Transfer Theory and the Assignment of Contractual Rights

Authors

Stéphane Sérafin, Faculty of Law, University of Ottawa

Document Type

Article

Abstract

The possibility of assigning contractual rights to third parties has often been taken to suggest that they amount to a form of “property” or “asset.” This point has been seized upon by proponents of transfer-based accounts of contract law, which understand contract as a means of transferring existing rights instead of creating new rights and duties between its parties. In this article, I set out to critically examine the extent to which this assumed compatibility between transfer theories of contract and the assignment of contractual rights can truly be sustained. As I argue, only one version of transfer theory is able to properly account for the way in which assignment actually operates within the common law tradition, corresponding to the version that most closely resembles more orthodox promise theories of contract law by understanding contract as a transfer of rights directly against the person of the promisor. By contrast, I suggest that the dominant version of transfer theory, according to which contract amounts to a transfer of rights over external things, is unable to draw a full distinction between contract and a completed assignment of contractual rights and so is unable to explain the rules that govern the latter class of transaction at common law and in equity.

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This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

Citation Information

Sérafin, Stéphane. "Transfer Theory and the Assignment of Contractual Rights." Osgoode Hall Law Journal 60.2 (2023) : 251-288.
DOI: https://doi.org/10.60082/2817-5069.3891
https://digitalcommons.osgoode.yorku.ca/ohlj/vol60/iss2/1

References

1. Stephen A Smith, Contract Theory (Oxford University Press, 2004) at 98.

2. The most important advantage of transfer theories may be in accounting for contractual "gaps," since the idea that a contract transfers existing rights implies that its content need not be completely determined by the intentions of its parties. This is an area of doctrine that the leading proponent of promise theory has suggested cannot be accounted for through his own framework. See Charles Fried, Contract as Promise (Harvard University Press, 1981) at 57-58. Cf Smith, supra note 1 at 314. Another key advantage, at least from an interpretive standpoint, is that transfer theories appear to offer a plausible rationale for the doctrine of consideration. Compare most notably Peter Benson, Justice in Transactions: A Theory of Contract Law (Belknap Press, 2019) at 41-47 [Benson, Justice in Transactions]; Fried (ibid at 37-38). See also Brian Bix, Book Review of Justice in Transactions: A Theory of Contract Law by Peter Benson, (2020) 79 Cambridge LJ at 364.

3. Smith, supra note 1 at 98. See also Benson, Justice in Transactions, supra note 2 at 85; Alan Brudner with Jennifer M Nadler, The Unity of the Common Law, 2nd ed (Oxford University Press, 2013) at 188; Andrew S Gold, "A Property Theory of Contract" (2009) 103 NWU L Rev 1 at 19, n 84.

4. I assume here, and in the remainder of this article, that the assignment of contractual rights can be understood to involve a transfer of the contractual rights in question. This is both the dominant understanding of transaction and the understanding implicit in the accounts given by proponents of transfer theory. See e.g. Benson, Justice in Transactions, supra note 2 at 354-55; Brudner & Nadler, supra note 3 at 188; Gold, supra note 3 at 19, n 84. See also Smith, supra note 1 at 98; Greg Tolhurst, The Assignment of Contractual Rights, 2nd ed (Hart, 2016) at 34-35. However, I note that readings that challenge or at least qualify this understanding do exist. See e.g Chee Ho Tham, Understanding the Law of Assignment (Cambridge University Press, 2019) at 67-73, 85-86.

5. See Ernest J Weinrib, Corrective Justice (Oxford University Press, 2012) at 13 [Weinrib, Corrective Justice]. See also Brudner & Nadler, supra note 3 at 2-3 https://doi.org/10.1093/acprof:oso/9780199660643.001.0001

Gold, supra note 3 at 2-3. This perspective implies an "interpretive" approach to legal scholarship, which aims primarily to explicate extant legal doctrine rather than being merely descriptive or proposing outright reforms. See Alan Beever & Charles Rickett, "Interpretive Legal Theory and the Academic Lawyer" (2005) 68 Mod L Rev 320. See also Smith, supra note 1 at 4-6. https://doi.org/10.1111/j.1468-2230.2005.00540.x

6. Benson, Justice in Transactions, supra note 2 at 354-55; Brudner & Nadler, supra note 3 at 188; Gold, supra note 3 at 19, n 84. See also Tolhurst, supra note 4 at 41, n 68.

7. Of the authors canvassed in this article, the only proponent of transfer theory who has engaged at some length with this area of doctrine is Peter Benson. See Justice in Transactions, supra note 2 at 84-91.

8. This view is represented below primarily by Peter Benson, with some consideration of Alan Brudner and Randy Barnett in subsequent footnotes. Authors whose views are not directly considered here but who may plausibly be taken to adhere to this version of transfer theory include Margaret Jane Radin and John Gardner. See Margaret Jane Radin, "Response: Boilerplate in Theory and Practice" (2013) 54 Can Bus LJ 292 at 296; John Gardner, "The Contractualisation of Labour Law" in Hugh Collins et al, eds, Philosophical Foundations of Labour Law (Oxford University Press, 2018) 33 at 47. https://doi.org/10.1093/oso/9780198825272.003.0002

9. This version of transfer theory is endorsed by Andrew Gold and Ernest Weinrib, though primary consideration will be given below to the legal philosophy of Immanuel Kant, from which they both draw their accounts of contract law. See Immanuel Kant, The Metaphysics of Morals, translated by Mary J Gregor, 2d ed (Cambridge University Press, 1996). That leading proponents of promise theory such as Charles Fried consciously draw on Kant's work can be taken as a further sign of its affinity with this perspective. See Fried, supra note 2 at 8, 139-40.

10. The distinction between contract and conveyance is widely recognized within the common law tradition, even in the case of the sale of goods where both operations are often combined within a single overarching transaction. See MG Bridge, The Sale of Goods, 3rd ed (Oxford University Press, 2014) at 79; G Battersby & AD Preston, "The Concepts of Property, Title and Owner Used in the Sale of Goods Act 1893" (1972) 35 Mod L Rev 268 at 272. https://doi.org/10.1111/j.1468-2230.1972.tb01333.x

11. The rules applicable to assignments of contractual rights are similar but not identical in American and Commonwealth law, and there is of course further variation among individual Commonwealth jurisdictions and individual American states. I will be focusing below primarily on English law, which continues to supply the basic principles of the law of assignment in Canada and elsewhere in the Commonwealth, with some references to American law in footnotes.

12. The distinction between legal and equitable assignment is particularly well recognized in Commonwealth jurisprudence and scholarship, likely owing to the relatively strenuous formalities still required to complete a legal assignment in those jurisdictions. See e.g. Law of Property Act 1925 (UK), 15 & 16 Geo V, c 20, s 136 (1) [UK Law of Property Act]; Conveyancing and Law of Property Act, RSO 1990, c 34, s 53(1) [Ontario Law of Property Act]. It has, however, historically been recognized in at least some US jurisdictions. See National Bank of the Republic v United Security Life Insurance & Trust Company of Pennsylvania, 17 App DC 112 (App Ct 1900). Cf Restatement (Second) of Contracts, §§ 317, 321 (1981) [Restatement].

13. As Smith puts it, "[E]ven more than reliance theories, the category of transfer theories must be understood as representing a model or broad approach rather than a comprehensive position that can be ascribed to any individual or group of scholars." Supra note 1 at 97-98.

14. For Benson and Brudner at least, this approach thus appears sufficient to answer the "challenge" raised by Lon Fuller and William Perdue's infamous article. For the original article, see LL Fuller & William R Perdue Jr, "The Reliance Interest in Contract Damages: 1" (1936-1937) 46 Yale LJ 52 at 59-60. For Benson and Brudner's respective arguments to this effect, see Benson, Justice in Transactions, supra note 2 at 11-12; Brudner & Nadler, supra note 3 at 190-91. Cf Weinrib, Corrective Justice, supra note 5 at 154-55. Although Benson and Brudner's particular solution appears to present a further problem for service contracts, I do not consider this issue here. On this last point, see Smith, supra note 1 at 101-102.

15. The need for a second agreement is explicit in Kant. See supra note 9 at 59-60. It represents an approach to the relationship between contract and conveyance that is largely reminiscent of modern German law. See arts 873, 929 Civil Code (Germany). For a comparative overview of the different approaches taken on this issue in different legal systems, and the position of English law and other common law systems relative to it, see Birke Häcker, "Contract and Conveyance: The Further Repercussions of Different Transfer Systems" in John Cartwright & Ángel M López y López, eds, Property and Contract: Comparative Reflections on English Law and Spanish Law (Hart, 2021) 89. See also Stéphane Sérafin, "Transfer by Contract at Common Law and in Equity" (2019) 45 Queen's LJ 81.

16. Although their acceptance of this distinction should not entirely surprise us, as it also follows from the interpretivist commitments already referenced. See supra note 5 and accompanying text.

17. See supra note 2. I will also refer to Alan Brudner and Randy Barnett's accounts in subsequent footnotes where relevant.

18. Justice in Transactions, supra note 2 at 1-2. See also Brudner & Nadler, supra note 3 at 2-7, 322-23.

19. Benson, Justice in Transactions, supra note 2 at 8.

20. Ibid at 58-65. See also Brudner & Nadler, supra note 3 at 186-89. Cf Randy E Barnett, "A Consent Theory of Contract" (1986) 86 Colum L Rev 269 at 292 [Barnett, "Consent Theory of Contract"]. The still-leading case on this point across the common law world is Cochrane v Moore. See (1890), 25 QBD (CA) 57 at 72-73 [Cochrane].

21. Benson, Justice in Transactions, supra note 2 at 60-61. See also Peter Benson, "The Idea of Consideration" (2011) UTLJ 241 at 261; Brudner & Nadler, supra note 3 at 186-87. https://doi.org/10.1353/tlj.2011.0016

22. Benson, Justice in Transactions, supra note 2 at 63. See also Brudner & Nadler, supra note 3 at 186.

23. Benson, Justice in Transactions, supra note 2 at 62-63, 338-39. See also Brudner & Nadler, supra note 3 at 188-89.

24. For similar perspectives on the role of consideration, see ibid at 198-203; Ernest J Weinrib, The Idea of Private Law, 2nd ed (Oxford University Press, 2012) at 137-40 [Weinrib, Idea]; Gold, supra note 3 at 43-46. Cf Barnett, "Consent Theory of Contract," supra note 20 at 292; Randy E Barnett, "Contract is Not Promise; Contract is Consent" (2012) 45 Suffolk U L Rev 647 at 657-59.

25. As one English judge has put it, "There is no legal impediment to my contracting to sell you Buckingham Palace. If (inevitably) I fail to honour my contract [i.e., because one cannot convey what one does not own] then I can be sued for damages." See Vehicle Control Services Ltd v Revenue and Customs Commissioners, [2013] EWCA Civ 186 at para 22, Lewison LJ [Vehicle Control Services Ltd].

26. See Peter Benson, "Contract as a Transfer of Ownership" (2006-2007) 48 Wm & Mary L Rev 1673 at 1727-28 [Benson, "Transfer"]; Benson, Justice in Transactions, supra note 2 at 352-53. The paradigmatic case of a contract pertaining to future property is the contract to sell future goods. See e.g. Sale of Goods Act 1979 (UK), s 5 [UK Sale of Goods Act]; Sale of Goods Act, RSO 1990, c S.1, s 6 [Ontario Sale of Goods Act].

27. Benson, "Transfer," supra note 26 at 1723, 1729-30; Benson, Justice in Transactions, supra note 2 at 324. I note however that Benson still understands the relational transfer of rights that he associates with the initial formation of a contract to produce limited third-party effects, most notably by imposing a duty on third parties to refrain from interfering with the contractual relationship itself (ibid at 354-55). Compare the approach taken by Brudner, who instead distinguishes a contract from a conveyance on the basis that the former involves a transfer of the exchange value of a thing, abstracted from its physical control, while the latter involves a transfer of the tangible thing itself. See Brudner & Nadler, supra note 3 at 188-89.

28. Benson, Justice in Transactions, supra note 2 at 352. See also Benson, "Transfer," supra note 26 at 1727-28.

29. Benson, Justice in Transactions, supra note 2 at 352, 355-56.

30. Following Wesley Newcomb Hohfeld, the most common way of understanding this distinction in English-language scholarship has been between rights enforceable against one or more determinate parties (rights in personam) and rights enforceable against a potentially indeterminate class of persons (rights in rem). See "Fundamental Legal Conceptions as Applied in Judicial Reasoning" (1917) 26 Yale LJ 710 at 718.

31. As Benson puts it, "[T]he in rem/in personam distinction should not be understood either as conceptually ultimate or as referring to two utterly separate and freestanding kinds of relations," since in his view "both original acquisition (property) and transactional acquisition (contract) have in rem and in personam dimensions… in qualitatively different ways." Benson, Justice in Transactions, supra note 2 at 344 [emphasis in original]. Cf Brudner & Nadler, supra note 3 at 120-22.

32. Benson, Justice in Transactions, supra note 2 at 352-53, 358-59; Benson, "Transfer," supra note 26 at 1723, 1729-30. This solution is highly reminiscent of the treatment of the contractual transfer of property rights under the French Code civil, which is similarly understood to occur immediately at contract formation, on the basis of the parties' consent alone, but cannot be opposed to third parties until delivery of the thing (or registration of the transfer) occurs. See arts 1196, 1198 C Civ. See also arts 1454, 2941 CCQ.

33. Compare Brudner's solution to these problems, which instead draws on traditional common law exceptions to the nemo dat rule, most notably the sale of goods made "market overt." See e.g. Brudner & Nadler, supra note 3 at 127-30. Cf Westcoast Leasing Ltd v Westcoast Communications Ltd (1980), 22 BCLR 285 at paras 14-23 (Sup Ct). This exception has, however, been abolished in most Canadian common law jurisdictions. See e.g. Ontario Sale of Goods Act, supra note 26, s 23.

34. For Benson, as for Brudner, a contractually derived right of ownership is understood to be more "complete" than a right gained by original acquisition because it better expresses what they understand to be the relational character of ownership itself. See Benson, Justice in Transactions, supra note 2 at 341; Brudner & Nadler, supra note 3 at 187, 189.

35. See Gold, supra note 3; Weinrib, Corrective Justice, supra note 5 at 148-84. See also Sharon Byrd, "Kant's Theory of Contract" (1998) 36 Southern J Phil 131; Helge Dedek, "A Particle of Freedom: Natural Law Thought and the Kantian Theory of Transfer by Contract" (2012) 25 Can JL & Juris 313 at 338.

36. Kant, supra note 9 at 59, cited in Gold, supra note 3 at 1; Weinrib, Corrective Justice, supra note 5 at 153.

37. See Kant, supra note 9 at 48. Like Hohfeld, Kant appears to understand both types of rights to be rights ultimately opposable to persons. See ibid at 50. Cf Hohfeld, supra note 30 at 718. However, Kant's approach remains different from Hohfeld's insofar as he nonetheless insists on a difference between personal and real rights that is tied to the nature of their object, instead of the mere number of persons against which a right can be enforced.

38. An exception is recognized where the initial agreement or contract is immediately performed, as for example through delivery of the thing at issue at the very moment in which that agreement is first concluded. See Kant, supra note 9 at 60. For an argument in favour of a historical relationship between Kant's views on this issue and the Abstraktionsprinzip recognized by modern German law, see Byrd, supra note 35.

39. Kant, supra note 9 at 38, 60-61.

40. As Kant puts it, "Freedom (independence from being constrained by another's choice), insofar as it can coexist with the freedom of every other in accordance with a universal law, is the only original right belonging to every man by virtue of his humanity." Ibid at 30. See also Weinrib, Corrective Justice, supra note 5 at 222-23; Gold, supra note 3 at 52.

41. As Kant puts it, the possession of an external thing is "contingent," because it is not necessarily the case that it will be acquired by any one particular person. See supra note 9 at 45.

42. A possible objection arises here due to the possibility of concluding two contracts pertaining to the same particular thing (as in a classic problem of double sale, for example). However, this objection is easily rebutted once we recall that the object of the right that is transferred by contract on Kant's account is the promisor's deed, not the object itself. Since the deed owed under two different contracts will never be entirely identical, being owed to different persons, at different times and subject to different modalities, each contract does not, in fact, have the same object. See Weinrib, Corrective Justice, supra note 5 at 164-65.

43. But see supra note 38 and accompanying text.

44. See Weinrib, Corrective Justice, supra note 5 at 163-64. This conclusion is consistent with Lord Justice Lewison's remarks in Vehicle Control Services Ltd. See supra note 25 at para 22.

45. See Barry Nicholas, An Introduction to Roman Law (Oxford University Press, 1962) at 158; Didier Lluelles & Benoît Moore, Droit des obligations, 3rd ed (Éditions Thémis, 2018) at 13. Kant's particular framing is in fact reminiscent of the origins of the obligatio in Roman law, as a much more literal bond by which the debtor's own person was at the mercy of the creditor. See Reinhard Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition (Oxford University Press, 1996) at 1-3.

46. Ibid at 26. This distinction has been criticized. Most notably, see François Gény, Méthode d'interprétation et sources en droit positif : essai critique, t I (LGDJ, 1919) at 139.

47. Cf Benson, Justice in Transactions, supra note 2 at 255-57.

48. Kant, supra note 9 at 37-38, 48. See also Weinrib, Corrective Justice, supra note 5 at 152-53; Gold, supra note 3 at 53; Dedek, supra note 35 at 344.

49. But see Arthur Ripstein, Force and Freedom: Kant's Legal and Political Philosophy (Harvard University Press, 2009) at 113.

50. Kant, supra note 9 at 57.

51. Cf Fried, supra note 2 at 8, 16-17; Smith, supra note 1 at 65.

52. See Kant, supra note 9 at 57. See also Weinrib, Corrective Justice, supra note 5 at 110.

53. By contrast, promise theory arguably requires that we understand enforceable gifts to amount to nothing more than promises that are enforceable on account of their compliance with a particular formality (i.e., delivery). See Fried, supra note 2 at 36-37. But see Smith, supra note 1 at 62-63.

54. Such a contract involves a promise to assign contractual rights, by contrast to both a completed assignment of contractual rights and a promise to convey rights to tangible things. See Collyer v Isaacs (1881), 19 ChD (CA) 342 at 351, Jessel MR [Collyer]; Restatement, supra note 12, § 321(2).

55. Supreme Court of Judicature Act (UK), 1873, 36 & 37 Vict, c 66, s 25(6). The historical common law thus denied the possibility of an assignment of contractual rights without recourse to novation-which is to say, without recourse to an entirely new contract supplanting the old agreement. See Fitzroy v Cave, [1905] 2 KB (CA) 364 at 373, Cozens-Hardy LJ.

56. As will be seen below, many of the features most relevant to legal assignments also track those of assignments in equity, such that the legislative origin of these transactions should not be seen to discount their relevance for theoretical accounts of private law. In fact, there is a compelling case to be made that the effect of the statutory regime is largely procedural, meaning that a legal assignment simply amounts to a special case of an assignment made in equity.

57. UK Law of Property Act, supra note 12, s 136(1). This provision is duplicated with only slight changes in Canadian common law jurisdictions. See e.g. Ontario Law of Property Act, supra note 12, s 53(1). Manitoba, Saskatchewan and the three Territories are exceptions in this regard, as they have adopted an approach similar to that of the American Restatement by allowing a legal assignment to be effected using any written instrument evincing the requisite intention. See The Law of Property Act, CCSM, c L90, s 31(1); Choses in Action Act, RSS 1978, c C-11, s 2; Choses in Actions Act, RSY 2002, c 33, s 1(1); Choses in Action Act, RSNWT 1988, c C-7, s 1(2); Choses in Action Act, RSNWT 1988, c C-7, as duplicated for Nunavut by s 29 of the Nunavut Act, SC 1993, c 28, s 1(2). Cf Restatement, supra note 12, § 317(1), 332(1).

58. Tolhurst, supra note 4 at 30. Cf Tham, supra note 4 at 30. This transfer, however, only pertains to the benefit of the contract-i.e., to what is owed to the promisee-and in most circumstances does not and cannot involve a transfer of the corresponding burdens assumed by the promisor. See Tolhurst v Associated Portland Cement Manufacturers (1900), [1902] 2 KB (CA) 660 at 668, Colins MR [Tolhurst v APCM]; Lounsbury Co v Duthie and Sinclair, [1957] SCR 590 at 597. See also Restatement, supra note 12, § 328(2).

59. See Tolhurst, supra note 4 at 63. Cf Tham, supra note 4 at 9. Tham presents equitable assignment as a "seeming 'transfer' of the obligee's entitlements against the obligor to the assignee" [emphasis added] that nonetheless "does not entail extinction of those very same entitlements" [emphasis in original].

60. This much is explicit in Benson's account. See Justice in Transactions, supra note 2 at 89. See also Brudner & Nadler, supra note 3 at 188; Gold, supra note 3 at 19, n 84.

61. Benson, Justice in Transactions, supra note 2 at 60-61; Brudner & Nadler, supra note 3 at 198-203; Barnett, "Consent Theory of Contract," supra note 20 at 292; Weinrib, Idea, supra note 24 at 137-40; Gold, supra note 3 at 43-46.

62. But see Harding Carpets Limited v Royal Bank of Canada, [1980] 4 WWR 149 at 160 (Man QB); Restatement, supra note 12, § 336(2). I note that a legal assignment that fails for lack of notice can nonetheless be treated as an assignment operative in equity. See Holt v Heatherfield Trust Ltd, [1942] 2 KB 1 at 4 [Holt]. In the case of an equitable assignment, the effect of notice is instead simply to allow the assignment to be fully opposed to the third-party promisor. See Tolhurst v APCM, supra note 58 at 668-69. This rule appears to follow the general principles applicable to all interests in equity, according to which they are enforceable against all third parties save for the bona fide purchaser without notice. See Pilcher v Rawlins (1871-1872), LR 7 Ch App 259 at 259.

63. Since it is not the contract itself that is assigned, but only the right gained by the promisee at the conclusion of a contract, a statutory assignment again does not typically even allow for the assignee to assume the corresponding duties initially incumbent upon the promisee. See supra note 58 and accompanying text.

64. See Durham Brothers v Robertson, [1898] 1 QB (CA) 765 at 773; Dominion Creosoting Co v Nickson Co (1917), 55 SCR 303.

65. The close relationship between contract and promise is recognized even by proponents of transfer theory. See Benson, Justice in Transactions, supra note 2 at 35, 38-39; Brudner & Nadler, supra note 3 at 198-99; Barnett, "Consent Theory of Contract," supra note 20 at 287; Weinrib, Idea, supra note 24 at 137-38; Gold, supra note 3 at 3.

66. As Lord Escher put it in Cochrane, a gift is "a transaction begun and completed at once.… consisting of two contemporaneous acts, which at once complete the transaction, so that there is nothing more to be done by either party." Supra note 20 at 75-76. Cf Dalhousie College v Boutilier Estate, [1934] SCR 642 at 645.

67. Young v Kitchin (1878), 3 Ex D 127 at 130; London & Western Canada Investment Co v Dolph (1918), 43 OLR 449 at 450-51 (HC) [Dolph]; Costco Wholesale Canada Inc v Cazalet, 2008 BCSC 952 at para 22.

68. Tolhurst, supra note 4 at 431, 434-35; Restatement, supra note 12, § 336.

69. Dolph, supra note 67; Zhang v Tsai, 2017 BCCA 371 at para 33. See also Restatement, supra note 12, § 336(1).

70. Although such an assignment may be upheld as an equitable assignment once the assignor has acquired the chose in action. See Holroyd v Marshall (1862), 10 HLC 191 at 209, Westbury LJ (HL (Eng)) [Holroyd]; Collyer, supra note 54 at 351; Tailby v Official Receiver (1888), 13 App Cas 523 at 531, Herschell LJ, 533, Watson LJ (HL (Eng)) [Tailby]; Holt, supra note 61 at 5; Royal Bank of Canada v Madill (1981), 43 NSR (2d) 574 at para 112 (CA) [Royal Bank]. Cf Restatement, supra note 12, § 321(2). I note that Benson explicitly recognizes the applicability of the nemo dat rule to assignments of contractual rights. See Benson, Justice in Transactions, supra note 2 at 86.

71. See UK Sale of Goods Act, supra note 26, s 21; Ontario Sale of Goods Act, supra note 26, s 22.

72. See supra note 26 and accompanying text. As also alluded to above, a promisor may even conclude multiple contracts pertaining to the same object, each with a different promisee, even if only one promisee will ultimately be able to obtain proper title to the thing at issue. This scenario is contemplated by sale of goods legislation. See UK Sale of Goods Act, supra note 26, s 24; Ontario Sale of Goods Act, supra note 26, s 25(1).

73. This possibility is expressly contemplated in the Restatement. See supra note 12, § 321(2).

74. The challenge pertains to whether an equitable assignment amounts to a true transfer of a chose in action or only an apparent one. See supra note 59 and accompanying text. It is closely related to the debate over the nature of the trust beneficiary's interest, with some understanding the beneficiary as a proper owner of the trust property in equity and others understanding the trust as an obligation to convey rights which equity treats as though it were already performed. For the historical bases of these respective positions, see John Austin, Lectures on Jurisprudence: Or the Philosophy of Positive Law (John Murray, 1863) vol 1 at 388; FW Maitland, Equity: A Course of Lectures (Cambridge University Press, 1909) at 111-12.

75. I note that although proponents of transfer theory sharply disagree on the nature and continued relevance of the historical distinction between common law and equity, this does not appear to impact on the similarities between their approaches to contract law. See most notably Benson, Justice in Transactions, supra note 2 at 98-99; Brudner & Nadler, supra note 3 at 161-67. See also Jennifer Nadler, "What is Distinctive about the Law of Equity?" (2021) 41 Oxford J Leg Stud at 854 at 863-72. https://doi.org/10.1093/ojls/gqaa065

76. For a general overview, see Tolhurst, supra note 4 at 64-69.

77. Tailby, supra note 70 at 548, Herschell LJ, 551, Macnaghten LJ; Curtis v Langrock (1922), 17 Alta LR 160 at 166, Stuart JA (CA); Hobbs v Marlowe (1977), [1978] AC 16 at 42, Simon of Glaisdale L (HL (Eng)).

78. Specifically, most jurisdictions also recognize at least one and perhaps two alternative bases on which equity will recognize an assignment, one being the reliance of the putative assignee, the other a failed attempt at concluding a legal assignment. See In Re Rose v Inland Revenue Commissioners, [1952] Ch (CA) 499 at 511, Evershed MR, 518, Jenkins LJ; Sanderson v Halstead, [1968] 1 OR 749 (H Ct J). See also Restatement, supra note 12, § 332(4). These forms of equitable assignment are reminiscent of the doctrine of proprietary estoppel, which serves to treat a gratuitous promise to convey property as a completed conveyance in equity. See Cowper‑Smith v Morgan, 2017 SCC 61 at para 15; Thorner v Major, [2009] UKHL 18. They are therefore similar enough to the equitable assignment arising out of a true contract that my arguments below can be applied mutatis mutandis. Deisler v United States Fidelity & Guaranty Co (1917), 36 DLR 29 at 30 (BCCA), aff'd (1917), 59 SCR 676; Buhecha v Impact Imaging Ltd, 2019 BCSC 663 at para 17. The joinder rule originates in the historical limits of Chancery jurisdiction. Since courts of equity could not transfer legal title to legal rights, including contractual rights, they were limited to compelling the assignor to add his name to a suit by the assignee at common law, effectively allowing the assignee to claim against the third-party promisor in the assignor's name. See Durham Brothers v Robertson, [1898] 1 QB (CA) 765 at 769-70, Chitty LJ in re Westerton, Public Trustee v Gray, [1919] 2 Ch 104 at 111. By contrast, an equitable assignment of equitable rights (including contractual rights assigned under a prior equitable assignment) was not subject to this historical limitation and is, therefore, not subject to the requirement of joinder. See Dell v Saunders (1914), 17 DLR 279 at 281 (BCCA).

79. Performing Right Society Ltd v London Theatre of Varieties Ltd, [1924] AC 1 at 14, Viscount Cave (HL (Eng)); Deisler v United States Fidelity & Guaranty Co (1917), 36 DLR 29 at 30 (BCCA), aff'd (1917), 59 SCR 676; Buhecha v Impact Imaging Ltd, 2019 BCSC 663 at para 17. The joinder rule originates in the historical limits of Chancery jurisdiction. Since courts of equity could not transfer legal title to legal rights, including contractual rights, they were limited to compelling the assignor to add his name to a suit by the assignee at common law, effectively allowing the assignee to claim against the third-party promisor in the assignor's name. See Durham Brothers v Robertson, [1898] 1 QB (CA) 765 at 769-70, Chitty LJ; in re Westerton, Public Trustee v Gray, [1919] 2 Ch 104 at 111. By contrast, an equitable assignment of equitable rights (including contractual rights assigned under a prior equitable assignment) was not subject to this historical limitation and is, therefore, not subject to the requirement of joinder. See Dell v Saunders (1914), 17 DLR 279 at 281 (BCCA).

80. Palette Shoes Pty Ltd v Krohn (1937), 58 CLR 1 at 27, Dixon J (HCA).

81. See Holroyd, supra note 70 at 209; Collyer, supra note 54 at 351; Tailby, supra note 70 at 531, 533; Fraser v Imperial Bank of Canada (1912), 47 SCR 313 at 356, Duff J; Holt, supra note 62 at 5; Royal Bank, supra note 70 at para 112. Cf Restatement, supra note 12, § 321(2). It is for this reason that an equitable assignment can and is often used to provide a general security over a debtor's assets, including a debtor's after-acquired assets. See e.g. Re Urman (1983), 44 OR (2d) 248 (CA).

82. For a similar argument, see David Fox, "Relativity of Title at Law and in Equity" (2006) 65 Cambridge LJ 330 at 354, 363. https://doi.org/10.1017/S0008197306007148

83. As Tolhurst puts it in a footnote, for instance, if transfer theory were to be adopted, "it would suggest that as between the parties each would be seen as owning the other's promise which appears to have proprietary consequences when the law has generally been that as between the parties their rights are personal and only property for the purposes of transfer." See supra note 4 at 41, n 68.

84. Although Benson's account suggests that there should be only a single transfer of rights, encompassing both parts of the overarching operation, it still requires that we distinguish the effects of the initial contract to assign rights from the effects this transfer generates once the assignment has been "completed" in the same way that it distinguishes a promise to sell goods from a completed sale. See Justice in Transactions, supra note 2 at 357-59.

85. See Part I(A), above.

86. Benson, Justice in Transactions, supra note 2 at 352-53. See also Brudner & Nadler, supra note 3 at 188-89.

87. Benson, Justice in Transactions, supra note 2 at 354-55.

88. Ibid at 89, 387. Cf Brudner & Nadler, supra note 3 at 188-89.

89. Benson, Justice in Transactions, supra note 2 at 87. I note however that the chose in action corresponds in Benson's estimation to only one part of what the promisee gains from an initial contractual transfer-that is, specifically, the promisee's interest in receiving the thing through the performance of the contract (ibid at 86, 88). If we adopt Brudner's account instead, we can say that the initial contract has transformed the right to a thing qua tangible thing into a right to its exchange value and that the assignment now serves to transfer that exchange value. See Brudner & Nadler, supra note 3 at 188.

90. It follows that it is not necessary for the assignor to hold a proper in rem right to the tangible thing to complete an assignment. All that is necessary is that the assignor hold the chose in action, which is to say the relational right to that thing under the initial contract, as is expressly recognized by Brudner. See Brudner & Nadler, supra note 3 at 188-89. See also Benson, Justice in Transactions, supra note 2 at 87.

91. Neither Benson nor Brudner addresses the specificities of legal and equitable assignments at all.

92. Benson, Justice in Transactions, supra note 2 at 89-90. See also Brudner & Nadler, supra note 3 at 188-89.

93. Benson, Justice in Transactions, supra note 2 at 89.

94. As Benson recognizes, however, the opposability of the assignment to the original promisor is dependent on the provision of notice. Ibid at 90-91.

95. See Part II(B), above.

96. Strictly speaking, the issues discussed here thus arise even if we do not consider equitable assignment at all since the contract to assign rights appears to be entirely valid at common law and historically treated (i.e., before the advent of the modern provisions permitting legal assignment) as a promise to confer the benefit due under a prior contract. See Wright v Wright (1749-1750), 27 ER 1111 at 1112 (Ch).

97. See supra note 81 and accompanying text.

98. This possibility is also implied in the use of equitable assignments to provide general security over a debtor's assets since there is no way to know ahead of time which rights the equitable assignor will actually acquire and thus be made subject to the equitable assignment.

99. Benson does not contemplate the contract to assign rights, let alone this particular way of characterizing it.

100. Benson, Justice in Transactions, supra note 2 at 89.

101. If we extend this argument to Brudner's version of transfer theory, for example, we might similarly say that a contract to assign rights amounts to a transfer of exchange value. Precisely how this is to be differentiated from a transfer of the exchange value of a thing (as in a completed assignment) is not clear. The same problems identified above in relation to Benson's argument thus apply here as well.

102. See Part I(B), above.

103. This much is implicit in Gold's account at least. See supra note 3 at 19, n 84.

104. See Hohfeld, supra note 30 at 718. The basic features of Hohfeld's approach are adopted, for example, in the work of Peter Birks. See Unjust Enrichment, 2nd ed (Oxford University Press, 2005) at 164-65.

105. See Kant, supra note 9 at 37-38, 48. See also Weinrib, Corrective Justice, supra note 5 at 152-53.

106. As Kant tells us, a contractual right cannot be acquired "originally and on one's own initiative." Supra note 9 at 57.

107. The possibility of such an assignment appears to be implied in Kant's remark that "[t]he other's promise is…included in my belongings and goods." Ibid at 38. See also Gold, supra note 3 at 19, n 84.

108. Kant, supra note 9 at 48, 59.

109. Ibid at 59.

110. Ibid at 57.

111. Except for the general duty incumbent upon everyone not to interfere with the assignee's acquired rights, which on a Kantian account is perhaps not strictly a duty arising in private law. See Ernest J Weinrib, "Private Law and Public Right" (2011) 61 UTLJ 191 at 204-206 [Weinrib, "Private Right"]. See also Kant, supra note 9 at 44-46.

112. Ibid at 59.

113. Ibid at 57.

114. See Part III(A), above.

115. See supra note 81 and accompanying text.

116. See Benson, Justice in Transactions, supra note 2 at 89.

117. See Kant, supra note 9 at 82. See also Weinrib, Corrective Justice, supra note 5 at 110-12; Weinrib, "Private Right," supra note 111 at 204-206.

118. There is a potential analogy here with the contract by which a seller promises to sell land, in which equity intervenes to treat the seller as a trustee of the land for the benefit of the purchaser. See Lysaght v Edwards (1876), 2 Ch D 499; Simcoe Vacant Land Condominium Corporation No 272 v Blue Shores Developments Ltd, 2015 ONCA 378. This scenario is also potentially explicable on the basis of something like the Kantian framework. See Sérafin, supra note 15 at 106-110.

119. See supra notes 5-6 and accompanying text.

120. As noted above, key proponents of promise theory, including Charles Fried, consciously draw on Kant's account of contract as well. See Fried, supra note 2 at 8, nn 2, 139-40. See also Ripstein, supra note 49 at 113. But see Weinrib, Idea, supra note 24 at 50-53.

121. See Benson, Justice in Transactions, supra note 2 at 354-55; Brudner & Nadler, supra note 3 at 188.

122. See supra note 2 and accompanying text.

123. See Benson, Justice in Transactions, supra note 2 at 26-27. See also Weinrib, Corrective Justice, supra note 5 at 21-29. Cf Brudner & Nadler, supra note 3 at 107-108.