Chapter five
Effect of subrogation and assignments
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SCHOOL OF LAW A THESIS SUBMITTED IN THE, CHALLENGES OF CASE MANAGEMENT IN SOMALILAND HIGH COURT
5.2.3. Effect of subrogation and assignmentsArticles 1973 and following of the Civil Code state the consequences common to assignments and subrogation. This provision makes no distinction between the effects of assignment for consideration and gratuitous or legal subrogation and conventional subrogation. The assignment or subrogation to a right entails the right to exercise the liens, securities and accessory rights attached to it, with an exception in respect of a pledge, which calls for the express consent of the pledger. In such cases, the assignee or subrogee may not be allowed to take possession of the thing given in pledge without securing the consent of the pledger (see Article 1973(2)) of the Civil Code. The reason behind such prohibition is that the pledger gives the pledge to the creditor on the assumption that the latter will properly be given by way of pledge and believes that the creditor will keep the thing he received in pledge as he would keep that of his own. The original creditor has a duty to cooperate to ensure as much as possible that the assignee or subrogated creditor has the best chances of being paid by the debtor. This covers the transfer of contracts, title-deeds and any means of proof of the obligation, as well as of any relevant information. Coming to the duties of the original creditor, the new creditor must be supplied with everything, by the original creditor that helps him acquire the right from the debtor. Accordingly, the assignor or subrogor who will be in possession of the document of title and other means of proof should hand over these documents and proofs to the new creditor. However, in the event of a part payment, and to counterbalance the priority right set out under Article 1972, sub.2 the original creditor shall supply certified copies of the evidence of the claim. But these documents, not being the original document, do not have its enforceability of course (see Article 1974 of the Civil Code). One last point is that the provisions on assignment of rights are applicable only where there are no special provisions dealing with special cases of assignment as per Article 1975 of the Civil Code. Sub-Article one of this Article talks about special cases of assignment of rights, such is the case for instance for usufructuary rights (Article 2410 of the Civil Code); incorporeal rights (Article 2411 of the Civil Code); succession of rights (Article 1124 of the Civil Code) and administrative contracts (Article 3202 of the Civil Code). Sub-Article two of 1975 of the Civil Code reserves the case where the claim is embodied in a registered document or an instrument to order or bearer. Download 53.56 Kb. Share with your friends:
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