Home Content Writing Must An Assignment Be In Writing? – Corporate/Commercial Law

Must An Assignment Be In Writing? – Corporate/Commercial Law


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Must An Assignment Be In Writing?

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Lawyers are sometimes asked to render an opinion that “the
[bill of sale] is sufficient as to form to transfer the
Company’s right, title and interest in and to the assets
specified in the Agreement to the Buyer”.   Implicit
in this opinion request is an assumption that a bill of sale must
conform to some specific form.  That assumption, however, is
at odds with Section 1052 of the California Civil Code which
provides: “A transfer may be made without writing, in every
case in which a writing is not expressly required by
statute”.  As the Court of Appeal has explained:

An assignment requires very little by way of formalities and is
essentially free from substantive restrictions. “[I]n the
absence of [a] statute or a contract provision to the contrary,
there are no prescribed formalities that must be observed to make
an effective assignment. It is sufficient if the assignor has, in
some fashion, manifested an intention to make a present transfer of
his rights to the assignee.” (9 Corbin on Contracts (rev. ed.
2007) § 47.7, pp. 147-148; see Rest.2d Contracts, §§
317, 324.)

Amalgamated Transit Union, Local 1756, AFL-CIO v. Superior
46 Cal. 4th 993, 1002, 95 Cal. Rptr. 3d 605, 209 P.3d
937 (2009). 

Some statutes do impose substantive requirements of
assignments.  Most notably, perhaps, Section 1091 of the Civil
Code provides: “An estate in real property, other than an
estate at will or for a term not exceeding one year, can be
transferred only by operation of law, or by an instrument in
writing, subscribed by the party disposing of the same, or by his
agent thereunto authorized by writing.”

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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