CANONIZACIONES DEL SIGLO
3.1. DEL RITO QUE PRECEDE A LA SOLEMNE CEREMONIA DE BEATIFICACIÓN Y DE CANONIZACIÓN
161. The text of draft article 8 as considered by the Commission was as follows:
“An assignment is valid as to form if it meets the form requirements, if any form requirements exist, of either the law of the State in which the assignor is located or any other law applicable by virtue of the rules of private international law.”
162. The concern was expressed that draft article 8 might inadvertently refer matters related to priority (e.g. notification as a condition for obtaining priority) to a law other than the law of the assignor’s location. In order to address that concern, a number of suggestions were made. One suggestion was to replace article 10 with a provision that would require no form for the assignment as between the assignor and the
assignee and as against the debtor. That suggestion was objected to on the ground that it would validate assignments that were currently invalid under law applicable outside the draft Convention. Another suggestion was to refer in draft article 8 only to the law of the assignor’s location. That suggestion too was objected to on the ground that it might run counter to generally acceptable private international law doctrine as to the law applicable to the form of the contract of assignment. Yet another suggestion was to revise the definition of priority so as to include steps to be taken for the purpose of obtaining priority (see A/CN.9/491, para. 18). That suggestion received broad support. It was widely felt that to the extent any form requirements needed to be satisfied for a person to obtain priority they should be referred to the law governing priority under draft article 24, namely, the law of the assignor’s location. Subject to revising the definition of “priority” in draft article 5, subpara-
graph (g), to cover that matter, the Commission
decided to delete draft article 8 (for the earlier discussion of draft art. 5, subpara. (g), see paras. 37 and 149).
New provision on form in chapter V
163. The Commission recalled its earlier decision to consider, in the context of its discussion of draft article 8, the question of including a new provision on form in chapter V (see para. 51). The Commission considered the matter on the basis of a provision along the lines of article 11 of the Convention on the Law Applicable to Contracts for the International Sale of Goods (1986) that read as follows:
“1. A contract of assignment concluded
between persons who are in the same State is formally valid if it satisfies the requirements either of the law which governs it or of the State in which it is concluded.
“2. A contract of assignment concluded
between persons who are in different States is formally valid if it satisfies the requirements either of the law which governs it or of the law of one of those States.”
164. After discussion, the Commission approved the substance of the proposed text unchanged and referred it to the drafting group.
Article 9: Effectiveness of assignments, bulk assignments, assignments of future receivables and partial assignments
165. The text of draft article 9 as considered by the Commission was as follows:
“1. An assignment of one or more existing or future receivables and parts of or undivided interests in receivables is effective as between the assignor and the assignee, as well as against the debtor, whether the receivables are described:
“(a) Individually as receivables to which the assignment relates; or
“(b) In any other manner, provided that they can, at the time of the assignment or, in the case of future receivables, at the time of the conclusion of the original contract, be identified as receivables to which the assignment relates.
“2. Unless otherwise agreed, an assign- ment of one or more future receivables is effective without a new act of transfer being required to assign each receivable.
“3. Except as provided in paragraph 1 of this article and in articles 11 and 12, paragraphs 2 and 3, this Convention does not affect any limitations on assignments arising from law.
“4. An assignment of a receivable is not ineffective against, and the right of an assignee may not be denied priority with respect to the right of, a competing claimant, solely because law other than this Convention does not generally recognize an assignment described in paragraph 1 of this article.”
166. It was noted that, in its current formulation, paragraph 1 might inadvertently result in the validation of an assignment of any future receivable, including pensions and wages, even if the assignment of such receivables was prohibited by law. In order to avoid that result, which would be inconsistent with paragraph 3, the suggestion was made that paragraph 1 should be revised along the following lines: “An assignment of one or more existing or future receivables and parts of or undivided interest in receivables is not ineffective …”. There was broad support for that suggestion on the understanding that, subject to that change, all the elements of paragraph 1 would be included in the new version of paragraph 1.
167. The concern was expressed that the term “undivided interest” was not sufficiently clear. It was stated that, depending on how that notion was understood in the different legal systems, the assignee could claim from the debtor the whole or a percentage of the amount of the receivable. It was also observed that it was not clear in the draft Convention how a conflict between assignees of undivided interests would be resolved. It was also stated that a distinction should be drawn in draft article 12 also between the assignment of a receivable and an assignment of an undivided interest in a receivable, since in the latter case the assignee might not have the right to claim rights securing payment of the assigned undivided interest. In order to address that concern, the suggestion was made that the notion “undivided interest” should be defined in the draft Convention. That suggestion did not attract suf- ficient support. It was widely felt that it was sufficiently clear that, in the case of an assignment of an undivided interest in a receivable, each assignee could claim from the debtor and that payment to any of the assignees of an undivided interest would discharge the debtor.
168. Subject to the change referred to above (see para. 166), the Commission approved the substance of draft article 9 and referred it to the drafting group.
Article 10: Time of assignment
169. The text of draft article 10 as considered by the Commission was as follows:
“Without prejudice to the right of a competing claimant, an existing receivable is transferred and a future receivable is deemed to be transferred at the time of the conclusion of the contract of assignment, unless the assignor and the assignee have specified a later time.”
170. It was noted that the opening words of draft article 10 deprived it of any meaning (i.e. determining the time of assignment for priority purposes). On that understanding, the Commission agreed to delete draft article 10.
Article 11: Contractual limitations on assignments
171. The text of draft article 11 as considered by the Commission was as follows:
“1. An assignment of a receivable is
effective notwithstanding any agreement between the initial or any subsequent assignor and the
debtor or any subsequent assignee limiting in any way the assignor’s right to assign its receivables.
“2. Nothing in this article affects any obligation or liability of the assignor for breach of such an agreement, but the other party to such agreement may not avoid the original contract or the assignment contract on the sole ground of that breach. A person who is not party to such an agreement is not liable on the sole ground that it had knowledge of the agreement.
“3. This article applies only to assign- ments of receivables:
“(a) Arising from an original contract for the supply or lease of [goods,] construction or services other than financial services or for the sale or lease of real estate;
“(b) Arising from an original contract for the sale, lease or licence of industrial or other intellectual property or other information;
“(c) Representing the payment obligation for a credit card transaction; or
“(d) Owed to the assignor upon net settlement of payments due pursuant to a netting agreement involving more than two parties.” 172. It was recalled that the policy underlying paragraph 3 was to ensure that the assignment of financial service receivables not excluded from the scope of the draft Convention as a whole would be excluded from the scope of draft article 11. In order to reflect that policy more clearly, several suggestions were made, including the suggestions to reformulate paragraph 3 along the following lines: “Article 11 does not apply to assignments of receivables arising from financial service contracts”; or “Article 11 does not apply to assignments of receivables arising from loan agreements or insurance policies”; or “Article 11 does not apply to the assignment of a single, existing receivable”. There was no support in the Commission for those suggestions.
173. The concern was expressed that the term “goods”, which appeared within square brackets in para- graph 3 (a), was too narrow and could result in excluding intangible assets. It was also stated that paragraph 3 (b) might not be sufficiently broad to cover all intangible assets and in particular customer lists, trade names and commercial secrets. In order to
address that concern, it was suggested that, at the end of paragraph 3 (b), language along the following lines should be added: “or other intangible assets”. That suggestion was objected to on the ground that it could inadvertently result in including within article 11 the assignment of receivables such as insurance or loan receivables. It was widely felt, however, that assets, such as customer lists, trade names and proprietary information, were covered in paragraph 3 (b). Subject to the removal of the brackets around the word “goods”, the Commission approved draft article 11 and referred it to the drafting group.
Article 12: Transfer of security rights
174. The text of draft article 12 as considered by the Commission was as follows:
“1. A personal or property right securing payment of the assigned receivable is transferred to the assignee without a new act of transfer. If such a right, under the law governing it, is transferable only with a new act of transfer, the assignor is obliged to transfer such right and any proceeds to the assignee.
“2. A right securing payment of the
assigned receivable is transferred under para- graph 1 of this article notwithstanding any agree- ment between the assignor and the debtor or other person granting that right, limiting in any way the assignor’s right to assign the receivable or the right securing payment of the assigned receivable. “3. Nothing in this article affects any obligation or liability of the assignor for breach of any agreement under paragraph 2 of this article, but the other party to that agreement may not avoid the original contract or the assignment contract on the sole ground of that breach. A person who is not a party to such an agreement is not liable on the sole ground that it had knowledge of the agreement.
“4. Paragraphs 2 and 3 of this article
apply only to assignments of receivable:
“(a) Arising from an original contract for the supply or lease of [goods,] construction or services other than financial services or for the sale or lease of real estate;
“(b) Arising from an original contract for the sale, lease or licence of industrial or other intellectual property or other information;
“(c) Representing the payment obligation for a credit card transaction; or
“(d) Owed to the assignor upon net settlement of payments due pursuant to a netting agreement involving more than two parties.
“5. The transfer of a possessory property right under paragraph 1 of this article does not affect any obligations of the assignor to the debtor or the person granting the property right with respect to the property transferred existing under the law governing that property right.
“6. Paragraph 1 of this article does not affect any requirement under rules of law other than this Convention relating to the form or registration of the transfer of any rights securing payment of the assigned receivable.”
175. The concern was expressed that paragraph 1 could affect special types of mortgages that were not transferable under the law governing them. It was stated that draft article 9, paragraph 3, might not be sufficient to preserve such statutory limitations since it referred to statutory limitations on transfers of receivables not of rights securing receivables. In order to address that concern, it was suggested that, at the end of paragraph 1, language along the following lines should be added: “if such right is transferable under the law governing it”. There was no support for that suggestion (see, however, new draft art. 4, para. 3, in paras. 139 and 140). Subject to the removal of the brackets around the word “goods” in paragraph 4 (a), the Commission approved the substance of draft article 12 and referred it to the drafting group.