Prohibitions on assignment

1. Prohibitions on assignment A study of BoAs for ABFA Hugh Beale and Louise Gullifer, with Anna Kloeden

2. Assignment of trade receivables Debtor BoA Creditor/ assignor Assignment Assignee

3. Assignment of trade receivables Customer BoA Supplier Assignment Receivables financier

4. “Established wisdom” on BoAs • Important in loan agreements, where creditors may differ in flexibility and money not due at fixed time • Unnecessary in contracts for supply of goods or services (trade receivables) • Money due at fixed time • Goods or services already supplied • Debtor will not care who debtor is • Used only • By accident • To prevent assignment of obligations or sub-contracting • When large customer can impose • Easier because can ignore notice, etc • Major barrier to receivables financing • RF cannot check receivables contracts for BoAs • Cannot provide credit

5. BoAs rendered ineffective • US: UCC s 9-406(d) • BoAs in trade receivables of no effect against the debtor • Assignor may be liable to Debtor in damages for breach • Canada, NZ: Personal Property Security Acts • Unidroit Convention on International Factoring (1988), art 6 • UN Convention on the Assignment of Receivables in International Trade (2001), art 9 • Law Commission (Company Security Interests, 2005)

6. ABFA Survey • To investigate case • To be “objective” • ABFA reimbursed Universities for time, research and travel expenses • Face-to-face and telephone interviews • Financiers • One specializing in medium-size sector (£3m-£15m) • Three in SME market, invoice discounting and factoring • Organisation introducing suppliers to financiers • Website auctioning receivables • Five small/medium-sized suppliers • Organisationrepresenting finance directors • Two organisations that help SMEs find finance • Two major customers (one manufacturing, one retail)

7. Right to sue • If right to unpaid receivables held on trust, can assignee use Vandepitte procedure to force assignor to sue? • Don King: no, would undermine BoA • Barbados Trust v Bank of Zambia (obiter) • Hooper, no • Waller and Rix: yes • For purposes of survey, assumed no

8. Are BOAS necessary? • Customers claim: • Debt may be disputed • Goods/services defective • Muddles over invoices • “Ghost” invoices for goods/services not supplied • Want to deal with “known” supplier, not RF • Supplier has commercial interest in preserving good relationship with Customer • May need right of set-off • May have claim under other contract, • e.g. for other goods that prove defective after paid for • Once notice, no new set-offs

9. “Impossible to check” • Most SMEs have relatively few customers (or few regular customers) • Customers have standard practices • Not hard to check suppliers’ contracts • Often can negotiate waiver

10. “Major hindrance to RF” • Not to block discounting • Non-notification • Customer often not told • Receivables paid into trust account • What if supplier insolvent, outstanding receivables? • RF cannot give notice to Customer • Administrator/liquidator may have no interest in collecting money that will be paid to RF not to general creditors • “Solution” • RF also takes floating charge over supplier’s undertaking • Gives RF right to appoint Administrator • Appoint “friendly” Administrator • Possible problem: • BoAmay also prevent creation of charge over debt

11. Businesses that “can’t be trusted” • RFs say some SMEs can’t be relied on to operate a trust account • Will only finance on notification basis • If no waiver, cannot offer finance

12. Internet sales of receivables • Websites offer receivables to highest bidder • Notification basis • Not possible if BoA

13. Supply chain finance • Large companies • Have BoA • Arrange RF with known financier, e.g. bank • Combine with sophisticated invoicing • Suppliers given barcode labels • Logged into computer system when collected and checked on arrival at customer • “self-billing” (i.e. Customer issues invoice to own finance Dept) • Will allow factoring to approved RF

14. Is there a problem? • Only larger companies offer supply chain finance • Only to established suppliers • [Discount rates – said to be competitive, but??] • So problem for • Small businesses dealing with companies not offering SCF • Start-up businesses • Web-based schemes

15. Saskatchewan PPSA 1993 41(9): A term in a contract between a debtor on an account or on chattel paper and an assignor that prohibits or restricts assignment of the whole of the account or chattel paper for money due or to become due: (a) is binding on the assignor, but only to the extent of making the assignor liable in damages for breach of contract; and (b) is unenforceable against third parties. 2(1)(b): “account” means a monetary obligation that is not evidenced by chattel paper, an instrument or a security, whether or not it has been earned by performance;

16. Law Commission (Company Security Interests, 2005) “A term in a contract between an account debtor and an assignor which prohibits or restricts assignment of the whole of the receivables for money due or to become due: (a) is binding on the assignor, but only to the extent of making the assignor liable in damages for breach of contract, but (b) is ineffective against assignees.” (Draft Reg 35(5))

17. To what should the override apply? “receivables” means monetary obligations, whether or not earned by performance, arising from (a) the supply of goods or services (other than insurance services), (b) the supply of energy, or (c) brokerage fees, and “sale”, in relation to receivables, includes an agreement to sell.