ASSIGNMENT OF CHOSES IN ACTION: WHEN DOES EQUITY AID THEVOLUNTEER?

Abstract

Common law does not permit choses in action to be assigned without the consent of the debtor. However, equity intervened to water down the rules of common law in respect of assignment of choses in action. The Judicature Act of 1873-75 subsequently introduced statutory assignment of legal and equitable choses and also provided for requirements for statutory assignment. The article relied on doctrinal research method to examine assignment of choses in action and the rules governing statutory and equitable assignments. However, the approach of equity to assignment is still shrouded in uncertainty as there is ambiguity in certain requirements for creation of equitable assignment and effect of equitable assignment. Thus, the research question is, to what extent will equity aid a volunteer and enforce a promise that is not supported by consideration in assignment of equitable chose in action? This paper found the attitude of equity to absolute assignment of a legal or equitable chose is inconsistent with the maxim ‘equity does not aid the volunteer.’ It is doubtful whether the assignee who has not furnished consideration will be able to enforce the assignment, and the assignor can be prevented from going back on his promise. In view of the foregoing finding, it is argued that the assignor does not have the right to revoke an assignment where it is a statutory assignment, absolute assignment (not by way of charge only), where the assignment is for value, and where notice of assignment is given to the debtor.