Chapter five
Delegation and Assignment of Obligations Introduction
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SCHOOL OF LAW A THESIS SUBMITTED IN THE, CHALLENGES OF CASE MANAGEMENT IN SOMALILAND HIGH COURT
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Delegation and Assignment of Obligations IntroductionIn addition to declaration of demand, promise for third party, stipulation for the benefit of third party, assignment of rights and subrogation, contracts produce effect on third parties in case of delegation of obligations and assignment of estate. Unlike assignment of rights, what is delegated is obligation; and what are assigned are rights with its corresponding duties, but not only rights. Thus, in case of delegation, the debtor may delegate performance of his duties to a third person. On the other hand, rights arising out of a contract with its corresponding duties can be transferred to a third person by way of assignment of obligation, estate,. In this unit, we will study Articles 1976 through 1982 of the Civil Code and Articles 1983 through 1985 of the Civil Code which deal with delegation and assignment obligations respectively. ObjectivesAt the end of this section, you will be able to: Define delegation and assignment of obligations; Explain the validity requirements for delegation; Distinguish between perfect and imperfect delegation; Explain the effects of perfect and imperfect delegation; Discuss amalgamation of undertakings and formation of partnership; and Explain the effects of amalgamation and formation of partnership Principle of delegation Delegation is the act by which a person delegates the performance of his obligation to a third person. There are three persons in cases of delegation. These are: the delegator, the person whomakes the delegation; the delegatee, the creditor; and the delegate-debtor, the third party who is delegated and becomes a debtor. Article 1976 of the Civil Code states the principle governing delegations is that the debtor of a contractual obligation may substitute himself another debtor to perform the obligation. In case of delegation of obligation, in principle, unlike assignment of rights, the debtor has to ask the creditor to accept a third person as his debtor, who consents to bind himself to him. The change of debtor could be very detrimental to the creditor, this is why the latter's consent is required as a rule. But the Ethiopian law reserves cases where usage or the law itself allows such substitution of debtors without the consent of the creditor. The interest of such an institution is first and foremost for the debtor to avoid performing the contract either because he does not wish to or simply cannot. The substituted debtor may accept the operation as a favor for the original debtor, or simply be paid to do so when for some reason the main debtor cannot perform. We are here often in the case where the substituted debtor is in fact a sub-contractor of the main debtor. Most often the delegator is the creditor of the delegate debtor and delegation is a means whereby he frees himself from his obligations towards the delegatee. However, this is not always the case. The debtor assigns his own debtor to the creditor who is to perform his obligation in his place. Generally, the economic importance of delegation is that it simplifies transactions and obtain, by means of a single act, the same result as if two payments will be made successively, one by the delegate debtor to the delegator the other by the delegator to the delegate. However, for the delegation to be complete is the acceptance by the delegate-debtor. This is the fundamental requirement because the delegate assumes the position of substituted debtor, and may be compelled to perform the obligation. This is recalled in Article 1978 of the Civil Code. This provision stresses that such consent remains necessary even if the delegate is also the debtor of the debtor. He cannot be forced to perform a given obligation in respect of a creditor who was up to now alien to him, by the mere fact that he owes another obligation to the delegator. This being said, Article 1979 sub.2 of the Civil Code states that the delegate may accept the liability or perform the delegated obligation, even after the death or incapacity of the delegator. Moreover, once the delegate debtor has consented to the delegation or made performance to the creditor, the delegation may not be revoked. (See Article 1979 of the Civil Code). Download 53.56 Kb. Share with your friends:
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