contract silent on assignment new york

assignments basic law

Assignments: The Basic Law

The assignment of a right or obligation is a common contractual event under the law and the right to assign (or prohibition against assignments) is found in the majority of agreements, leases and business structural documents created in the United States.

As with many terms commonly used, people are familiar with the term but often are not aware or fully aware of what the terms entail. The concept of assignment of rights and obligations is one of those simple concepts with wide ranging ramifications in the contractual and business context and the law imposes severe restrictions on the validity and effect of assignment in many instances. Clear contractual provisions concerning assignments and rights should be in every document and structure created and this article will outline why such drafting is essential for the creation of appropriate and effective contracts and structures.

The reader should first read the article on Limited Liability Entities in the United States and Contracts since the information in those articles will be assumed in this article.

Basic Definitions and Concepts:

An assignment is the transfer of rights held by one party called the “assignor” to another party called the “assignee.” The legal nature of the assignment and the contractual terms of the agreement between the parties determines some additional rights and liabilities that accompany the assignment. The assignment of rights under a contract usually completely transfers the rights to the assignee to receive the benefits accruing under the contract. Ordinarily, the term assignment is limited to the transfer of rights that are intangible, like contractual rights and rights connected with property. Merchants Service Co. v. Small Claims Court , 35 Cal. 2d 109, 113-114 (Cal. 1950).

An assignment will generally be permitted under the law unless there is an express prohibition against assignment in the underlying contract or lease. Where assignments are permitted, the assignor need not consult the other party to the contract but may merely assign the rights at that time. However, an assignment cannot have any adverse effect on the duties of the other party to the contract, nor can it diminish the chance of the other party receiving complete performance. The assignor normally remains liable unless there is an agreement to the contrary by the other party to the contract.

The effect of a valid assignment is to remove privity between the assignor and the obligor and create privity between the obligor and the assignee. Privity is usually defined as a direct and immediate contractual relationship. See Merchants case above.

Further, for the assignment to be effective in most jurisdictions, it must occur in the present. One does not normally assign a future right; the assignment vests immediate rights and obligations.

No specific language is required to create an assignment so long as the assignor makes clear his/her intent to assign identified contractual rights to the assignee. Since expensive litigation can erupt from ambiguous or vague language, obtaining the correct verbiage is vital. An agreement must manifest the intent to transfer rights and can either be oral or in writing and the rights assigned must be certain.

Note that an assignment of an interest is the transfer of some identifiable property, claim, or right from the assignor to the assignee. The assignment operates to transfer to the assignee all of the rights, title, or interest of the assignor in the thing assigned. A transfer of all rights, title, and interests conveys everything that the assignor owned in the thing assigned and the assignee stands in the shoes of the assignor. Knott v. McDonald’s Corp ., 985 F. Supp. 1222 (N.D. Cal. 1997)

The parties must intend to effectuate an assignment at the time of the transfer, although no particular language or procedure is necessary. As long ago as the case of National Reserve Co. v. Metropolitan Trust Co ., 17 Cal. 2d 827 (Cal. 1941), the court held that in determining what rights or interests pass under an assignment, the intention of the parties as manifested in the instrument is controlling.

The intent of the parties to an assignment is a question of fact to be derived not only from the instrument executed by the parties but also from the surrounding circumstances. When there is no writing to evidence the intention to transfer some identifiable property, claim, or right, it is necessary to scrutinize the surrounding circumstances and parties’ acts to ascertain their intentions. Strosberg v. Brauvin Realty Servs., 295 Ill. App. 3d 17 (Ill. App. Ct. 1st Dist. 1998)

The general rule applicable to assignments of choses in action is that an assignment, unless there is a contract to the contrary, carries with it all securities held by the assignor as collateral to the claim and all rights incidental thereto and vests in the assignee the equitable title to such collateral securities and incidental rights. An unqualified assignment of a contract or chose in action, however, with no indication of the intent of the parties, vests in the assignee the assigned contract or chose and all rights and remedies incidental thereto.

More examples: In Strosberg v. Brauvin Realty Servs ., 295 Ill. App. 3d 17 (Ill. App. Ct. 1st Dist. 1998), the court held that the assignee of a party to a subordination agreement is entitled to the benefits and is subject to the burdens of the agreement. In Florida E. C. R. Co. v. Eno , 99 Fla. 887 (Fla. 1930), the court held that the mere assignment of all sums due in and of itself creates no different or other liability of the owner to the assignee than that which existed from the owner to the assignor.

And note that even though an assignment vests in the assignee all rights, remedies, and contingent benefits which are incidental to the thing assigned, those which are personal to the assignor and for his sole benefit are not assigned. Rasp v. Hidden Valley Lake, Inc ., 519 N.E.2d 153, 158 (Ind. Ct. App. 1988). Thus, if the underlying agreement provides that a service can only be provided to X, X cannot assign that right to Y.

Novation Compared to Assignment:

Although the difference between a novation and an assignment may appear narrow, it is an essential one. “Novation is a act whereby one party transfers all its obligations and benefits under a contract to a third party.” In a novation, a third party successfully substitutes the original party as a party to the contract. “When a contract is novated, the other contracting party must be left in the same position he was in prior to the novation being made.”

A sublease is the transfer when a tenant retains some right of reentry onto the leased premises. However, if the tenant transfers the entire leasehold estate, retaining no right of reentry or other reversionary interest, then the transfer is an assignment. The assignor is normally also removed from liability to the landlord only if the landlord consents or allowed that right in the lease. In a sublease, the original tenant is not released from the obligations of the original lease.

Equitable Assignments:

An equitable assignment is one in which one has a future interest and is not valid at law but valid in a court of equity. In National Bank of Republic v. United Sec. Life Ins. & Trust Co. , 17 App. D.C. 112 (D.C. Cir. 1900), the court held that to constitute an equitable assignment of a chose in action, the following has to occur generally: anything said written or done, in pursuance of an agreement and for valuable consideration, or in consideration of an antecedent debt, to place a chose in action or fund out of the control of the owner, and appropriate it to or in favor of another person, amounts to an equitable assignment. Thus, an agreement, between a debtor and a creditor, that the debt shall be paid out of a specific fund going to the debtor may operate as an equitable assignment.

In Egyptian Navigation Co. v. Baker Invs. Corp. , 2008 U.S. Dist. LEXIS 30804 (S.D.N.Y. Apr. 14, 2008), the court stated that an equitable assignment occurs under English law when an assignor, with an intent to transfer his/her right to a chose in action, informs the assignee about the right so transferred.

An executory agreement or a declaration of trust are also equitable assignments if unenforceable as assignments by a court of law but enforceable by a court of equity exercising sound discretion according to the circumstances of the case. Since California combines courts of equity and courts of law, the same court would hear arguments as to whether an equitable assignment had occurred. Quite often, such relief is granted to avoid fraud or unjust enrichment.

Note that obtaining an assignment through fraudulent means invalidates the assignment. Fraud destroys the validity of everything into which it enters. It vitiates the most solemn contracts, documents, and even judgments. Walker v. Rich , 79 Cal. App. 139 (Cal. App. 1926). If an assignment is made with the fraudulent intent to delay, hinder, and defraud creditors, then it is void as fraudulent in fact. See our article on Transfers to Defraud Creditors .

But note that the motives that prompted an assignor to make the transfer will be considered as immaterial and will constitute no defense to an action by the assignee, if an assignment is considered as valid in all other respects.

Enforceability of Assignments:

Whether a right under a contract is capable of being transferred is determined by the law of the place where the contract was entered into. The validity and effect of an assignment is determined by the law of the place of assignment. The validity of an assignment of a contractual right is governed by the law of the state with the most significant relationship to the assignment and the parties.

In some jurisdictions, the traditional conflict of laws rules governing assignments has been rejected and the law of the place having the most significant contacts with the assignment applies. In Downs v. American Mut. Liability Ins. Co ., 14 N.Y.2d 266 (N.Y. 1964), a wife and her husband separated and the wife obtained a judgment of separation from the husband in New York. The judgment required the husband to pay a certain yearly sum to the wife. The husband assigned 50 percent of his future salary, wages, and earnings to the wife. The agreement authorized the employer to make such payments to the wife.

After the husband moved from New York, the wife learned that he was employed by an employer in Massachusetts. She sent the proper notice and demanded payment under the agreement. The employer refused and the wife brought an action for enforcement. The court observed that Massachusetts did not prohibit assignment of the husband’s wages. Moreover, Massachusetts law was not controlling because New York had the most significant relationship with the assignment. Therefore, the court ruled in favor of the wife.

Therefore, the validity of an assignment is determined by looking to the law of the forum with the most significant relationship to the assignment itself. To determine the applicable law of assignments, the court must look to the law of the state which is most significantly related to the principal issue before it.

Assignment of Contractual Rights:

Generally, the law allows the assignment of a contractual right unless the substitution of rights would materially change the duty of the obligor, materially increase the burden or risk imposed on the obligor by the contract, materially impair the chance of obtaining return performance, or materially reduce the value of the performance to the obligor. Restat 2d of Contracts, § 317(2)(a). This presumes that the underlying agreement is silent on the right to assign.

If the contract specifically precludes assignment, the contractual right is not assignable. Whether a contract is assignable is a matter of contractual intent and one must look to the language used by the parties to discern that intent.

In the absence of an express provision to the contrary, the rights and duties under a bilateral executory contract that does not involve personal skill, trust, or confidence may be assigned without the consent of the other party. But note that an assignment is invalid if it would materially alter the other party’s duties and responsibilities. Once an assignment is effective, the assignee stands in the shoes of the assignor and assumes all of assignor’s rights. Hence, after a valid assignment, the assignor’s right to performance is extinguished, transferred to assignee, and the assignee possesses the same rights, benefits, and remedies assignor once possessed. Robert Lamb Hart Planners & Architects v. Evergreen, Ltd. , 787 F. Supp. 753 (S.D. Ohio 1992).

On the other hand, an assignee’s right against the obligor is subject to “all of the limitations of the assignor’s right, all defenses thereto, and all set-offs and counterclaims which would have been available against the assignor had there been no assignment, provided that these defenses and set-offs are based on facts existing at the time of the assignment.” See Robert Lamb , case, above.

The power of the contract to restrict assignment is broad. Usually, contractual provisions that restrict assignment of the contract without the consent of the obligor are valid and enforceable, even when there is statutory authorization for the assignment. The restriction of the power to assign is often ineffective unless the restriction is expressly and precisely stated. Anti-assignment clauses are effective only if they contain clear, unambiguous language of prohibition. Anti-assignment clauses protect only the obligor and do not affect the transaction between the assignee and assignor.

Usually, a prohibition against the assignment of a contract does not prevent an assignment of the right to receive payments due, unless circumstances indicate the contrary. Moreover, the contracting parties cannot, by a mere non-assignment provision, prevent the effectual alienation of the right to money which becomes due under the contract.

A contract provision prohibiting or restricting an assignment may be waived, or a party may so act as to be estopped from objecting to the assignment, such as by effectively ratifying the assignment. The power to void an assignment made in violation of an anti-assignment clause may be waived either before or after the assignment. See our article on Contracts.

Noncompete Clauses and Assignments:

Of critical import to most buyers of businesses is the ability to ensure that key employees of the business being purchased cannot start a competing company. Some states strictly limit such clauses, some do allow them. California does restrict noncompete clauses, only allowing them under certain circumstances. A common question in those states that do allow them is whether such rights can be assigned to a new party, such as the buyer of the buyer.

A covenant not to compete, also called a non-competitive clause, is a formal agreement prohibiting one party from performing similar work or business within a designated area for a specified amount of time. This type of clause is generally included in contracts between employer and employee and contracts between buyer and seller of a business.

Many workers sign a covenant not to compete as part of the paperwork required for employment. It may be a separate document similar to a non-disclosure agreement, or buried within a number of other clauses in a contract. A covenant not to compete is generally legal and enforceable, although there are some exceptions and restrictions.

Whenever a company recruits skilled employees, it invests a significant amount of time and training. For example, it often takes years before a research chemist or a design engineer develops a workable knowledge of a company’s product line, including trade secrets and highly sensitive information. Once an employee gains this knowledge and experience, however, all sorts of things can happen. The employee could work for the company until retirement, accept a better offer from a competing company or start up his or her own business.

A covenant not to compete may cover a number of potential issues between employers and former employees. Many companies spend years developing a local base of customers or clients. It is important that this customer base not fall into the hands of local competitors. When an employee signs a covenant not to compete, he or she usually agrees not to use insider knowledge of the company’s customer base to disadvantage the company. The covenant not to compete often defines a broad geographical area considered off-limits to former employees, possibly tens or hundreds of miles.

Another area of concern covered by a covenant not to compete is a potential ‘brain drain’. Some high-level former employees may seek to recruit others from the same company to create new competition. Retention of employees, especially those with unique skills or proprietary knowledge, is vital for most companies, so a covenant not to compete may spell out definite restrictions on the hiring or recruiting of employees.

A covenant not to compete may also define a specific amount of time before a former employee can seek employment in a similar field. Many companies offer a substantial severance package to make sure former employees are financially solvent until the terms of the covenant not to compete have been met.

Because the use of a covenant not to compete can be controversial, a handful of states, including California, have largely banned this type of contractual language. The legal enforcement of these agreements falls on individual states, and many have sided with the employee during arbitration or litigation. A covenant not to compete must be reasonable and specific, with defined time periods and coverage areas. If the agreement gives the company too much power over former employees or is ambiguous, state courts may declare it to be overbroad and therefore unenforceable. In such case, the employee would be free to pursue any employment opportunity, including working for a direct competitor or starting up a new company of his or her own.

It has been held that an employee’s covenant not to compete is assignable where one business is transferred to another, that a merger does not constitute an assignment of a covenant not to compete, and that a covenant not to compete is enforceable by a successor to the employer where the assignment does not create an added burden of employment or other disadvantage to the employee. However, in some states such as Hawaii, it has also been held that a covenant not to compete is not assignable and under various statutes for various reasons that such covenants are not enforceable against an employee by a successor to the employer. Hawaii v. Gannett Pac. Corp. , 99 F. Supp. 2d 1241 (D. Haw. 1999)

It is vital to obtain the relevant law of the applicable state before drafting or attempting to enforce assignment rights in this particular area.

Conclusion:

In the current business world of fast changing structures, agreements, employees and projects, the ability to assign rights and obligations is essential to allow flexibility and adjustment to new situations. Conversely, the ability to hold a contracting party into the deal may be essential for the future of a party. Thus, the law of assignments and the restriction on same is a critical aspect of every agreement and every structure. This basic provision is often glanced at by the contracting parties, or scribbled into the deal at the last minute but can easily become the most vital part of the transaction.

As an example, one client of ours came into the office outraged that his co venturer on a sizable exporting agreement, who had excellent connections in Brazil, had elected to pursue another venture instead and assigned the agreement to a party unknown to our client and without the business contacts our client considered vital. When we examined the handwritten agreement our client had drafted in a restaurant in Sao Paolo, we discovered there was no restriction on assignment whatsoever…our client had not even considered that right when drafting the agreement after a full day of work.

One choses who one does business with carefully…to ensure that one’s choice remains the party on the other side of the contract, one must master the ability to negotiate proper assignment provisions.

Founded in 1939, our law firm combines the ability to represent clients in domestic or international matters with the personal interaction with clients that is traditional to a long established law firm.

2022 New York Laws UCC - Uniform Commercial Code Article 2 - Sales Part 2 - Form, Formation and Readjustment of Contract 2-210 - Delegation of Performance; Assignment of Rights.

(1) A party may perform his duty through a delegate unless otherwise agreed or unless the other party has a substantial interest in having his original promisor perform or control the acts required by the contract. No delegation of performance relieves the party delegating of any duty to perform or any liability for breach.

(2) Except as otherwise provided in Section 9--406, unless otherwise agreed, all rights of either seller or buyer can be assigned except where the assignment would materially change the duty of the other party, or increase materially the burden or risk imposed on him by his contract, or impair materially his chance of obtaining return performance. A right to damages for breach of the whole contract or a right arising out of the assignor's due performance of his entire obligation can be assigned despite agreement otherwise.

(3) Unless the circumstances indicate the contrary a prohibition of assignment of "the contract" is to be construed as barring only the delegation to the assignee of the assignor's performance.

(4) An assignment of "the contract" or of "all my rights under the contract" or an assignment in similar general terms is an assignment of rights and unless the language or the circumstances (as in an assignment for security) indicate the contrary, it is a delegation of performance of the duties of the assignor and its acceptance by the assignee constitutes a promise by him to perform those duties. This promise is enforceable by either the assignor or the other party to the original contract.

(5) The other party may treat any assignment which delegates performance as creating reasonable grounds for insecurity and may without prejudice to his rights against the assignor demand assurances from the assignee (Section 2--609).

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Assignment and other dealings

Using your device

What does it do and why do I need it?

An assignment clause aims to control who performs a contract and who can receive benefits under the contract. It does not, however, mean that a party’s contractual obligations are transferred over, it simply means that the performance of such obligations can be delegated. This means that burdens cannot be assigned as a matter of law, but benefits can.

Including such a clause is important if you wish to control who receives the benefit of your performance if you are the supplier, or if you are a customer, control who carries out the contract for you. This may be important to you, for instance, if you do not wish to deliver work to your competitors or you do not want a particular person in your supply chain.

If the contract is silent on assignment and other dealings, a party can normally assign, mortgage, charge or declare a trust over its rights under the contract, without the other party’s consent and use a subcontractor to perform (but not transfer) its contractual duties. In some cases, however, a restriction on subcontracting may be implied where personal performance is required for example.

In light of this, if the parties wish to restrict such abilities, they should do this expressly. Please note, however, a prohibition on assignment has no effect on assignment of a right to receive payment, this applies to many contracts for supply of goods, services or intangibles made between UK businesses on or after 31 December 2018.

What should I look out for?

Effect of an assignment breach - in most cases, a breach of an assignment restriction in the main contract may trigger termination rights or other remedies, may be valid between the assignor and assignee and it does not bind the original promisor who remains liable to the original promisee (the party receiving the benefit).
Effect of a restriction of other dealings breach - if the wording specifically carves out restrictions on ‘mortgages, charges or trust of rights’ then it should be effective to stop the contracting party holding its rights in trust for a non-party. However, a restriction on an assignment/transfer alone might not have this effect. On the contrary, in relation to a subcontract, if a restriction was in place and there has been a breach, the subcontract is normally still valid, but the other party to the main contract may not be obliged to accept or pay for the subcontractor’s performance.
Novation - if a party wants to actually transfer its obligations under the contract, as opposed to delegating their performance, it will need to do so by way of novation.
Subcontracting of processing personal data - if, as part of subcontracting its obligations generally, the assigning/subcontracting party is subcontracting obligations to process personal data, it should note that the GDPR imposes conditions on sub-processing. The main contractor should check the data processing provisions and subcontracting provisions in the contract for provisions relating to sub-processing.
Indemnities - in relation to subcontracting duties, the main contractor remains liable to the continuing party for the performance of any part of the contract that is still to be fulfilled. Therefore, a main contractor will therefore generally ask their subcontractor for an indemnity against any breach or failure to perform the contract. The indemnity will not usually cover liabilities incurred before the subcontracting took effect.

If you have any queries, please do not hesitate to contact Ben Taylor .

Commercial law

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Assignment of Charter

What is it and what does it do?

An assignment of charter is a security agreement whereby a party (typically, a vessel owner) that has entered into a charter assigns its rights under such charter to a secured party (typically, the vessel’s mortgagee). Assignments of charters are typically given by a vessel owner for long term charters when the vessel subject to the charter is also subject to a mortgage in favor of the secured party. The intent of a charter assignment is to give the secured party the ability to step into the owner’s place under the charter following an event of default under the relevant debt agreement. If a mortgagee seeks to enforce its mortgage following such event of default by taking possession of the vessel or selling the vessel, the benefit of a charter assignment is that the mortgagee can step into the charter that the owner has with a counterparty, and continue to allow the vessel to earn under the charter, either under the mortgagee’s or new buyer’s ownership, without interruption. Essentially, the charter assignment allows the mortgagee to maximize the value of its collateral in the vessel that is mortgaged.

Sample Definition in a Credit Agreement

“ Assignment of Charter ” shall mean, with respect to a Vessel, an assignment of charter made by the relevant Vessel Owner in favor of the Security Trustee in respect of any Charter, in substantially the form of Exhibit X or such other form acceptable to the Administrative Agent and the Required Lenders.

“ Charter ” means, in respect of a Vessel, any charter or other contract for its employment, whether or not already in existence, having a term (including any optional extensions) in excess of twelve (12) months.

How does it affect a Borrower in practical terms?

Under the New York law, in order for a secured party to actually enforce all rights granted to it in an assignment of charter and step into the underlying charter, a consent of the counterparty (i.e., the charterer) is required 1 . Therefore, the borrower owner is typically required under the terms of the assignment of charter to (a) deliver a notice in the form attached the assignment of charter, informing the charterer of the assignment of its rights, and (b) use its best efforts or commercially reasonable efforts to obtain the charterer’s consent to such assignment in the form attached the assignment of charter. Approaching such charterer can have operational and relationship impacts for the borrower. In particular, when approaching a charterer for a consent to an assignment of the charter, it is not atypical for the charterer under the underlying charter agreement to condition their consent upon receiving a quiet enjoyment letter from the mortgagee. Additionally, owners who have entered into charter contracts with government agencies, such as Military Sealift Command (MSC), the U.S. Department of Defense’s transportation provider, under the U.S. Maritime Security Program (MSP) or Tanker Security Program (TSP), should be cautious when agreeing to grant charter assignments, as an assignment of such rights is prohibited under the U.S. Anti-Assignment Act 2 .

How is it negotiated?

The key negotiation points in granting a charter assignment include:

1. The length of the charters that a borrower is required to assign. This length is typically twelve (12) months, but can be as long as twenty-four (24) months. The length can also include (or exclude) optional extensions, and can exclude charters that, although being initially in excess of 12 months, have less than 12 months remaining.

2. The requirements to deliver the notice to the charterer and obtain the consent of the charterer. Depending on the bargaining power of the owner and the underlying contract terms, an owner and secured party may agree to a springing obligation to deliver the notice of assignment and obtain the consent of the charterer to the assignment, for instance, upon an event of default (or such other agreed event). In these situations, it is important for a secured party to understand that if the charterer does not consent, they will not be able to step into the actual charter, but they would have an assignment of the right to the proceeds (receivables) paid to the owner under such charter (provided the assignment itself includes language granting an assignment to the proceeds thereunder).

3. Governing law. For enforcement purposes, depending on the underlying governing law of a charter, a secured party under a charter assignment may require that the charter assignment is granted under the charter’s governing law. Secured parties should confirm with local counsel in the relevant jurisdiction of the charter’s governing law if the law governing the transaction documents would create an enforcement issue with regards to stepping into a charter.

4. Whether a charter assignment should be required where underlying charters expressly restrict assignments. In these situations, an earnings assignment without a charter assignment may be sufficient if the secured party is comfortable without having an assignment of the contract rights. Typically, an assignment of earnings relating to a vessel assigns an owner’s rights to proceeds under all charter contracts entered into by that owner in respect of the vessel. Under New York law, even if the underlying charter restricts assignments, a contractual restriction on assignment of general intangibles, such as payment rights, is ineffective 3 , so the assignment of the proceeds thereunder would be enforceable.

__________________________

1 In the U.S. generally, a contract that is silent on assignment is generally freely transferable unless either a statute or public policy provides otherwise, or there are material adverse consequences to the non-assigning Party. ‘Personal services’ contracts, such as a charterparties, are exceptions to the freely transferable rule.

2 41 U.S.C. § 6305. The Assignment of Claims Act (31 U.S.C. § 3727) however permits assignments of moneys due under such contracts subject to certain conditions.

3 NY UCC § 9-408 (2022).

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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A Contract That Means What It Says

Posted on: Jun 23 2021

In New York, contracts are to be construed in accordance with the parties’ intent. See , e.g. , Slatt v. Slatt , 64 N.Y.2d 966 (1985). “The best evidence of what parties to a written agreement intend is what they say in their writing.” Slamow v. Del Col , 79 N.Y.2d 1016, 1018 (1992). Thus, a written agreement that is clear and unambiguous on its face must be enforced according to the plain meaning of its terms. See , e.g. , W.W.W. Assoc. v Giancontieri , 77 N.Y.2d 157, 162 (1990). Extrinsic evidence of the parties’ intent may be considered only if the agreement is ambiguous. Id.

A contract is unambiguous if “on its face [it] is reasonably susceptible of only one meaning.” Greenfield v. Philles Records , 98 N.Y.2d 562, 570 (2002). Parol (or extrinsic) evidence cannot be used to create an ambiguity where the words of the parties’ agreement are otherwise clear and unambiguous. Innophos, Inc. v Rhodia, S.A. , 38 A.D.3d 368, 369 (1st Dept. 2007), aff’d , 10 N.Y.3d 25 (2008).

Conversely, “[a] contract is ambiguous if the provisions in controversy are reasonably or fairly susceptible of different interpretations or may have two or more different meanings.” New York City Off-Track Betting Corp. v. Safe Factory Outlet, Inc. , 28 A.D.3d 175, 177 (1st Dept. 2006) (internal quotation marks and citation omitted). The existence of ambiguity is determined by examining the “entire contract and consider[ing] the relation of the parties and the circumstances under which it was executed,” with the wording to be considered “in the light of the obligation as a whole and the intention of the parties as manifested thereby.” Kass v. Kass , 91 N.Y.2d 554, 566 (1998), quoting Atwater & Co. v. Panama R.R. Co. , 246 N.Y. 519, 524 (1927). Whether a contract is ambiguous is a question of law for the court to decide. Kass , 91 N.Y.2d at 566.

Significantly, a court may not, in the guise of interpreting a contract, add or excise terms or distort the meaning of those used to make a new contract for the parties. Teichman v. Community Hosp. of W. Suffolk , 87 N.Y.2d 514, 520 (1996); Morlee Sales Corp. v. Manufacturers Trust Co. , 9 N.Y.2d 16, 19 (1961).

In transactions involving the purchase and sale of real estate, the Court of Appeals has made clear that the rule requiring a written agreement to “be enforced according to its terms” has special importance:

We have … emphasized this rule’s special import in the context of real property transactions, where commercial certainty is a paramount concern, and where … the instrument was negotiated between sophisticated, counseled business people negotiating at arm’s length.

Vermont Teddy Bear Co. v. 538 Madison Realty Co. , 1 N.Y.3d 470, 475 (2004), quoting Matter of Wallace v. 600 Partners Co. , 86 N.Y.2d 543, 548 (1995).

The foregoing principles were recently considered in Villager Capital Advisors, LLC v. Union Settlement Assn., Inc. , 2021 N.Y. Slip Op. 04003 (1st Dept. June 22, 2021) ( here ), a case involving the payment of a commission in connection with the sale of real property.

Villager Capital arose out of a brokerage agreement between plaintiff, Villager Capital Advisors, LLC, a real-estate broker, and defendant Union Settlement Association, Inc. (“Union”). Union is the sole member of two housing development fund corporations (“HDFC”), defendants East 103rd Street Housing Development Fund Corporation and East 104th Street Housing Development Fund Company.

[Ed. Note: The Housing Development Fund Corporation is a revolving loan fund established in 1966 under Article XI of the Private Housing Finance Law and administered by the New York State Division of Housing and Community Renewal. The purpose of the HDFC program is to provide loans to nonprofit organizations to develop low-income housing projects. HDFC loans may be used for pre-development costs, site acquisition, construction/ rehabilitation financing, and other mortgageable project development costs. HDFC loans may also be used to provide short term financing repaid from equity contributed by investors in low-income housing credit projects. A brief discussion of HDFCs can be found here .]

Union owned and operated the St. Lucy’s Apartments through the two funds. Union wanted to sell its interest in the St. Lucy’s Apartments. To do so, Union and the HDFCs entered into a brokerage agreement with plaintiff. Under the terms of the brokerage agreement, Union agreed to pay plaintiff “a Sale Commission equal to the sum of (i) 5% of the first $1,000,000 of gross sale price of the Project Interest, plus (ii) 3% of the portion of the gross sale price in excess of $1,000,000.” Plaintiff was to receive the commission “immediately upon the closing of the sale transaction.”

Following a bidding process, Union and L&M Development Partners (L&M”) signed a purchase agreement that acknowledged plaintiff as the broker that procured the deal. L&M agreed to assume Union’s debts and to pay $5,747,574 in cash for the St. Lucy’s Apartments. The assumed debt consisted of two Housing Development Corporation-financed mortgage loans, totaling approximately $3,466,000. The assumed debt plus cash payment totaled $9,214,294.

The sale was later approved by both the Attorney General and Supreme Court. ( See Not-For-Profit Corporation Law (“NPCL”) §§ 510, 511.) In the petitions submitted for such approvals, the parties represented the purchase price to $9,214,294 for the St. Lucy’s Apartments—the sum of the cash purchase price and the value of the mortgages assumed by L&M. Supreme Court, New York County (Masley, J.), approved the sale by two orders dated December 22, 2017. In those orders, Justice Masley listed the purchase price as $9,214,294.

Plaintiff submitted an invoice for its commission to Union. The commission sought was based on a purchase price of $9,214,294. The amount due, less a pre-payment of $10,000, was $286,429. Union replied that the assumed debt was not part of the consideration for plaintiff’s commission. Plaintiff responded, arguing that the gross purchase price of $9,214,294 was confirmed in Justice Masley’s orders. Union made no further mention of the commission.

L&M and Union closed the transaction on January 31, 2018, without informing plaintiff that it was taking place. A week later, on February 6, 2018, plaintiff was advised that the transaction had closed.

Plaintiff received payment from Union for $182,427.22 on February 26, 2018— $104,001.78 less than the amount in plaintiff’s commission invoice. Union included a cover letter explaining that the commission calculation was based only on the cash payment paid by L&M and did not include the value of assumed mortgages.

Plaintiff brought the action for breach of contract and quantum meruit, seeking payment of the alleged shortfall.

Plaintiff moved for summary judgment on its breach of contract claim. Union cross moved for summary judgment, seeking to dismiss plaintiff’s claims.

Plaintiff argued that “gross sale price” unambiguously referred to the entire consideration paid for the apartments, including the value of the mortgages that L&M assumed. Plaintiff contended that a commission payment based on the entire consideration paid by the buyer is the industry standard and is thus commercially reasonable. Any interpretation of “gross sale price” that did not include the assumed debt, said plaintiff, effectively excised the word “gross” from “gross sale price.”

In response, Union contended that plaintiff’s interpretation was “unheard of in the real estate industry.” Union argued that, if L&M assumed the mortgages and there was no cash payment, plaintiff would still receive a commission—which would be an absurd result.

The motion court concluded that neither party had demonstrated that the party’s interpretation of “gross sale price” was the only one flowing from the text of the brokerage agreement. Instead, held the motion court, “[t]he agreement is … ambiguous.”

The motion court explained that it was reasonable, as plaintiff asserted, for a broker who facilitated an agreement for a buyer to assume millions of dollars in mortgages to be paid a commission based on the value of those mortgages. This was particularly true because the text of the brokerage agreement reflected the parties’ understanding that the mortgages could be assigned to a buyer and that plaintiff’s services were being enlisted to help bring about that assignment. Thus, the motion court reasoned, it would be reasonable for the agreement to provide that plaintiff’s commission would be calculated based upon the value of the mortgage debts it helped get assigned from Union to L&M, as well as the cash payment by L&M.

On the other hand, said the motion court, Union’s interpretation—that “gross sale price” refers only to the cash payment—was also reasonable. The mortgage debts at issue were held by a third-party lender and were not Union’s to sell. Thus, if the mortgages were not Union’s to sell, explained the motion court, but merely part of the overall structure of the agreement, then the parties could not have intended the mortgages to be part of the “gross sale price.”

The motion court concluded that neither position would rule the day, holding that the term was ambiguous.

The motion court also held that the parties’ reliance on extrinsic evidence – e.g. , the two court orders and petition – underscored the ambiguity of the term in the agreement: “When parties seek to use extrinsic evidence to resolve an ambiguous term of a contract, summary judgment remains inappropriate when determining the meaning of that term would require ‘a choice among inferences to be drawn from extrinsic evidence.’” (Quoting, Amusement Bus. Underwriters v. American Intl. Grp. , 66 N.Y.2d 878, 880 (1985)).

Accordingly, the motion court denied plaintiff’s motion for summary judgment on its breach of contract claim and denied defendants’ cross motion for summary judgment to the extent it sought dismissal of the claims for breach of contract and account stated ( here ).

On appeal, the Appellate Division, First Department unanimously modified, on the law, to grant plaintiff’s motion, and otherwise affirmed the motion court’s order.

The Court held that the term, “gross sales price” was “plain and unambiguous”; the term included the value of assumed debt, in addition to the cash payment made by the buyer in exchange for the purchase. Slip Op. at *1. “To apply a different interpretation”, reasoned the Court, “would negate the unambiguous language in the agreement.” Id. (citation omitted). Thus, concluded the Court, “Defendants [were] simply attempting to rewrite the term ‘gross sale price.’” Id.

The Court also rejected Union’s argument that the breach of contract claim should have been dismissed as against the HDFCs because they were not in privity with either party to the brokerage agreement ( i.e. , plaintiff and Union). The Court reasoned that the HDFCs were third-party beneficiaries of the brokerage agreement. Id. The Court explained that “[a]lthough the HDFCs did not sign the brokerage agreement, Union Settlement Association, Inc. represented in the agreement that it sought to sell all of its interest in the project, including 100% ownership of the HDFCs along with all of the interests and assets held by the HDFCs.” As such, “the HDFCs were intended third-party beneficiaries of the brokerage agreement.” Id. (citing Mendel v. Henry Phipps Plaza W., Inc. , 6 N.Y.3d 783, 786 (2006)).

[Ed. Note: To assert third-party beneficiary rights under a contract, a party must establish “(1) the existence of a valid and binding contract between other parties, (2) that the contract was intended for [their] benefit and (3) that the benefit to [them] is sufficiently immediate, rather than incidental, to indicate the assumption by the contracting parties of a duty to compensate [them] if the benefit is lost.” Burns Jackson Miller Summit & Spitzer v. Lindner , 59 N.Y.2d 314, 336 (1983).

Village Capital underscores the fundamental principle of contract interpretation – i.e. , contracts are to be construed pursuant to the parties’ intention. As the Court of Appeals explained almost two decades ago, “[t]he best evidence of what the parties … intend is what they say in their writing. Slamow , 79 N.Y.2d at 1018. When the parties’ writing is clear and unambiguous on its face – that is, the terms are reasonably susceptible to only one meaning – it should be enforced according to the plain meaning of those words.

In Village Capital , the Court made clear that, in the context of the underlying transaction, the word “gross” included every payment of value. This meant the value of the assumed mortgages and the cash payment. To conclude otherwise would “negate” the clear and unambiguous meaning of the word “gross”.

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Q&A - Are alarm contracts assignable?

If a contract is silent, does not include any statement about its ability to be assigned yes or no? Is it assumed to be assignable? Thank you in advance for your consideration.

Bart A. Didden President U.S.A. Central Station Alarm Corp

*********************

This is another one of those issues that comes up all the time and causes lots of confusion. Whether you are considering terms for your own contracts or buying subscriber contracts one of the first questions is, "is there an clause permitting assignment?"

I have answered the question so many times that I have begun to confuse myself. The answer has been, contracts are assignable unless there is a specific provision prohibiting assignment. Your contracts do not have to have an assignment clause to permit assignment. The general rule has exceptions, but they most likely don't apply to security contracts.

Personal services contracts, such as an entertainer's contract to perform, can not be assigned. But unless you have some kind of unique service no one else has, you won't fall under that exception.

Keep in mind that one assigning a contract, called an "assignor" remains liable under the contract for the performance of the "assignee", unless of course there is a provision in the contract that relieves the assignor of further performance upon the effective assignment.

My contracts have two provisions in the contracts involving assignment. First, the subscriber can not freely assign the contract to another without alarm company approval. Secondly, the alarm company can assign, and upon such assignment is relieved of further obligation under the contract. Subscribers occasionally raise a question with the assignment right, and they are correct to do so. However, you should resolve the objection by adding that your assignment will be limited to a reputable and licensed security company.

I didn't want to respond entirely from the hip [and not just because it's Bart asking the question] so I had one of my attorneys give me a formal response. While her research and memorandum of law is limited to New York law I am comfortable that the law in all jurisdictions would be the same because this is based on what we call common law. You may want to check with local counsel however to make sure that your state has not enacted legislation that changes the common law [not likely, but possible].

Here is Rachael Weinrib, Esq's memo.

To: Ken Kirschenbaum,Esq

From: Rachel Weinreb,Esq

If an alarm contract is silent about its ability to be assigned is it assumed assignable?

Applicable law:

Under New York law, contracts which do not involve exceptional personal skills and which the assignee can perform without adversely affecting the rights and interests of the adverse party are freely assignable absent a contractual, statutory or public policy prohibition. (See e.g., General Obligations Law, Section 13-101; see also 6 NY Jur. 2d Assignments, Section 5 at 238; In re Stralem, 303 AD2d 120, 122, 758 N.Y.S.2d 345 [2nd Dept 2003]) "That the contract is silent about its assignability does not mean it is not assignable." (Eisner Computer Solutions, LLC v. Gluckstern, 293 AD2d 289, 741 N.Y.S.2d 511 [1st

]) A clear and unambiguous provision is essential to effectively prevent assignment. (Special Products Mfg., Inc. v. Douglass , 159 AD2d 847, 553 N.Y.S.2d 506 [3rd Dept 1990]; 6 NY Jur.2d, Assignments, Section 10 at 244-245)

]) A clear and unambiguous provision is essential to effectively prevent assignment. ( 159 AD2d 847, 553 N.Y.S.2d 506 [3rd Dept 1990]; 6 NY Jur.2d, Assignments, Section 10 at 244-245) ]) A clear and unambiguous provision is essential to effectively prevent assignment. ( 159 AD2d 847, 553 N.Y.S.2d 506 [3rd Dept 1990]; 6 NY Jur.2d, Assignments, Section 10 at 244-245) ]) A clear and unambiguous provision is essential to effectively prevent assignment. ( 159 AD2d 847, 553 N.Y.S.2d 506 [3rd Dept 1990]; 6 NY Jur.2d, Assignments, Section 10 at 244-245) ]) A clear and unambiguous provision is essential to effectively prevent assignment. ( 159 AD2d 847, 553 N.Y.S.2d 506 [3rd Dept 1990]; 6 NY Jur.2d, Assignments, Section 10 at 244-245)

In Special Products Mfg., Inc. v. Douglas s, the court found that because the agreement did not specifically forbid an assignment the assignment was not forbidden.

Conclusion:

Here, even though the contract is silent as to its assignability the above law establishes that the contract is freely assignable .

Rachel L. Weinrib, Esq.

KIRSCHENBAUM & KIRSCHENBAUM, PC

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An assignment and delegation provision is the clause that specifies a party’s ability to assign its rights or delegate its duties under an agreement. It is a provision that is often placed in the “miscellaneous” or “general” sections of commercial contracts, but it should not be thought of as standard “boilerplate” language that never changes.

Contracting parties should carefully consider the potential situations where an assignment would be desired or required, and should carefully draft the clause to address issues of transferability. Below is an overview of some of the key issues that should be considered when drafting an assignment provision for commercial and technology agreements. Note that, technically, a party assigns its rights and delegates its duties. This overview generally refers to assignments for shorthand.

Yes or no to assignment . The first step is fairly straightforward. Does a party want to allow assignment or prohibit it? Most jurisdictions permit the free transferability of contracts if the contract is silent on assignment, so if there is a desire to restrict assignment, an anti-assignment clause must be included.

Assignment of entire contract vs. individual rights and obligations . Consider whether the goal is to restrict or allow the assignment of the entire contract or individual rights or obligations. If the clause generally prohibits assignment of the agreement, courts commonly read that language to restrict only the delegation of performance, while permitting a party to assign its rights under the contract (such as license rights or the right to receive payment). To restrict such assignment of individual rights, it is important to include language such as “neither this Agreement, nor any rights or obligations hereunder , shall be assignable or otherwise transferable .”

Specify when assignment is permitted and what rights and duties may be assigned . Generally, if specific assignment rights are to be granted, best practices are to include the general restriction highlighted above and then to provide any permitted assignment rights (e.g., “provided that either party may assign . . .”). The provision would specify the situations where assignment is permitted and what rights and duties may be assigned, such as an assignment of rights to a party’s affiliates, to an entity into which the party has merged, or to a successor organization.

Notice and consent . If assignment is permitted, does the assigning party need to obtain the non-assigning party’s consent to the assignment? Or is notice sufficient? If consent is required, consider whether the non-assigning party has complete discretion to withhold consent or whether consent must not be unreasonably withheld or delayed.

Impermissible transfers . Another key issue to address is what happens when there is an assignment in violation of an anti-assignment clause. Because courts generally interpret anti-assignment clauses narrowly, in the absence of additional language, an assignment that violates an anti-assignment provision will likely be considered a valid assignment in breach of the agreement. In other words, the non-assignment party can claim breach, but cannot prevent the actual assignment. To avoid this scenario, additional language should be included to void the impermissible transfer, such as: “Any attempted assignment in violation of the provisions of this Section shall be null and void.”

Divested entities, mergers, acquisitions, and change of control . Organizations are likely to undergo a change in structure at some point. It is important to consider such situations and to specify a party’s ability to transfer its rights or duties to a divested entity or through an M&A transaction or other change of control. Frequently, issues related to competition and intellectual property will need to be considered, and these exceptions to an anti-assignment provision can be nuanced and require specific language to achieve the desired results. As part of the drafting process, parties should carefully analyze the types of transactions that could trigger an anti-assignment provision and include language to address the intended outcomes.

This Contract Corner highlights the importance of not assuming the assignment provision in the final “Miscellaneous” section of an agreement is standard language that needs no review. Each of the issues discussed above should be carefully considered and the assignment provision should be drafted to address these issues.

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Assignment and Assumption Agreement and Optional Novation (NY)

Practical law standard document w-002-7123 (approx. 24 pages).

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Assignment provisions in contracts

Author’s note, Nov. 22, 2014: For a much-improved update of this page, see the Common Draft general provisions article .

(For more real-world stories like the ones below, see my PDF e-book, Signing a Business Contract? A Quick Checklist for Greater Peace of Mind , a compendium of tips and true stories to help you steer clear of various possible minefields. Learn more …. )

Table of Contents

Legal background: Contracts generally are freely assignable

When a party to a contract “ assigns ” the contract to someone else, it means that party, known as the assignor , has transferred its rights under the contract to someone else, known as the assignee , and also has delegated its obligations to the assignee.

Under U.S. law, most contract rights are freely assignable , and most contract duties are freely delegable, absent some special character of the duty, unless the agreement says otherwise. In some situations, however, the parties will not want their opposite numbers to be able to assign the agreement freely; contracts often include language to this effect.

Intellectual-property licenses are an exception to the general rule of assignability. Under U.S. law, an IP licensee may not assign its license rights, nor delegate its license obligations, without the licensor’s consent, even when the license agreement is silent. See, for example, In re XMH Corp. , 647 F.3d 690 (7th Cir. 2011) (Posner, J; trademark licenses); Cincom Sys., Inc. v. Novelis Corp. , 581 F.3d 431 (6th Cir. 2009) (copyright licenses); Rhone-Poulenc Agro, S.A. v. DeKalb Genetics Corp. , 284 F.3d 1323 (Fed. Cir. 2002) (patent licenses). For additional information, see this article by John Paul, Brian Kacedon, and Douglas W. Meier of the Finnegan Henderson firm.

Assignment consent requirements

Model language

[Party name] may not assign this Agreement to any other person without the express prior written consent of the other party or its successor in interest, as applicable, except as expressly provided otherwise in this Agreement. A putative assignment made without such required consent will have no effect.

Optional: Nor may [Party name] assign any right or interest arising out of this Agreement, in whole or in part, without such consent.

Alternative: For the avoidance of doubt, consent is not required for an assignment (absolute, collateral, or other) or pledge of, nor for any grant of a security interest in, a right to payment under this Agreement.

Optional: An assignment of this Agreement by operation of law, as a result of a merger, consolidation, amalgamation, or other transaction or series of transactions, requires consent to the same extent as would an assignment to the same assignee outside of such a transaction or series of transactions.

• An assignment-consent requirement like this can give the non-assigning party a chokehold on a future merger or corporate reorganization by the assigning party — see the case illustrations below.

• A party being asked to agree to an assignment-consent requirement should consider trying to negotiate one of the carve-out provisions below, for example, when the assignment is connection with a sale of substantially all the assets of the assignor’s business {Link} .

Case illustrations

The dubai port deal (ny times story and story ).

In 2006, a Dubai company that operated several U.S. ports agreed to sell those operations. (The agreement came about because of publicity and political pressure about the alleged national-security implications of having Middle-Eastern companies in charge of U.S. port operations.)

A complication arose in the case of the Port of Newark: The Dubai company’s lease agreement gave the Port Authority of New York and New Jersey the right to consent to any assignment of the agreement — and that agency initially demanded $84 million for its consent.

After harsh criticism from political leaders, the Port Authority backed down a bit: it gave consent in return for “only” a $10 million consent fee, plus $40 million investment commitment by the buyer.

Cincom Sys., Inc. v. Novelis Corp., No. 07-4142 (6th Cir. Sept. 25, 2009) (affirming summary judgment)

A customer of a software vendor did an internal reorganization. As a result, the vendor’s software ended up being used by a sister company of the original customer. The vendor demanded that the sister company buy a new license. The sister company refused.

The vendor sued, successfully, for copyright infringement, and received the price of a new license, more than $450,000 as its damages. The case is discussed in more detail in this blog posting.

The vendor’s behavior strikes me as extremely shortsighted, for a couple of reasons: First, I wouldn’t bet much on the likelihood the customer would ever buy anything again from that vendor. Second, I would bet that the word got around about what the vendor did, and that this didn’t do the vendor’s reputation any good.

Meso Scale Diagnostics, LLC v. Roche Diagnostics GmbH, No. 5589-VCP (Del. Ch. Apr. 8, 2011) (denying motion to dismiss).

The Delaware Chancery Court refused to rule out the possibility that a reverse triangular merger could act as an assignment of a contract, which under the contract terms would have required consent. See also the discussion of this opinion by Katherine Jones of the Sheppard Mullin law firm.

Assignment with transfer of business assets

Consent is not required for an assignment of this Agreement in connection with a sale or other disposition of substantially all the assets of the assigning party’s business.

Optional: Alternatively, the sale or other disposition may be of substantially all the assets of the assigning party’s business to which this Agreement specifically relates.

Optional: The assignee must not be a competitor of the non-assigning party.

• A prospective assigning party might argue that it needed to keep control of its own strategic destiny, for example by preserving its freedom to sell off a product line or division (or even the whole company) in an asset sale.

• A non-assigning party might argue that it could not permit the assignment of the agreement to one of its competitors, and that the only way to ensure this was to retain a veto over any assignment.

• Another approach might be to give the non-assigning party, instead of a veto over asset-disposition assignments, the right to terminate the contract for convenience . (Of course, the implications of termination would have to be carefully thought through.)

Assignment to affiliate

[Either party] may assign this Agreement without consent to its affiliate.

Optional: The assigning party must unconditionally guarantee the assignee’s performance.

Optional: The affiliate must not be a competitor of the non-assigning party.

Optional: The affiliate must be a majority-ownership affiliate of the assigning party.

• A prospective assigning party might argue for the right to assign to an affiliate to preserve its freedom to move assets around within its “corporate family” without having to seek approval.

• The other party might reasonably object that there is no way to know in advance whether an affiliate-assignee would be in a position to fulfill the assigning party’s obligations under the contract, nor whether it would have reachable assets in case of a breach.

Editorial comment: Before approving a blanket affiliate-assignment authorization, a party should consider whether it knew enough about the other party’s existing- or future affiliates to be comfortable with where the agreement might end up.

Consent may not be unreasonably withheld or delayed

Consent to an assignment of this Agreement requiring it may not be unreasonably withheld or delayed.

Optional: For the avoidance of doubt, any damages suffered by a party seeking a required consent to assignment of this Agreement, resulting from an unreasonable withholding or delay of such consent, are to be treated as direct damages.

• Even if this provision were absent, applicable law might impose a reasonableness requirement; see the discussion of the Shoney case in the commentary to the Consent at discretion provision.

• A reasonableness requirement might not be of much practical value, whether contractual or implied by law. Such a requirement could not guarantee that the non-assigning party would give its consent when the assigning party wants it. And by the time a court could resolve the matter, the assigning party’s deal could have been blown.

• Still, an unreasonable-withholding provision should make the non-assigning party think twice about dragging its feet too much, becuase of the prospect of being held liable for damages for a busted transaction. Cf. Pennzoil vs. Texaco and its $10.5 billion damage award for tortious interference with an M&A deal.

• Including an unreasonable-delay provision might conflict with the Materiality of assignment breach provision, for reasons discussed there in the summary of the Hess Energy case.

Consent at discretion

A party having the right to grant or withhold consent to an assignment of this Agreement may do so in its sole and unfettered discretion.

• If a party might want the absolute right to withhold consent to an assignment in its sole discretion, it would be a good idea to try to include that in the contract language. Otherwise, there’s a risk that court might impose a commercial-reasonableness test under applicable law (see the next bullet). On the other hand, asking for such language but not getting it could be fatal to the party’s case that it was implicitly entitled to withhold consent in its discretion.

• If a commercial- or residential lease agreement requires the landlord’s consent before the tentant can assign the lease, state law might impose a reasonableness requirement. I haven’t researched this, but ran across an unpublished California opinion and an old law review article, each collecting cases. See Nevada Atlantic Corp. v. Wrec Lido Venture, LLC, No. G039825 (Cal. App. Dec. 8, 2008) (unpublished; reversing judgment that sole-discretion withholding of consent was unreasonable); Paul J. Weddle, Pacific First Bank v. New Morgan Park Corporation: Reasonable Withholding of Consent to Commercial Lease Assignments , 31 Willamette L. Rev. 713 (1995) (first page available for free at HeinOnline ).

Shoney’s LLC v. MAC East, LLC, No. 1071465 (Ala. Jul. 31, 2009)

In 2009, the Alabama Supreme Court rejected a claim that Shoney’s restaurant chain breached a contract when it demanded a $70,000 to $90,000 payment as the price of its consent to a proposed sublease. The supreme court noted that the contract specifically gave Shoney’s the right, in its sole discretion , to consent to any proposed assignment or sublease.

Significantly, prior case law from Alabama was to the effect that a refusal to consent would indeed be judged by a commercial-reasonableness standard. But, the supreme court said, “[w]here the parties to a contract use language that is inconsistent with a commercial-reasonableness standard, the terms of such contract will not be altered by an implied covenant of good faith. Therefore, an unqualified express standard such as ‘sole discretion’ is also to be construed as written.” Shoney’s LLC v. MAC East, LLC , No. 1071465 (Ala. Jul. 31, 2009) (on certification by Eleventh Circuit), cited by MAC East, LLC v. Shoney’s [LLC] , No. 07-11534 (11th Cir. Aug. 11, 2009), reversing No. 2:05-cv-1038-MEF (WO) (M.D. Ala. Jan. 8, 2007) (granting partial summary judgment that Shoney’s had breached the contract).

Termination by non-assigning party

A non-assigning party may terminate this Agreement, in its business discretion , by giving notice to that effect no later than 60 days after receiving notice, from either the assigning party or the assignee, that an assignment of the Agreement has become effective.

Consider an agreement in which a vendor is to provide ongoing services to a customer. A powerful customer might demand the right to consent to the vendor’s assignment of the agreement, even in strategic transactions. The vendor, on the other hand, might refuse to give any customer that kind of control of its strategic options.

A workable compromise might be to allow the customer to terminate the agreement during a stated window of time after the assignment if it is not happy with the new vendor.

Assignment – other provisions

Optional: Delegation: For the avoidance of doubt, an assignment of this Agreement operates as a transfer of the assigning party’s rights and a delegation of its duties under this Agreement.

Optional: Promise to perform: For the avoidance of doubt, an assignee’s acceptance of an assignment of this Agreement constitutes the assignee’s promise to perform the assigning party’s duties under the Agreement. That promise is enforceable by either the assigning party or by the non-assigning party.

Optional: Written assumption by assignee: IF: The non-assigning party so requests of an assignee of this Agreement; THEN: The assignee will seasonably provide the non-assigning party with a written assumption of the assignor’s obligations, duly executed by or on behalf of the assignee; ELSE: The assignment will be of no effect.

Optional: No release: For the avoidance of doubt, an assignment of this Agreement does not release the assigning party from its responsibility for performance of its duties under the Agreement unless the non-assigning party so agrees in writing.

Optional: Confidentiality: A non-assigning party will preserve in confidence any non-public information about an actual- or proposed assignment of this Agreement that may be disclosed to that party by a party participating in, or seeking consent for, the assignment.

The Delegation provision might not be necessary in a contract for the sale of goods governed by the Uniform Commercial Code, because a similar provision is found in UCC 2-210

The Confidentiality provision would be useful if a party to the agreement anticipated that it might be engaging in any kind of merger or other strategic transaction.

Materiality of assignment breach

IF: A party breaches any requirement of this Agreement that the party obtain another party’s consent to assign this Agreement; THEN: Such breach is to be treated as a material breach of this Agreement.

A chief significance of this kind of provision is that failure to obtain consent to assignment, if it were a material breach, would give the non-assigning party the right to terminate the Agreement.

If an assignment-consent provision requires that consent not be unreasonably withheld , then failure to obtain consent to a reasonable assignment would not be a material breach, according to the court in Hess Energy Inc. v. Lightning Oil Co. , No. 01-1582 (4th Cir. Jan. 18, 2002) (reversing summary judgment). In that case, the agreement was a natural-gas supply contract. The customer was acquired by a larger company, after which the larger company took over some of the contract administration responsibilities such as payment of the vendor’s invoices. The vendor, seeking to sell its gas to someone else at a higher price, sent a notice of termination, on grounds that the customer had “assigned” the agreement to its new parent company, in violation of the contract’s assignment-consent provision. The appeals court held that, even if the customer had indeed assigned the contract (a point on which it expressed considerable doubt) without consent, the resulting breach of the agreement was not material, and therefore the vendor did not have the right to terminate the contract.

See also (list is generated automatically) :

Notebook update: Reverse triangular merger might be an assignment of a contract, requiring consent Just updated the Notebook with a citation to a case in which the Delaware Chancery Court refused to rule out the possibility that a reverse...
Assignment-consent requirements can cause serious problems in future M&A transactions A lot of contracts provide that Party A must obtain the prior written consent of Party B if it wishes to assign the agreement to a...
SCOTX rejects implied obligation not to unreasonably withhold consent to assignment of contract In a recent Texas case, two sophisticated parties in the oil and gas business — let’s call them Alpha and Bravo — were negotiating a contract....
Ken Adams and the marketplace of ideas I (used to) comment occasionally at Ken Adams’s blog. Recent examples: Here, here, here, here, and here. Ken and I disagree on a number of issues; some...

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If a contract is silent on assignment does the law imply that the assignment can only take place with consent?

Practical law resource id a-014-2191 (approx. 3 pages).

General Contract and Boilerplate
United Kingdom

Canada: Novation Or Assignment, That Is The Question

In the context of asset acquisition, and assuming that the target's contracts are assets being transferred to the purchaser, the transfer of contracts typically requires the parties to the transaction to go through either the novation process or assignment of the contract from the seller to the purchaser.

Novation is a trilateral agreement between the original parties to a contract and the purchaser seeking to replace the seller to the contract. Novation transfers not only the rights and benefits under the original contract to the purchaser, but also the obligations, thus releasing the seller from all obligations under the original contract. All parties to the original agreement need to consent to the new agreement.

Novation has been referred to as the "Hail Mary" defence for parties seeking to avoid contractual liability, however, the standard of establishing novation is quite high. The Supreme Court of Canada (the SCC ) has established a three-factor test for establishing novation. The party asserting novation must prove:

the purchaser assumes complete liability;
the creditor (one of the existing party to the original contract) must accept the purchaser as principal debtor and not merely as an agent or guarantor of the seller; and
the creditor (one of the existing party to the original contract) must accept the new contract in full satisfaction of, and as substitution for, the old contract. [1]

The SCC also stated that in the absence of an express new agreement, a court should not find novation unless the circumstances are especially compelling. [2]

Assignment and assumption, on the other hand, transfer the contractual rights and benefits held by the assignor/seller to the assignee/purchaser, but not the assignor/seller's obligations under the contract. The burden under the original contract remains with the assignor/seller, thus the assignor/seller can be held liable if the assignee/purchaser fails to perform under the contract. The assignor/seller can protect itself from potential liability by obtaining an indemnity from the assignee/purchaser.

Unlike novation, an assignment does not extinguish the original agreement and does not create a new and separate agreement. The original contract remains in force. Also, unlike novation, depending on the terms of the subject contract, an assignment of the contract may not require the consent of all parties to the agreement. Depending on the terms of the agreement, the assignor/seller usually only needs to provide a notice to the non-assigning party.

If the contract is silent as to its assignability, then the courts have held that the contract is generally assignable, except for personal services contract, where consent must be obtained. [3] The SCC has held that personal services contracts are contracts based on confidences, skills or special personal characteristics such as to implicitly limit the agreement to the original parties, [4] and the determination of whether a contract is personal services contract is often made by the courts.

Assignment and assumption may be more convenient for the seller than novation given that the seller may not need to ask for consent from a third party to assign its interest in an agreement to the purchaser, however, the seller needs to be aware of the potential liabilities if the purchaser fails to perform under the assigned contract. Although novation can protect the seller from such future liabilities, it is a more cumbersome process for all parties involved, and may not be feasible if the third party refuses to provide consent. Therefore, it is essential for parties to assess their relationship with the third party before proceeding with novation.

[1] National Trust Co. v Mead et al. [1990] 2 SCR 410 (SCC).

[3] Canadian Encyclopedic Digest, 4 th ed , ( Thomson Reuters Canada, 2016) at Title 35, Contracts, XIII 1(d)(i).

[4] Rodaro v. Royal Bank of Canada , 2002 CanLII 41834 (ONCA).

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2024-25 MLB Free Agent Power Rankings

White Sox Close To Signing Tommy Pham To Minor League Contract

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MLB Trade Rumors

By Mark Polishuk | April 14, 2024 at 11:06pm CDT

The White Sox and Tommy Pham are close to an agreement on a minor league deal, The Athletic’s Ken Rosenthal reports. The non-guaranteed nature of the contract is something of a technicality due to the fact that Pham is out of minor league options. Since Pham will need some time to properly ramp up to the regular season, starting him in the minors gives the White Sox more flexibility to call him up whenever he is ready.

The Padres, Pirates, and Diamondbacks were all linked to Pham at various points during the offseason, and 10 teams reportedly checked in on the veteran outfielder early in November. The White Sox were also known to be interested in Pham’s services, as USA Today’s Bob Nightengale first noted just under a month ago. However, Opening Day came and went without Pham finding a new contract, and Rosenthal notes that Chicago might have been motivated to finally close a deal after losing Eloy Jimenez , Yoan Moncada , and Luis Robert Jr. to the injured list.

Assuming that a deal is finalized and Pham reaches the active roster as planned, the White Sox will be the eighth different team the outfielder has played for over what will be an 11th Major League season. While his production has been inconsistent over the last four of those seasons, Pham hit well just last year, batting .256/.328/.446 over 481 combined plate appearances with the Mets and Diamondbacks. He also ran hot-and-cold during Arizona’s playoff run, but Pham had huge performances for the D’Backs in the NLDS and in the World Series.

Pham turned 36 last month, and some off-the-field issues have perhaps contributed to his semi-journeyman status despite generally solid numbers over the years. That said, Pham was one of many veteran free agents who remained on the market for a long time, and ended up signing for much less than expected. This cold market impacted not just some of the bigger names available ( Blake Snell , Cody Bellinger , Jordan Montgomery , etc.), but perhaps hit hardest for more mid-tier players like Pham.

As Brandon Belt described things in a recent interview, interested teams seemed to universally view him as a backup plan this winter, and it is fair to wonder if the same applied to Pham. If other teams found other outfielders, or (perhaps more importantly) outfielders willing to play for lesser salaries, it left fewer and fewer opportunities for Pham to land a suitor. Rosenthal notes that Pham was “waiting for an offer he felt was commensurate with his value,” so price seems to have been a factor.

It could be that Pham’s time in Chicago ends up being pretty short, since if he hits well, he’ll undoubtedly get a lot of attention from contenders at the trade deadline. The White Sox already look like sellers after a dreadful 2-13 start to the season, and moving a short-term veteran bat like Pham could be just one of many trades GM Chris Getz could make before the deadline is over.

Until then, Pham could just slide into a regular role as the right-handed hitting complement to Andrew Benintendi in left field, or with Gavin Sheets at DH. Chicago signed Robbie Grossman to a minors deal in late March and Grossman has already become essentially an everyday player in either corner outfield slot, so Pham could also eat into that playing time.

167 Comments

Oh sweet cheese no. Please no.

Guess he held out hoping against hope some sucker would give him a mlb deal like few other washed up vets got late. Seems nobody was desperate enough in the end. He, Cron and small handful of has beens still floating around the abyss.

Someone needs to bring back rich hill.

23 hours ago

You mean, Dick Mountain!

At least they were there once, unlike us.

13 hours ago

Agreed. Tired of all the hate about guys just trying to keep their careers going.

Me too. Keep playing until they kick you out. You know everyone here would, including those saying this, had they had the opportunity.

12 hours ago

Old coots trying to get another paycheck when they’re already multi-millionaires keeps the kids from being brought up. The old, wash ups had their day in the sun. Go home.

Wait until you get to be an old coot. You will have a distinctive change in attitude.

9 hours ago

Apparently the teams hate him too. That is why he is being relegated to the worst team in MLB.

8 hours ago

Oh, and weeks after the season already started and even that miserable team has had multiple injuries. No team that is even thinking about winning would touch him. What does that tell you about Strip Club Tommy?

He’s not washed up. He had a good year in 2023.

Black pink: No, he’s not washed up, which makes me wonder how desperate he must have been to sign with the worst team in baseball.

22 hours ago

Well it’s mid April and he’s unemployed. He’s pretty desperate. Not sure what there is to wonder about.

He’s searching for the Holy Grail, and this is just the latest revival of Phamalot.

@joelp/black He had a 1.5 WAR last season. In case you don’t know, that is below league average. Pham has only ever been a good player one year in his career and he is a toxic presence in every clubhouse he is in.

29 teams passed on signing him to a major league deal. Think about that. There is a reason.

What on earth is league average????? Where did you come up with that nonsense??????

1.5 WAR means he’s 1.5 wins above replacement level. That’s a guy that could help at least 25 teams in baseball right now.

You don’t have a clue what you are talking about.

45 mins ago

Maybe he thinks he’ll get in the lineup, do well, and possibly traded to a contender? Not a fan of him, but I don’t begrudge anyone who wants to keep playing.

What is it with these guys? Another mid-30s free agent outfielder clearly at the end of his string. Is there nobody down on the farm who is ready to fill the void in the Sox outfield? Benintendi hasn’t worked out, Fletcher has been poor at the plate and in the field. Does anybody think Grossman is the answer in right? Maybe Pham? C’mon! This is ridiculous. The Sox have precious little talent on the major league team and apparently very little down on the farm.

The White Sox are very thin in outfield talent.

I for one am surprised he couldn’t find a major league deal. Coming off a 111 OPS+ with 16 HRs. He’s better than some outfielders currently on major league rosters.

The rebuild now begins in earnest!

24 hours ago

Reinsdorf must be feeling the heat to do something, before he gets run out of town. Their team is truly in sad shape – and that’s putting it charitably.

Like who & how is anybody going to run Reinsdorf out of town? This is not your neighborhood little leagues. Stupid comments like yours @dogbine shows your lack of mental acuity. You hate the Sox? Quit posting same ole same ole about them. We know the rebuild started when Grifol was hired, so let them rebuild. Can’t rush ever young player to majors when not ready. If they did you’d be crying about that.

Three postseason dongers in the fall. ChiSox just need to make playoffs.

Have you seen the Sox play? They might be eliminated by the All Star Break

They may be out by the beginning of June at this pace.

I thought they were eliminated in spring training!

ST games doesn’t count

19 hours ago

Way to kill the joke…

Yeah for Tommy

Second City strip clubs stand & cheer, Tommy’s back in town! Ahahaha!

He’ll be called up by the end of the week

Where can I place my bet?

If desperation was a headline..

They need somebody, but not sure Pham is the cure for the sloppy play.

Maybe they think it wkll give them a Pham-ily atmosphere.

Pham can party in downtown Chicago. Plenty of spots for him to party away and drown out the horrendous season he’s going to be playing for with the White Sox. The best bet for him is to put up some decent numbers and get traded at the deadline to a contending team.

Minor league what

Plz don’t go to Southside, you’ll probably regret it

Why, because of crime rarte or the not so smart fans on White Sox? I remember some White Sovpx fans complaining when they lost made playoffs. They just a miserable bunch living in that city that’s crumbling

The organization is nonexistent and the fanbase is sad. This is why.

This will turn the season around.

2nd worst organization in baseball Tommy….you should have held out another week.

Bad organization = playing time

and good odds he’ll be traded to a contender by the TDL if he’s playing well

He must be known as a complete a-hole. Way too good a hitter to not get a major league 26th man flyer from a good team.

Bingo. The Mets traded him away when he was hitting well.

@BaseballisLife: the Mets traded him away because they were playing well below expectations and made a business move to sell whatever they could to get prospects and slightly lower payroll. It had nothing to do with Pham’s personality, and many on the Mets viewed him as a great teammate.

As a Cardinal fan I can tell you he’s mad at the way the Cardinals treated him. And he’s 100% right to be mad. He was stuck in the minors when lesser players were given playing time ahead of him. He has a chip on his shoulder from this he has said so publicly.

The Cardinals have always been a character type of organization and they saw he wasn’t mature enough to be brought up and it’s no secret they spent a lot of time trying to help him grow up and they got what they could out of him and ultimately for him, which wasn’t much, The guy has issues.

It has nothing to do with maturity. He was passed over for lesser players because of prospect status or contract. Same thing happened to other outfielders. The Cardinals have issues.

20 hours ago

Baseball Heaven has issues? Zoinks!

Tommy carries a plethora of chips

It cannot possibly be coincidence that he’s on his eight team in eleven seasons. Some teams will keep players around when they produce even if they’re jerks yet that never seems to happen with Pham. I wonder why?

First the Cards traded him to the Rays who then traded him to San Diego….I remember that the Rays players were upset about the trade and stated so in the media. He was not traded by the Padres as he was a free agent and signed with the Reds. He was traded to the Red Sox at the trade deadline. He became a free agent and signed with the Mets. He started off slow because he got sporadic playing time, and was traded to the D-Backs…..He got plenty of playing time and had a great season. He was one of the reasons Arizona went to the WS. Tommy plays the game like its meant to be played to do whatever it takes to win. Whatever he does in his spare time is his business.

14 hours ago

“Whatever he does in his spare time is his business.” —————————————————— Being a difficult teammate isnt a hobby. Its a full-time thing.

Buck Showalter said this about him “He’s blatantly honest. Some people have trouble with that. If you can’t handle the truth, you can’t handle him.”

This explains the team hopping far better than he’s just unlucky.

10 hours ago

Better way to say it id he is an a-hole. Honest people don’t break rules that puts their teammates health at risk.

So you must be a a-hole too because you speaking your mind honestly here, How rich you are your comments about someone you only met through a TV screen.

5 hours ago

Only an a-hole would just come out and call someone an “a-hole” when they havent corresponded once. Have a nice life.

I have met him. Multiple times. Heard him berate both teammates and fans personally.

I may be an a-hole, but definitely not for calling out Pham for something that anyone that has interacted with him would tell you.

There is a reason he is never brought back by former teams and was traded away by the Mets while hitting well for basically nothing.

It looks like that. You can do whatever you want, until the talent starts to fade. I’ve worked with people like that. Some were so nice that things would have to blow up before you got rid of them. But some others, they were going to be gone on the first slip-up.

11 hours ago

I used to be the Tommy Pham of many jobs. Now thankfully I own and run my own business.

Like I said Pham is a good player who wasn’t treated fairly. Just like Tyler ONeill and to a lesser extent Arozarena and Garcia. The Cardinals are a conservative bunch who sometimes choose players based on attitude over performance. And the team has suffered for it.

Joel, Tommy Pham has burned bridges every where he has been while only being above average one season in his career. Teams want players that are a positive influence back. No one ever signs Pham again.

You don’t get to consistently be a cancer in the clubhouse unless you also are consistently a superstar. Pham has never done the 2nd part while consistently doing the 1st part.

The White Sox are a perfect fit for Pham. He can take his cancerous attitude and mediocre level of play and not be any different than the rest of the guys.

Pham spent most of his career with the Cardinals. You have no idea what kind of influence on others he is none at all you just made that up.

I know what went on in St Louis. He wasn’t a cancer but he didn’t play politics. He wasn’t conservative aka a white guy or a black guy who acted white.

Pham might be the best player on the White Sox. And all it costed them was a minor league deal. The Cardinals, who are 7-9 and need outfield help could certainly use him but hey who cares about winning anymore. Not when you have that great clubhouse that Marmol is running……

50 mins ago

Actually, I do and you obviously don’t.

Pham was toxic in St Louis and in Memphis before that. There are a multitude of reports of that including by someone I respect very much, Derek Goold.

Until 2013 he wasn’t even a good minor league player. When did he get called up? No one blocked him except his own play and attitude.

He cannot play CF and the Cardinals have no need other than CF. He would not start over Donovan or Walker. He would be a 4th OF.

So stop with the race garbage. In fact, stop commenting period because all of it on here has been argumentative garbage based on nothing except apparently the voices in your head. Unless you can speak both factually and non-combatively, find another outlet. This is obviously not healthy for you.

Just the fact that this is his eighth team in eleven years and that he came up with the Cardinals, who like to keep good young hitters and they gave him away for almost nothing, tells you everything you need to know about him as a person. He is a clubhouse cancer that only cares about himself and getting paid…period. Teams know that the juice isn’t worth the squeeze much less the money. The White Sox are going nowhere this season so the question I have is why make a bad season worse? They deserve each other…both losers

He’s getting paid less than he should because the Cardinals kept him down in the minors and instead promoted less talented players. Piscotty was garbage but not only was he promoted ahead of Pham he was handed a ridiculously stupid contract extension. Pham was and is ticked about that and rightfully so.

15 hours ago

@Blackpink/Joel He wasn’t called up by STL as his first full season he AA he tore one labrum and missed most of that season. The next year he torn labrum in other shoulder missing most of that season.

Hard to get called up when recovering from major surgeries. This seems a par for the course comment from you though…

No that’s not true it’s because he’s black according to Blackpink and his racist agenda

Pham is just as of Vietnamese heritage as he is black

Pham had a wonderful post season and no one was wanted him so strange

Waiting to sign this late into things should tell you all you need to know about him as a person. Teams don’t ignore good guys who produce on the field. His numbers aren’t the worst ones out there yet the season is halfway through its first month before he signed a contract. Doubt that was because he wanted to skip Spring Training.

I thought the Diamondbacks loved him as a player and teammate I wouldn’t have minded if the Orioles had signed him, but he couldn’t fit onto the team with a shoehorn

But to just get minor league deal is ridiculous

Plus the other free agents too. Your statement holds no logic.

Awesome, but he is 36 years old and a cancer in club house

The White Sox are a cancer.

Says one who never been in a clubhouse

This is a completely different team than last year. The atmosphere in the clubhouse is exciting! This team is fun! That’s how ya do it on the Southside.

The Campfire Milkshake is rad.

The milkshake is awesome, but its $15. The team is horrendous. Nothing about losing is fun.

4 hours ago

Are the milkshakes rad?

“Nothing about losing is fun.”

You need to inform Schriffen then, cause he doesn’t get it. But that’s the way they do it on the Sothside!!

Nobody’s signed him to this point, but sure, he will have trade value at the deadline because everyone will want him then. Sure.

Only problem I see with signing Pham is the guy I’d like him to replace is Benintendi. Grossman and Pillar are nothing special but at least they get on base more than anybody else in that lineup.

They will probably optioned Pillar to AAA. Beni is stuck with his untradeable contract. Grossman is actually worth keeping b/c of their offense is dead last(runs scored).

Pillar doesn’t have any options. He’d have to accept an assignment after going through waivers which seems unlikely.

I kind of hope Pillar and Grossman stay on the roster all year. Not because I think they are amazing but because if both accrue one more year of service time they’ll hit 10 years and a full MLB pension. Some good should come out of this season.

White Sox need offense badly. Fletcher, Grossman, Sheets and hopefully Pham will turn this season around. I feel bad for White Sox fans myself included. Jerry will sell/die sooner rather than later. New ownership that’s committed to winning can save the franchise. Look what Rocky Wirtz did to the Blackhawks.

You had me all the way through your first sentence. Then: “Fletcher, Grossman, Sheets and hopefully Pham will turn this season around.” Your logic and false hopes just fell into the abyss called Pale Hose Land.

Sox fans are all going through their stages of grief at different speeds. Some of us are in bargaining, some of us in denial, some of us have reached acceptance.

I’m already at seeing how cheap scout seats get on the secondary market and can they get to the point where it’s worth it to buy just for the dinner.

Lol. Those 3 players I mentioned minus Pham haven’t looked awful. The biggest surprise is Sheets and Grossman.

Hey guys–want to go to the White Sox game tonight?

–Why should we?

Well… a few of them haven’t actually looked awful.

–Thanks, it’s bingo night, we just remembered.

“Free Sox Tickets? Uuhhh, nah. I can be sad and disappointed at home and the hot dogs are cheaper.”

Jerry not going anywhere, too bad for you fools

I’m not surprised by Sheets. I’ve always wanted to see what he can do with 600 ABs.

36 mins ago

He is 88. Eventually he will go away. Other than Michael who works with the Bulls, his kids have shown no interest in either the White Sox nor Bulls.

Jerry himself said that when he dies the team should be sold. espn.com/mlb/story/_/id/9299151/jerry-reinsdorf-su…

Even if he can live as long as Peter Angelos did, the time when the team will bev sold is not very far in the future.

Never underestimate a desperate person. How desperate? Desperate enough to sign with the White Sox. That franchise is so bereft of talent Tommy might end up being the White Sox All-star rep.

Makes you wonder if his attitude kept him from being signed

I’ll take statements that result in Duh for $500 Alex

The Cardinals, Phams former team, traded Tyler ONeill because of his attitude. And last time i checked ONeill is leading all of baseball in home runs.

This hate for Pham is misplaced. Lot of conservative white guys spitting it.

Either trolling or a huge white guilt liberal.

Were the same white guys spitting it for Tyler O’Niell? Get a grip. You’re losing it.

35 mins ago

Because he was in shape? What are you babbling about now. Oh my word.

Humbling contract.

What do Tim Anderson, Tommy Pham and Jazz Chisholm all have in common?

They all receive a lot of hate from trade rumor posters.

Now what else do they all have in common?

21 hours ago

Agreed. No white guys get hate here. R&cist posters

They are all either washed up, like to punch people for no good reason, or are quite overrated?

Pham would certainly be a starter in the Cardinals 2024 outfield. With him and ONeill the outfield would be terrific. Instead we got Burleson and Walker.

All 3 are Vietnamese? Oh wait, only one of them is…

Anderson/Pham start fights with other players and are just in general idiots.

Jazz is overrated, thinks he is better than he actually is, and has an attitude problem.

Non team attitudes is what these guys all have in common, which is why some fans dislike them. All the white conservate stuff is laughable.

Pham was a good teammate in St Louis.

Attitude is a matter of perspective. How many owners in baseball are anything but white? How many posters here are anything but white?

Yours truly is not white.

Just because he was a good teammate in one team doesn’t mean he was a good teammate everywhere.

Take for instance the time he attacked Joc over a Fantasy Football League. Seems immature and worthy of posters here disliking him. Actions have consequences.

He’s a bad teammate because of the Joc Pederson thing? Lol sure.

You are full of it.

7 hours ago

Attitude is a matter of perspective. ========================== 1-He got into a fight outside a strip club.

2-He started a fight with Pederson over FB fantasy pool.

3-He’s been on 7 teams in 6 years.

It’s possible that he is disliked. And if he is, it is possible it is his fault.

6 hours ago

A lot of things are possible. But saying he’s a clubhouse cancer or a bad guy is made up nonsense.

ONeill was called a clubhouse cancer by some people. You are a Red Sox fan. You think he is?

3 hours ago

On O’Neill, I don’t recall anyone saying anything bad about him. He seems fine to me, but I am not part of the RS clubhouse.

I’m also not part of the Cards, but his past actions, and his trading history “suggests” otherwise.

2 hours ago

Why the heck do you think you got him for some nobody reliever? Marmol called him out publicly on the 5th day of the season last year. It wasn’t a good look.

They suck? Nope. Chisolm is decent. They have a bad attitude and are toxic in the clubhouse? Wait, only Pham and Anderson are toxic.

I give up. What?

My motivation for commenting is I am a Cardinal fan who knows what happened with Pham and has seen many many players, specifically outfielders, treated unfairly by the organization.

What is your motivation for commenting here folks? I don’t get it. Did Pham not sign a ball for your kid?

How do you go from postseason hero to unemployed and Scott Boras isn’t even your agent?

I don’t know Pham, I don’t know if he’s unlikable or not. However I respect the fact that the dude wants to keep playing and signed a minor league deal to play for what is now a minor league team. You are a long time retired. If it were me, you’d have to drag my rotting carcass off the diamond before I retired. You’ve got 40+ years to sit on your arse, might as well play for as long as you can find a deal.

Yaaaa respect wants more money yaaaa such respect . Typical jock sniffing generic comment acting like it’s brave to want to try and make more money playing baseball

I think the slow off season is probably due to teams being willing to go with young talent over expensive proven talent. The loss of local TV income hurt as well, too. Mid market vets will need to really sit down and look at what’s out there before declining options next year. Those big multi year deals may be a thing of the past except for the very best.

Proven talent GTFO no reason to have Pham blocking any development like a said there’s a reason no contender was seeking him

What player in Sox minors are being blocked? Closest one is Montgomery & he’s not quite ready yet. Might change in 2 weeks but not right now

Not sure what the deal is with Tommy, I thought he was serviceable when he played for the RSox, was surprised he was unemployed.

U donr pay attention if u can’t figure it out

“Pham is out of minor league options“. I’m sorry, this made me laugh at this point in his career.

Locker room cancer

Pham immediately has a higher projected wRC+ than any healthy hitter on the team (at least per the BatX). He’s at 105 and Andrew Vaughan is at 104.

They needed one more for the fantasy football league.

There’s a reason why a contender didn’t offer him anything Pham stinks one of the most overrated player

I like this for the WS. At this point, I can’t believe he can be a negative influence in the clubhouse. And he is good enough to both improve them, and to land them a lottery ticket at the TDL.

Even for the Pale Hosers, it’s hard not to improve from 2-13. I see a leap to 5-20 coming soon.

I know Chicago is the Second City and can support 2 teams but I wonder if they would ever consider moving when expansion finally happens in 3 or 4 years maybe.

Probably too much history in Chicago. Maybe better chance with a new owner.Chance of happening 10%

Consider it? They are going to threaten it like crazy to try to get that new ballpark. They already talked with officials from Nashville at the winter meetings.

Pretty pragmatic plan as I see it.

Get some playing time and at bats, stay prepared and at least decent results and he has a good chance to play for a contender in the second half of the season.

It’s early in the season but the Pale Sox already have a morale problem as well as talent and injury problem. They’ve put themselves in a hole but many players have an opportunity to NOT get discouraged and show off what they can do and some team will want them.

Plus the $s not bad and you get to do some traveling. and play in some cool stadiums. Teambuilding, leadership and other future opportunities.

Think Positive !!! Play like Shoeless Joe! For the Love/FUN of the Game!.

Baseball is a game played by men but you STILL have to have a lot of little boy in You! >>>Enthusiasm!

Callooh! Callay! Too Much? 🙂

Not sure I buy the whole will be traded to a contender. Why didn’t the contenders signed him now?

Because they want to see if he has anything left in the tank without wasting a roster spot for the first few months of the year. Contenders can’t afford the risk, teams like the White Sox can.

Thankful he’s not going to SD. I said it before, and I’ll say it again, I’ll take take Profar ANY DAY over Pham.

Its not an either or situation. Who is the Padres 4th outfielder? I sure as heck don’t know.

Watch the games. Then you’ll know.

Yeah, you obviously don’t know that the “nobody” in center field is having a fantastic year offensively and defensively. So is Profar in left, so how you think that Pham/Profar was not either/or situation is not accurate either since LF is where he was being considered.

Why comment on a team you admittedly know nothing about? You really have nothing else to do?

I said the Padres could use him as a 4th outfielder. And then you got weirdly defensive.

The Padres couldn’t make the playoffs with Soto, Snell and Hader. Good luck in 2024.

Other people above commented on how Pham was a cancer in the clubhouse. That seemed to be the case when he played in SD also. So going back to my initial comment- I’m thankful Pham is not is SD and Profar is.

I am a Cardinals fan. Unlike most of those people commenting I actually know what went on with Pham and what Pham is about. Perhaps you should take your own advice and not comment on a player and team you know nothing about.

Why did Pham seem to be a cancer in the clubhouse in San Diego? Be specific…..

His offense was terrible. He didn’t get along with the team, the fan base. He had incidents in the community.

How did he not get along with the team or fanbase? What incidents in the community? Donating his time and money to charity?

You are clueless.

Ok I’m done. No sense in conversing with a fool. Oh, and the Cardinals are sub 500… so there’s that.

Yep the Cardinals are 500 while another “clubhouse cancer” Tyler ONeill is leading baseball in home runs.

Unlike you I am not a blind homer.

Blackpink in the area Last time I checked their center fielder is a nobody and they didn’t have a 4th outfielder. Feel free to correct me. ========================== I’m going to have to correct you on that one. Their CF is jackson Merrill and has been doing a great job, even though he is only 20++.

Probably the favorite for the ROY.

Blackpink in the area Fantastic year? It’s been 18 games junior calm down. ========================== FWIW, that SSS cuts both ways. You called him a “nobody” based on 18 games, and no soup said he was having a fantastic 18 games, which is true.

If the 18 games is too short to call him fantastic (which is fair), then it is obviously too short to call him a “nobody”.

I forgot they made Merrill the center fielder I thought it was thar Ozacar guy or whatever his name is.

Merrill is playing well. If he keeps it up then so be it. I believe he’s 20 years old and skipped AAA. The Cardinals did this with Walker and it hasn’t worked out. If it does with Merrill then great.

Just to educate you…the Padres outfield is Jurickson Profar-LF, Jackson Merrill-CF…remember his name because he is already way better than Pham and could very well be the ROY and some guy named Fernando Tatis Jr-RF and the forth outfielder is Jose Azocar that can play all three OF positions The Padres just signed Donovan Solano to a minor league contract and he has played all of the infield positions and has played OF in a pinch and he has a much better reputation than FlimFlam Pham will ever have. Solano signs with a team that has a better than 50-50 chance of making the playoffs and is more versatile than Pham who signed with a team that will be watching the playoffs on TV Before you come in here and pop off at least try to understand what you are actually talking about….if you’re going to talk loud at least make sense because all you have done to date is show your ignorance.

Calm down fella. Merrill has had a good couple of weeks. The Padres have a thin bench probably why they are signing Solano in mid April. Enjoy being 500.

I forgot they made Merrill the center fielder ….The Cardinals did this with Walker and it hasn’t worked out. =============================== Fair enough on Merrill. You know, there are a more than a few posters in here that, had they made the same mistake, would never admit it, and continue to swear Merrill was a “nobody”/

IRT Walker, I tried to warn Cards fans last year not to expect too much. He has talent, but he has a lot of Ks in his swing, without having a good glove. Reminds me of Adell a little. IMO, they rushed him in a lost season.

Yeah I thought it was Ozacar in center and who knows as their 4th outfielder. With Merrill they are doing fine for now but I don’t believe in skipping AAA unless it’s an extreme circumstance.

Walker’s defense last year was absolutely terrible. The bat is good but I think he spent the offsesson practing defense and not in the cage. Long term Walker I think is a solid player but he’s not as of today. And the Cardinals ran ONeill out of town and moved Nootbaar to left field to accommodate him.

21 mins ago

Joel P, when has Profar ever been bad as a Padre?

He seems to love playing there, his teammates love him, and has been an above average hitter as a Padre with a 105 OPS+ and 5.0 WAR in 377 games. He is playing extremely well so far b this season as a Padre.

So what do you base your erroneous assessment on?

18 mins ago

Joel P, The Padres closer in 2024 has a 1.08 ERA and 5 saves, 3 of which were 4-5 outs. How is Hader doing?

16 mins ago

Apparently you don’t know what went on because Derek Goold wrote about how Pham was a disruptive influence in the clubhouse.

What time and money to charity? The only thing I can find is 1 appearance on Zoom in 2021 for NKCF. NKC is the degenerative eye disease he suffers from. Other than that, can you show us even one other example?

Azocar is hitting .364.

Do you ever deal in facts.

29 mins ago

Joel, If you don’t know, why are you commenting on it. Just keep quiet about things you are clueless about.

If 10 teams were looking at him, why would he come here. I am a WS fan, and I would not play for this owner, GM or team. LOL Jerry is the worst owner of any sports franchise. He got luck with MJ and Ozzie\2005.

This is the worst baseball team, GM, Owner, etc. we have had. Chris Getz is silent as he great defense commits error after error, cannot hit and the pitching will burn out. Yep, looking at over 100 loses again and no top 10 draft picks either. In fact, most of our picks are dudes anyway. SMH. SOS

Strip club slasher strikes Chicago!!! Hailed as a hero by local politicians and major league baseball…

This guy is solid. Descent numbers with playoff experience.

31 mins ago

Anyone else notice that he still hasn’t signed?

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IMAGES

Assignment Consent Form
Free Insurance Assignment Agreement
New York City Teachers Contract, Expiring Oct. 31, 2009
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Assignment of Contract Template
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COMMENTS

Assignments: The Basic Law
Ordinarily, the term assignment is limited to the transfer of rights that are intangible, like contractual rights and rights connected with property. Merchants Service Co. v. Small Claims Court, 35 Cal. 2d 109, 113-114 (Cal. 1950). An assignment will generally be permitted under the law unless there is an express prohibition against assignment ...
Assignability of Commercial Contracts (NY)
A Practice Note examining New York law relating to the transferability of commercial contracts, including a party's legal ability to assign its rights and delegate its performance obligations under a contract that is silent on transferability, the construction and enforceability of contractual anti-assignment and anti-delegation clauses, and drafting an effective assignment.
Contract Assignment: New York
by Practical Law Commercial Transactions. Maintained • New York, United States. A Q&A guide to contract assignment in New York. This Q&A addresses key areas of contractual limitations on assignment of rights and delegation of performance. Answers to questions can be compared across a number of jurisdictions.
Commercial Contract Assignment (NY)
This practice note addresses the assignability of commercial contracts in New York. It covers situations where an agreement (1) permits assignment, (2) prohibits assignment, (3) restricts assignment to certain situations, or (4) is silent with respect to assignability. The enforceability of anti-assignment clauses in New York is also covered by this note.
PDF NEW YORK Contract Law
Chapter IX Assignment..... 267 Chapter X Performance And Breach..... 277 Chapter XI Excuse..... 321 Chapter XII Damages..... 345 Chapter XIII Particular Agreements and Clauses ... Governed by New York Law. New York Contract Law.
Contract Corner: Assignment and Delegation
Most jurisdictions permit the free transferability of contracts if the contract is silent on assignment, so if there is a desire to restrict assignment, an anti-assignment clause must be included. Assignment of entire contract vs. individual rights and obligations. Consider whether the goal is to restrict or allow the assignment of the entire ...
New York Uniform Commercial Code Law § 2-210 (2022)
Justia Free Databases of US Laws, Codes & Statutes. 2022 New York Laws UCC - Uniform Commercial Code Article 2 - Sales Part 2 - Form, Formation and Readjustment of Contract 2-210 - Delegation of Performance; Assignment of Rights.
General Contract Clauses: Assignment and Delegation (NY)
A Standard Clause, also known as an anti-assignment clause and anti-delegation clause, that provides for a contractual limitation on the assignability of contractual rights and the delegation of contractual duties under New York law. This Standard Clause has integrated notes with important explanations and drafting tips.
Assignment and other dealings
Assignment. We provide advice on a wide range of commercial agreements from trading agreements, outsourcing and other trading contracts and specialist projects. We have specialist experience in healthcare, financial services, media, entertainment and sport, private equity and logistics. Our clients include a number of large listed and private ...
Assignment of Charter
Under New York law, ... 1 In the U.S. generally, a contract that is silent on assignment is generally freely transferable unless either a statute or public policy provides otherwise, or there are ...
That's Not What the Parties Meant: How New York Courts Balance Intent
Justice Robert Reed of the New York County Commercial Division found the guaranty's language ambiguous but declined to amend the contract at summary judgment because he did not find that (1) the ...
Stuff You Might Need to Know: What Assignments Do Broad Anti-Assignment
A recent federal court decision applying Delaware law, Partner Reinsurance Co. Ltd. v. RPM Mortgage, Inc., 2021 WL 2716307 (S.D.N.Y. July 1, 2021), explores some rare contractual territory—i.e., the question whether, in the absence of consent, a valid assignment may be made by a party of its rights to pursue a claim for damages for breach of a merger agreement, notwithstanding an anti ...
A Guide to Understanding Anti-Assignment Clauses
Any agreement that has an anti-assignment clause will be triggered in the event of an asset acquisition. Indeed, one of the disadvantages of structuring a corporate acquisition as an asset ...
A Contract That Means What It Says
A Contract That Means What It Says. In New York, contracts are to be construed in accordance with the parties' intent. See, e.g., Slatt v. Slatt, 64 N.Y.2d 966 (1985). "The best evidence of what parties to a written agreement intend is what they say in their writing.". Slamow v. Del Col, 79 N.Y.2d 1016, 1018 (1992).
In an acquisition, how is an assignment of contract (governed by New
The software license and services agreement (governed by the laws of New York) is between a software company and a licensee (a company in a different industry). The agreement prohibits the licensee from making any assignments without a prior written consent of the software company, but is silent on assignments by the software company.
Q&A
The answer has been, contracts are assignable unless there is a specific provision prohibiting assignment. Your contracts do not have to have an assignment clause to permit assignment. The general rule has exceptions, but they most likely don't apply to security contracts. Personal services contracts, such as an entertainer's contract to ...
Contracting Transferability Delegation
Most jurisdictions permit the free transferability of contracts if the contract is silent on assignment, so if there is a desire to restrict assignment, an anti-assignment clause must be included.
Assignment and Assumption Agreement and Optional Novation (NY ...
An agreement to be used when a party transfers specified contracts to another party, including an assignment of all of its contractual rights and delegation of all of its contractual duties under New York law. This form contains provisions to incorporate an assumption of the delegated obligations and an optional novation into the assignment agreement.
Assignment provisions in contracts
When a party to a contract " assigns " the contract to someone else, it means that party, known as the assignor, has transferred its rights under the contract to someone else, known as the assignee, and also has delegated its obligations to the assignee. Under U.S. law, most contract rights are freely assignable, and most contract duties ...
If a contract is silent on assignment does the law imply that the
Where a contract is silent on assignment and transferability, i.e. there is no assignment and transfer provision, am I right that in my understanding that, under English law, the parties are deemed to have an unfettered right to assign and transfer their rights and obligations under the contract to a third party without having the need to obtain the other party's consent?
Novation Or Assignment, That Is The Question
All parties to the original agreement need to consent to the new agreement. Novation has been referred to as the "Hail Mary" defence for parties seeking to avoid contractual liability, however, the standard of establishing novation is quite high. The Supreme Court of Canada (the SCC) has established a three-factor test for establishing novation.
Q&A
Assignability of Commercial Contracts (NY) | Practical Law. MYSELF must answered the question accordingly plenty time that I have launched up confuse myself. The answer shall been, contracts are assignable unless there is a custom availability banned assignment. Your contracts achieve not have to have an assignment cloth to permit assignment.
PDF Assignability of Commercial Contracts (FL)
If the Contract is Silent on Transferability If the Contract Has an Anti-Assignment and Anti-Delegation Clause Contracts are a form of intangible property. Like other property owners, parties to commercial contracts often desire to transfer their property to a third party. With a contract, transfer involves the assignment of some or all of a ...
PDF Assignability of Commercial Contracts (TX)
party's legal ability to assign its rights and delegate its performance obligations under a contract that is silent on transferability, ... Agreement of all parties to a new contract. Extinguishment of the old contract. A valid new contract. (New York Party Shuttle, LLC v. Bilello, 414 S.W.3d 206, 214 (Tex. App.—Houston [1st Dist.] ...
White Sox Close To Signing Tommy Pham To Minor League Contract
By Mark Polishuk | April 14, 2024 at 11:06pm CDT. The White Sox and Tommy Pham are close to an agreement on a minor league deal, The Athletic's Ken Rosenthal reports. The non-guaranteed nature ...
Upholding Civil Service Protections and Merit System Principles
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