The transfer of money claims (debts) is of the utmost practical importance. In Scots
law this is achieved by an 'assignation' (also known as 'assignment' or 'cession').
The first part of the thesis (chapters 2 and 3) places the Scots law of assignation in its
comparative and historical context. At the outset, the differences between an
assignation and other juridical institutions are highlighted. Assignation is but one -
albeit important - method whereby a debt relationship may be utilised. With these
distinctions in mind the accepted history of the law of assignment is considered. The
development of the law, from Roman law through the jus commune, and the apparent
reception of the French approach in Scots law, is traced.
The following three chapters deal with three important elements in a modern
assignation. The constitutive role that debtor notification plays in Scots law is the
subject of chapter 4. Chapter 5 looks as at the so-called 'assignatus utitur jure
auctoris'1 rule, i.e. the defences available to the debtor in an assignation against the
assignee. Particular reference is made to the set-off pleas of compensatio and
retention. Finally, chapter 6 is concerned with issues of validity. Does Scots law
subscribe to the abstract theory of transfer? If so, what are the consequences?
Particular reference is made to the effect of a contractual prohibition on assignment
(pactum de non cedendo), including its effect on creditors, and the so-called 'offside
It will become apparent that, despite the relative paucity of recent litigation on the
subject, the Scottish jurisprudence on assignment is rich. The sources show an
unbroken path of legal development stretching over half a millennium. Although
often characterised as unnecessarily formal, Scots law has a strikingly liberal attitude
to the assignability of claims and other incorporeal assets. Clear general principles
have been distilled. On matters of detail the position is less certain. The thesis
identifies the relevant sources of the law of Scotland, many of which have been
ignored. These are critically analysed, often from a comparative perspective.