assignment vs charge

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Difference Between Assignment And Charge

INTRODUCTION

The charges are defined under the Companies Act and the government under the Section 77, [1] Section 78, Section 79, [2] Section 89 [3] and the rules 2014. The company has the right to borrow monies by providing the security to the assets and may create a lien on the properties. [4] The company also has the right to issue debentures so that the funds can be raised which can carry right interest in the assets are the properties of the company.

The security which is given to a person for securing the loans and debentures under the mortgage of assets is known as charge. A company has the right to borrow the security for its borrowing. [5] When they both existing and future property is agreed to be available as a security for the repayment of test then the creditors have the right to make it available as there is charge created. According to Section 2(16) of the Act, “charge means an interest or lien created on the property or assets of a company or any of its undertakings or both as security and includes a mortgage”. [6] In the case of Dublin City Distillery Co. v. Deherty , [7] It was stated that charge include any portable charger whether this can be created by an instrument in writing or by the deposit of the title deed. [8]

KINDS OF CHARGES

There are two types of charges-

1. FIXED CHARGE

Fixed charge is a type of charge which is created so that assets can be covered. It is a type of security which is there under the terms of certain specific property. [9] Fixed Charges is a charge fixed or specific when it is made specifically to cover assets which are ascertainable and definite at the time of creating the charge e.g., land, buildings, heavy machinery etc. [10]

2. FLOATING CHARGE

A floating charge is a charge which is totally different to the companies as a type of security. This type of charge is not attached to any definite property. A floating charge includes a charge which is on the class of assets which is present and future in the ordinary course of business and this changing from time to time. [11] “The essence of a floating charge is that the security remains dormant until it is fixed or crystallised”. [12] Floating charge is the present security. Floating charge can affect all the assets of the company. Floating Charge, on the other hand, is not attached to any definite property but covers property which is of a fluctuating nature such as stock in trade. [13] It is an equitable charge on the assets for the time being of a going concern. [14] It attaches to the subject charged in the varying condition in which it happens to be from time to time. It is of this sense of such a charge that it remains dormant until the undertaking charged ceases to be a going concern, or until the person in whose favour the charge is created intervenes. [15]

FORM OF CHARGES

As stated above the charges under the Companies Act or defined under Section 77 [16] , Section 78 [17] and Section 79-

The charges are divided into three categories

FORMS FOR FILING: CHG-1, CHG-4, CHG-6, CHG-8, CHG-9, CHG-10.
CERTIFICATES ISSUED BY ROC: CHG-2, CHG-3, CHG-5.
REGISTER TO BE MAINTAINED.

SATISFACTION OF CHARGE

Within 30 days of treatment satisfaction should be full of any charge which is registered and the company shall get intimation of the same in CHG-4 along with the fee then the ROC will issue of certificate of registration on the satisfaction of a charged under the form number CHG-5.

The principle of assignment is recognized under Indian law and is applied by Indian courts. It derives its origin from English law. The words assignment means the transfer of rights and obligations held by one party to another party. The system of assignment is favoured under the common law such as there is no expressed prohibition against assignment in a contract.

However in India with the absence of specific laws under the transfer of a contract intention of the party has to be taken into the account. In the case of Khared and Co. Ltd v Ramon and Co. Pvt. Ltd , [18] it was stated that “as a rule, obligations under a contract cannot be assigned except with the consent of the promisee. Where such consent is obtained, it will be considered as a deemed novation, resulting in the substitution of liabilities and obligations to the assignee”. Assignment rights are usually limited pertaining to the licence of intellectual property rights and Technology.

[1] Section 77 of Companies Act, 2013 Duty to register charges, etc. 1. It shall be the duty of every company creating a charge within or outside India, on its property or assets or any of its undertakings, whether tangible or otherwise, and situated in or outside India, to register the particulars of the charge signed by the company and the charge-holder together with the instruments, if any, creating such charge in such form, on payment of such fees and in such manner as may be prescribed, with the Registrar within thirty days of its creation: Provided that the Registrar may, on an application by the company, allow such registration to be made within a period of three hundred days of such creation on payment of such additional fees as may be prescribed: Provided further that if registration is not made within a period of three hundred days of such creation, the company shall seek extension of time in accordance with section 87: Provided also that any subsequent registration of a charge(………)

[2] The provisions of section 77 relating to registration of charges shall, so far as may be, apply to—

(a) a company acquiring any property subject to a charge within the meaning of that section; or

(b) any modification in the terms or conditions or the extent or operation of any charge registered under that section.

[3] Declaration in respect of beneficial interest in any share.

Where the name of a person is entered in the register of members of a company as the holder of shares in that company but who does not hold the beneficial interest in such shares, such person shall make a declaration within such time and in such form as may be prescribed to the company specifying the name and other particulars of the person who holds the beneficial interest in such shares.
Every person who holds or acquires a beneficial interest in share of a company shall make a declaration to the company specifying the nature of his interest, particulars of the person in whose name the shares stand(…..)

[4] Vishal Thakkar, “CHARGES” under The New Companies Act, 2013 (2015), https://www.linkedin.com/pulse/charges-under-new-companies-act-2013-vishal-thakkar (last visited Apr 19, 2017).

[5] Charges under companies act, 2013 , http://www.caclubindia.com/articles/charges-under-companies-act-2013-23073.asp (last visited Apr 9, 2017).

[6] Section 2(16) of Companies Act, 2013.

[7] Dublin City Distillery Co. v. Deherty, 1914 AC 823.

[9] Mr. M. Govindarajan, Provisions Relating to ‘Charges’ Under Companies Act, 2013 (2013), https://www.taxmanagementindia.com/visitor/detail_article.asp?ArticleID=5382 (last visited Apr 9, 2017).

[10] Admin, Creation of Charges under Companies Act, 2013 (2016), http://taxguru.in/company-law/creation-charges-companies-act-2013.html (last visited Apr 9, 2017).

[11] Creation of Charges under Companies Act, 2013, (2016), http://taxguru.in/company-law/creation-charges-companies-act-2013.html (last visited Apr 9, 2017).

[12] Supra note 6.

[13] “CHARGES” under The New Companies Act, 2013 (2015).

[14] Government Stock Investment Co. Ltd. V. Manila Rly. Co. Ltd., (1897) AC 81 Per Lord Macnaghten,

[15] Supra note 9.

[16] Supra note 1.

[17] Supra note 11.

[18] Khared and Co. Ltd v Ramon and Co. Pvt. Ltd, 1962 AIR 1810, 1963 SCR (3) 183 .

Assignments: why you need to serve a notice of assignment

It's the day of completion; security is taken, assignments are completed and funds move. Everyone breathes a sigh of relief. At this point, no-one wants to create unnecessary paperwork - not even the lawyers! Notices of assignment are, in some circumstances, optional. However, in other transactions they could be crucial to a lender's enforcement strategy. In the article below, we have given you the facts you need to consider when deciding whether or not you need to serve notice of assignment.

What issues are there with serving notice of assignment?

Assignments are useful tools for adding flexibility to banking transactions. They enable the transfer of one party's rights under a contract to a new party (for example, the right to receive an income stream or a debt) and allow security to be taken over intangible assets which might be unsuitable targets for a fixed charge. A lender's security net will often include assignments over contracts (such as insurance or material contracts), intellectual property rights, investments or receivables.

An assignment can be a legal assignment or an equitable assignment. If a legal assignment is required, the assignment must comply with a set of formalities set out in s136 of the Law of Property Act 1925, which include the requirement to give notice to the contract counterparty.

The main difference between legal and equitable assignments (other than the formalities required to create them) is that with a legal assignment, the assignee can usually bring an action against the contract counterparty in its own name following assignment. However, with an equitable assignment, the assignee will usually be required to join in proceedings with the assignor (unless the assignee has been granted specific powers to circumvent that). That may be problematic if the assignor is no longer available or interested in participating.

Why should we serve a notice of assignment?

The legal status of the assignment may affect the credit scoring that can be given to a particular class of assets. It may also affect a lender's ability to effect part of its exit strategy if that strategy requires the lender to be able to deal directly with the contract counterparty.

The case of General Nutrition Investment Company (GNIC) v Holland and Barrett International Ltd and another (H&B) provides an example of an equitable assignee being unable to deal directly with a contract counterparty as a result of a failure to provide a notice of assignment.

The case concerned the assignment of a trade mark licence to GNIC . The other party to the licence agreement was H&B. H&B had not received notice of the assignment. GNIC tried to terminate the licence agreement for breach by serving a notice of termination. H&B disputed the termination. By this point in time the original licensor had been dissolved and so was unable to assist.

At a hearing of preliminary issues, the High Court held that the notices of termination served by GNIC , as an equitable assignee, were invalid, because no notice of the assignment had been given to the licensee. Although only a High Court decision, this follows a Court of Appeal decision in the Warner Bros Records Inc v Rollgreen Ltd case, which was decided in the context of the attempt to exercise an option.

In both cases, an equitable assignee attempted to exercise a contractual right that would change the contractual relationship between the parties (i.e. by terminating the contractual relationship or exercising an option to extend the term of a licence). The judge in GNIC felt that "in each case, the counterparty (the recipient of the relevant notice) is entitled to see that the potential change in his contractual position is brought about by a person who is entitled, and whom he can see to be entitled, to bring about that change".

In a security context, this could hamper the ability of a lender to maximise the value of the secured assets but yet is a constraint that, in most transactions, could be easily avoided.

Why not serve notice?

Sometimes it's just not necessary or desirable. For example:

If security is being taken over a large number of low value receivables or contracts, the time and cost involved in giving notice may be disproportionate to the additional value gained by obtaining a legal rather than an equitable assignment.
If enforcement action were required, the equitable assignee typically has the option to join in the assignor to any proceedings (if it could not be waived by the court) and provision could be made in the assignment deed for the assignor to assist in such situations. Powers of attorney are also typically granted so that a lender can bring an action in the assignor's name.
Enforcement is often not considered to be a significant issue given that the vast majority of assignees will never need to bring claims against the contract counterparty.

Care should however, be taken in all circumstances where the underlying contract contains a ban on assignment, as the contract counterparty would not have to recognise an assignment that is made in contravention of that ban. Furthermore, that contravention in itself may trigger termination and/or other rights in the assigned contract, that could affect the value of any underlying security.

What about acknowledgements of notices?

A simple acknowledgement of service of notice is simply evidence of the notice having been received. However, these documents often contain commitments or assurances by the contract counterparty which increase their value to the assignee.

Best practice for serving notice of assignment

Each transaction is different and the weighting given to each element of the security package will depend upon the nature of the debt and the borrower's business. The service of a notice of assignment may be a necessity or an optional extra. In each case, the question of whether to serve notice is best considered with your advisers at the start of a transaction to allow time for the lender's priorities to be highlighted to the borrowers and captured within the documents.

For further advice on serving notice of assignment please contact Kirsty Barnes or Catherine Phillips from our Banking & Finance team.

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Assignment: Definition in Finance, How It Works, and Examples

Adam Hayes, Ph.D., CFA, is a financial writer with 15+ years Wall Street experience as a derivatives trader. Besides his extensive derivative trading expertise, Adam is an expert in economics and behavioral finance. Adam received his master's in economics from The New School for Social Research and his Ph.D. from the University of Wisconsin-Madison in sociology. He is a CFA charterholder as well as holding FINRA Series 7, 55 & 63 licenses. He currently researches and teaches economic sociology and the social studies of finance at the Hebrew University in Jerusalem.

Yarilet Perez is an experienced multimedia journalist and fact-checker with a Master of Science in Journalism. She has worked in multiple cities covering breaking news, politics, education, and more. Her expertise is in personal finance and investing, and real estate.

What Is an Assignment?

Assignment most often refers to one of two definitions in the financial world:

The transfer of an individual's rights or property to another person or business. This concept exists in a variety of business transactions and is often spelled out contractually.
In trading, assignment occurs when an option contract is exercised. The owner of the contract exercises the contract and assigns the option writer to an obligation to complete the requirements of the contract.

Key Takeaways

Assignment is a transfer of rights or property from one party to another.
Options assignments occur when option buyers exercise their rights to a position in a security.
Other examples of assignments can be found in wages, mortgages, and leases.

Uses For Assignments

Assignment refers to the transfer of some or all property rights and obligations associated with an asset, property, contract, or other asset of value. to another entity through a written agreement.

Assignment rights happen every day in many different situations. A payee, like a utility or a merchant, assigns the right to collect payment from a written check to a bank. A merchant can assign the funds from a line of credit to a manufacturing third party that makes a product that the merchant will eventually sell. A trademark owner can transfer, sell, or give another person interest in the trademark or logo. A homeowner who sells their house assigns the deed to the new buyer.

To be effective, an assignment must involve parties with legal capacity, consideration, consent, and legality of the object.

A wage assignment is a forced payment of an obligation by automatic withholding from an employee’s pay. Courts issue wage assignments for people late with child or spousal support, taxes, loans, or other obligations. Money is automatically subtracted from a worker's paycheck without consent if they have a history of nonpayment. For example, a person delinquent on $100 monthly loan payments has a wage assignment deducting the money from their paycheck and sent to the lender. Wage assignments are helpful in paying back long-term debts.

Another instance can be found in a mortgage assignment. This is where a mortgage deed gives a lender interest in a mortgaged property in return for payments received. Lenders often sell mortgages to third parties, such as other lenders. A mortgage assignment document clarifies the assignment of contract and instructs the borrower in making future mortgage payments, and potentially modifies the mortgage terms.

A final example involves a lease assignment. This benefits a relocating tenant wanting to end a lease early or a landlord looking for rent payments to pay creditors. Once the new tenant signs the lease, taking over responsibility for rent payments and other obligations, the previous tenant is released from those responsibilities. In a separate lease assignment, a landlord agrees to pay a creditor through an assignment of rent due under rental property leases. The agreement is used to pay a mortgage lender if the landlord defaults on the loan or files for bankruptcy . Any rental income would then be paid directly to the lender.

Options Assignment

Options can be assigned when a buyer decides to exercise their right to buy (or sell) stock at a particular strike price . The corresponding seller of the option is not determined when a buyer opens an option trade, but only at the time that an option holder decides to exercise their right to buy stock. So an option seller with open positions is matched with the exercising buyer via automated lottery. The randomly selected seller is then assigned to fulfill the buyer's rights. This is known as an option assignment.

Once assigned, the writer (seller) of the option will have the obligation to sell (if a call option ) or buy (if a put option ) the designated number of shares of stock at the agreed-upon price (the strike price). For instance, if the writer sold calls they would be obligated to sell the stock, and the process is often referred to as having the stock called away . For puts, the buyer of the option sells stock (puts stock shares) to the writer in the form of a short-sold position.

Suppose a trader owns 100 call options on company ABC's stock with a strike price of $10 per share. The stock is now trading at $30 and ABC is due to pay a dividend shortly. As a result, the trader exercises the options early and receives 10,000 shares of ABC paid at $10. At the same time, the other side of the long call (the short call) is assigned the contract and must deliver the shares to the long.

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Assignments by way of security

Published by a lexisnexis banking & finance expert.

Assignments by way of security can take different forms and it is important to understand how they are created and their effect. Security over choses in action such as debts and other contractual rights is often taken by way of an equitable or statutory assignment by way of security.

This Practice Note explains:

what assignments by way of security are

which types of assets they are used for

whether they take legal, statutory or equitable form and the advantages of the statutory form

why it is important to serve notice of an assignment by way of security

What is an assignment by way of security?

Assignments by way of security are a type of mortgage. They involve:

an assignment (ie transfer) of rights by the assignor to the assignee

subject to:

an obligation to reassign those rights back to the assignor upon the discharge of the obligations which have been secured

When the obligations that have been secured have been discharged,

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Related legal acts:

Law of Property Act 1925 (1925 c 20)
Small Business, Enterprise and Employment Act 2015 (2015 c 26)

Key definition:

Assignor definition, what does assignor mean.

The entity disposing of an asset by an assignment .

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Options Exercise, Assignment, and More: A Beginner's Guide

So your trading account has gotten options approval, and you recently made that first trade—say, a long call in XYZ with a strike price of $105. Then expiration day approaches and, at the time, XYZ is trading at $105.30.

Wait. The stock's above the strike. Is that in the money 1 (ITM) or out of the money 2 (OTM)? Do I need to do something? Do I have enough money in my account? Help!

Don't be that trader. The time to learn the mechanics of options expiration is before you make your first trade.

Here's a guide to help you navigate options exercise 3 and assignment 4 —along with a few other basics.

In the money or out of the money?

The buyer ("owner") of an option has the right, but not the obligation, to exercise the option on or before expiration. A call option 5 gives the owner the right to buy the underlying security; a put option 6 gives the owner the right to sell the underlying security.

Conversely, when you sell an option, you may be assigned—at any time regardless of the ITM amount—if the option owner chooses to exercise. The option seller has no control over assignment and no certainty as to when it could happen. Once the assignment notice is delivered, it's too late to close the position and the option seller must fulfill the terms of the options contract:

A long call exercise results in buying the underlying stock at the strike price.
A short call assignment results in selling the underlying stock at the strike price.
A long put exercise results in selling the underlying stock at the strike price.
A short put assignment results in buying the underlying stock at the strike price.

An option will likely be exercised if it's in the option owner's best interest to do so, meaning it's optimal to take or to close a position in the underlying security at the strike price rather than at the current market price. After the market close on expiration day, ITM options may be automatically exercised, whereas OTM options are not and typically expire worthless (often referred to as being "abandoned"). The table below spells it out.

If the underlying stock price is...
...higher than the strike price
...lower than the strike price
If the underlying stock price is... A long call is... -->
...higher than the strike price ...ITM and typically exercised -->
...lower than the strike price ...OTM and typically abandoned -->
If the underlying stock price is... A short call is... -->
...higher than the strike price ...ITM and typically assigned -->
If the underlying stock price is... A long put is... -->
...higher than the strike price ...OTM and typically abandoned -->
...lower than the strike price ...ITM and typically exercised -->
If the underlying stock price is... A short put is... -->
...lower than the strike price ...ITM and typically assigned -->

The guidelines in the table assume a position is held all the way through expiration. Of course, you typically don't need to do that. And in many cases, the usual strategy is to close out a position ahead of the expiration date. We'll revisit the close-or-hold decision in the next section and look at ways to do that. But assuming you do carry the options position until the end, there are a few things you need to consider:

Know your specs . Each standard equity options contract controls 100 shares of the underlying stock. That's pretty straightforward. Non-standard options may have different deliverables. Non-standard options can represent a different number of shares, shares of more than one company stock, or underlying shares and cash. Other products—such as index options or options on futures—have different contract specs.
Stock and options positions will match and close . Suppose you're long 300 shares of XYZ and short one ITM call that's assigned. Because the call is deliverable into 100 shares, you'll be left with 200 shares of XYZ if the option is assigned, plus the cash from selling 100 shares at the strike price.
It's automatic, for the most part . If an option is ITM by as little as $0.01 at expiration, it will automatically be exercised for the buyer and assigned to a seller. However, there's something called a do not exercise (DNE) request that a long option holder can submit if they want to abandon an option. In such a case, it's possible that a short ITM position might not be assigned. For more, see the note below on pin risk 7 ?
You'd better have enough cash . If an option on XYZ is exercised or assigned and you are "uncovered" (you don't have an existing long or short position in the underlying security), a long or short position in the underlying stock will replace the options. A long call or short put will result in a long position in XYZ; a short call or long put will result in a short position in XYZ. For long stock positions, you need to have enough cash to cover the purchase or else you'll be issued a margin 8 call, which you must meet by adding funds to your account. But that timeline may be short, and the broker, at its discretion, has the right to liquidate positions in your account to meet a margin call 9 . If exercise or assignment involves taking a short stock position, you need a margin account and sufficient funds in the account to cover the margin requirement.
Short equity positions are risky business . An uncovered short call or long put, if assigned or exercised, will result in a short stock position. If you're short a stock, you have potentially unlimited risk because there's theoretically no limit to the potential price increase of the underlying stock. There's also no guarantee the brokerage firm can continue to maintain that short position for an unlimited time period. So, if you're a newbie, it's generally inadvisable to carry an options position into expiration if there's a chance you might end up with a short stock position.

A note on pin risk : It's not common, but occasionally a stock settles right on a strike price at expiration. So, if you were short the 105-strike calls and XYZ settled at exactly $105, there would be no automatic assignment, but depending on the actions taken by the option holder, you may or may not be assigned—and you may not be able to trade out of any unwanted positions until the next business day.

But it goes beyond the exact price issue. What if an option is ITM as of the market close, but news comes out after the close (but before the exercise decision deadline) that sends the stock price up or down through the strike price? Remember: The owner of the option could submit a DNE request.

The uncertainty and potential exposure when a stock price and the strike price are the same at expiration is called pin risk. The best way to avoid it is to close the position before expiration.

The decision tree: How to approach expiration

As expiration approaches, you have three choices. Depending on the circumstances—and your objectives and risk tolerance—any of these might be the best decision for you.

1. Let the chips fall where they may. Some positions may not require as much maintenance. An options position that's deeply OTM will likely go away on its own, but occasionally an option that's been left for dead springs back to life. If it's a long option, the unexpected turn of events might feel like a windfall; if it's a short option that could've been closed out for a penny or two, you might be kicking yourself for not doing so.

Conversely, you might have a covered call (a short call against long stock), and the strike price was your exit target. For example, if you bought XYZ at $100 and sold the 110-strike call against it, and XYZ rallies to $113, you might be content selling the stock at the $110 strike price to monetize the $10 profit (plus the premium you took in when you sold the call but minus any transaction fees). In that case, you can let assignment happen. But remember, assignment is likely in this scenario, but it is not guaranteed.

2. Close it out . If you've met your objectives for a trade, then it might be time to close it out. Otherwise, you might be exposed to risks that aren't commensurate with any added return potential (like the short option that could've been closed out for next to nothing, then suddenly came back into play). Keep in mind, there is no guarantee that there will be an active market for an options contract, so it is possible to end up stuck and unable to close an options position.

The close-it-out category also includes ITM options that could result in an unwanted long or short stock position or the calling away of a stock you didn't want to part with. And remember to watch the dividend calendar. If you're short a call option near the ex-dividend date of a stock, the position might be a candidate for early exercise. If so, you may want to consider getting out of the option position well in advance—perhaps a week or more.

3. Roll it to something else . Rolling, which is essentially two trades executed as a spread, is the third choice. One leg closes out the existing option; the other leg initiates a new position. For example, suppose you're short a covered call on XYZ at the July 105 strike, the stock is at $103, and the call's about to expire. You could attempt to roll it to the August 105 strike. Or, if your strategy is to sell a call that's $5 OTM, you might roll to the August 108 call. Keep in mind that rolling strategies include multiple contract fees, which may impact any potential return.

The bottom line on options expiration

You don't enter an intersection and then check to see if it's clear. You don't jump out of an airplane and then test the rip cord. So do yourself a favor. Get comfortable with the mechanics of options expiration before making your first trade.

1 Describes an option with intrinsic value (not just time value). A call option is in the money (ITM) if the stock price is above the strike price. A put option is ITM if the stock price is below the strike price. For calls, it's any strike lower than the price of the underlying equity. For puts, it's any strike that's higher.

2 Describes an option with no intrinsic value. A call option is out of the money (OTM) if its strike price is above the price of the underlying stock. A put option is OTM if its strike price is below the price of the underlying stock.

3 An options contract gives the owner the right but not the obligation to buy (in the case of a call) or sell (in the case of a put) the underlying security at the strike price, on or before the option's expiration date. When the owner claims the right (i.e. takes a long or short position in the underlying security) that's known as exercising the option.

4 Assignment happens when someone who is short a call or put is forced to sell (in the case of the call) or buy (in the case of a put) the underlying stock. For every option trade there is a buyer and a seller; in other words, for anyone short an option, there is someone out there on the long side who could exercise.

5 A call option gives the owner the right, but not the obligation, to buy shares of stock or other underlying asset at the options contract's strike price within a specific time period. The seller of the call is obligated to deliver, or sell, the underlying stock at the strike price if the owner of the call exercises the option.

6 Gives the owner the right, but not the obligation, to sell shares of stock or other underlying assets at the options contract's strike price within a specific time period. The put seller is obligated to purchase the underlying security at the strike price if the owner of the put exercises the option.

7 When the stock settles right at the strike price at expiration.

8 Margin is borrowed money that's used to buy stocks or other securities. In margin trading, a brokerage firm lends an account owner a portion of the purchase price (typically 30% to 50% of the total price). The loan in the margin account is collateralized by the stock, and if the value of the stock drops below a certain level, the owner will be asked to deposit marginable securities and/or cash into the account or to sell/close out security positions in the account.

9 A margin call is issued when your account value drops below the maintenance requirements on a security or securities due to a drop in the market value of a security or when a customer exceeds their buying power. Margin calls may be met by depositing funds, selling stock, or depositing securities. Charles Schwab may forcibly liquidate all or part of your account without prior notice, regardless of your intent to satisfy a margin call, in the interests of both parties.

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Legal and equitable assignments

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Legal Framework of Equitable Assignments in Finance

Financiers and lessors often take an assignment over debts or certain rights under contracts as part of their security package. Depending on how this is done, an assignment can either be characterised as a legal or equitable assignment under English law. Stephenson Harwood’s Dipesh Bharania explains

A key difference between a legal and equitable assignment is the ability of the assignee, be it a financier or lessor, to bring proceedings in its own name against the debtor for payment of the debt owed, or to enforce rights in the contract.

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A legal assignee has this right, but there is a question over whether an equitable assignee has this right or not.

In the case of General Nutrition Investment Company v Holland and Barrett International Ltd and another [2017] EWHC 746 Ch, the High Court held that the beneficiary of an equitable assignment did not have the right to bring proceedings in its own name, and had to do so jointly with the assignor which had assigned rights in the underlying contract.

This raises questions about the equitable assignment, as it appears to contradict other judgments which permit an equitable assignee to take proceedings in its own name. The predecessor company of General Nutrition Investment Company (GNIC) entered into a trade mark licence agreement in March 2003 with Holland and Barrett (H&B) allowing H&B to use certain trademarks in the UK.

After complex internal restructuring, the original contracting party had been dissolved and GNIC was the successor company, which as assignee had been assigned both the rights under the original trademark licence agreement, and the rights to the trademarks themselves. GNIC alleged that H&B was in breach of the licence agreement and served a number of notices of termination on H&B purporting to terminate the agreement.

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The court had to decide whether any of these notices of termination were effective, and whether GNIC had the right to serve such notices, and bring and maintain proceedings against H&B in its own name.

The formalities for a legal assignment are set out in Section 136 of the Law of Property Act 1925, including that the assignment must be:

In writing and executed by the assignor “Absolute” and unconditional, Not be expressed to be “by way of charge”, and Notified in writing to the person against whom the assignor could enforce the assigned rights – usually the other contracting party.

It can often suit the assignor, the assignee and the third party to allow the assignor to deal with the third party, for notice not to be given (certainly initially) and the assignee to remain a silent party. This method is frequently used in financing documents, with notice only being given at a later date (rather than at the time of assignment) when there is a possibility of enforcement on the horizon.

An equitable assignment tends to be created when an assignment does not meet one or more of the requirements for a legal assignment. The main differences between a legal and an equitable assignment are priority (and the established principle that the assignee who serves notice first takes priority over any other assignee (where notice is not given)) and an equitable assignee needing to join the assignor as a party in any legal proceedings it brings against the third-party debtor.

However, two recent cases have lessened the distinction in practice between the two. In the Bexhill case the Court of Appeal recognised that an equitable assignee could take action in its own name without joining in the assignor. In the Ardila case, where notice had been given to the contracting party, the High Court looked at the terms of the notice and decided that what had seemed to be a legal assignment was in fact an equitable assignment because the wording of the notice seemed to retain rights for the assignor. The court used this reasoning to declare it an equitable assignment, despite the notice having been given as required.

Returning to the case in point, after the internal reorganisation and subsequent assignment of the trade mark licence agreement to GNIC, no notices of such assignment were served on H&B by the assignor prior to the purported termination of the agreement or the issue of proceedings. GNIC maintained that as it took the place of its predecessor as the “Licensor”, it became the body entitled to exercise rights of termination under the agreement. H&B’s contention was that, as an equitable assignee, GNIC did not have the right to terminate the agreement or bring proceedings in its own name.

It is widely accepted that, until a notice of assignment is given, and (i) the third party can validly discharge its obligations under the contract to the assignor, and (ii) the third party may raise against the assignee any defence or set-off which he could have raised against the assignor (provided that the matter on which the defence is based arose before notice was received) and the contracting party and assignor can amend the terms of the contract without the assignee’s consent.

The High Court considered that previous case law on this issue was binding as it had not been overruled or materially distinguished in any subsequent cases heard, and held that notice to the contracting third party is necessary to perfect the right of the assignee. Additional weight was given to the fact that a substantive contractual right (in this case, the right to terminate the licence agreement) had been assigned rather than just the assignment of a debt. Consequently, the contractual relationship between the parties was seeking to be amended and therefore the third party was entitled to see that such change was being effected by a party which had the right to do so and whom it knew to have such rights. The Court maintained that H&B cannot be expected to accept a notice of termination from an entity which turns out to be an assignee when it had never been given notice of that assignment.

While the High Court accepted that this decision may be appealed, this has raised a question about equitable assignments and the rights of the equitable assignee under English law. In the meantime, in practice, parties will have to scrutinise what type of right they are seeking, whether in security or as a full legal assignment and opt for the method which provides the clearest outcome possible as the law stands when they take the assignment. Anyone taking an assignment of the benefit of a contract should clearly ensure that notice is served on the other contracting party if it wants to be sure it can act in its own name under that contract against the other contracting party if need be.

Otherwise, there is a risk that an equitable assignee will be unable to enforce substantive contractual rights without having to join in the assignor in proceedings. That said, it may still be commercially preferable to have an equitable assignment for particular financing and leasing structures where it is not thought difficult to join the assignor at a later date if need be. In this case it was not possible, as the assignor had been dissolved. Advice should be sought about the type of assignment to be taken in each transaction pending further clarification from the courts.

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assignments basic law

Assignments: The Basic Law

The assignment of a right or obligation is a common contractual event under the law and the right to assign (or prohibition against assignments) is found in the majority of agreements, leases and business structural documents created in the United States.

As with many terms commonly used, people are familiar with the term but often are not aware or fully aware of what the terms entail. The concept of assignment of rights and obligations is one of those simple concepts with wide ranging ramifications in the contractual and business context and the law imposes severe restrictions on the validity and effect of assignment in many instances. Clear contractual provisions concerning assignments and rights should be in every document and structure created and this article will outline why such drafting is essential for the creation of appropriate and effective contracts and structures.

The reader should first read the article on Limited Liability Entities in the United States and Contracts since the information in those articles will be assumed in this article.

Basic Definitions and Concepts:

An assignment is the transfer of rights held by one party called the “assignor” to another party called the “assignee.” The legal nature of the assignment and the contractual terms of the agreement between the parties determines some additional rights and liabilities that accompany the assignment. The assignment of rights under a contract usually completely transfers the rights to the assignee to receive the benefits accruing under the contract. Ordinarily, the term assignment is limited to the transfer of rights that are intangible, like contractual rights and rights connected with property. Merchants Service Co. v. Small Claims Court , 35 Cal. 2d 109, 113-114 (Cal. 1950).

An assignment will generally be permitted under the law unless there is an express prohibition against assignment in the underlying contract or lease. Where assignments are permitted, the assignor need not consult the other party to the contract but may merely assign the rights at that time. However, an assignment cannot have any adverse effect on the duties of the other party to the contract, nor can it diminish the chance of the other party receiving complete performance. The assignor normally remains liable unless there is an agreement to the contrary by the other party to the contract.

The effect of a valid assignment is to remove privity between the assignor and the obligor and create privity between the obligor and the assignee. Privity is usually defined as a direct and immediate contractual relationship. See Merchants case above.

Further, for the assignment to be effective in most jurisdictions, it must occur in the present. One does not normally assign a future right; the assignment vests immediate rights and obligations.

No specific language is required to create an assignment so long as the assignor makes clear his/her intent to assign identified contractual rights to the assignee. Since expensive litigation can erupt from ambiguous or vague language, obtaining the correct verbiage is vital. An agreement must manifest the intent to transfer rights and can either be oral or in writing and the rights assigned must be certain.

Note that an assignment of an interest is the transfer of some identifiable property, claim, or right from the assignor to the assignee. The assignment operates to transfer to the assignee all of the rights, title, or interest of the assignor in the thing assigned. A transfer of all rights, title, and interests conveys everything that the assignor owned in the thing assigned and the assignee stands in the shoes of the assignor. Knott v. McDonald’s Corp ., 985 F. Supp. 1222 (N.D. Cal. 1997)

The parties must intend to effectuate an assignment at the time of the transfer, although no particular language or procedure is necessary. As long ago as the case of National Reserve Co. v. Metropolitan Trust Co ., 17 Cal. 2d 827 (Cal. 1941), the court held that in determining what rights or interests pass under an assignment, the intention of the parties as manifested in the instrument is controlling.

The intent of the parties to an assignment is a question of fact to be derived not only from the instrument executed by the parties but also from the surrounding circumstances. When there is no writing to evidence the intention to transfer some identifiable property, claim, or right, it is necessary to scrutinize the surrounding circumstances and parties’ acts to ascertain their intentions. Strosberg v. Brauvin Realty Servs., 295 Ill. App. 3d 17 (Ill. App. Ct. 1st Dist. 1998)

The general rule applicable to assignments of choses in action is that an assignment, unless there is a contract to the contrary, carries with it all securities held by the assignor as collateral to the claim and all rights incidental thereto and vests in the assignee the equitable title to such collateral securities and incidental rights. An unqualified assignment of a contract or chose in action, however, with no indication of the intent of the parties, vests in the assignee the assigned contract or chose and all rights and remedies incidental thereto.

More examples: In Strosberg v. Brauvin Realty Servs ., 295 Ill. App. 3d 17 (Ill. App. Ct. 1st Dist. 1998), the court held that the assignee of a party to a subordination agreement is entitled to the benefits and is subject to the burdens of the agreement. In Florida E. C. R. Co. v. Eno , 99 Fla. 887 (Fla. 1930), the court held that the mere assignment of all sums due in and of itself creates no different or other liability of the owner to the assignee than that which existed from the owner to the assignor.

And note that even though an assignment vests in the assignee all rights, remedies, and contingent benefits which are incidental to the thing assigned, those which are personal to the assignor and for his sole benefit are not assigned. Rasp v. Hidden Valley Lake, Inc ., 519 N.E.2d 153, 158 (Ind. Ct. App. 1988). Thus, if the underlying agreement provides that a service can only be provided to X, X cannot assign that right to Y.

Novation Compared to Assignment:

Although the difference between a novation and an assignment may appear narrow, it is an essential one. “Novation is a act whereby one party transfers all its obligations and benefits under a contract to a third party.” In a novation, a third party successfully substitutes the original party as a party to the contract. “When a contract is novated, the other contracting party must be left in the same position he was in prior to the novation being made.”

A sublease is the transfer when a tenant retains some right of reentry onto the leased premises. However, if the tenant transfers the entire leasehold estate, retaining no right of reentry or other reversionary interest, then the transfer is an assignment. The assignor is normally also removed from liability to the landlord only if the landlord consents or allowed that right in the lease. In a sublease, the original tenant is not released from the obligations of the original lease.

Equitable Assignments:

An equitable assignment is one in which one has a future interest and is not valid at law but valid in a court of equity. In National Bank of Republic v. United Sec. Life Ins. & Trust Co. , 17 App. D.C. 112 (D.C. Cir. 1900), the court held that to constitute an equitable assignment of a chose in action, the following has to occur generally: anything said written or done, in pursuance of an agreement and for valuable consideration, or in consideration of an antecedent debt, to place a chose in action or fund out of the control of the owner, and appropriate it to or in favor of another person, amounts to an equitable assignment. Thus, an agreement, between a debtor and a creditor, that the debt shall be paid out of a specific fund going to the debtor may operate as an equitable assignment.

In Egyptian Navigation Co. v. Baker Invs. Corp. , 2008 U.S. Dist. LEXIS 30804 (S.D.N.Y. Apr. 14, 2008), the court stated that an equitable assignment occurs under English law when an assignor, with an intent to transfer his/her right to a chose in action, informs the assignee about the right so transferred.

An executory agreement or a declaration of trust are also equitable assignments if unenforceable as assignments by a court of law but enforceable by a court of equity exercising sound discretion according to the circumstances of the case. Since California combines courts of equity and courts of law, the same court would hear arguments as to whether an equitable assignment had occurred. Quite often, such relief is granted to avoid fraud or unjust enrichment.

Note that obtaining an assignment through fraudulent means invalidates the assignment. Fraud destroys the validity of everything into which it enters. It vitiates the most solemn contracts, documents, and even judgments. Walker v. Rich , 79 Cal. App. 139 (Cal. App. 1926). If an assignment is made with the fraudulent intent to delay, hinder, and defraud creditors, then it is void as fraudulent in fact. See our article on Transfers to Defraud Creditors .

But note that the motives that prompted an assignor to make the transfer will be considered as immaterial and will constitute no defense to an action by the assignee, if an assignment is considered as valid in all other respects.

Enforceability of Assignments:

Whether a right under a contract is capable of being transferred is determined by the law of the place where the contract was entered into. The validity and effect of an assignment is determined by the law of the place of assignment. The validity of an assignment of a contractual right is governed by the law of the state with the most significant relationship to the assignment and the parties.

In some jurisdictions, the traditional conflict of laws rules governing assignments has been rejected and the law of the place having the most significant contacts with the assignment applies. In Downs v. American Mut. Liability Ins. Co ., 14 N.Y.2d 266 (N.Y. 1964), a wife and her husband separated and the wife obtained a judgment of separation from the husband in New York. The judgment required the husband to pay a certain yearly sum to the wife. The husband assigned 50 percent of his future salary, wages, and earnings to the wife. The agreement authorized the employer to make such payments to the wife.

After the husband moved from New York, the wife learned that he was employed by an employer in Massachusetts. She sent the proper notice and demanded payment under the agreement. The employer refused and the wife brought an action for enforcement. The court observed that Massachusetts did not prohibit assignment of the husband’s wages. Moreover, Massachusetts law was not controlling because New York had the most significant relationship with the assignment. Therefore, the court ruled in favor of the wife.

Therefore, the validity of an assignment is determined by looking to the law of the forum with the most significant relationship to the assignment itself. To determine the applicable law of assignments, the court must look to the law of the state which is most significantly related to the principal issue before it.

Assignment of Contractual Rights:

Generally, the law allows the assignment of a contractual right unless the substitution of rights would materially change the duty of the obligor, materially increase the burden or risk imposed on the obligor by the contract, materially impair the chance of obtaining return performance, or materially reduce the value of the performance to the obligor. Restat 2d of Contracts, § 317(2)(a). This presumes that the underlying agreement is silent on the right to assign.

If the contract specifically precludes assignment, the contractual right is not assignable. Whether a contract is assignable is a matter of contractual intent and one must look to the language used by the parties to discern that intent.

In the absence of an express provision to the contrary, the rights and duties under a bilateral executory contract that does not involve personal skill, trust, or confidence may be assigned without the consent of the other party. But note that an assignment is invalid if it would materially alter the other party’s duties and responsibilities. Once an assignment is effective, the assignee stands in the shoes of the assignor and assumes all of assignor’s rights. Hence, after a valid assignment, the assignor’s right to performance is extinguished, transferred to assignee, and the assignee possesses the same rights, benefits, and remedies assignor once possessed. Robert Lamb Hart Planners & Architects v. Evergreen, Ltd. , 787 F. Supp. 753 (S.D. Ohio 1992).

On the other hand, an assignee’s right against the obligor is subject to “all of the limitations of the assignor’s right, all defenses thereto, and all set-offs and counterclaims which would have been available against the assignor had there been no assignment, provided that these defenses and set-offs are based on facts existing at the time of the assignment.” See Robert Lamb , case, above.

The power of the contract to restrict assignment is broad. Usually, contractual provisions that restrict assignment of the contract without the consent of the obligor are valid and enforceable, even when there is statutory authorization for the assignment. The restriction of the power to assign is often ineffective unless the restriction is expressly and precisely stated. Anti-assignment clauses are effective only if they contain clear, unambiguous language of prohibition. Anti-assignment clauses protect only the obligor and do not affect the transaction between the assignee and assignor.

Usually, a prohibition against the assignment of a contract does not prevent an assignment of the right to receive payments due, unless circumstances indicate the contrary. Moreover, the contracting parties cannot, by a mere non-assignment provision, prevent the effectual alienation of the right to money which becomes due under the contract.

A contract provision prohibiting or restricting an assignment may be waived, or a party may so act as to be estopped from objecting to the assignment, such as by effectively ratifying the assignment. The power to void an assignment made in violation of an anti-assignment clause may be waived either before or after the assignment. See our article on Contracts.

Noncompete Clauses and Assignments:

Of critical import to most buyers of businesses is the ability to ensure that key employees of the business being purchased cannot start a competing company. Some states strictly limit such clauses, some do allow them. California does restrict noncompete clauses, only allowing them under certain circumstances. A common question in those states that do allow them is whether such rights can be assigned to a new party, such as the buyer of the buyer.

A covenant not to compete, also called a non-competitive clause, is a formal agreement prohibiting one party from performing similar work or business within a designated area for a specified amount of time. This type of clause is generally included in contracts between employer and employee and contracts between buyer and seller of a business.

Many workers sign a covenant not to compete as part of the paperwork required for employment. It may be a separate document similar to a non-disclosure agreement, or buried within a number of other clauses in a contract. A covenant not to compete is generally legal and enforceable, although there are some exceptions and restrictions.

Whenever a company recruits skilled employees, it invests a significant amount of time and training. For example, it often takes years before a research chemist or a design engineer develops a workable knowledge of a company’s product line, including trade secrets and highly sensitive information. Once an employee gains this knowledge and experience, however, all sorts of things can happen. The employee could work for the company until retirement, accept a better offer from a competing company or start up his or her own business.

A covenant not to compete may cover a number of potential issues between employers and former employees. Many companies spend years developing a local base of customers or clients. It is important that this customer base not fall into the hands of local competitors. When an employee signs a covenant not to compete, he or she usually agrees not to use insider knowledge of the company’s customer base to disadvantage the company. The covenant not to compete often defines a broad geographical area considered off-limits to former employees, possibly tens or hundreds of miles.

Another area of concern covered by a covenant not to compete is a potential ‘brain drain’. Some high-level former employees may seek to recruit others from the same company to create new competition. Retention of employees, especially those with unique skills or proprietary knowledge, is vital for most companies, so a covenant not to compete may spell out definite restrictions on the hiring or recruiting of employees.

A covenant not to compete may also define a specific amount of time before a former employee can seek employment in a similar field. Many companies offer a substantial severance package to make sure former employees are financially solvent until the terms of the covenant not to compete have been met.

Because the use of a covenant not to compete can be controversial, a handful of states, including California, have largely banned this type of contractual language. The legal enforcement of these agreements falls on individual states, and many have sided with the employee during arbitration or litigation. A covenant not to compete must be reasonable and specific, with defined time periods and coverage areas. If the agreement gives the company too much power over former employees or is ambiguous, state courts may declare it to be overbroad and therefore unenforceable. In such case, the employee would be free to pursue any employment opportunity, including working for a direct competitor or starting up a new company of his or her own.

It has been held that an employee’s covenant not to compete is assignable where one business is transferred to another, that a merger does not constitute an assignment of a covenant not to compete, and that a covenant not to compete is enforceable by a successor to the employer where the assignment does not create an added burden of employment or other disadvantage to the employee. However, in some states such as Hawaii, it has also been held that a covenant not to compete is not assignable and under various statutes for various reasons that such covenants are not enforceable against an employee by a successor to the employer. Hawaii v. Gannett Pac. Corp. , 99 F. Supp. 2d 1241 (D. Haw. 1999)

It is vital to obtain the relevant law of the applicable state before drafting or attempting to enforce assignment rights in this particular area.

Conclusion:

In the current business world of fast changing structures, agreements, employees and projects, the ability to assign rights and obligations is essential to allow flexibility and adjustment to new situations. Conversely, the ability to hold a contracting party into the deal may be essential for the future of a party. Thus, the law of assignments and the restriction on same is a critical aspect of every agreement and every structure. This basic provision is often glanced at by the contracting parties, or scribbled into the deal at the last minute but can easily become the most vital part of the transaction.

As an example, one client of ours came into the office outraged that his co venturer on a sizable exporting agreement, who had excellent connections in Brazil, had elected to pursue another venture instead and assigned the agreement to a party unknown to our client and without the business contacts our client considered vital. When we examined the handwritten agreement our client had drafted in a restaurant in Sao Paolo, we discovered there was no restriction on assignment whatsoever…our client had not even considered that right when drafting the agreement after a full day of work.

One choses who one does business with carefully…to ensure that one’s choice remains the party on the other side of the contract, one must master the ability to negotiate proper assignment provisions.

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Assigning debts and other contractual claims - not as easy as first thought

Updates to UK Money laundering rules - key changes

Harking back to law school, we had a thirst for new black letter law. Section 136 of the Law of the Property Act 1925 kindly obliged. This lays down the conditions which need to be satisfied for an effective legal assignment of a chose in action (such as a debt). We won’t bore you with the detail, but suffice to say that what’s important is that a legal assignment must be in writing and signed by the assignor, must be absolute (i.e. no conditions attached) and crucially that written notice of the assignment must be given to the debtor.

When assigning debts, it’s worth remembering that you can’t legally assign part of a debt – any attempt to do so will take effect as an equitable assignment. The main practical difference between a legal and an equitable assignment is that the assignor will need to be joined in any legal proceedings in relation to the assigned debt (e.g. an attempt to recover that part of the debt).

Recent cases which tell another story

Why bother telling you the above? Aside from our delight in remembering the joys of debating the merits of legal and equitable assignments (ehem), it’s worth revisiting our textbooks in the context of three recent cases. Although at first blush the statutory conditions for a legal assignment seem quite straightforward, attempts to assign contractual claims such as debts continue to throw up legal disputes:

In Sumitomo Mitsui Banking Corp Europe Ltd v Euler Hermes Europe SA (NV) [2019] EWHC 2250 (Comm), the High Court held that a performance bond issued under a construction contract was not effectively assigned despite the surety acknowledging a notice of assignment of the bond. Sadly, the notice of assignment failed to meet the requirements under the bond instrument that the assignee confirm its acceptance of a provision in the bond that required the employer to repay the surety in the event of an overpayment. This case highlights the importance of ensuring any purported assignment meets any conditions stipulated in the underlying documents.
In Promontoria (Henrico) Ltd v Melton [2019] EWHC 2243 (Ch) (26 June 2019) , the High Court held that an assignment of a facility agreement and legal charges was valid, even though the debt assigned had to be identified by considering external evidence. The deed of assignment in question listed the assets subject to assignment, but was illegible to the extent that the debtor’s name could not be deciphered. The court got comfortable that there had been an effective assignment, given the following factors: (i) the lender had notified the borrower of its intention to assign the loan to the assignee; (ii) following the assignment, the lender had made no demand for repayment; (iii) a manager of the assignee had given a statement that the loan had been assigned and the borrower had accepted in evidence that he was aware of the assignment. Fortunately for the assignee, a second notice of assignment - which was invalid because it contained an incorrect date of assignment - did not invalidate the earlier assignment, which was found to be effective. The court took a practical and commercial view of the circumstances, although we recommend ensuring that your assignment documents clearly reflect what the parties intend!
Finally, in Nicoll v Promontoria (Ram 2) Ltd [2019] EWHC 2410 (Ch), the High Court held that a notice of assignment of a debt given to a debtor was valid, even though the effective date of assignment stated in the notice could not be verified by the debtor. The case concerned a debt assigned by the Co-op Bank to Promontoria and a joint notice given by assignor and assignee to the debtor that the debt had been assigned “on and with effect from 29 July 2016”. A subsequent statutory demand served by Promontoria on the debtor for the outstanding sums was disputed on the basis that the notice of assignment was invalid because it contained an incorrect date of assignment. Whilst accepting that the documentation was incapable of verifying with certainty the date of assignment, the Court held that the joint notice clearly showed that both parties had agreed that an assignment had taken place and was valid. This decision suggests that mistakes as to the date of assignment in a notice of assignment may not necessarily be fatal, if it is otherwise clear that the debt has been assigned.

The conclusion from the above? Maybe it’s not quite as easy as first thought to get an assignment right. Make sure you follow all of the conditions for a legal assignment according to the underlying contract and ensure your assignment documentation is clear.

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Does your provider accept Medicare as full payment?

You can get the lowest cost if your doctor or other health care provider accepts the Medicare-approved amount as full payment for a covered service. This is called “accepting assignment.” If a provider accepts assignment, it’s for all Medicare-covered Part A and Part B services.

Using a provider that accepts assignment

Most doctors, providers, and suppliers accept assignment, but always check to make sure that yours do.

If your doctor, provider, or supplier accepts assignment:

Your out-of-pocket costs may be less.
They agree to charge you only the Medicare deductible and coinsurance amount, and usually wait for Medicare to pay its share before asking you to pay your share.
They have to submit your claim directly to Medicare and can't charge you for submitting the claim.

How does assignment impact my drug coverage?

Using a provider that doesn't accept Medicare as full payment

Some providers who don’t accept assignment still choose to accept the Medicare-approved amount for services on a case-by-case basis. These providers are called "non-participating."

If your doctor, provider, or supplier doesn't accept assignment:

You might have to pay the full amount at the time of service.
They should submit a claim to Medicare for any Medicare-covered services they give you, and they can’t charge you for submitting a claim. If they refuse to submit a Medicare claim, you can submit your own claim to Medicare. Get the Medicare claim form .
They can charge up to 15% over the Medicare-approved amount for a service, but no more than that. This is called "the limiting charge."

Does the limiting charge apply to all Medicare-covered services?

Using a provider that "opts-out" of Medicare

Doctors and other providers who don’t want to work with the Medicare program may "opt out" of Medicare.
Medicare won’t pay for items or services you get from provider that opts out, except in emergencies.
Providers opt out for a minimum of 2 years. Every 2 years, the provider can choose to keep their opt-out status, accept Medicare-approved amounts on a case-by-case basis ("non-participating"), or accept assignment.

Find providers that opted out of Medicare.

Private contracts with doctors or providers who opt out

If you choose to get services from an opt-out doctor or provider you may need to pay upfront, or set up a payment plan with the provider through a private contract.
Medicare won’t pay for any service you get from this doctor, even if it’s a Medicare-covered service.

What are the rules for private contracts?

You may want to contact your State Health Insurance Assistance Program (SHIP) for help before signing a private contract with any doctor or other health care provider.

What do you want to do next?

Next step: Get help with costs
Take action: Find a provider
Get details: How to get Medicare services

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Singapore Prohibition Against Assignment Of Receivables – A Charge As An Alternative?

October 26, 2018 by Conventus Law

26 October, 2018

Jurong Aromatics Corp Pte Ltd (receivers and managers appointed) and others v BP Singapore Pte Ltd and another matter [2018] SGHC 215 (“Jurong Aromatics”)

The Singapore High Court recently considered the effect of a prohibition against assignment clause on assets subject to a charge. The decision confirms that, while such a prohibition is effective to prevent an assignment of assets, it did not restrict a charge on the asset.

The High Court also held that there was no required mutuality of debts for insolvent set- off to occur, if the debt was charged to another party.

Facts of Jurong Aromatics

The joint venture Jurong Aromatics Corporation (“JAC”) was tasked with the development of the Jurong Aromatics Plant on Jurong Island (“Plant”). Glencore Singapore Pte Ltd (“Glencore”) and BP Singapore Pte Ltd (“BP”) were suppliers to JAC under their respective feedstock supply agreements, and also customers of JAC under their respective product offtake agreements. Glencore also entered into an agreement with JAC, to set-off Glencore and JAC’s mutual claims (“Set-Off Agreement”) under their feedstock supply agreement and product offtake agreement.

JAC was financed by a syndicate of banks and financial institutions (“Senior Lenders”), whose loans to JAC were secured by way of a debenture entered between JAC and the Senior Lenders’ security agent, BNP Paribas Singapore Branch (“BNP Paribas”), comprising:

(a) a first fixed charge over JAC’s present and future book debts; and

(b) a first floating charge over all of JAC’s present and future assets.

There was also an assignment between JAC and BNP Paribas, under which receivables payable to JAC under the Glencore feedstock supply agreement and product offtake agreement (among other agreements) were assigned to the Senior Lenders.

Subsequently, when JAC encountered financial difficulties, receivers and managers were appointed by BNP Paribas, who took control of and managed the assets of JAC. Thereafter, JAC entered into a tolling agreement (“Tolling Agreement”) with the defendants, to enable the Plant’s operations to resume while a buyer was sought. When a buyer, ExxonMobil Asia Pacific Pte Ltd, was found, it entered into respective agreements with JAC and the defendants (“Transition Agreement” and “Transitional Supplemental Agreement”) to enable the Plant to be sold without shutting it down. The Tolling Agreement, Transition Agreement and Set-Off Agreement contained prohibition against assignment clauses.

JAC, with its receivers and managers, then sought to claim the charged receivables due from Glencore and BP (collectively the “Defendants”). The Defendants sought to set-off these claimed amounts against debts owed by JAC under their respective feedstock supply agreements with JAC (“feedstock debt”).

Apart from the High Court’s statements on the nature of a charge and decrystallisation, its findings on the following issues are particularly noteworthy:

(a) does a prohibition against assignment clause preclude a charge?;

(b) what is the impact of a prohibition against assignment clause on an encumbrance created before the prohibition, and on an encumbrance created after the prohibition?; and

On the first issue, the High Court confirmed that a contractual prohibition against assignment of assets did not, on its own, prevent a party from taking a charge over these assets, subject to the actual text of the prohibition and contrary intentions of parties in the context of the transaction. As the plain meaning of the prohibitions did not preclude a charge, and there was insufficient evidence that parties intended for charges to fall within the prohibitions, the fixed charge and crystallised floating charge held by the Senior Lenders were not precluded by the prohibitions.

On the second issue, it appears that even if a prohibition were construed to cover a charge, it would only affect encumbrances created after the prohibition, and not the ones already operating against the asset. In Jurong Aromatics, the charges were already operational by the time the prohibition came into being – as soon as the receivables were due to JAC, they were subject to the fixed charge and crystallised floating charge; there was no point at which the prohibition could operate. The receivables which arose out of the Tolling Agreement (“tolling fee debt”), Transitional Supplemental Agreement (“final payment amount debt”) and Set-Off Agreement (“Set- Off Agreement debt”), which were concluded subsequent to the debenture, were already caught by the fixed charge and crystallised floating charge, which were expressed to include future assets of JAC.

On the third issue, the High Court held that there was no required mutuality of debts for insolvent set-off to occur if the debt was charged to another party. The Defendants did not have a right to set-off against the charged assets (ie the tolling fee debt, the final payment amount debt, and the Set-Off Agreement debt) as the mutuality requirement of insolvent set-off was not satisfied – the Defendants’ claims (ie the feedstock debt) were qua JAC, whereas the equitable interest of the charged assets (against which the feedstock debt was sought to be set-off) lay with the Senior Lenders (qua debenture holders of JAC’s assets).

Jurong Aromatics confirms that a prohibition against assignment clause did not, on its own, restrict the creation of security by way of a charge over those assets. While an assignment is a stronger form of security compared to a charge, the charge is still a security interest which will improve the position of the lender, especially in an insolvency.

Further, while Jurong Aromatics suggests that a prohibition against assignment clause affects only encumbrances created after the prohibition, lenders would do well to exercise caution, and give effect to the prohibition whether or not it came before or after creation of the security.

Finally, the High Court did not find that there was the required mutuality of debts for insolvent set-off to occur, as the debt was charged to another party. This is a curious angle, given that the High Court recognised that a charge, unlike an assignment, did not transfer ownership rights in an asset, but vested beneficial interest of the asset to the satisfaction of a debt. Based on the reasoning of Jurong Aromatics, vesting of such equitable interest in the debt by way of a charge (and not transfer of ownership by way of an assignment) was sufficient to destroy mutuality of debts required for insolvent set-off to occur. While this finding would be welcomed by lenders, as a charge may now potentially shield debts from insolvent set-off, it bears noting that this proposition remains to be tested in the Court of Appeal.

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Charge Nurse vs Nurse Manager: What's the Difference?

Charge Nurse vs Nurse Manager

What is a Charge Nurse?

What is a nurse manager.

Which Role is Right for You?

Both charge nurses and nurse managers have essential roles that ensure a unit's success. However, their scope of practice, responsibilities, education, and salaries differ.

Read this article to explore the differences in these nursing roles and discover which position suits your career goals.

Charge Nurse vs Nurse Manager: What’s the Difference?

The primary difference between charge nurses and nurse managers is their management levels.

Charge nurses work on the unit level, focusing on managing staff during specific shifts. They focus directly on the needs of a clinical unit. Some charge nursing tasks include ensuring proper staffing and augmenting patient and assignment needs on their unit.

Conversely, nurse managers work at the administrative level. They work directly with other hospital administrators to oversee the managerial aspects of a unit. They set schedules, give annual performance reviews, and help create hospital policies. These positions often require a higher education level and plenty of relevant experience compared to charge nurses.

The charge nurse role focuses on managing nursing duties. They work closely with the nursing team to determine staffing needs and assignments. Charge nurses also act as liaisons between the nursing staff and administrators.

While charge nurses often hold permanent positions, a hospital may assign them on a shift-by-shift basis. Charge nurses may take patient assignments during shifts, depending on their unit's staffing. But they usually only need to assist as an extra set of hands when things get busy.

Charge Nurse Duties

A charge nurse's role will vary depending on their shift and unit. However, their primary responsibilities often include the following:

Making daily staff/patient assignments
Facilitating communication between nurses and other healthcare professionals during shift
Coordinating obtaining supplies for the unit as needed
Delegating tasks to other nurses and ancillary staff
Monitoring admissions and discharges
Handling complex patients and family situations
Caring for patients and assisting staff with their assignments
Mentoring new staff and guiding new hires
Updating staff on a shift-by-shift basis
Performing chart audits
Assigning patients rooms and transferring patients as needing
Responding to unit medical emergencies
Liaising between staff and management

Charge nurses earn an annual salary of $85,509 or $41 an hour, according to ZipRecruiter .

To become a charge nurse, you must have a Bachelor of Science in Nursing (BSN) degree and a registered nurse (RN) license. Though not required, some charge nurses will pursue higher certifications and education like a Master of Science in Nursing (MSN) degree.

Scope of Practice

Becoming a charge nurse does not expand an RN's scope of practice. Instead, the position gives you more managerial responsibilities in your unit. Therefore, charge nurses have the same scope of practice as any other staff RN.

Nurse managers are hospital administrators who typically work in an office instead of clinical units. However, since they still have an RN license, they can technically work at the bedside.

However, they spend most of their time attending hospital meetings, creating schedules, and managing budgets. Additional nurse manager duties include mentoring new staff and working closely with unit preceptors to develop educational plans.

Although many healthcare organizations consider nurse managers part of the administration, they can also act as charge nurses. In these cases, they'll juggle charge and management nursing duties. However, a nurse manager's primary responsibilities are as follows:

Developing unit budgets
Coordinating staff schedules
Managing payroll and time discrepancies
Collaborating with staff and medical providers
Supervising unit personnel
Overseeing the effectiveness of unit operations
Liaising between nursing staff and other administrators
Hiring and firing staff managers
Communicating directly with staff
Running staff meetings
Completing evaluations on staff
Following all hospital safety and legal protocols and procedures

Nurse managers earn an average annual salary of $102,684 or $49 an hour, according to ZipRecruiter .

Despite their non-clinical positions, nurse managers must maintain an active RN license. Most nurse managers also hold an MSN, MBA, or MHA degree . This advanced degree is essential for succeeding in a role focused on budgeting, oversight, and team management.

Nurse managers oversee the RNs on a specific unit as well as ancillary staff. As an RN, a nurse manager can step in and work at the bedside if needed.

Charge Nurse vs Nurse Manager: Which Role is Right for You?

Both of these roles help nursing units run smoothly and efficiently. But which position suits your career path best? Whether you pursue charge nursing or nurse management depends on a few factors.

Qualifications

These nursing roles require different qualifications. Several hospitals require an MSN, MBA, or MHA degree or enrollment in a master's program to hire nurse managers. If you don't meet these qualifications, becoming a charge nurse may be a better fit.

Clinical vs Administrative Nursing

Nurse management is administrative, while charge nurses still sometimes complete direct patient care tasks. Your preference for bedside vs non-bedside nursing may affect which of these roles suits you.

Charge nursing may be better if you'd like bedside exposure and working directly with other healthcare providers. Conversely, nurse managers can spend entire days in meetings and never step foot on the unit.

Additionally, consider the type of shifts and schedule you are interested in pursuing. If nighttime shifts suit your lifestyle, working them as a charge nurse is a great fit. Nurse managers keep more traditional business hours, working weekdays from 9 AM to 5 PM or 7 AM to 3 PM.

[Educations-MSN-CT-Bottom]

Is a charge nurse higher than a nurse?

Yes, a charge nurse oversees staff nurses on any assigned shift. Some units have charge nurses who work in full-time roles. Other units train rotating nurses to take on charge nurse responsibilities on a specific shift.

What are the legal responsibilities of a charge nurse?

Charge nurses don’t necessarily have more legal responsibilities than regular staff nurses. However, if a charge nurse has an assignment, they are legally responsible for those specific patients.

Do nurse managers need a master's degree?

While not a requirement for the position, an MSN is helpful as nurse managers are administrative positions.

What is higher than a nurse manager?

In some healthcare organizations, a nursing director oversees a team of nurse managers. In others, nurse managers report directly to the chief nursing officer.

What is the difference between a nurse leader and a nurse manager?

Many people use the terms nurse manager and nurse leader interchangeably. However, a nurse leader refers to any administrative nurse, including the chief nursing officer.

Kathleen Gaines (nee Colduvell) is a nationally published writer turned Pediatric ICU nurse from Philadelphia with over 13 years of ICU experience. She has an extensive ICU background having formerly worked in the CICU and NICU at several major hospitals in the Philadelphia region. After earning her MSN in Education from Loyola University of New Orleans, she currently also teaches for several prominent Universities making sure the next generation is ready for the bedside. As a certified breastfeeding counselor and trauma certified nurse, she is always ready for the next nursing challenge.

Plus, get exclusive access to discounts for nurses, stay informed on the latest nurse news, and learn how to take the next steps in your career.

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Rep. Stefanik files misconduct complaint against Judge Juan Merchan over ‘random’ assignment to Trump’s NYC trial

R ep. Elise Stefanik (R-NY) filed a misconduct complaint Tuesday against the judge overseeing Donald Trump’s Manhattan hush money trial, alleging that his selection to handle the former president’s case — and others involving his allies — is “not random at all.”

The House Republican Conference chairwoman’s complaint with the inspector general of the New York State Unified Court System called for an investigation into Justice Juan Merchan “to determine whether the required random selection process was in fact followed.”

“The potential misconduct pertains to the repeated assignment of Acting Justice Juan Merchan, a Democrat Party donor, to criminal cases related to President Donald J. Trump and his allies,” Stefanik wrote.

“Acting Justice Merchan currently presides over the criminal case against President Trump brought by Manhattan District Attorney Alvin Bragg,” she said.

“Acting Justice Merchan also presided over the criminal trial against the Trump Organization and will be presiding over the criminal trial of Steve Bannon, a senior advisor in President Trump’s White House and a prominent advocate for President Trump,” Stefanik continued, noting that there were at least two dozen sitting justices eligible to oversee the cases but Merchan – an acting jurist – was selected for all three related to the presumptive 2024 GOP nominee for president and his allies.

“If justices were indeed being randomly assigned in the Criminal Term, the probability of two specific criminal cases being assigned to the same justice is quite low, and the probability of three specific criminal cases being assigned to the same justice is infinitesimally small. And yet, we see Acting Justice Merchan on all three cases,” Stefanik argued.

The congresswoman also highlighted the judge’s political donations, for which he was cleared of misconduct last July by the New York State Commission on Judicial Conduct.

Merchan contributed $15 earmarked for the “Biden for President” campaign on July 26, 2020, and then the following day made $10 contributions to the Progressive Turnout Project and Stop Republicans each, Federal Election Commission records show

The donations were made through ActBlue, the Democratic Party’s preferred online fundraising platform.

The Progressive Turnout Project’s stated mission is to “rally Democrats to vote,” according to the group’s website.

Stop Republicans is a subsidiary of the Progressive Turnout Project and describes itself as “a grassroots-funded effort dedicated to resisting the Republican Party and Donald Trump’s radical right-wing legacy.”

The judge’s daughter, Loren Merchan, is more involved in Democratic politics – through her work as head of the consulting firm Authentic Campaigns — and Stefanik argued in her missive that Loren Merchan’s “firm stands to profit greatly if Donald Trump is convicted.”

“One cannot help but suspect that the ‘random selection’ at work in the assignment of Acting Justice Merchan, a Democrat Party donor, to these cases involving prominent Republicans, is in fact not random at all,” the New York Republican lawmaker wrote.

Stefanik demanded an investigation into the “anomaly” and asked that anyone found to be involved in any sort of “scheme” to get Merchan on the three cases face discipline.

Rep. Stefanik files misconduct complaint against Judge Juan Merchan over ‘random’ assignment to Trump’s NYC trial

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Tony Brothers will be referee crew chief for Wolves-Mavs Game 3

Adam uren | may 26, 2024.

Jan 17, 2024; New York, New York, USA; referee Tony Brothers (25) gestures towards New York Knicks former player Carmelo Anthony (not pictured) as they talk during a stop in play during the second quarter against the Houston Rockets at Madison Square Garden. Mandatory Credit: Brad Penner-USA TODAY Sports

The referee assignments for Game 3 between the Minnesota Timberwolves and Dallas Mavericks Sunday night have been confirmed.

Tony Brothers will lead the team as crew chief, with Ben Taylor confirmed as referee, Curtis Blair the umpire, and Nick Buchert the alternate.

The last time Brothers officiated as Timberwolves playoff game, they lost 117-90 at Target Center in Game 3 of the series against the Denver Nuggets.

During the regular season, the Wolves won one and lost two games that Brothers refereed.

The Dallas Mavericks saw more of him during the regular season, going 3-3 in his games.

Game 3 gets underway at 7 p.m. CT Sunday in Texas on TNT.

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Difference Between Assignment And Charge
KINDS OF CHARGES. There are two types of charges-. 1. FIXED CHARGE. Fixed charge is a type of charge which is created so that assets can be covered. It is a type of security which is there under the terms of certain specific property. [9] Fixed Charges is a charge fixed or specific when it is made specifically to cover assets which are ...
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assignment vs charge · What's the difference?
assignment vs charge charge vs assignment. assignment and charge both are nouns. assignment is not a verb while charge is a verb. As nouns, charge is a hyponym of assignment; that is, charge is a word with a more specific, narrower meaning than assignment: assignment: a duty that you are assigned to perform (especially in the armed ...
Assignments by way of security
Assignments by way of security are a type of mortgage. They involve: •. an assignment (ie transfer) of rights by the assignor to the assignee. subject to: •. an obligation to reassign those rights back to the assignor upon the discharge of the obligations which have been secured. When the obligations that have been secured have been discharged,
Options Exercise, Assignment, and More: A Beginner's Guide
Learn about options exercise and options assignment before taking a position, not afterward. This guide can help you navigate the dynamics of options expiration. So your trading account has gotten options approval, and you recently made that first trade—say, a long call in XYZ with a strike price of $105. Then expiration day approaches and ...
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from a financier's perspective between a fixed charge and an assignment by way of security, this is a useful workaround. In the case of a RP facility, a financier will seek to obtain a charge over any receivables affected by a ban on assignment or trust (commonly called a non-vesting receivable). WHAT IF ASSIGNMENTS, CHARGES AND TRUSTS ARE
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Assignment and Assumption means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.04), and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by the Administrative Agent. Trademark Assignment Agreement has the meaning ...
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Assignments: The Basic Law
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not as easy as first thought
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Does your provider accept Medicare as full payment?
If your doctor, provider, or supplier doesn't accept assignment: You might have to pay the full amount at the time of service. They should submit a claim to Medicare for any Medicare-covered services they give you, and they can't charge you for submitting a claim. If they refuse to submit a Medicare claim, you can submit your own claim to ...
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This standard document creates a mortgage by way of assignment over the benefit of specified contracts entered into by the company and over the benefit of specified insurance policies taken out by the company. It does not create fixed or floating charges over contractual rights. This standard document contains integrated drafting notes and ...
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Jurong Aromatics confirms that a prohibition against assignment clause did not, on its own, restrict the creation of security by way of a charge over those assets. While an assignment is a stronger form of security compared to a charge, the charge is still a security interest which will improve the position of the lender, especially in an ...
Assign vs Charge
Charge is a synonym of assign. In transitive terms the difference between assign and charge is that assign is to attribute or sort something into categories while charge is to squat on the belly and be still; a command given by a hunter to a dog. As a proper noun Chargé is a commune in the Indre-et-Loire department in France.
Charge Nurse vs Nurse Manager: What's the Difference?
The charge nurse role focuses on managing nursing duties. They work closely with the nursing team to determine staffing needs and assignments. Charge nurses also act as liaisons between the nursing staff and administrators. While charge nurses often hold permanent positions, a hospital may assign them on a shift-by-shift basis.
Rep. Stefanik files misconduct complaint against Judge Juan ...
Rep. Elise Stefanik (R-NY) filed a misconduct complaint Tuesday against the judge overseeing Donald Trump's Manhattan hush money trial, alleging that his selection to handle the former president ...
Tony Brothers will be referee crew chief for Wolves-Mavs Game 3
The referee assignments for Game 3 between the Minnesota Timberwolves and Dallas Mavericks Sunday night have been confirmed. Tony Brothers will lead the team as crew chief, with Ben Taylor ...