equitable assignment example

Equitable Assignment: Everything You Need to Know

An equitable assignment is one that does not fulfill the statutory criteria for a legal assignment, but is binding and upheld by the courts in the interest of equability, justice, and fairness. 3 min read updated on February 01, 2023

An equitable assignment is one that does not fulfill the statutory criteria for a legal assignment, but is binding and upheld by the courts in the interest of equability, justice, and fairness.

Equitable Assignment

An equitable assignment may not appear to be self-evident by the law's standard, but it presents the assignee with a title that is protected and recognized in equity. It's based on the essence of a declaration of trust; specifically, essential fairness and natural justice. As long as there is valuable consideration involved, it does not matter if a formal agreement is signed. There needs to be some sort of intent displayed from one party to assign and the other party to receive.

The evaluation of a righteous equitable assignment is completed by determining if a debtor would rationally pay the debt to another party alleging to be the assignee. Equitable assignments can be created by:

• The assignor informing the assignee that they transferred a right to them
• The assignor instructing the other party to release their obligation from the assignee and place it instead on the assignor

The only part of an agreement that can be assigned is the benefit. Generally speaking, there is no prerequisite for the written notice to be received or given. The significant characteristic that separates an equitable assignment from a legal assignment is that most of the time, an equitable assignee may not take action against a third party. Instead, it must rely on the guidelines governing equitable assignments. In other words, the equitable assignee must team up with the assignor to take action.

The Doctrine of Equitable Assignment in Wisconsin

In Dow Family LLC v. PHH Mortgage Corp ., the Wisconsin Supreme Court issued in favor of the doctrine of equitable assignment. The case was similar to many other foreclosure cases, except this one came with a twist. Essentially, Dow Family LLC purchased a property and the property owner insisted the mortgage on the property had been paid off. However, in actuality, it wasn't. 

Prior to the sale, the mortgage on the property was with PHH Mortgage Corp. When PHH went to foreclose on the mortgage, Dow Family LLC contested it. There was one specific rebuttal that caught the attention of the Wisconsin Supreme Court. The official mortgage on record was with MERS, an appointee for the original lender, U.S. Bank.

Dow argued that PHH couldn't foreclose on the property because the true owner was MERS. Essentially, Dow was stating that the mortgage was never assigned to PHH. Based on this argument, PHH utilized the doctrine of equitable assignment.

Based on a case from 1859, Croft v. Bunster, the court determined that the security for a note is equitably assigned when the note is assigned without a need for an independent, written assignment. Additionally, Dow contended that the statute of frauds prohibits the utilization of the doctrine, mainly because it claimed every assignment on a property must be formally recorded.

During the case, Dow argued that the MERS system, which stored the data regarding the mortgage, was fundamentally flawed. According to the court, the statute of frauds was satisfied because the equitable assignment was in accordance with the operation of law. Most importantly, the court avoided all consideration regarding the MERS system, concluding it was not significant in their decision. 

The outcome was a major win for lenders, as they were relying on the doctrine specifically for these types of circumstances.

Most experts agree that this outcome makes sense in the current mortgage-lending environment. This is due to the fact that it is still quite common for mortgages to be bundled up into mortgage-backed securities and sold on the secondary market.

Many economists claim that by not requiring mortgages to be recorded each time a transfer is completed, the loans are more easily marketed to investors. Additionally, debtors know who their current mortgage company is because the new lender must always notify the current borrower in order to receive payment. It was determined that recording and documenting the mortgage merely provides a signal to the rest of the world that the property owner secures a debt.

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What Is an Equitable Assignment?

An equitable assignment is a transfer of future interest that doesn’t fully meet legal standards, but will still be honored by courts. This is an example of a situation covered by equity, or fairness, rather than specific legal doctrine. Courts will enforce such agreements when they are not covered by existing laws, as long as they appear reasonable, fair, and without coercion. The standards for an equitable assignment to pass court scrutiny can depend on the region and the situation.

In such assignments, people can reassign future income in several different ways. One option can be to transfer interest, like part of a trust, to another person; the trust is guaranteed income, but the assignor waives the right to it, allowing the assignee to benefit from it. Another way to perform an equitable assignment is to have third parties transfer anticipated payments to the assignee. In all cases, the transfer involves future income or benefits, not current ones.

Expectations do not count as an equitable assignment. If a child believes she will inherit her father’s house, for example, she cannot transfer her interest in the house to another party. This is because the inheritance is an expectation, not a guarantee. In the event she does not inherit the house, the person she transferred the interest to has no recourse. Thus, someone cannot ask to have a debt written off in exchange for a future expectation.

Due consideration also needs to be part of an equitable assignment transaction to prevent fraud and ensure a transaction is legitimate. In the example of assigning rights to a trust, for instance, the assignor would need to receive something in exchange. That might be a bulk payment to buy the right to proceeds from the trust later. If due consideration is not present, the court may not uphold the agreement, on the grounds that it could be suspect. A special concern can be attempts to transfer rights to future earnings for the purpose of avoiding tax liability, in which case the assignee might be planning to transfer the funds back or allow the assignor to use them.

Specific legal standards for equitable assignments can depend on the nation. People with concerns can consult an attorney for advice in these situations. Attorneys with expertise in this area are familiar with actions in equity courts and can determine whether a transaction is likely to hold up in court.

Ever since she began contributing to the site several years ago, Mary has embraced the exciting challenge of being a MyLawQuestions researcher and writer. Mary has a liberal arts degree from Goddard College and spends her free time reading, cooking, and exploring the great outdoors.

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Equitable assignment

Practical law uk glossary 2-107-6540  (approx. 3 pages).

• The assignor can inform the assignee that he transfers a right or rights to him.
• The assignor can instruct the other party or parties to the agreement to discharge their obligation to the assignee instead of the assignor.

Assignment of a claim or cause of action | Practical Law

Assignment of a claim or cause of action

Practical law uk practice note 1-522-7861  (approx. 32 pages).

Equitable assignment

Practical law uk glossary 2-107-6540  (approx. 3 pages).

• The assignor can inform the assignee that he transfers a right or rights to him.
• The assignor can instruct the other party or parties to the agreement to discharge their obligation to the assignee instead of the assignor.

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• practice notes (85)
• precedents (2)
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Equitable assignment definition

What does equitable assignment mean.

Assignments can occur in equity when any of the requirements of legal assignment are not satisfied.

The assignor can inform the assignee that he transfers a right or rights to him or instruct the other party or parties to the agreement to discharge their obligations to the assignee. Only the benefit of an agreement may be assigned. There is no requirement for written notice to be given or received. The position of a party who wishes to be able to make an equitable transfer of obligations under the contract is the same as described under legal assignments.

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Legal and equitable assignments

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Financiers and lessors often take an assignment over debts or certain rights under contracts as part of their security package. Depending on how this is done, an assignment can either be characterised as a legal or equitable assignment under English law. Stephenson Harwood’s Dipesh Bharania explains

A key difference between a legal and equitable assignment is the ability of the assignee, be it a financier or lessor, to bring proceedings in its own name against the debtor for payment of the debt owed, or to enforce rights in the contract.

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A legal assignee has this right, but there is a question over whether an equitable assignee has this right or not.

In the case of General Nutrition Investment Company v Holland and Barrett International Ltd and another [2017] EWHC 746 Ch, the High Court held that the beneficiary of an equitable assignment did not have the right to bring proceedings in its own name, and had to do so jointly with the assignor which had assigned rights in the underlying contract.

This raises questions about the equitable assignment, as it appears to contradict other judgments which permit an equitable assignee to take proceedings in its own name. The predecessor company of General Nutrition Investment Company (GNIC) entered into a trade mark licence agreement in March 2003 with Holland and Barrett (H&B) allowing H&B to use certain trademarks in the UK.

After complex internal restructuring, the original contracting party had been dissolved and GNIC was the successor company, which as assignee had been assigned both the rights under the original trademark licence agreement, and the rights to the trademarks themselves. GNIC alleged that H&B was in breach of the licence agreement and served a number of notices of termination on H&B purporting to terminate the agreement.

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The court had to decide whether any of these notices of termination were effective, and whether GNIC had the right to serve such notices, and bring and maintain proceedings against H&B in its own name.

The formalities for a legal assignment are set out in Section 136 of the Law of Property Act 1925, including that the assignment must be:

In writing and executed by the assignor “Absolute” and unconditional, Not be expressed to be “by way of charge”, and Notified in writing to the person against whom the assignor could enforce the assigned rights – usually the other contracting party.

It can often suit the assignor, the assignee and the third party to allow the assignor to deal with the third party, for notice not to be given (certainly initially) and the assignee to remain a silent party. This method is frequently used in financing documents, with notice only being given at a later date (rather than at the time of assignment) when there is a possibility of enforcement on the horizon.

An equitable assignment tends to be created when an assignment does not meet one or more of the requirements for a legal assignment. The main differences between a legal and an equitable assignment are priority (and the established principle that the assignee who serves notice first takes priority over any other assignee (where notice is not given)) and an equitable assignee needing to join the assignor as a party in any legal proceedings it brings against the third-party debtor.

However, two recent cases have lessened the distinction in practice between the two. In the Bexhill case the Court of Appeal recognised that an equitable assignee could take action in its own name without joining in the assignor. In the Ardila case, where notice had been given to the contracting party, the High Court looked at the terms of the notice and decided that what had seemed to be a legal assignment was in fact an equitable assignment because the wording of the notice seemed to retain rights for the assignor. The court used this reasoning to declare it an equitable assignment, despite the notice having been given as required.

Returning to the case in point, after the internal reorganisation and subsequent assignment of the trade mark licence agreement to GNIC, no notices of such assignment were served on H&B by the assignor prior to the purported termination of the agreement or the issue of proceedings. GNIC maintained that as it took the place of its predecessor as the “Licensor”, it became the body entitled to exercise rights of termination under the agreement. H&B’s contention was that, as an equitable assignee, GNIC did not have the right to terminate the agreement or bring proceedings in its own name.

It is widely accepted that, until a notice of assignment is given, and (i) the third party can validly discharge its obligations under the contract to the assignor, and (ii) the third party may raise against the assignee any defence or set-off which he could have raised against the assignor (provided that the matter on which the defence is based arose before notice was received) and the contracting party and assignor can amend the terms of the contract without the assignee’s consent.

The High Court considered that previous case law on this issue was binding as it had not been overruled or materially distinguished in any subsequent cases heard, and held that notice to the contracting third party is necessary to perfect the right of the assignee. Additional weight was given to the fact that a substantive contractual right (in this case, the right to terminate the licence agreement) had been assigned rather than just the assignment of a debt. Consequently, the contractual relationship between the parties was seeking to be amended and therefore the third party was entitled to see that such change was being effected by a party which had the right to do so and whom it knew to have such rights. The Court maintained that H&B cannot be expected to accept a notice of termination from an entity which turns out to be an assignee when it had never been given notice of that assignment.

While the High Court accepted that this decision may be appealed, this has raised a question about equitable assignments and the rights of the equitable assignee under English law. In the meantime, in practice, parties will have to scrutinise what type of right they are seeking, whether in security or as a full legal assignment and opt for the method which provides the clearest outcome possible as the law stands when they take the assignment. Anyone taking an assignment of the benefit of a contract should clearly ensure that notice is served on the other contracting party if it wants to be sure it can act in its own name under that contract against the other contracting party if need be.

Otherwise, there is a risk that an equitable assignee will be unable to enforce substantive contractual rights without having to join in the assignor in proceedings. That said, it may still be commercially preferable to have an equitable assignment for particular financing and leasing structures where it is not thought difficult to join the assignor at a later date if need be. In this case it was not possible, as the assignor had been dissolved. Advice should be sought about the type of assignment to be taken in each transaction pending further clarification from the courts.

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equitable assignment

• A transfer of property or rights, particularly those in which the transferor has a future interest, that may not technically be legal, but would be considered fair and just by a court focusing on justice and fairness
• Despite the lack of a written contract, the judge recognized the equitable assignment of the store's future profits to the plaintiff.
• The attorney argued that even though there was no formal agreement, the bank's actions reflected an equitable assignment of the debts.
• While there was no formal deed of transfer, the court acknowledged the equitable assignment of the property based on the circumstances.
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Why is equity important in assignment design?

Many instructors have taken a renewed interest in the equity and fairness of their courses. Although all aspects of teaching and learning merit such a focus, it is particularly important in the area of assignment design. Assignments designed with equity in mind ensure that all students have optimal conditions in which to demonstrate their learning; this in turn helps faculty evaluate students’ knowledge and skills fairly and accurately. 

What makes an assignment equitable?

Among the features of assignment that can make assignments more equitable are flexibility and variety, an emphasis on the process of learning, application of principles of Universal Design for Learning (UDL) , transparency, and equitable grading. Below we define each of these terms and provide some specific examples.

Flexibility and Variety

Constructing assignments with flexibility and variety in mind can allow students to show what they have learned regardless of their academic strengths or familiarity with particular assignment types. These features require that faculty think through how each assignment (in all its variations) aligns with the learning outcomes for the course, to ensure that all students have an opportunity to achieve those outcomes.

• Within an assignment, allow students to choose from several different formats for their response that all meet the assignment goals
• Across a course, provide a variety of types of assignments
• If a major project includes several different components (a written paper and an oral presentation, for example), allow students to determine the weight of each component
• If you must use multiple-choice exams to assess students’ learning, consider offering an alternative assignment for students who don’t test well, or who have slow internet connections

An Emphasis on the Process of Learning

With careful assignment construction, instructors can hep students engage in and prioritize the process of learning. This will not only improve students’ performance; it can also increase their time on task, which can benefit all students.

• Adopt a growth mindset in your teaching by emphasizing that students can succeed in your course with hard work and effort
• Give students frequent opportunities to demonstrate their learning, including low-stakes chances to practice skills and assess their own progress toward course goals
• Scaffold students’ work to facilitate building skills, and offer frequent feedback on students’ progress
• Allow students to revise their work to respond to your feedback
• Help students reflect on the processes they used to respond to major assignments or to study for exams

Application of Principles of Universal Design for Learning (UDL)

UDL is a set of principles to guide the creation of inclusive and accessible courses and learning experiences. When these principles are applied to assignment design, they can benefit all students, not only those with disabilities.

• Provide assignment instructions in writing and verbally
• Simplify the navigation in your course Canvas site so students can find assignments easily
• Give students some choice in how they can show their learning
• Consider alternatives to traditional multiple-choice exams
• Provide ample time for exams and online assignments to be completed

Transparency

This is the concept of making clear to students the purpose of assignments and activities and how to succeed on them. Being transparent with students ensures that all students can succeed, not only those with privileged educational backgrounds.

• For assignments that include a rubric, share it with students when they start to work on the assignment; you can even involve students in rubric creation
• Be transparent in your assignment design by specifying in each assignment its purpose, the process or task students should engage it, and the criteria that will be used to evaluate it
• The concept of transparency in teaching includes other pedagogical strategies in addition to transparent assignment design. For more information, see the page on Transparency in Learning and Teaching (TILT) .

Equitable Grading

Along with equitable assignment design, faculty can grade students equitably on the basis of their learning and performance, and without allowing factors such as race, ethnicity, socio-economic status, abilities, rural/urban location, or internet access to influence grades. In this way grades can be used not to sort and rank students, but instead to guide all students to achieve course learning outcomes.

• If you will use a rubric or grading standards to evaluate students’ work, share it when making an assignment so that all students understand how their work will be evaluated
• Provide feedback along with grades to help students understand the strengths and weaknesses of their work and how to improve it
• Avoid “magical grading”: grading on the basis of factors or traits that are not articulated, or that are assumed to be “implicit”
• Consider whether it is more equitable to weight assignments done early in the semester more lightly and those done later more heavily, after students have had a chance to learn about your standards and expectations 

For more help with applying any of these concepts to your teaching, contact the CITL .

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9 What’s Special about Equity? Rights about Rights

• Published: April 2020
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This chapter offers a unique formal account of what equity amounts to. Equitable rights often take the form of rights in relation to other rights. Acknowledgement of this unique structure of Equitable rights sheds light on the way they interact with common law rights, on the normative basis for creating them, and on the way one assesses the common law rights against which they arise. The chapter then exemplifies the advantages of this formal account by referencing two equitable rights in which a right-against-right structure can be identified: the beneficiary’s rights under a trust, and equitable assignment. What both the beneficiary under a trust and the equitable assignee have is a right against a right held by another; and it is the distinctive formal nature of the entitlement thus recognized by equity, rather than a different set of substantive values brought to bear by equity, which explains equity’s intervention.

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Equitable assignment

Practical law uk glossary 2-107-6540  (approx. 3 pages).

• The assignor can inform the assignee that he transfers a right or rights to him.
• The assignor can instruct the other party or parties to the agreement to discharge their obligation to the assignee instead of the assignor.
• General Contract and Boilerplate

Simple English definitions for legal terms

equitable assignment

Read a random definition: generic term

A quick definition of equitable assignment:

A more thorough explanation:.

An equitable assignment is a transfer of rights or property from one person to another, which may not be legally valid but is recognized and enforced in equity. This type of assignment is often used for choses in action or future acquisitions of the assignor.

For example, if John owes money to Mary, he may assign his future paycheck to her as collateral. This assignment may not be legally valid, but if John defaults on his debt, Mary can seek enforcement of the assignment in equity.

Another example is when a person assigns their right to receive an inheritance to someone else. This assignment may not be legally valid, but if the assignor dies and the inheritance is received, the assignee can seek enforcement of the assignment in equity.

Overall, an equitable assignment is a transfer of rights or property that may not be legally valid but is recognized and enforced in equity.

equitable asset | equitable-benefit doctrine

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Construction notes

Legal terms explained: assignment.

This post is part of the following categories:

Construction Law (Journal) , Legal Terms Explained

What is assignment?

An assignment is the transfer of an interest from one party (“ assignor ”) to another (“ assignee ”). Assignment allows the assignor to transfer the benefit of a contract to the assignee. For example, the tenant of recently built office premises may transfer the benefit of a collateral warranty originally granted in its favour to a subsequent tenant.

Without express words, assignment usually involves an assignment of accrued and future rights. Clear words are required to assign only future rights under a contract ( Energy Works (Hull) Ltd v MW High Tech Projects UK and others [2020] EWHC 2537 (TCC)).

Assignment in a construction context typically refers to a legal or equitable assignment (although assignment can also occur by other means, e.g. operation of law). A key difference between legal and equitable assignments is that, in the case of a legal assignment, the assignee may enforce any assigned rights in its own name. In contrast, following an equitable assignment, the assignee would need to join the assignor in any action brought to enforce its rights.

To take effect as a legal assignment under English law, an assignment must comply with section 136(1) of the Law of Property Act 1925 (“ LPA 1925 “). This requires the assignment to be: (i) in writing; (ii) absolute; and (iii) expressly notified in writing to the other party to the contract (“ debtor “). In practice, parties tend to effect a legal assignment by way of an assignment agreement or deed of assignment to ensure that these requirements are satisfied.

However, if the parties fail to meet any of the requirements set out in LPA 1925 the assignment will usually have equitable effect. Equitable assignments may arise orally or in writing, and whilst recommended, there is no need to notify the debtor, provided a clear intention to assign can be established. Neither legal nor equitable assignments generally require the debtor’s consent.

  Assignment v novation

Although both terms are sometimes used interchangeably, assignment should be distinguished from novation. The most notable difference is that assignment only transfers the benefit of a contract (e.g. a warranty that works have been carried out to the required standard), whereas a novation transfers both the benefit and the burden (e.g. an obligation to pay for a service). As novation also requires the consent of all parties, it will typically be effected by a tripartite agreement between the novating party, the party to whom the contract is to be novated, and the counterparty to the relevant contract.

  Some issues concerning assignment

• Restrictions on assignment – Unless there is an express prohibition in the contract, the parties will usually be free to assign the benefit of a contract. However, many standard form building contracts, including the JCT Design and Build Contract, prohibit assignment, or allow it only subject to certain conditions. In this regard, a developer may seek to amend the contract to reduce any restrictions on their ability to assign. In contrast, a contractor may seek to limit any rights to assign, for example by specifying the number of permitted assignments. This is often linked to the contractor’s professional indemnity insurance terms which may provide for restricted cover in respect of successive assignments.
• Ineffective assignment where prohibited – If a party purports to assign a right in contravention of an assignment clause, the assignment will only be effective as between the assignee and the assignor, and will not be enforceable against the debtor.
• Means of assignment – A clause in a contract permitting assignment is not sufficient to effect an assignment. There must be a separate document or oral agreement to show the assignor’s intention to assign ( Allied Carpets Group Plc v Macfarlane (t/a Whicheloe Macfarlane Partnership) [2002] EWHC 1155 (TCC)).

* This is an updated version of an article originally published as part of the ‘Legal Terms Explained’ series of Construction Law .

For further information, please contact James Doe, David Nitek, Noe Minamikata or your usual Herbert Smith Freehills contact.

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Four High Impact Practices for Designing More Equitable Assessments

By Annie Soisson & Carie Cardamone, CELT 

Assessment, if not done with equity in mind, privileges and validates certain types of learning and provides evidence of learning over others, can hinder the validation of multiple means of demonstration, and can reinforce within students the false notion that they do not belong in higher education. –  Montenegro and Jankowski, 2017 

Assessments are a critical component of course design and shape students experience of the course. From small in-class activities and homework assignments to big exams and projects, assessments provide opportunities for students to consolidate and apply their learning, motivate creativity, increase self-efficacy and incentivize effective learning habits.  To design equitable assessments in our courses, we need to understand that equity and equality are not the same thing.  Equality assumes that the playing field is level for students. Equity is about fairness and justice; it requires that we understand philosophically and practically that one size does not fit all when it comes to learning and assessment.  While there are many practices that can improve equity, today we will focus on four high impact practices that you can implement readily.  

Create transparency 

While some students may intuitively understand your expectations for quality work, others may not. Discerning what is needed to complete a particular type of assignment, and what a successful example would look like presents an inequitable barrier for our students.  Reduce this barrier by building in transparency to your assignments.  Some suggestions to put this into practice in your course: 

• Share examples of student work, both good and bad and have students in small groups or pairs evaluate the examples for their strengths and weaknesses. Debrief as a class and add some of the criteria they may have missed. This helps develop analytical skills in addition to demystifying assignments. 
• Purpose: What are the skills the students are applying, what knowledge will they gain through the assignment? 
• Task: What students will do, how will they do it (steps to follow, things to avoid)? 
• Criteria for success: Create a checklist or rubric in advance so students can self- and peer-evaluate.  

Provide early, regular, and targeted feedback   

Early and regular small assessments with targeted feedback can give students a sense of how you interpret their work and help them understand their strengths and areas to focus on for improvement. These opportunities for retrieval and skills practice also allow students to integrate their knowledge over time and increase the likelihood of moving knowledge into long-term memory. Some suggestions to put this into practice in your course: 

• Conduct a pre-assessment when introducing a new topic to learn what students already know.  This activity can activate student prior knowledge and can inform them and you as to where there may be gaps so you are not building on sand. For example, have students draw a concept map of what they know already about the concept, or list questions that they have (For more examples see  How to Assess Students’ Prior Knowledge from CMU’s Eberly Center ).  
• Provide low stakes opportunities to stumble to offer students the opportunity to calibrate their study and preparation practices. For example, offer a practice quiz for minimal or no points or let them drop their lowest grade. 
• Ask students to diagnose their own errors to build self-regulation skills and create motivation and confidence that they are able to be successful.  
• Create opportunities for peer feedback and engagement to build connections and a supportive learning community while developing critical thinking. 
• A  Single Point Rubric  can be a very useful tool for targeted feedback, a way de-center grades while lifting reflection and learning, and offer the opportunity for students to set learning goals.  

Use varied assessments  

For equitable assessments, one size does not fit all.  Design assessments to leverage students’ individual strengths and to take into account their varying backgrounds, motivations, and approaches to learning. This strengths-based approach to learning allows the instructor to maintain high standards and help all students achieve them.  Universal Design for Learning (UDL)  is grounded in the knowledge that any single form of delivery, expression or engagement will not work for all students and advocates for designing a variety of assessments (e.g., writing, drawing, presenting, taking quizzes, etc.).  Some suggestions to put this into practice in your course: 

• Use a variety of different kinds of assessments within a course.  For example, having small quizzes, group projects, and reflective writing activities instead of a single exam format. 
• Allow students to express their knowledge in a variety of ways.  For example, students could  choose between creating an essay, a video, or an infographic to present the results of a final project. 
• Create opportunities for students to connect activities to their own interests and goals.  For example, allow students to select the topic of a research project that is most relevant to their own interests and builds on their experiences.  This can be a very motivating factor for all, but especially marginalized students.  

Maximize learning from big assessments 

Large assessments, such as the midterm and final paper or exam, can be stressful for students because they see summative high stakes, graded work, as a judgement of their ability, and not as an opportunity to learn.  Building in opportunities for practice, incentivizes and requires students to use feedback for learning and can help break down barriers so that all students can be prepared for success in large assessments. Some suggestions to put this into practice in your course: 

• Have students, individually or in small groups, identify patterns of error on exams, papers, presentations, and give them an opportunity to share that back with you for small points. 
• Use “ exam wrappers .” The three most common questions are: How did you prepare for the exam?  What kinds of errors did you make on the exam?  What could you do differently next time? 
• For papers, presentations, creative projects, use rubrics or checklists for students to be able to self-assess the specific areas where they can most improve.  
• Provide “scaffolding” for larger papers and projects. For example, students working on a project over the course of a semester could share and discuss draft thesis statements (or draft hypotheses), then write a paragraph expanding on these ideas, etc.  Each stage encourages ongoing work over the course of the semester keeping students on track, provides practice opportunities and allows students to better understand the components of successful work through conversation with their peers. 

Read more from Teaching@Tufts: 

• Equitable Assignment Design  
• Integrating Inclusive and Sustainable Assessments in your Online Teaching from Beginning to End  
• Inclusive Assessment: Equal or Equitable?  
• ← Faculty Spotlight on Dual Modality – Rebecca Shakespeare
• Words Matter in Our Work Against Racism →

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Malaysia – Statutory Assignment Vs Equitable Assignment.

December 12, 2023 by Rohin Pujari

This article attempts to provide a brief overview of the differences between statutory assignment and equitable assignment. The actual application of the general rules described here would be subject to the applicable distinct facts and circumstances.

What is Assignment?

An assignment is a transfer of rights or liabilities such as those that arise under an instrument, chose in action 1 , or debt. An assignment can either be a statutory assignment or an equitable assignment. 

In Malaysia, an assignment complying with Section 4(3) of the Civil Law Act 1956 was described as a ‘statutory assignment’ and an assignment not complying with Section 4(3) of the Civil Law Act 1956 was a ‘non-statutory assignment’ i.e., an equitable assignment. 2 The conditions of a statutory assignment are as follows: 3

• it must be absolute and did not purport to be by way of charge only;
• the assignment was in writing under the hand of the assignor; and
• express notice in writing thereof had been given to the debtor or trustee.

Meanwhile, an equitable assignment gives the assignee a right enforceable only in equity. The mode or form of assignment is absolutely immaterial provided the intention of the parties is clear. 4

Rules that Govern Assignments

Written notice is an essential part of a statutory assignment. Therefore, it is ineffective unless strictly accurate – accurate, for instance, as regards the date of the assignment and the amount due from the debtor. 5

However, notice is not necessary to perfect an equitable assignment. Even without notice to the debtor the title to the assignee is complete, not only against the assignor personally, but also against the persons who stand in the same position as the assignor, as, for instance, his trustee in bankruptcy, a judgement creditor or a person claiming under a later assignment made without consideration. 6

In regard to the form of notice, as mentioned earlier, a statutory assignment must comply with the form of notice required under Section 4(3) of the Civil Law Act 1956, whilst for an equitable assignment, no particular form is required to constitute a valid equitable assignment.

Additionally, it must be noted that although notice is not required for equitable assignments, an assignee must give notice to the debtor in order to get priority over other assignee(s). In this regard, the Federal Court in Public Finance Bhd v Scotch Leasing Sdn Bhd (In Receivership) (Perwira Habib Bank Malaysia, Intervener) [1996] 2 MLJ 369 explained in detail about the importance of notice:

“ We need to say a few words more about the great desirability of giving notice of assignment of a debt by an assignee to the debtor, even though absence of such notice does not affect the validity of the equitable assignment as between the assignor and the assignee. If notice is not given, the assignee must give credit for any payment made to the assignor by the debtor. This rule means that, by extension, even if the assignor assigns once more the debt to another person in fraud or otherwise on the earlier assignee, and that other person gives notice to the debtor; and if the debtor pays that other person or the second assignee, then the earlier assignee must still give credit to the debtor for his payment thus, for the debtor cannot be blamed for doing lawfully in ignorance of the title of the earlier assignee who has failed to give notice of the assignment to the debtor. Notice to debtor is for the protection of the assignee himself. It is this effect of what the debtor does lawfully as described that dims the view of the true role of the nemo dat rule in the resolution of disputed claims to a same debt. The money paid to the ‘second assignee’ can, of course, be recovered by the earlier assignee on the nemo dat principle. ”

• An assignee takes subject to equities

For both statutory assignment and equitable assignment, the assignee takes ‘subject to equities’, that is, subject to all such defences as might have prevailed against the assignor.

The general rule, both at law and in equity, is that no person can acquire title to a chose in action…from one who has himself no title to it. 7 In other words, the assignee can be in a no better position than the assignor was prior to the assignment. 8

• Rights incapable of assignment

Some choses in action are not assignable, and not every right which arises under or out of a contract can be assigned. 9 An example of rights incapable of assignment is where the nature of the contract is intended to be personal, therefore, it will be meaningless if it is assigned to another person.

Effect of Assignment

A statutory assignment has the sole intended effect of facilitating an assignee to sue in his own name directly irrespective of whether the chose in action is an equitable chose in action or a legal chose in action. 10

Meanwhile, the effect of an equitable assignment depends on whether the assignment is absolute or not. An absolute assignment of an equitable chose in action entitles the assignee to bring an action in his own name. 11 But a non-absolute assignment of an equitable chose in action does not entitle the assignee to sue in his own name but requires him to join the assignor as a party. 12

Nur Izzatie Azlan, Azmi & Associates

[email protected]

• ‘Chose in action’ is a known legal expression used to describe all personal rights of property which can only be claimed or enforced by action, and not by taking physical possession (Associated Tractors Sdn Bhd v Woo Sai Wa [1997] 5 MLJ 441 (High Court)).
• MBF Factors Sdn Bhd v Tay Hing Ju (T/A New General Trading) [2002] 5 MLJ 536 (High Court).
• Williams Brandt Sons & Co v Dunlop Rubber Co [1905] AC 454 (House of Lords).
• Leong, A. P. B. (1998). Cheshire, Fifoot and Furmston’s Law of Contract (2nd ed.). Butterworths Asia, at page 861.
• Guest, A. G. (1984). Anson’s law of contract, at page 400.
• Meagher, R. P., Heydon, J. D., & Leeming, M. J. (2022). Meagher, Gummow and Lehane’s Equity Doctrine and Remedies (4th ed., p. 284). Butterworths LexisNexis.
• Guest, A. G. (1984). Anson’s law of contract, at page 402.
• Lim Chon Jet @ Lim Chon Jat & Ors v Wee Ai Hua & Anor [2022] 6 MLJ 243 (Court of Appeal).

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