Enfermedades Laborales

From about 1855, however, the t ide was turning. Bernhard Windscheid²²⁰ refuted Muhlenbruch's theory as being conceptually and historically wrong; he showed that the granting of the actio utilis had finally been recognized as a full transfer of the claim. In his view, the assignor ceased to be creditor once the assignee had "taken possession"

of this action; i.e. especially if either denuntiatio or litis contestatio had taken place. Otto Bahr²²¹ went further and argued that denuntiatio was not required for a transfer of the claim; by mere agreement with the

15 Cf. the desperate exclamation by Cacheranus, as quoted by Grosskopf, op. cit., note 186, p. 75: "Videtis igitur, doctissimi Lectores, varias Doctorum opiniones, et doctrinas, a quibus facile se extricare non est, nisi elevemus oculos ad Christum Iesum, Dei veritatem et sapientiam."

Cf., for example, Christian Friedrich Muhlenbruch, Die Lehre von der Cession der Forderungsrechte (3rd ed., 1836), p. 22; Mackeldey, Systema iuris Romans, § 333; Vangerow, Pandekten, § 574, n. 1.

217 Muhlenbruch, op. cit., note 216, pp. 147 sqq.

218 As far as the pandectist literature is concerned, cf. Luig, op. cit., note 185, pp. 47 sqq.

19 Gener ally on the use officiions, see Maine, pp. 13 sqq.; Gustav Demclius, Die Rechtsfiktion in ihrer geschichtlichen und dogmatischen Bedeutung (1858); Josef Esser, Wert und Bedeutung der Rechtsfiktionen (2nd ed., 1969); Lon L. Fuller, Legal Fictions (1967); Karl Larenz, Methodenlehre der Rechtswissenschaft (5th ed., 1983), pp. 251 sqq.; Peter Birks, "Fictions Ancient and Modern", in: The Legal Mind, Essays for Tony Honore (1986), pp. 83 sqq.;

Wiea cker , RR, pp. 324 sqq.; Toma sz Giar o, "Uber methodologische Werk mittel der Roma nistik", (1988) 105 ZSS 223 sqq.

220 Die Actio des romischen Civitrechts vom Standpunkte des heutigen Rechts (1856), pp. 148 sqq.;

also in Windscheid/Kipp, §§ 329 sqq.

±l "Zur Zessionslehre", (1857) 1 Jhjb 351 sqq.

Stipulatio alteri, Agency and Cession 65 assignor the assignee could attain the position of—exclusive—creditor.

This agreement, like traditio in the case of corporeal objects, is independent of" the obligatory transaction (the causa) on account of which the transfer is effected. This is what was finally incorporated into the BGB.²²²

Even before the time of Muhlenbruch, incidentally, there had for a long time been tendencies to contest the traditional dogma that had been handed down from the glossators to the commentators and from them to the humanists. "Inspecta porro consuetudine existimarim cedentem facta semel cessione nullam penitus retinere actionem, et quicquid juris habuerit in cessionarium transferri": this statement by Lambertus Goris²²³ is representative of the practically oriented jurisprudence in the Northern Netherlands during the 17th and 18th centuries;²²⁴ acknowledgment of the needs of commercial practice led to the abrogation, as a matter of customary law, of the Roman doctrines about cession. This view both influenced the usus modernus in Germany²²⁵ and provided the basis for modern South African law.²²⁶ The natural lawyers, too, in opposition to the doctrines espoused by the humanists, recognized assignment as a full transfer of the right. They construed assignment of rights as the transfer of ownership of res incorporales and systematically juxtaposed it with the transfer of ownership of res corporales (which, in their view, also required consensus ad idem between alienor and alienee).²²⁷-²²⁰ This functional parallel between transfer of ownership and assignment, and the idea of a conceptually independent contract effecting the transfer of the right, has also had a lasting effect on the modern civil-law systems.^22<) It was

222 Cf. also already §§ 376 sqq. I 11 PrALR.

223 Adversariorum iuris tractatus. Tract. Ill, Pars I, Cap. I, 5.

224 Cf. the analysis by Gr osskopf, op. cit., note 186, pp. 103 s qq., 116 sqq.

225 Vide Johann Schilter, Praxis iuris Romani in foro Germanico, Francofurti et Lipsiae (1713), Exercitatio ad Pana. XXX, §§ LXI1 sqq.

226 Cf. De Wet en Yeats, pp. 225 sqq.; P. M. Nienaber, in: Joubert (ed.), The Law of South Africa, vol. II (1977), nn. 324 sqq.; Susanna Johanna Scott, The Law of Cession (1980). Very influential in South Afri can pr acti ce has been Johann van de Sande' s book De Actionum Cessione. Being, however, a Frisian author, he can be regarded as authority for Roman- Dutch law strictu senso only with circumspection. The reception of Roman law in Friesland has been mor e far-r eaching than in Holland. The problem of cession provides a good exampl e, f or in accor dance with what t hey underst ood the Ro man l aw t o be, bot h Van de Sande and Ulrich Huber did not regard claims as transferable (cf. e.g. Van de Sande, Cap. VIII, 19: "[actio] intra viscera ejus, cui debetur, haere[a]t").

7 Cf. e.g. Christian Wolff, Institutions juris naturae et gentium, §§ 313 sqq.; Darjes, Institutiones iurisprudentiae universalis, §§ 489 sqq. For a detailed analysis, see Huwiler, op.

cit., note 213, pp. 45 sqq.

228 On the concept of cession in the codifications influenced by natural law (Codex Maximilianeus Bavancus, PrALR and ABGB), see Huwiler, op. cit., note 213, pp. 103 sqq.

Even though we woul d not t oday r egar d the hol der of a ri ght as its "owner ", assignment (as with transfer of ownership) both in Ger man and South African law is an abstract legal act (abstract, that is, from the obligational agreement; a different view based on the tradition of "cessio sine causa facta non valet" was still adopted, for instance, by Van de Sande, De Actionum Cessione, Cap. II, 3). As to the development of the concept of cession

66 The Law of Obligations thus only at the end of a long historical development that first the Roman law, and then again the European ius commune, recognized claims as fully transferable items of property.

Two final remarks may be apposite. Once the interests of trade and commerce have been thus accommodated (in that the right of the assignee has been strengthened to the extent that he—and only he—is entitled to claim on account of his agreement with the assignor), the protection of the debtor must become the main concern of the law.²³⁰ After all, he is facing a new creditor without his having had any say in the matter. His interests demand a restriction of the assignee's position in at least two ways: the debtor must not be worse off after the claim has been assigned than he was before, i.e. the assignment must not curtail any defences he might have been able to raise against the assignor;²³¹ and payment made to the assignor must discharge the obligation, provided the debtor did not know of the assignment.²³² Post-classical Roman law further provided a special protection against professional purchasers of claims who wanted to benefit from the bad economic climate: if they had paid less than the actual amount of the debt when purchasing the claim, they could not recover more from the debtor than they had paid themselves.²³³ Like Anastasius, later legislators and courts have from time to time viewed assignment with a somewhat suspicious eye.

The second point is that the same type of development can also be observed in other legal systems. Like Roman law, the old English common law regarded the contractual vinculum iuris as something so personal that the claims arising therefrom could not be transferred to a

as an abstact legal act, see Klaus Luig, "Zession und Abstraktionsprinzip", in: Coing/Wilhelm (ed.), Wissenschaft und Kodifikation des Privatrechts im 19. Jahrhundert, vol. II (1977), pp. 112 sqq.

Cf. especially Luig, in: Wissenschaft und Kodifikation, op. cit., note 229, pp. 112 sqq.

231 Cf. Paul. D. 18, 4, 5; § 404 BGB; Van Zyl v. Credit Corporation of SA Ltd. 1960 (4) SA 582 (A) at 588F-H. The general principle in South African law, as in German law, seems to be that the position of the debtor must not be adversely affected as a result of the cession:

cf. Voet, Commentarius ad Pandectas, Lib. XVIII, Tit. IV, XIII; De Wet en Yeats, pp. 231 sq.

As to the position of the debtor where assignor and assignee have tried, by means of the assignment, to deprive him of his counterclaims, see the fascinating decision L.T.A.

Engineering Co. Ltd. v. Seacat Investments Ltd. 1974 (1) SA 747 (A) with a full discussion by Jansen JA of Ulp. D. 3, 3, 33, 5 and Gai. D. 3, 3, 34. Cf. Paul van Warmelo, (1974) 91 SALJ 298 sqq.; Zimmermann, RHR, pp. 66 sq.

232 C f. C . 8, 16, 4 ( Ale x.) ; § 407 B GB ; Lo ve ll v . Pax ino s and Plot kin : in re Un ion Shop f it te r s

v. Hansen 1937 WLD 84 at 86. In French practice (since about the 16th century) the debtor has been protected in a different manner: by formalizing the act of cession and requiring

"signification" of the debtor. Only such signification (denuntiatio) was seen to transfer the claim; cf. e.g. supra, pp. 59, 63.

333 The lex Anastasiana: C. 4, 35, 22. Cf. still Windscheid/Kipp, § 333; Van de Sande, De Actionum Cessione, Cap. XI, and also artt. 1699 sqq. code civil. The rule has not been adopted in the BGB; in South Africa it is regarded as having been abrogated by disuse: cf. Seaville v.

Cotley (1892) 9 SC 39.

Stipulaiio alten, Agency and Cession 67 third person.²³⁴ However, the old creditor could authorize the

"assignee" to sue on his behalf and then to keep the proceeds.²³⁵ This institution of a "power of attorney" served a rather similar function to the Roman procuratio in rem suam. A sophisticated system of transfer of claims had already been developed in the first two hundred years after the Battle of Hastings under the influence of Jewish law — the Jews had soon begun to monopolize the financial business — but had disappeared with the banishment of the Jews at the end of the 13th century.²³⁶ Thus it was left to equity to improve the situation of the

"assignee": where a claim enforceable in equity had been assigned, the equity judges allowed him to claim directly in his own name. Where, however, a "legal chose in action"²³⁷ was involved (that is, a right which had to be sued for "at law" before the King's judges), two trials were necessary: the assignee had to obtain a judgment in equity requiring the assignor to tolerate the claim in his name, as well as one

"at law" against the debtor. It was only the Judicature Act in 1873 that brought about a long-overdue procedural simplification.²³⁸

2 3 4

Cf . , for exa mpl e, Hol ds wor t h, HEL, vol . VI I ( 2nd ed., 1937) , p. 520: ". . . t he assignment of such a right of action by the act of t wo parties was unthinkable." ^ Pol lock and Maitl and, vol. I I, pp. 224 s q.

236 On t hi s i nt er es t i ng epi s ode and on t he t r aces t hat it l ef t i n Engl is h l aw ( as , f or example—possibly—the common-taw exceptions in favour of such assignments as concerned the King; the Jews, as the King's villains, were consider ed to be dealing in his pr opert y and on his behalf ), s ee Bail ey, (1931) 47 LQR 516 sqq. As t he r eas ons for the rej ection of the cust oms of the J ewry ( which would have made debts f reel y assignabl e) Bailey refers to the unpopularity of their originators, the reaction of a people released from hated oppression, and the obstinat e inertia of the common law.

237 As to this ter m ( which is still in use today), see Holds worth, HEL, vol. VII, pp. 515

8 On the historical development in England, see Percy H. Winfield, "Assignment of Choses in Action in Relation to Maintenance and Champerty", (1919) 35 LQR 143 sqq.;

Bailey, (1932) 48 LQR 248 sqq., 547 sqq. Bailey sums up his analysis in the following words (p. 579): "The history of this subject shows clearly that the common law Courts obstructed the development of a sound and uniform doctrine of assignment. . . . This was due to their inability to har monize any such doctrine with the general principles which they evolved."

P A R T I I CHAPTER 3

Stipulatio