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    Interpretation of non-assignment clauses

    On March 21, 2014 the Dutch Supreme Court rendered an important judgment regarding the interpretation of non-assignment clauses (RvdW 2014/495, Coface/Intergamma).

    In line with the general principle of freedom of contract, section 3:83 par. 2 of the Dutch Civil Code (DCC) provides that the parties to a contract may exclude or limit the assignability of all or part of their rights of action thereunder. Such stipulation does not affect the power of disposal (beschikkingsbevoegdheid) of the restricted party, but results in the non-transferability of the relevant rights as such (Supreme Court, January 17, 2003, NJ 2004/281, Oryx/Van Eesteren). Consequently, any transfer of rights in violation of such stipulation does not merely result in a breach of the restricted party's obligations under that contract but the transfer does simply not have any legal effect, even if the third party transferee is not aware of such restrictive stipulation.

    In it's recent judgment of March 21, 2014 the Supreme Court was called on the interpretation of a non-assignment clause. The Supreme Court held that, as a starting point, for the purposes of such interpretation, it should be assumed that a non-assignment clause merely affects the parties to the contract (i.e. would only result in a breach by the transferor acting in violation of such clause) and is not intended to preclude the transferability of rights on the basis of section 3:83 par. 2 DCC, unlessthe objective interpretation of the wording of such clause (rather than the intentions of the parties themselves when entering into the contract) so requires.  

    As a result, when drafting or negotiating a non-assignment clause, it is recommended to be very explicit if non-transferability of rights is intended (e.g. by referring to section 3:83 par. 2 DCC).

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