For example, a creditor may require a holding company (the “assignor”) to sign an assignment of security in respect of a security (for example. B a loan account (the “secured debt”) for the principal debt of a subsidiary (the “debtor”). Apart from the fact that at this stage it seems that the parties can structure assignments of security in both directions and, if the intention is not clearly expressed, the construction of the deposit will take precedence (cf. Grobler v Oosthuizen SCA) The South African common position is that notification to the debtor of the assignment of the security is not a legal condition: to justify a mandatory assignment. however, it prevents the debtor from the assignor`s performance where the assignor is entitled to the benefit by reason of the assignor`s omission with the secured debt. However, Article 39 of the Financial Markets Act regulates and dedsures the legal requirements for the transfer of securities or the pledging of unregulated securities listed on the stock exchange. If you are acting for the person responsible for the assignment, you want to protect your customer as much as possible. If the assignment of the security does not contain an explicit clause on the enforcement of the security rights, it is doubtful whether the assignee may, in the absence of a corresponding court decision, sell the assigned security even after the debt has matured. The assignment is an act of transfer. It includes an agreement that the assignor or assignor transfers a right to the assignee or assignee. In principle, the right holder/creditor may assign his claim to his own creditor in order to secure the claim owed to him.
The main function of an assignment is to ensure that creditors substitute themselves. Personality rights are covered by the assignment and no right in rem is conferred. In the event of an assignment, the assignor assigns and transfers its rights against its debtor to the assignee, so that the assignee becomes the owner or holder of the rights. The candidate for the assignment thus becomes the new creditor of the debtor, who will now have to provide a service to the assignee. In this type of assignment, the rights leave the assignor`s estate and pass to the assignor`s estate. § 45 may require a specific decision by the shareholders of the holding company to ensure the transfer of the security, and the board of directors of the holding company must ensure that: in other words, without the agreement of the secured creditor, the company`s rescue practitioner cannot dispose of ownership or burden it, unless the proceeds are sufficient to pay the secured creditor`s debt and are actually paid to it immediately. We consider that article 134 does not apply to the assignment of debtors. A debt owed to the company in the rescue is not “property” within the meaning of Article 134, as notification to the debtor is often taken as a contractual condition in the form of a condition precedent of a loan and an assignment as security. This is related to risk reduction, including the removal of a contractual restriction in the main agreement on the parties` ability to assign assigned rights and not to a legal obligation to assign the valid warranty. A debtor who is not aware of the assignment of the security and who provides the assignor, in good faith, with services under its contract with the assignor, is without recourse. In cases where the assignee is in arrears with the secured debt, for example by failing to return the loan, and where the debtor who is not aware of the assignment provides the benefit to the assignee in good and due form, the assignee is not entitled to the debtor for a loss that it may suffer because the benefit was provided to the assignor. .
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