1. Functioning of the Assignment of Contracts

The Principles, after regulating the assignment of a contractual right (Section 1) and a contractual obligation (Section 2), deals with the assignment of a contract as a whole, which has the added difficulty of transferring both rights and obligations [Section 2- 210 UCC; Article 6:159 of the Dutch and Suriname Civil Code; Article 9.3.1 UP].

Example: A franchisee wishes to assign its international franchise agreement to a third party. It shall be governed by this Section of the Principles because the assignment involves the rights of the franchisee (acquisition of knowledge and know-how, use of trademarks, supply of products or raw materials, etc.), but also its obligations (trade of products, payment of remunerations and economic considerations, etc.). Conversely, if the franchisee only wished to assign its obligation to pay monetary compensation to the franchisor, the Section on transfer of obligations would apply.

In this context, many systems of the OHADAC States do not provide for independent rules for the assignment of contracts, which differs from the assignment of rights and obligations. Consequently, the minimum consensus is found in basic rules, accompanied by a reference, as appropriate, to the transfer of rights and obligations, along the lines of the UP (sections 9.3.6 and 9.3.7), the PECL (Article 12:201), the DCFR (Article III-5:302) and Article 244 of the Proposals for the Reform of the French law on Obligations of 2013. Other aspects, such as the conditions for modifying a contract subject to assignment (Section 9-405 UCC), shall be governed by national law in accordance with the rules of private international law.

It has to be noted that in order to make the OHADAC Principles entirely effective they should be chosen in both the original contract and the agreement of assignment.

2. Assignments excluded from the Section

Like the previous Sections on transfer of rights and transfer of obligations and in accordance with the UP (section 9.3.2) and the DCFR (Article III-5: 301), this Section on assignment of contracts does not apply to transfers under the special rules concerning the joint transfer of business or assets. In these cases, given that there is a complete assignment of the entire legal relations of one of the parties, the rules concerning the individual assignment of each of the contracts is applied.