Assignment and novation are not the same at all – just like California isn’t the same without Arnie as governator. Assignment and novation can be used to effect changes in your business and are used to achieve different things. Let’s compare.
Under an assignment, you keep performing your obligations under contract but give some rights to a third party. For example, an assignment could be relevant if you have a bigger business where you have one parent company and also some subsidiary companies. You want the parent company to keep performing its obligations under a contract but you want the parent company’s clients to make payment to a subsidiary to increase cash flow for that company. You would enter into a deed of assignment with the client to permit the client to pay the subsidiary.
By comparison, a novation achieves the transfer of both rights and obligations to a third party. Using the above example, if the parent company ‘novated’ its rights to the subsidiary, the subsidiary would obtain the obligation to perform services and the right to receive payment for those services.
Novation most often arises in big corporate takeovers or on the sale of a business. On takeover, novation deeds are used to transfer contracts from the seller to the buyer and allow the buyer to carry on the seller’s business.
Any other differences?
As with most legal documents, in ordering to be binding parties must consent to them in one way or another. Depending on whether you need a novation or an assignment, you need to ask permission from different parties. All parties must consent – novation. If you are novating your rights under contract to a third party, you need the consent of the other party to the contract and the third party who will be obtaining your rights.
Some parties must consent – assignment. To be absolutely sure of the consent requirements, best practice is always to go through the contract or deed with a fine tooth comb to understand the requirements.
The difference between a novation and an assignment are summarised below.
|Deed of Novation||Assignment|
|Requires the consent of all parties?||Yes, consent of both original parties to the contract + the new incoming third party.||Depends.|
|Transfers benefits under contract?||Yes.||Yes.|
|Transfers obligations under contract?||Yes.||No.|
|Replaces a party to a contract?||Yes.||No.|
Finally, one of the most important (and sometimes overlooked) steps is always to document what you have agreed to in writing. Have your agreement written up, signed and stored safely. The area where most disputes and disagreements arise is where parties have not written down what they agree to – resulting in painful conflict that could have been easily avoided.
LegalVision has a team of great contract lawyers who can assist you. Please call our office on 1300 544 755 and our Client Care team will happily provide you with an obligation-free consultation and a fixed-fee quote.