If an equitable assignment were a transfer, as I think a statutory assignment is, which changed the identity of the creditor, then you would need to notify the debtor.
But it isn't. So you don't.
In the case of an equitable assignment the assignee acquires an equitable "interest" in the "assigned" debt prior to payment, not just an interest in future property not yet in existence (ie the funds once paid).
From: Angela Swan <aswan@airdberlis.com>
Sent: 03 May 2021 13:17
To: Ying Liew <ying.liew@unimelb.edu.au>; Peter Radan <peter.radan@mq.edu.au>
Cc: obligations@uwo.ca <obligations@uwo.ca>
Subject: Re: Equitable Assignment Query
For there to be an equitable assignment C, the debtor, has to receive notice of the assignment. If C pays B, as it clearly can, not having notice of the assignment, then the others can fight over the funds now in B’s hands but that fight has nothing to
do with the law of assignment.
Angela Swan
From: Ying Liew <ying.liew@unimelb.edu.au>
Sent: Monday, May 3, 2021 7:17 AM
To: Peter Radan
Cc: obligations@uwo.ca
Subject: Re: Equitable Assignment Query
CAUTION -- EXTERNAL E-MAIL - Do not click links or open attachments unless you recognize the sender.
Dear Peter
Please allow me to attempt an answer. In the absence of consideration from D or E for the assignment, the outcome turns on whether we can say that B has done everything in B’s power to effectuate the (legal) assignment (Re Rose). Since signed writing
by the assignor (or agent) is necessary for that, the answer should ordinarily be in the negative; however, a court predisposed to follow the difficult decision in
Pennington v Waine may nevertheless be inclined to perfect the equitable assignment if it thought that it would have been “unconscionable” in the circumstances for B to have changed her mind.
Yours
Ying
On 3 May 2021, at 18:28, Peter Radan <peter.radan@mq.edu.au> wrote:
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Colleagues,
Something tells me that I maybe should know the answer to this question, but I am not sure that I do, so I would welcome suggestions on this. Add to any reply that the answer is obvious and I should know!
A, (eg a solicitor) has a general power of attorney from B. C owes B $500. B wants to assign the debt to D to hold on trust for E and instructs A to prepare the necessary documents. A does so and advises B of the fact. For whatever reason B tells A to sign
the documents pursuant to the power of attorney (alternative scenario, B gives written instructions to that effect). B dies before A signs the documents.
Although the debt has not been assigned at law, has it been assigned in equity?
Thanks,
Peter
Professor Peter Radan,
Honorary Professor, Macquarie University
Fellow of the Australian Academy of Law
BA, LLB, PhD (Syd), Dip Ed (Syd CAE)
Macquarie Law School
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Macquarie University, NSW, 2109
Australia
Email: peter.radan@mq.edu.au
Blog: https://www.allaboutnothing.info