assignment of claims contract

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31 U.S. Code § 3727 - Assignments of claims

In subsection (a)(1), the words “or share thereof” and “whether absolute or conditional, and whatever may be the consideration therefor” are omitted as surplus. In clause (2), the word “authorization” is substituted for “powers of attorney, orders, or other authorities” to eliminate unnecessary words.

In subsections (b) and (c), the word “official” is substituted for “officer” for consistency in the revised title and with other titles of the United States Code.

In subsection (b), the words “Except as hereinafter provided” are omitted as unnecessary. The words “read and” are omitted as surplus. The words “to the person acknowledging the same” are omitted as unnecessary. The text of 31:203(1st par. last sentence) is omitted as superseded by 39:410. The words “Notwithstanding any law to the contrary governing the validity of assignments ” and the text of 31:203(last par.) are omitted as unnecessary.

In subsection (c), before clause (1), the words “bank, trust company, or other . . . including any Federal lending agency” are omitted as surplus. The words “of money due or to become due under a contract providing for payments totaling at least $1,000” are substituted for “in any case in which the moneys due or to become due from the United States or from any agency or department thereof, under a contract providing for payments aggregating $1,000 or more” to eliminate unnecessary words. The text of 31:203(2d par. proviso cl. 1) is omitted as executed. In clause (1), the words “in the case of any contract entered into after October 9, 1940 ” are omitted as executed. In clause (2)(A), the words “payable under such contract” are omitted as surplus. In clause (3), the words “true” and “instrument of” are omitted as surplus. The words “department or” are omitted because of the restatement. The words “if any” and “to make payment” are omitted as surplus.

In subsection (d), before clause (1), the words “During a war or national emergency proclaimed by the President or declared by law and ended by proclamation or law” are substituted for “in time of war or national emergency proclaimed by the President (including the national emergency proclaimed December 16, 1950 ) or by Act or joint resolution of the Congress and until such war or national emergency has been terminated in such manner” to eliminate unnecessary words. The words “ Department of Energy (when carrying out duties and powers formerly carried out by the Atomic Energy Commission)” are substituted for “Atomic Energy Commission” (which was reconstituted as the Energy Research and Development Administration by 42:5813 and 5814) because of 42:7151(a) and 7293. The words “other department or . . . of the United States . . . except any such contract under which full payment has been made” and “of any moneys due or to become due under such contract” before “shall not be subject” are omitted as surplus. The words “A payment subsequently due under the contract (even after the war or emergency is ended) shall be paid to the assignee without” are substituted for “and if such provision or one to the same general effect has been at any time heretofore or is hereafter included or inserted in any such contract, payments to be made thereafter to an assignee of any moneys due or to become due under such contract, whether during or after such war or emergency . . . hereafter” to eliminate unnecessary words. The words “of any nature” are omitted as surplus. In clause (1), the words “or any department or agency thereof” are omitted as unnecessary. In clause (2), the words “under any renegotiation statute or under any statutory renegotiation article in the contract” are omitted as surplus.

Subsection (e)(1) is substituted for 31:203(4th par.) to eliminate unnecessary words.

In subsection (e)(2), the words “person receiving an amount under an assignment or allotment” are substituted for “assignees, transferees, or allottees” for clarity and consistency. The words “or to others for them” and “with respect to such assignments , transfers, or allotments or the use of such moneys” are omitted as surplus. The words “person making the assignment or allotment” are substituted for “assignors, transferors, or allotters” for clarity and consistency.

Assignment of Claims

• First Online: 02 September 2017

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• İlhan Helvacı 2  

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A claim arising from a contract or some other source of obligation, such as a tort or unjust enrichment, may be transferred to third parties. A claim may be transferred by an agreement, by a court order or by law. In this section, assignment of claims effected by agreement and those effected by a court decision or operation of law are analysed respectively.

• Unjust Enrichment
• Assignment Contract
• Ancillary Rights

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For further explanations, see Kocaman ( 1989 ), Dayınlarlı ( 2008 ), Günergök ( 2014 ).

Cession des créances , Abtretung von Forderungen .

Becker ( 1941 ), art. 164, N. 4.

Tercier ( 2004 ), p. 304; Thévenoz and Werro ( 2012 ), art. 164, N. 32–35; Eren ( 2015 ), p. 1236; Tercier et al. ( 2016 ), p. 521; Engel ( 1997 ), p. 872.

Eren ( 2015 ), p. 1237; Tercier et al. ( 2016 ), p. 522; Engel ( 1997 ), p. 872; Tercier ( 2004 ), p. 305; Thévenoz and Werro ( 2012 ), art. 164, N. 36.

Tekinay et al. ( 1993 ), p. 247; Eren ( 2015 ), p. 1237; Oğuzman and Öz ( 2016 ), pp. 571–574; Tercier et al. ( 2016 ), p. 522.

Becker ( 1941 ), art. 164, N. 5; Tercier ( 2004 ), p. 305; Tekinay et al. ( 1993 ), p. 240; Tercier et al. ( 2016 ), p. 522.

Déclaration de volonté , Willenserklärung .

Thévenoz and Werro ( 2012 ), art. 164, N. 20; Oğuzman and Öz ( 2016 ), p. 566.

Oğuzman and Öz ( 2016 ), pp. 562–563; Reisoğlu ( 2014 ), p. 466; Nomer ( 2015 ), p. 449.

Acte de disposition , Verfügungsgeschäft . See Chap. 14 fn. 5–6.

Conversely, such a contract is an acquisitive transaction with regard to the assignee.

Pouvoir de disposer, Verfügungsmacht .

Tercier ( 2004 ), p. 306.

Oğuzman and Öz ( 2016 ), p. 560.

Eren ( 2015 ), p. 1231; Tekinay et al. ( 1993 ), pp. 241–242.

von Tuhr and Escher ( 1974 ), § 93, II, p. 333; Oğuzman and Öz ( 2016 ), p. 560; Reisoğlu ( 2014 ), p. 465; Becker ( 1941 ), art. 164, N. 1. For further explanations see Honsell et al. ( 2003 ), art. 164, N. 23–25.

Nomer ( 2015 ), p. 449; Oğuzman and Öz ( 2016 ), p. 569.

Oğuzman and Öz ( 2016 ), p. 563.

See Sect. 8.2.2 .

Nomer ( 2015 ), p. 449; Oğuzman and Öz ( 2016 ), pp. 566–567; Eren ( 2015 ), pp. 1234–1235.

See Sect. 29.2 .

Thévenoz and Werro ( 2012 ), art. 164, N. 19.

See Sect. 29.3 .

Tekinay et al. ( 1993 ), p. 250; Thévenoz and Werro ( 2012 ), art. 164, N. 61; Tercier ( 2004 ), p. 307.

Tercier et al. ( 2016 ), p. 524; Oğuzman and Öz ( 2016 ), pp. 574–575; Eren ( 2015 ), p. 1238.

Oğuzman and Öz ( 2016 ), p. 577.

Feyzioğlu ( 1977 ), p. 641; Tekinay et al. ( 1993 ), p. 241; Oğuzman and Öz ( 2016 ), p. 575.

See Sect. 26.4 .

Tekinay et al. ( 1993 ), p. 251; Oğuzman and Öz ( 2016 ), pp. 577–578.

For further explanations, see Helvacı ( 2008 ).

Thévenoz and Werro ( 2012 ), art. 170 fn. 30, cf. Feyzioğlu ( 1977 ), p. 651; Tekinay et al. ( 1993 ), p. 260.

For further explanations see Çetiner ( 2010 ).

Eren ( 2015 ), p. 1240; Oğuzman and Öz ( 2016 ), p. 576; Oğuzman et al. ( 2016 ), p. 1049, compare to Thévenoz and Werro ( 2012 ), art. 170, N. 9.

Oğuzman and Öz ( 2016 ), p. 576; Nomer ( 2015 ), p. 450.

Feyzioğlu ( 1977 ), p. 651; Tekinay et al. ( 1993 ), p. 259; Oğuzman and Öz ( 2016 ), p. 578.

Thévenoz and Werro ( 2012 ), art. 170, N. 11; Oğuzman and Öz ( 2016 ), p. 578; Feyzioğlu ( 1977 ), p. 651; Tekinay et al. ( 1993 ), p. 260.

For further explanations see Günergök ( 2014 ).

Tercier ( 2004 ), p. 308.

Thévenoz and Werro ( 2012 ), art. 167, N. 21; Oğuzman and Öz ( 2016 ), pp. 582–583; Nomer ( 2015 ), p. 452; Reisoğlu ( 2014 ), p. 470.

Becker ( 1941 ), art. 168, N. 7; Engel ( 1997 ), p. 884; Thévenoz and Werro ( 2012 ), art. 168, N. 4; Feyzioğlu ( 1977 ), p. 656; Oğuzman and Öz ( 2016 ), pp. 583–584.

Öz ( 1990 ), pp. 57–58.

Tekinay et al. ( 1993 ), p. 252 ff ; Oğuzman and Öz ( 2016 ), p. 586; Eren ( 2015 ), p. 1241

See Sect. 18.4.2.2 .

Thévenoz and Werro ( 2012 ), art. 169, N. 11; Feyzioğlu ( 1977 ), p. 658; Oğuzman and Öz ( 2016 ), p. 587; Eren ( 2015 ), p. 1241.

For further explanations see Engin ( 2002 ).

Oğuzman and Öz ( 2016 ), p. 591.

Oğuzman and Öz ( 2016 ), p. 593.

See Sect. 24.2 .

Tekinay et al. ( 1993 ), p. 266; Eren ( 2015 ), p. 1227; Oğuzman and Öz ( 2016 ), p. 596.

See Sect. 25.4.2 , fn. 43.

The transfer of possession is of a factual nature. The material transfer of possession must be complemented by the parties’ agreement (referred to as a real agreement) concerning the transfer of ownership or the constitution of rights in rem . The real agreement is a bilateral legal act and does not require any specific form. It may be formed by the parties’ express or implied declarations of will (intention).

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Helvacı, İ. (2017). Assignment of Claims. In: Turkish Contract Law. Springer, Cham. https://doi.org/10.1007/978-3-319-60061-1_32

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FAC Number: 2024-03 Effective Date: 02/23/2024

32.805 Procedure.

(a) Assignments.

(1) Assignments by corporations shall be-

(i) Executed by an authorized representative;

(ii) Attested by the secretary or the assistant secretary of the corporation; and

(iii) Impressed with the corporate seal or accompanied by a true copy of the resolution of the corporation’s board of directors authorizing the signing representative to execute the assignment.

(2) Assignments by a partnership may be signed by one partner, if the assignment is accompanied by adequate evidence that the signer is a general partner of the partnership and is authorized to execute assignments on behalf of the partner-ship.

(3) Assignments by an individual shall be signed by that individual and the signature acknowledged before a notary public or other person authorized to administer oaths.

(b) Filing. The assignee shall forward to each party specified in 32.802 (e) an original and three copies of the notice of assignment, together with one true copy of the instrument of assignment. The true copy shall be a certified duplicate or photostat copy of the original assignment.

(c) Format for notice of assignment. The following is a suggested format for use by an assignee in providing the notice of assignment required by 32.802 (e).

Notice of Assignment

To: ___________ [ Address to one of the parties specified in 32.802 (e) ].

This has reference to Contract No. __________ dated ______, entered into between ______ [ Contractor’s name and address ] and ______ [ Government agency, name of office, and address ], for ________ [ Describe nature of the contract ].

Moneys due or to become due under the contract described above have been assigned to the undersigned under the provisions of the Assignment of Claims Act of1940, as amended, ( 31 U.S.C.3727 , 41 U.S.C.6305 ).

A true copy of the instrument of assignment executed by the Contractor on ___________ [ Date ], is attached to the original notice.

Payments due or to become due under this contract should be made to the undersigned assignee.

Please return to the undersigned the three enclosed copies of this notice with appropriate notations showing the date and hour of receipt, and signed by the person acknowledging receipt on behalf of the addressee.

Very truly yours,

__________________________________________________ [ Name of Assignee ]

By _______________________________________________ [ Signature of Signing Officer ]

__________________________________________________ [ Titleof Signing Officer ]

__________________________________________________ [ Address of Assignee ]

Acknowledgement

Receipt is acknowledged of the above notice and of a copy of the instrument of assignment. They were received ____(a.m.) (p.m.) on ______, 20___.

__________________________________________________ [ Signature ]

__________________________________________________ [ Title ]

__________________________________________________ On behalf of

__________________________________________________ [ Name of Addressee of this Notice ]

(d) Examination by the Government. In examining and processing notices of assignment and before acknowledging their receipt, contracting officers should assure that the following conditions and any additional conditions specified in agency regulations, have been met:

(1) The contract has been properly approved and executed.

(2) The contract is one under which claims may be assigned.

(3) The assignment covers only money due or to become due under the contract.

(4) The assignee is registered separately in the System for Award Management unless one of the exceptions in 4.1102 applies.

(e) Release of assignment.

(1) A release of an assignment is required whenever-

(i) There has been a further assignment or reassignment under the Act; or

(ii) The contractor wishes to reestablish its right to receive further payments after the contractor’s obligations to the assignee have been satisfied and a balance remains due under the contract.

(2) The assignee, under a further assignment or reassignment, in order to establish a right to receive payment from the Government, must file with the addressees listed in 32.802 (e) a-

(i) Written notice of release of the contractor by the assigning financing institution;

(ii) Copy of the release instrument;

(iii) Written notice of the further assignment or reassignment; and

(iv) Copy of the further assignment or reassignment instrument.

(3) If the assignee releases the contractor from an assignment of claims under a contract, the contractor, in order to establish a right to receive payment of the balance due under the contract, must file a written notice of release together with a true copy of the release of assignment instrument with the addressees noted in 32.802 (e).

(4) The addressee of a notice of release of assignment or the official acting on behalf of that addressee shall acknowledge receipt of the notice.

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DEFECTIVE ASSIGNMENT OF CLAIMS ON A CONTRACT

DEFECTIVE ASSIGNMENT OF CLAIMS ON A CONTRACT By Richard D. Lieberman, Consultant

The Assignment of Claims Act of 1940 (31 U.S.C. § 3727 & 41 U.S.C. § 6305), provides a financing mechanism somewhat similar to the “invoice factoring” used in commercial contracts. (In commercial contracts, in order to get immediate cash when invoices are not paid timely, a business may sell its accounts receivable to a third party or factor, usually at a discount.)  The Assignment of Claims Act, as implemented in FAR Subpart 32.8, permits companies to assign money that is due under the contract if the following conditions are met:

(a) The contract specifies payments aggregating $1,000 or more; (b) The assignment is made to a bank, trust company, or other financing institution, including any Federal lending agency;  (c) The contract does not prohibit the assignment; (d) Unless otherwise expressly permitted in the contract, the assignment-

(1) Covers all unpaid amounts payable under the contract; (2) Is made only to one party, except that any assignment may be made to one party as agent or trustee for two or more parties participating in the financing of the contract; and (3) Is not subject to further assignment.

(e) The assignee sends a written notice of assignment together with a true copy of the assignment instrument to the- (1) Contracting officer or the agency head; (2) Surety on any bond applicable to the contract; and (3) Disbursing officer designated in the contract to make payment.

Allied Meridian Funding LLC v. Dept of Agriculture, CBCA 6893, March 18, 2021, is an example of how a contractor or assignee under the Act and the FAR can make a defective assignment and not accomplish their objectives.

On August 29, 2016, the Department of Agriculture awarded Genesis Management Group a contract to provide staffing services. Genesis executed an assignment of “all moneys due or to become due to Allied Meridian Funding” on October 10, 2016.  However, the document was not notarized until December 1, 2016.  Further, the Contracting Officer was given no notice, actual or constructive until December 1, 2016, when, on December 2, 2016, he modified the contract to incorporate the assignment of claims.

Allied submitted a claim for $86,840, for all invoices financed by it between October 10, 2016 and December 2, 2016.  The Board denied the entire claim, agreeing that the Department of Agriculture had properly paid Genesis until December 2, 2016, because there had been no notification, as required by FAR 32.802 (e) (requiring the assignee to “file written notice of the assignment and a true copy of the instrument of assignment with… the contracting officer or head of the officer’s department or agency [and others]”.) The Board noted that the Government will not recognize an assignment until the assignee files written notice, and a true copy of the instrument of assignment with the contracting officer, among others.  Allied was out of luck, unless it could obtain repayment from Genesis.

Takeaway:  Meting the requirements of the Assignment of Claims Act and its regulation at FAR Subpart 32.8 is not a difficult thing to do.  FAR 32.805(e) even provides a sample format for the notice of assignment, and reminds the writer of that format of the persons who must receive a copy.  All the assignee needs to do is read and comply with this straightforward regulation.  The transmission of an assignment should be made by Registered or Certified Mail, or by a carrier that provides a receipt, or even email, provided that the sender receives a return email confirming receipt.

For other helpful suggestions on government contracting, visit:

Richard D. Lieberman’s FAR Consulting & Training at  https://www.richarddlieberman.com/ , and Mistakes in Government Contracting at  https://richarddlieberman.wixsite.com/mistakes .

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Assigning A Breach of Contract Claim In Illinois – Some Basics

Contract rights are assigned fairly often, especially in the mortgage loan and credit card contexts. In the former mortgage scenario, it’s common for a promissory note to be assigned multiple times during the note’s lifespan.

When there’s eventually a note default, it becomes a challenge for the noteholder to trace how it came into the note’s possession. Repeated note assignments also provide the note maker (person who signed the note) a ready-made defense to a lawsuit based on the note. The noteholder plaintiff then has the burden of proving to the court that it has the right to sue on the note.

Because assignments are so prevalent and confusion often results as to who can enforce contract rights, it’s important from both plaintiff and defense sides to have a working knowledge of what claims can be assigned and what defenses are available to a a defendant sued by an assignee of a contract claim.

The basics: a person that has a claim against another has a “chose in action.” Classic examples of a chose in action include a claim for money owed on a debt, a right to stock shares or a claim for damages in tort. Black’s Law Dictionary 258 (8th ed. 2004)

Choses in action are generally assignable. An assignment transfers title to the chose in action to the assignee, who becomes the real party in interest. The assignee of the chose in action may then sue on the claim in his or her own name.

An action brought by an assignee is subject to any defense or set-off existing before notice of the assignment is given to the defendant. 735 ILCS 5/2–403(a). But the set-off or defense must relate specifically to the assigned claim. It can’t pertain to something extraneous to that claim.

Example, if Company X assigns its 2015 breach of contract claim against Person Y to me and I sue Person Y, Person Y can’t raise as a defense a $1,000 claim Person Y has against Company X from a 2013 contract. The two contracts are different and involve different underlying facts. Person Y can only defend based on the same 2015 contract Company X assigned.

Puritan Finance Corp. v. Bechstein Const. Corp. 2012 IL App(1st) 112261 illustrates what defenses a defendant has versus a contract claim assignee under the common law and under Article 9 of the UCC.

The plaintiff was the assignee of a bankrupt trucking company (the Assignor) that had previously done business with the defendant. The Assignor was owed monies by the defendant and assigned its claim to the plaintiff, a secured creditor of the Assignor.

After the plaintiff sued, the defendant asserted defenses based on an unrelated claim it had against the Assignor before the plaintiff’s involvement. The court granted judgment for the plaintiff after a bench trial for the full amount of its claim (about $22,000) and the defendant appealed.

Affirming the judgment for the assignee, the court first rejected the defendant’s set-off claim under Code Section 2-403(a). Since the defendant’s set-off involved a contract that was separate from the one being sued on, the defendant couldn’t use this separate contract as a defense to the assignee’s lawsuit.

The defendant’s Article 9 defense was a closer call. UCC Article 9 governs security interests in personal property as collateral to secure a debt. Section 9-404(a) of the UCC (810 ILCS 5/9-404) provides that an account debtor can assert against the assignee (1) any defense he (the debtor) had against the assignor “arising from the transaction” giving rise to the assignee’s claim; and (2) any other defense the debtor has against the assignor that accrues before the debtor received notice of the assignment.

Here, the defendant argued that under paragraph (2) of 9-404, it could assert defenses that related to a separate contract between it (the defendant) and the Assignor. The court disagreed and gave a narrow reading to Section 9-404.

It held that since the defendant didn’t and couldn’t yet file suit against the Assignor before the assignment of the contract to the assignee/plaintiff, the defendant’s claim hadn’t “accrued” within the meaning of Section 9-404. As a result, judgment for the plaintiff was affirmed.

Afterwords:

– Where a defendant is sued by an assignee of a contract claim, it will be difficult to challenge the claim unless the defendant has claims or defenses against the assignor that are transactionally related to the assigned claim. If the defendant’s defense relates to a separate, unrelated transaction, the defense or set-off will likely fail;

– Under Section 9-404, a defense “accrues” where the defendant actually has a viable cause of action against the assignor, such as where there has been a default in assignor’s payment obligations, instead of just a bare claim that a defendant is owed money on an unpaid invoice.

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