Balance of Interests and Protection of Reliance:On the Necessity of Breaking the"Stalemate"in Assignment of Claims with No-Transfer Special Agreement
There are still many unresolved issues regarding the external effect of the no-transfer special agreement,and the"stalemate"between the assignor and the assignee,who are unable to collect their claims,is a case in point.The purpose of preserving the debtor's economic interests and the benefits of set-off built into the special agreement is not a justifiable basis for the survival of the"stalemate".A shift in perspective among the three parties involved in the special contract shows that the existence of a"stalematet"not only relieves the debtor of the need to treat payment in the absence of absolute justification and blocks the debtor's liability for delay in performance;it also relieves the assignor of the need to be liable for defects or breach of contract to the assignee after obtaining the full amount of the consideration.The existence of a"stalemate"constitutes an undue preference between the debtor and the assignor.An assignee subject to a defence has an expectation of"final collection of the claim"in respect of a"contract of uncertain legal effect"which is reasonable in light of the provisions of the law,the customs of the trade and the common sense of life,and is a reasonable expectation resulting from changes in the law,and for which the debtor and the assignor are attributable.The debtor and the assignor are attributable to this expectation,it is necessary to establish a path of reliance law to break the"stalemate".
stalematemalicious assigneeno-transfer special agreementprotection of relianceattributability
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