption of the obligation with the assignee. Despite their significant differences, these terms have a common consequence, which is that a third party assumes the obligation generated under a previous relationship with another obligor. Therefore, many instruments provide rules with a common core, for instance, the UP and the DCFR, which is less categorical.

In this context, the OHADAC Principles seek to provide a useful mechanism that is accepted in the various systems of the OHADAC with respect to contractual assignments. They therefore do not apply to transfers of non-contractual and quasi-contractual obligations arising out of the contracts. Moreover, they cannot be applied to the assignment of obligations subject to special rules on joint transfer of a business or assets. There are individual agreements of assignment of obligations for these assignments and they are therefore excluded from the Principles (Articles 1.465 and 1.466 of the Guatemalan Civil Code; Article 9.2.2. UP).

Example: A company owes several debts to companies B, C and D. When company A is absorbed by company E, all A's debts are assumed by E. This assignment is excluded from the Principles.