assignment in law

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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The Law Dictionary

Your Free Online Legal Dictionary • Featuring Black’s Law Dictionary, 2nd Ed.

ASSIGNMENT Definition & Legal Meaning

Definition & citations:.

In contracts. 1. The act by which one person transfers to another, or causes to vest in that other, the whole of the right, interest, or property which he has in any realty or personalty, in possession or in action, or any share, interest, or subsidiary estate therein. Seventh Nat. Bank v. Iron Co. (C. C.) 35 Fed. 440; Haug v. Riley, 101 Ga. 372, 29 S. E. 44, 40 L It A. 244. More particularly, a written transfer of property, as distinguished from a transfer by mere delivery. 2. In a narrower sense, the transfer or making over of the estate, right, or title which one has in lands and tenements; and, in an especially technical sense, the transfer of the unexpired residue of a term or estate for life or years. Assignment does not include testamentary transfers. The idea of an assignment is essentially that of a transfer by one existing party to another existing party of some species of property or valuable interest, except in the case of an executor. Ilight v. Sackett, 34 N. Y. 447. 3. A transfer or making over by a debtor of all his property and effects to one or more assignees in trust for the benefit of his creditors. 2 Story, Eq. Jur.

This article contains general legal information but does not constitute professional legal advice for your particular situation. The Law Dictionary is not a law firm, and this page does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.

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Assignment Law: Everything You Need to Know

In legal terms, the meaning of an assignment is a contractual obligation to transfer a property title or right from one party to another. 3 min read updated on February 01, 2023

The term assignment law is used in the law of real estate and in the law of contracts. In both instances, it relates to the transfer of rights held by one party (the assignor) to another party (the assignee).

Assignment Law

In legal terms, the meaning of an assignment is a contractual obligation to transfer a property title or right from one party to another. Generally, the assignment is transferred based on an entire interest in the property, chattel, estate, or other item assigned.

A grant is different from an assignment in that an assignment refers to the right to transfer the property. This is considered an intangible right. On the other hand, the grant is concerned about the physical transfer of property. This is a tangible right. For example, a payee can assign their rights to collect a note payment to a bank.

The terms of the contract must be analyzed to determine if the right of assignment is prohibited. For example, a property owner may allow a lease to be assigned, ordinarily along with an assumption agreement, where the new tenant is now responsible for the payments and duties of the lease.

The holder of a trademark may transfer it, either by giving or selling their interest in the trademark to another party. This is referred to as an assignment. The party that receives the benefit is called the assignee. Once transferred, the assignee has the ability to exclude others from using their trademark.

In order for the assignment to be enforceable, it must be in writing and have the goodwill of the company attached to the mark. For an assignment to be effective, it must contain the fundamental aspects of a contract, such as:

Parties with legal capacity
Legality of object
Consideration consent

A contract assignment occurs when a party assigns their contractual rights to a third party. The benefit the issuing party would have received from the contract is now assigned to the third party. The party appointing their rights is referred to as the assignor, while the party obtaining the rights is the assignee. Essentially, the assignor prefers that the assignee reverses roles and assumes the contractual rights and obligations as stated in the contract. Before this can occur, all parties to the original contract must be notified.

How Assignments Work

The specific language used in the contract will determine how the assignment plays out. For example , one contract may prohibit assignment, while another contract may require that all parties involved agree to it before proceeding. Remember, an assignment of contract does not necessarily alleviate an assignor from all liability. Many contracts include an assurance clause guaranteeing performance. In other words, the initial parties to the contract guarantee the assignee will achieve the desired goal.

When Assignments Will Not Be Enforced

The following situations indicate when an assignment of a contract is not enforced:

The contract specifically prohibits assignment
The assignment drastically changes the expected outcome
The assignment is against public policy or illegal

Delegation vs. Assignment

Occasionally, one party in a contract will desire to pass on or delegate their responsibility to a third party without creating an assignment contract. Some duties are so specific in nature that they cannot be delegated. Adding a clause in the contract to prevent a party from delegating their responsibilities and duties is highly recommended.

Three Steps to Follow if You Want to Assign a Contract

There are three main steps to take if you're looking to assign a contract:

Make sure the current contract does not contain an anti-assignment clause
Officially execute the assignment by transferring the parties' obligations and rights
Notify the obligor of the changes made

Once the obligor is notified, the assignor will effectively be relieved of liability.

Anti-Assignment Clauses

If you'd prefer not to allow the party you're doing business with to assign a contract, you may be able to prevent this from occurring by clearly stating anti-assignment clauses in the original contract. The three most common anti-assignment clauses are:

Consent required for assignment
Consent not needed for new owners or affiliates
Consent not unreasonably withheld

Based on these three clauses, no party in the contract is allowed to delegate or assign any obligations or rights without prior written consent from the other parties. Any delegation or assignment in violation of this passage shall be deemed void. It is not possible to write an anti-assignment clause that goes against an assignment that is issued or ordered by a court.

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Legal Dictionary

Assignment is a legal definition that refers to the transfer of rights, property, or other benefits between two parties. The party allocating the rights is known as the “assignor”, while the one receiving them is called the “assignee”. The other original party to the contract is known as the “ obligor ”.

A burden, duty, or detriment cannot be transferred as an assignment without the agreement of the assignee . Furthermore, the assignment can be carried out as a gift, or it may be paid for with a contractual consideration .

Keep reading to learn how this important legal term is used both in contract and property law and to see relevant examples.

Assignment Examples

A common example of assignment within property law can be seen in rental agreements between landlords and tenants. For example, a tenant may be renting from a landlord but wants another party to take over the property . In this scenario, the tenant may be able to choose between assigning the lease to a new tenant or subleasing it.

If assigning it, the new tenant will be given the entire balance of the term, with no reversion to anyone else being possible. In other words, the new tenant would have a legal relationship with the landlord. On the other hand, if subleasing the property, the new tenant would be given a limited term and no legal responsibility towards the property owner, only towards the original tenant.

Another example of assignment can be seen within contract law . Let’s say that a school hires a piano teacher for a monthly employment contract with a salary of $2000 per month. As long as there is consent from all parties, the teacher could assign their contract to another qualified piano instructor.

This would be an assignment both of the piano teacher’s rights to receive $2000 per month, and a delegation of their duty to teach piano lessons. This illustrates the fact that under contract law, assignment always includes a transfer of both rights and duties between the parties. If a breach of contract is made by either party, for example for defective performance, then the new teacher or the school can sue each other accordingly.

Legal Requirements for Assignment

For an assignment to be legally valid, it must meet certain requirements . If these are not met, a trial court can determine that the transfer of rights did not occur. The legal requirements for assignment are as follows:

All parties must consent and be legally capable to carry out the assignment.
The objects, rights, or benefits being transferred must be legal.
The assignment is not against public policy or illegal.
Some type of consideration is included if necessary.
The contract in question must already be in place and doesn’t prohibit assignment.
If a duty is being transferred, and it requires a rare genius or skill, then it cannot be delegated.
The assignment doesn’t significantly change the expected outcome of a contract.
Assignment Steps

To successfully assign a contract, certain steps must be followed to ensure the process is legally valid. The necessary assignment steps are listed below:

Ensuring there is no anti-assignment clause in the contract.
Executing the assignment by transferring the obligations and rights to a third party.
Notifying the obligor of the transfer, which in turn relieves the assignor of any liability.
Avoiding Assignment

In certain situations, one of the two parties may not want to allow their counterpart to assign the contract. This can be prevented by setting anti-assignment clauses in the original contract. An example of this is making it necessary for prior written consent to be attained from the other parties before the assignment is approved. Nevertheless, an anti-assignment clause cannot be included in an assignment that was issued or ordered by a court.

Assignment vs. Novation

Novation occurs when a party would like to transfer both the benefits and burden of a contract to another party. This is similar to assignment in the sense that the benefits are transferred, but in this case, the burden is also passed on. When novation is finalized, the original contract is deleted and a new one is created, in which a third party becomes responsible for all the obligations and rights of the original contract.

Assignment vs. Delegation

Although delegation and assignment are similar in purpose, they are two different concepts. Delegation refers to transferring the obligation to a third party without an assignment contract . While in assignment an entire contract and its rights and benefits can be passed on, in delegation only a particular contractual task or activity is transferred.

Let’s look at an example . Lisa is a homeowner that wants to hire Michael with an independent contractor agreement to remodel her garage. He plans to do all the work himself, but he’s not a painter, so he wants to delegate the painting work to his friend Valentina.

In this example, the contract is between Lisa, the obligor, and Michael, the delegator. Valentina would then be known as a delegatee, she doesn’t assume responsibility for the contract nor does she receive the contractual benefits, which in this case would be monetary compensation. However, Michael may have a separate agreement with Valentina to pay her in return for her work.

It’s also important to note that some duties are so specific in nature that it’s not possible to delegate them. In addition, if a party wants to avoid delegation , it’s recommended to add a clause to prevent the other party from delegating their duties.

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6.4: Assignment, Delegation, and Commonly Used Contracts Clauses

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Learning Objectives

Learn about assignment and delegation.
Examine novation.
Explore restrictions on assignment, exculpatory clauses, noncompete clauses, mandatory arbitration clauses, acceleration clauses, and liquidated damages clauses.
Explore the parol evidence rule.

What if you formed a contract with a rock ’n’ roll band for its services? Specifically, you wanted the band to play at your nightclub, because you thought that your customers would enjoy the band enough to pay to see it perform. You hired this specific band because you heard that it drew large crowds of paying customers. Imagine your surprise when, as you anticipate the band’s performance, you discover that another band—one you have never heard of—has come to play instead of the original contracting band. On inquiry, you learn that the original band transferred its duties to perform to a lesser-known band. Can it do that?

Contract elements—the terms of the contract—are important. They may, among other things, foreclose your ability to bring a complaint in court, they may render you unable to be hired in your profession (at least within certain boundaries), or they may limit liability to a party that had a role in causing injury to you. If you are not aware of these elements, then you may face an unpleasant surprise if you act in a way contrary to the restrictions imposed by those terms. Likewise, contracts possess certain qualities that prohibit parties from acting in certain ways, unless those qualities are expressly waived. This section identifies common properties of contracts, as well as commonly used elements of contracts. If you are negotiating a contract and you do not like a term, then you should not agree to it. In law, there is a presumption that you have read, understood, and agreed to each and every term of any contract to which you are a party. Arguing that you did not understand or that you did not approve of a particular term in the contract will not be a valid excuse to performance. You should know what you can expect when you enter into a contract. Are you getting the band that you wanted to hire to play in your nightclub, or are you really getting any band that the original band happens to transfer its duties to?

As a preliminary matter, it is important to realize that contracts are, by law, assignable and delegable. This means that the rights conveyed by the contract may be transferred to another party by assignment, unless an express restriction on assignment exists within the contract, or unless an assignment would violate public policy. Likewise, the duties imposed on a party may be transferred to another party by delegation, unless the contract expressly restricts delegation, or there is a substantial interest in personal performance by the original party to the contract, or if delegation would violate public policy. In the case of a band hired to perform at a nightclub, an argument could be made that the original band cannot delegate its duties under the contract because there was a substantial interest in personal performance by the original band. This would render the contract nondelegable. To be on the safe side, your contract with that band should have had a clause expressly prohibiting delegation.

Many students have seen restrictions on assignment in the form of no-sublease clauses in leases with landlords. Do you have a no-sublease clause in your lease? If so, that is a restriction on assignment. This clause is necessary to prevent you from assigning your rights under the lease—your rights to inhabit the premises—to another party. It is necessary for the landlord to include that provision expressly if she wishes to prevent you from subleasing the unit, because there is a presumption in law that assignment is permitted unless it is expressly prohibited by the contract or unless the assignment would violate public policy. Since it is unlikely that letting someone else live in your housing unit in your absence would violate public policy, then the landlord must expressly prohibit the assignment within the original contract if she wishes to prevent tenants from subleasing. A landlord may have a very good reason to wish to prevent subleasing; she may wish to ensure that each tenant is creditworthy prior to allowing the tenant to live in the property.

Note that in delegation and in assignment, the original contracting party is not “off the hook” if it transfers its duties or rights to another party. For instance, if subleasing was not prohibited, and the new tenant assumed the rights and duties imposed by the original contract, the original party to the contract is still liable for the payment of rent. If the subleasing tenant does not pay the rent, the original party to the lease is still liable. The way to excuse oneself from this liability is to form a three-way novation with the original party and the new party, thereby excusing the exiting party from future liability arising under the contract. A novation is essentially a new contract that transfers all rights and duties to the new party to the contract and releases the previous party from any further obligation arising from the original contract.

Restrictions on assignment or delegation are not the only common elements that can be found in contracts. For example, you have probably encountered exculpatory clauses. An exculpatory clause is an express limitation on potential or actual liability arising under the subject matter of the contract. In short, exculpatory clauses are often employed when risk of injury exists. They seek to limit one party’s liability to another. You most certainly have signed exculpatory agreements or contracts containing exculpatory clauses if you have participated in any potentially dangerous activity at a club or with an organized group that could incur liability from injuries suffered by its patrons or members. For example, if you join a kayaking club, you will most likely be asked to sign such an agreement to “hold harmless” the club in the event of any accident or injury. However, despite the existence of an exculpatory clause, liability will not be limited (that is, the liability limitations will be unenforceable) when the party who would benefit from the limitation on liability acted with gross negligence, committed an intentional tort, or possessed greatly unequal bargaining power, or if the limitation on liability violates public policy. Imagine that you signed an agreement to engage in kayaking activities with a kayaking group, but the leader of the group battered you with her oar because she was angry with you for mishandling your kayak. Since battery is an intentional tort, the exculpatory clause will not protect the kayaking organization from liability it incurred through the actions of its employee.

Another common contract element that you may have encountered is a noncompete clause. A noncompete clause attempts to restrict competition for a specified period of time, within a certain geographic region, and for specified activities. Noncomplete clauses are generally valid against the party who signed it if the time, place, and scope are reasonable. These are very common clauses in employment contracts, particularly where the duties involved in employment are likely to involve trade secrets or other proprietary information that the company wishes to protect.

A mandatory arbitration clause is very common in consumer contracts and employment contracts. You have certainly subjected yourself to the restrictions imposed by these clauses if you have signed a contract for a credit card. Mandatory arbitration clauses require parties to a contract that contains such a clause to submit to mandatory arbitration in the event of a dispute arising under the contract. Mandatory arbitration clauses frequently foreclose any possibility of appealing arbitration awards in court.

An acceleration clause commonly exists in contracts where periodic payments are contemplated by the agreement. For example, if you signed a lease for your housing unit, then you most likely pay rent on a month-to-month basis. If you breached your lease, you would still owe rent for each subsequent month contemplated by the lease agreement. This means that your landlord would have new injury every month that you did not pay. An acceleration clause accelerates all payments due under the contract on breach. This allows the injured party—in this case, the landlord—to sue for all damages due for unpaid rent under that contract at once, rather than having to bring a new suit each month to seek monthly unpaid rent.

A liquidated damages clause allows parties to set the amount of damages in the event of breach. Agreeing to a damage amount before any breach occurs can save money and time spent litigating. Providing that the liquidated damages clause does not look like a penalty, the clause will be valid and enforced by a court that hears a dispute arising under the contract. For example, imagine that you entered into a contract for the sale of your car. If the liquidated damages clause provided for two thousand dollars of damages in the event of breach, that will probably be a valid liquidated damages clause, providing that your car is an “average” car. However, if the liquidated damages clause provided for one million dollars of damages payable by the breaching party, then that would not be enforceable by the court because it looks like a penalty. The proposed liquidated damages far exceed the value of the car that is the subject of the agreement.

Of course, there are additional common elements to contracts. This is not an exhaustive study of possible provisions, though it is a list of commonly encountered elements. For example, time of performance is often included as a separate provision. However, time for performance is an essential element in common-law contract formation, and without it, the contract may fail due to lack of definite and certain terms in formation.

A major assumption made about a written contract is that it is integrated, which means that it contains the entire expression of the parties’ agreement. That means that any statements made before the parties signed the contract are not part of the contract, unless those statements are memorialized in the contract itself. In fact, any statements or actions that are not captured within the four corners of the contract are considered parol evidence, and they will not be used to interpret the meaning of the contract.

Key Takeaways

Parties to contracts must not only take care to form the agreement so that it is legally enforceable, but they must also be aware of the properties of contracts in general, as well as specific provisions contained within contracts to which they are a party. Properties of contracts include ability to assign, delegate, and exclude parol evidence. Several types of contracts clauses are commonly used to restrict rights and limit liability.

Exercise $\PageIndex{1}$

Think of an example of an exculpatory clause that you have signed. For what type of activity would you be unwilling to sign an exculpatory clause? If your refusal to sign the exculpatory clause or agreement prevented you from participating in that activity, would you still refuse to sign it?
Do you think that too many limitations and restrictions can be placed on parties in a contract? Should there be more government regulation and standardization of contract terms between private parties? Why or why not?

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The Law of Assignment (3rd Edition)

Marcus smith, nico leslie.

This book is the leading text on the law relating to intangible property or choses in action. Its clear and approachable structure covers all forms of intangible property (debts, rights under contract, securities, intellectual property, leases, rights/causes of action, and equitable rights), considering the nature of intangible property, how it comes into being, and how it is transferred or assigned. The first part of the book analyses the general principles regarding intangibles and their transfer, and the second examines the practical considerations relating to particular types of intangibles, securities, insurance contracts, leases, and intellectual property under the law. This new edition includes new chapters on powers of attorney and factoring, areas particularly important to legal practice. Other significant developments include the expansion of the chapter on leases to include leasing of chattels, and more material on securities, especially regarding the operation of settlement systems.

Bibliographic Information

Affiliations are at time of print publication..

Marcus Smith, author

Nico Leslie, author

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Foreword to The Third Edition
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Foreword to the First Edition
Preface to The Third Edition
Preface to the First Edition
Summary Contents
Detailed Contents
Table of Cases
Statutory Instruments
Netherlands
United States
Conventions
Regulations
International Conventions
List of References
List of Authority Abbreviations
Preliminary Material
Part III.01
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The Successful Law Student: An Insider's Guide to Studying Law (2nd edn)

Acknowledgements
Student Voices in The Successful Law Student
1. Introducing The Successful Law Student
2. Studying Law at University: Opportunities and Considerations
3. Preparing for Success
4. Learning and Studying Law
5. Making the Most of Your Classes in Law
6. Developing Legal (and Other) Skills
7. Finding and Using Legal Materials and Resources
8. Preparing for Assessments and Assignments
9. Assessments and Assignments in Law
10. Feedback, Reflection, and Looking Forward from Assessment
11. Study Abroad
12. Expanding Legal Skills— Mooting, Negotiation, and More
13. Volunteering, Paid Work, and Other Opportunities
14. Preparing to Move On
15. Career Pathways
16. A Successful Future

p. 249 9. Assessments and Assignments in Law

Imogen Moore Imogen Moore Professor of Law and Director of Education in the Law School, University of Exeter
and Craig Newbery-Jones Craig Newbery-Jones Associate Professor in Legal Education, University of Leeds
https://doi.org/10.1093/he/9780198865650.003.0009
Published in print: 28 February 2022
Published online: September 2022

This chapter looks at some of the many different forms of assessment a law student may come across, depending on where they are studying and the subjects they choose. These include coursework, exams, multiple-choice tests, advocacy or other oral presentations, posters, and reflective reports. The chapter also considers dissertations and other research projects, and group work for assessment. The chapter gives advice on how to approach different types of assessment to enhance their chances of success. Specific guidance is also provided on responding to problem questions and essays, whether in coursework or exams including consideration of the IRAC and CEEO methods.

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A transfer of rights in real property or Personal Property to another that gives the recipient—the transferee—the rights that the owner or holder of the property—the transferor—had prior to the transfer.

An assignment of wages is the transfer of the right to collect wages from the wage earner to his or her creditor. Statutes regulate the extent to which an assignment may be made.

n. the act of transferring an interest in property or a some right (such as contract benefits) to another. It is used commonly by lawyers, accountants, business people, title companies and others dealing with property. (See: assign )

ASSIGNMENT, contracts. In common parlance this word signifies the transfer of all kinds of property, real, personal, and mixed, and whether the same be in possession or in action; as, a general assignment. In a more technical sense it Is usually applied to the transfer of a term for years; but it is more properly used to signify a transfer of some particular estate or interest in lands. 2. The proper technical words of an assignment are, assign, transfer, and set over; but the words grant, bargain, and sell, or any other words which will show the intent of the parties to make a complete transfer, will amount to an assignment. 3. A chose in action cannot be assigned at law, though it may be done in equity; but the assignee takes it subject to all the equity to which it was liable in the hands of the original party. 2 John. Ch. Rep. 443, and the cases there cited. 2 Wash. Rep. 233. 4. The deed by which an assignment is made,, is also called an assignment. Vide, generally, Com. Dig. h.t.; Bac. Ab. h.t. Vin. Ab. h.t.; Nelson's Ab. h.t.; Civ. Code of Louis. art. 2612. In relation to general assignments, see Angell on Assignments, passim; 1 Hate & Wall. Sel. Dec. 78- 85. 5. By an assignment of a right all the accessories which belong to it, will pass with it as, if the assignor of a bond had collateral security, or a lien on property, the collateral security and the lien will pass with the assignment of the bond. 2 Penn. 361; 3 Bibb, 291; 4 B. Munroe, 529; 2 Drev. n. 218; 1 P. St. R. 454. 6. The assignment of a thing also carries with it all that belongs to it by right of accession; if, therefore, the thing produce interest or rent, the interest or the arrearages of the rent since the assignment, will belong to the assignee. 7 John. Cas. 90 6 Pick. 360.

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Questions to Ask Before Heading to Law School

Some research and self-assessment can help J.D. hopefuls make the best decision about law school, experts say.

Questions to Ask Ahead of Law School

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Asking yourself some difficult questions about your law school aspirations can provide clarity.

Earning a law degree is a crucial step in the path to a legal career and requires a significant investment of money, time and energy. Before heading to law school , prospective law students should reflect on their motivations and determine if they'd find a legal job fulfilling, experts say.

This means asking questions that require self-assessment, such as why they want to be a lawyer, which school is best for their goals and when it would be best to start. It's also wise to speak with practicing attorneys and alumni of target programs, experts say.

"When you meet, find out why they are in their current careers and practice areas," says Katherine Scannell, vice dean for institutional success at Washington University in St. Louis School of Law in Missouri. "Learn what they do on an average day, what they love about their careers and what is the most challenging. Understanding both what does and does not interest you is incredibly valuable."

Here are some questions experts say J.D. hopefuls should ask before heading to law school.

Do I Really Want to Be a Lawyer?

Because law school requires a major time and financial investment, law school hopefuls should seriously consider why they want to be a lawyer, experts say.

"Are you attracted to law for the income potential, skill development, because you like a legal television series or you just don’t know what else to do with your undergrad degree?" Scannell says. "Think carefully and be intentional. You don’t have to have it all figured out, but you should consider the financial and time investment."

How Do I Know if I Should Become a Lawyer?

Unlike how it may appear on television, being a lawyer isn't always glamorous. For example, some lawyers spend the majority of their time drafting, researching and writing, Scannell says. Others, like criminal defense attorneys, spend significant time in court and meeting with clients.

Because there's a broad range of types of lawyers and practices, law school hopefuls should understand what drives them personally and then determine if there is a practice area that fits their personal values, experts say.

"If your reason to pursue a legal career is not in synch with your personal values, then you have to take a step back and reassess your career goals," Ro Lee, a prelaw adviser at Pitzer College and associate director of career and professional development at Claremont Graduate University in California, wrote in an email. "For example, if you are passionate about assisting underserved communities, you can become a legal advocate, or if you enjoy working with paperwork and not interacting much with others, you can do some document work in mergers and acquisitions."

Those considering law school should have long-term career goals in mind and know whether a law degree is necessary to reach them. J.D. hopefuls should identify specific jobs or areas within the legal profession that interest them and talk with those already working to confirm it's something they want to do and that a law degree is required.

“I think there are a lot of people who go to law school without that specific of an interest, just saying, ‘I’m interested in the law and I’m a good writer,’" says Andrew Willinger, executive director of the Duke Center for Firearms Law and a lecturing fellow at Duke University School of Law in North Carolina. "But I think the best thing you can do is make a list of specific lawyer jobs and try to reach out to those people to talk to them about their day-to-day life and figure out if it’s something you want to do.”

Before applying, it may be beneficial to shadow practicing attorneys or volunteer at a legal clinic or government office. This will not only help applicants determine if law is truly the field they want to pursue, but "gaining field experience before diving into writing a personal statement for law school can be really beneficial," says Kristen Willmott, senior private counselor and graduate school admissions director at Top Tier Admissions.

What Makes a Good Lawyer?

Successful lawyers are passionate and driven about their work, but they're also skilled in several specific areas, experts say. Strong reading comprehension and writing and analytical skills are key, as are the abilities to debate and think critically and creatively.

"A good lawyer has excellent communication skills, which requires strong listening skills and the ability to simplify and explain complex issues," Scannell says. "They will possess integrity and professionalism. They are able to strategize and problem-solve multifaceted issues. They have a strong work ethic and are self-motivated."

Those who don't enjoy reading will likely not cut it as a lawyer, Lee says. "Reading cases, facts, testimonies, applicable laws and reports all require an analytical mind to pick up information that favors your client and case."

Which Law School Is Best for Me?

Many J.D. hopefuls may have their sights set on attending a highly ranked program , but experts say applicants should focus more on finding the right fit for their goals .

That decision may also depend on which schools an applicant can realistically get into based on their academic profile. While law schools consider an applicant’s extracurriculars and “ soft skills ” gained through work or military experience, admissions decisions are largely based on an applicant's undergraduate GPA and their scores on the Law School Admission Test, or LSAT , or the Graduate Record Exam .

Some schools have adopted a test-optional approach. Schools that require or accept scores typically publish on their website the median scores of accepted students.

Law school hopefuls "should have three categories of law schools – our dream schools , realistic admissions and safety schools ," Lee says. "Schools in each of these categories should also be ranked."

In addition to considering which school is the best fit academically, applicants should determine which school is best for them socially and culturally and will provide the best opportunities for launching a legal career, experts say.

"Consider the school's specialty courses, reputation and alumni network," Lee says. "Most applicants put too much emphasis on the ranking of a school without researching on the law school's programs and connections within a certain field or industry."

How Will I Pay for Law School?

In addition to finding the right academic and cultural fit, students should determine which school, if any, fits their budget. Law school can be expensive , from tens of thousands of dollars to more than $200,000 total in some cases.

Students should consider schools where their LSAT score and GPA can help them land scholarship money , experts say. Some programs also offer tuition help through grants to help offset the cost.

“If you’re going somewhere you don’t have scholarship money, generally you’d be taking out loans and that can be something where you limit the options you have after you graduate,” Willinger says. "If you take out loans, generally that means you’re going to go to a bigger law firm to make the money to pay them back, or potentially public interest."

In some cases, students can complete internships or jobs with local law firms, legal clinics or judges that can count as class credit, but it's important to weigh the trade-offs of working on top of attending classes, he says.

When Should I Go to Law School?

Whenever you decide to attend law school, it's best to apply early in the cycle because the rolling admission process of evaluating applications roughly in the order they are received could improve your odds the earlier you apply, experts say.

While some students go straight from an undergraduate degree to law school, that's not always necessary, and some may benefit from a gap between the two for various reasons. Law school hopefuls can use that time to ensure their LSAT or GRE scores align with their target schools' median scores and to bolster their resume, Willmott says.

Some may do that by taking time to work, and it's not always necessary for that to be in the legal field, Willinger says.

"I really think that experience of being out in the real world and working a 9-to-5 job is quite valuable in terms of time management," he says. "Having that experience when you apply to law firms or government jobs and even going into those internships, I think it can give you a leg up to have the experience of working a job for a full year or longer."

Tips to Boost a Law School Application

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Maryland Does Not Allow Assignment of Property Insurance Proceeds

Restoration contractors should be aware that Maryland does not allow an assignment of insurance claim benefits if the policy has an anti-assignment clause. In March, a Maryland appellate court upheld the insurance commissioner’s finding that the roofing contractor did not have a valid assignment and therefore lacked standing to bring any suit or complaint of bad faith against the insurer: 1

Although Maryland’s early precedent seems to distinguish the effect of such clauses depending upon whether the assignment is pre- or post-loss, it is clear that our modern precedent does not make such a distinction. Both Michaelson and Clay considered a post-loss assignment of insurance claims, and in both cases, the Supreme Court found those assignments invalid because of an anti-assignment clause. Michaelson and Clay are the most recent cases to consider the issue of post-loss assignments of insurance benefits and as such are the precedent we apply in this case. We find no error in the Commissioner’s reliance on these cases to reach her conclusion that the Policy’s anti-assignment clause prohibited the attempted Assignment of Claim. … we are unpersuaded by Featherfall’s arguments that a purported majority of the states follow the Restatement approach to post-loss assignments. The out-of-state cases Featherfall directs us to offer interesting discussions of the common law in other jurisdictions. They are, however, not the law in Maryland; Michaelson and Clay are. As such, there was no legal error in the Commissioner’s decision that the assignment was invalid under those cases. … We conclude that the Commissioner did not err in concluding that the attempted Assignment of Claim between the Insured and Featherfall was void pursuant to the Policy’s anti-assignment clause. In doing so, we clarify that Maryland enforces anti-assignment clauses and that such clauses prohibit assignments regardless of whether they were made before or after a loss under an insurance policy. We further conclude that the Commissioner did not err in finding that, because the purported assignment was void, Featherfall lacked standing to request a hearing before the Commissioner and to make a claim against Travelers for alleged unfair business practices.

Restoration contractors should beware that some assignment of benefits attorneys (AOB attorneys) are sending out wrong and incomplete information on a state-by-state basis about whether a particular assignment contract is valid or enforceable. We strongly suggest that if restoration contractors wish to proceed with an assignment of benefits contract, they seek an opinion from a licensed construction attorney in that particular state to ensure that courts will find the construction agreement and the assignment of insurance benefits contract valid in that state. Pay the attorney to provide an opinion and the contracts to be used. If they are not upheld, you will know where to seek relief.

Thought For The Day

A lawyer with his briefcase can steal more than a hundred men with guns. —Mario Puzo (from The Godfather)

1 In re Petition of Featherfall Restoration LLC , 261 Md.App. 105, 311 A.3d 437 (Md. App. 2024) .

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Protecting IP Ownership and Rights in Poland: 6 Things Employers Need to Know

Jun 8, 2023

Doug Murray

Table of contents.

Your company's competitive edge lies in its intellectual property, but navigating the complexities of IP law can be a formidable task, especially when it comes to international jurisdictions.

When expanding your team or hiring in Poland , it’s essential to protect your company's inventions, designs, trademarks, copyrights, creative activities, and trade secrets from unauthorized claims or exploitation by others. However, safeguarding your intellectual property (IP) rights in Poland can be a daunting task, as they are regulated by both Polish law and European Union (EU) regulations. Neglecting to secure your company's IP rights and ownership can lead to costly legal disputes, a decrease in market share, and even damage to your brand reputation.

Read our primer for valuable insights on protecting your company's IP. Please note that while our guide aims to provide information, it isn’t intended to provide legal advice.

1. In Poland, NDAs are enforceable

Non-disclosure agreements (NDAs) are legally binding contracts in Poland. While common, it’s important that they’re prepared correctly and provide the scope of protection you need. Here are some caveats to be aware of:

NDAs need to meet legal requirements for being specific, reasonable, and not outside the public interest.
Certain information can't be covered by an NDA. For example, a company can't make employees sign an NDA to stop them from exposing criminal activity by the company.

2. Polish employers have the right to obtain employee patents—unless an agreement states otherwise

Polish Industrial Property Law—which regulates industrial property rights—states that for inventions created by an employee or contractor, the employer has the right to obtain the patent, unless there is an agreement stating otherwise. To protect information the employee or contractor helps create during their employment or contract, an IP assignment agreement may be required.

There are different versions of these contracts in different jurisdictions. If executed correctly, IP assignment agreements are legally binding contracts that also protect confidentiality. Note that errors may cause the agreement to be declared invalid.

Are you correctly classifying your Polish employees and contractors?

3. IP assignment agreements can be legally enforced

Legal protection of your IP rights in Poland are covered by a myriad of regulations and treaties. Poland’s IP regulations are based on those of the EU. The Polish Patent Office regulates inventions and patent applications, trademarks, integrated circuits topographies, geographical indications, and industrial design. Copyright protection falls under the purview of the Ministry of Culture and National Heritage. Poland is also a member of the World Trade Organization and the World Intellectual Property Organization (WIPO).

While IP assignment agreements are enforceable in Poland, there are some types of IP that can affect the implementation/requirements of an assignment agreement. For copyrights:

In Poland, copyright begins when the work is created—even if it is not complete. The author is granted moral rights (for example, the right to be identified as the author and the right to protect the integrity of the work) and economic rights (financial benefits). Moral rights cannot be assigned or transferred, while economic rights can, even to a third party. Moral rights can be limited by mutual agreement.
In most cases, the employer assumes IP rights within the framework of an employment contract.
The transfer of an author’s economic rights must be in writing for it to be legally binding.
Material must be created under the author’s work obligations.
The transfer of rights must be fully specified and include time frame (default is five years), geographic area, and the planned use of the IP including modifications. Termination conditions must be defined as well. Parties are free to define their own general rules.
Copyright terms apply to the author’s work, scientific work, or computer programs.

For patent rights and industrial designs:

In Poland a patent serves as the legal protection for an invention, granting exclusive rights to either the creator or their employer, if created under contractual arrangements. The duration of the protection period can extend up to 20 years from the date of registration. In the case of industrial designs, the protection rights cover a period of 25 years. Poland follows EU directives regarding patent rights. This means:

The patent can be filed by either party.
The right to a patent is determined by the employment (or stand-alone) contact between the employer and the worker.
The inventor is entitled to remuneration for use of the design. This can be included in a contract, otherwise it may be subject to a proportionality test that weighs criteria such as profits and employee contributions to the creation of the invention.

4. By default, contractors own the copyright to their work unless specified otherwise

Economic copyright refers to the financial benefit from the use of one’s work. In Poland, a written contract specifying the transfer of economic copyright is necessary. The contract must be in writing and cover usage. If the copyright is not transferred in this way, the contractor retains economic copyright.

5. You have to localize IP ownership clauses to Poland

Polish and EU IP laws are different from those in other countries, including the US. For example, international agreements protect most copyrighted works created in the US. But, because Poland doesn't employ the "work for hire" concept, in most cases intellectual property created in Poland is owned by the creator—unless there is a binding agreement (such as an employment contract that includes ownership provisions). Trademarks, designs, and patents need protection specific to Poland and the European Union.

Our team of experts can help you navigate the complexity of Polish IP law

6. Unlike in some countries, moral rights of an author cannot be transferred or waived

In Poland, creators of works are granted moral rights, which includes the right to preserve the integrity of their work and be acknowledged as its author. Moral rights cannot be transferred. However, these rights can be limited or partially waved by with a legally binding contract.

Frequently asked questions about IP law in Poland

Who owns ip in poland: employee or employer.

In Poland, employees or contractors are the rights holders of the IP if no agreement covering rights exists. However a work contract or assignment of rights agreement normally transfers economic rights to the employer. Moral rights remain with the worker, though these can be limited in an agreement. The transfer of economic rights does not include related rights, like derivative rights (works derived from the original work), unless such rights are specified.

What is an IP assignment agreement?

An IP assignment agreement entails the transfer of an owner's rights, title, and interest in specific intellectual property rights. The party transferring the rights gives up their ownership of IP rights, such as patents, trademarks, industrial designs, and copyrights to the party receiving them. Poland follows European IP protection regulations regarding these areas of intellectual property.

Which Polish and EU agencies deal with IP?

These are some of the agencies that oversee IP in Poland:

The Patent Office of the Republic of Poland : For matters regarding patent law and the protection of industrial property in Poland (located in Warsaw).
The European Patent Office : For applying for patents across multiple EU member states (headquartered in Munich, Germany).
Ministry of Culture and National Heritage : For copyright matters (located in Warsaw).
European Union Intellectual Property Office (EUIPO) : For EU-wide trademark protection (located in Alicante, Spain).

International treaties like the Patent Cooperation Treaty (patents) and the Madrid Protocol (trademarks) also help with the protection of IP in Poland.

Are IP regulations in Poland the same as in the US?

No. While there are general similarities—both countries are signatories to several World Intellectual Property Organization (WIPO) treaties and agreements—IP is protected differently in Poland. If you’re hiring contractors or employees in Poland, you need to protect your IP assets under Polish law. Some US copyrighted works are protected in Poland by international copyright agreements.

Can I protect my trademark in Poland?

You can apply to register your trademark at the Patent Office of the Republic of Poland. The application may be filed by a natural person (an individual) or a legal person (an entity such as a corporation) and all documentation must be in Polish. The process can take up to nine months to verify and approve the application. In addition, there is a three-month period for other parties to challenge the application. Upon approval, the trademark is protected from the filing date. Trademarks are approved for 10-year periods and can be renewed. It’s a good idea to retain a Polish law firm and use their local know-how to assist in trademark protection.

What’s the difference between an invention and a utility model?

An invention is new, innovative, and has the potential to be made or used in an industry. A patent grants the right to safeguard an invention to either the inventor or an assignee that holds the rights to the invention.

A utility model (also known as a minor or small patent) provides protection for improvements or adaptations of existing products. Utility models are usually utilized for advancements in mechanical technology. The principles governing the right to protection for a utility model are similar to those for an invention.

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How Trump’s Conviction, And Canadian Billionaire Robert Miller’s Arrest, Stack Up To Other Super-Rich Run-Ins With The Law

Billionaires have been arrested or sentenced to prison for crimes ranging from insider trading to narcotics trafficking.

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Former President Donald Trump following his hush money trial at Manhattan Criminal Court on May 30.

C anadian billionaire Robert Miller, 80, was arrested at his Montreal home Thursday and faces 21 sex crime charges, including sexual assault, sexual exploitation of minors and obtaining sexual services for consideration.

Miller, founder and former owner of electronics distributor Future Electronics, is alleged to have committed the crimes against 10 women, eight of whom were minors at the time, over a period spanning 1994 to 2006. The arrest comes after Montreal police led a year-long investigation prompted by a CBC News/Radio-Canada report in which ten women stated that Miller paid them for sexual services while they were underage. Additional accusers have since come forward, Montreal Police said Thursday.

Miller is in the final stages of Parkinson’s disease and cardiac illnesses, according to his attorneys, and in a statement police said Miller was unable to appear in court Thursday due to health concerns. Police released Miller on the condition he appears in court on July 3.

Miller denied the allegations cited in the CBC/Radio-Canada article, and following his arrest vowed to “vigorously protect his reputation, fight for the truth and refuse these false allegations.”

The billionaire stepped down as CEO of Future Electronics in February 2023 and in April sold the company to Taiwan-based WT Microelectronics, cashing out in a $3.8 billion deal. Forbes estimates his net worth to be $2.6 billion.

Thursday was an eventful day for billionaire brushes with the law. A jury also found former President Donald Trump guilty of 34 felony counts of falsifying business records in an attempt to influence the 2016 election, making Trump the first former or sitting president to ever be convicted of criminal charges.

Trump now awaits sentencing and could face up to 136 years in prison and fines of up to $170,000, though he may end up with home confinement or probation. Trump, who is likely to appeal, claimed innocence outside the courtroom Thursday, calling the ruling a “disgrace” and denounced the trial as “rigged.”

Miller and Trump are the latest billionaires to be placed in handcuffs, but they are far from the only ones.

Scores of other current and former members of the three-comma club have faced everything from a night in jail to life in prison for crimes ranging from insider trading to narcotics trafficking.

Here are a handful of the most notable billionaire arrests and sentences:

El Chapo in 2014.

Joaquín Guzmán Loera (aka El Chapo)

Sentence: life in prison plus 30 years, behind bars: 5 years and counting, net worth: drop-off, 2013.

Known as El Chapo, Guzmán Loera is one of the most infamous drug lords in history. In 2019, he was convicted in the U.S. on 10 counts of money laundering and narcotics trafficking. Once the leader of Mexico’s Sinaloa cartel, Guzmán Loera helped illegally move hundreds of tons of cocaine into the U.S. from the early 1980s through the time of his arrest and extradition to the U.S. in 2017. He is now serving a life sentence and was ordered to pay $12.6 billion in forfeiture.

Allen Stanford

Sentence: 110 years, behind bars: 11 years and counting, net worth: drop-off, 2009.

The perpetrator of one of the largest Ponzi schemes ever committed, Stanford was sentenced to 110 years in 2012 for selling $7 billion of fraudulent certificates of deposits through the Stanford International Bank in Antigua. Stanford, 74, was required to pay a personal money judgment of nearly $6 billion. Some of the money was intended to go to the victims of his crimes and their families, but many of Stanford’s former clients reportedly have not received any money. Stanford is now serving one of the longest prison sentences ever handed to a billionaire. (Bernie Madoff, whose $18 billion scheme was even bigger, was never listed by Forbes as a billionaire; Madoff died in 2021 behind bars.)

Sam Bankman-Fried

Sentence: 25 years, behind bars: 2 months and counting, net worth: drop-off, 2022.

Formerly one of the richest people in cryptocurrency, Bankman-Fried launched FTX in 2019 and grew it into one of the leading crypto exchanges before his house of cards collapsed when it surfaced that he had misappropriated billions’ of dollars of customer funds. A federal judge in New York sentenced Bankman-Fried to 25 years in prison and ordered him to pay $11 billion in forfeiture on seven counts of conspiracy, wire fraud, securities fraud and money laundering related to FTX’s fall.

Mikhail Khodorkovsky

Sentence: 13 years, behind bars: 10 years, net worth: drop-off, 2006, platon lebedev, net worth: drop-off, 2004.

The former leaders of Russian oil and gas company Yukos were arrested by Russian authorities for tax evasion in 2003 and sentenced to 13 years in prison each. Both were scheduled for release in 2011 but were convicted a second time in 2010 for embezzling more than 200 million tons of oil and laundering the proceeds, extending their sentence through 2016. Khodorkovsky, who was released in December 2013 after a pardon from Vladimir Putin, alleged that Putin manipulated the trial. Lebedev was released early the following year. Khodorkovsky remains an outspoken leader of the “Russian opposition.”

Elizabeth Holmes walks into the federal courthouse in San Jose, California for her sentencing hearing in November, 2022.

Elizabeth Holmes

Sentence: 11 years, behind bars: 1 year and counting, net worth: drop-off, 2017.

Now known for one of the highest profile cases of fraud in Silicon Valley history, Holmes was once the world’s youngest self-made woman billionaire, with an estimated net worth of $4.5 billion in 2014, at age 30. As the founder of medical device company Theranos, Holmes led the company to raise more than $700 million from investors including billionaires Rupert Murdoch and Larry Ellison. Holmes falsely claimed she had developed technology that could detect hundreds of diseases with just a drop of someone’s blood. In 2022, she was convicted of fraud and conspiracy for lying to investors about the capabilities of her devices and has been ordered to pay $452 million in restitution to investors.

Raj Rajaratnam

Behind bars: 8 years, net worth: drop-off, 2010.

Rajaratnam founded New York hedge fund Galleon Group in the 1990s before he was arrested for insider trading in 2009 and the company collapsed. At the time, Galleon managed more than $7 billion in assets. He was convicted of 14 counts of fraud and conspiracy and was later sentenced to 11 years in prison. In early 2019, Rajaratnam was released to home confinement, in part due to Kim Kardashian, who lobbied for the First Step Act, a law signed by Trump that grants early release to some non-violent offenders who are over 60 years of age. Rajaratnam stayed in home confinement for two years until being released in 2021.

Michael Milken

Sentence: 10 years, behind bars: 2 years, net worth: $6.5 billion.

Milken expanded the market for high-yield junk bond financing in the 1980s while at investment bank Drexel Burnham Lambert. He pled guilty in 1990 to six counts of securities and tax violations during his time at Drexel after an investigation by former U.S. Attorney Rudy Giuliani. Milken served two years in prison and paid $600 million in fines; he was also banned for life from the securities industry. Since being released in 1993, Milken has been dedicated to philanthropy, giving to causes such as prostate cancer research, as a survivor of the disease. He also founded and chairs the Milken Institute economic think tank, which hosts the annual Milken Global Conference. Trump pardoned Milken in 2020.

Thomas Kwok

Sentence: 7.5 years, behind bars: 3 years, net worth: $1.8 billion.

Kwok inherited Hong Kong real estate investment firm Sun Hung Kai Properties along with his two brothers, Raymong and Walter, from their father in 1990. After serving for three years as co-chair of the company, Kwok was sentenced to five years in prison in 2014 for giving a $1.1 million (HK $8.5 million) bribe to Rafael Hui, then-Hong Kong chief secretary, in exchange for government favor. The billionaire was released from prison in 2019 after serving less than half of his original sentence. Hui, meanwhile, was sentenced to seven and a half years in prison for taking the bribes.

John Kapoor

Sentence: 5.5 years, behind bars: 3.5 years, net worth: drop-off, 2019.

Kapoor, founder and former CEO and chairman of opioid manufacturer Insys Therapeutics, was sentenced to five and a half years in prison in 2020 for conspiring to bribe doctors to prescribe fentanyl spray Subsys to patients who didn’t need it. Prior to that, a jury found Kapoor and four other Insys executives guilty of racketeering conspiracy. Kapoor was released to home confinement in June 2023 and was fully released six months later.

Sentence: 5 years

Behind bars: 18 months, net worth: $10.1 billion.

The executive chairman of South Korean conglomerate Samsung Electronics, Lee initially faced a five-year sentence for bribing the country’s then-President Park Geun-hye to support a merger between Samsung C&T and Cheil Industries. He spent 11 months in prison in 2017 before his sentence was suspected. That decision was later overturned and Lee was sent back to jail in 2021, serving an additional seven months before being released on parole and, in 2022, pardoned.

S. Curtis Johnson

Sentence: 4 months, behind bars: 3 months, net worth: $4.9 billion.

Heir to the SC Johnson fortune, S. Curtis Johnson was charged in 2011 with the sexual assault of his then-teenage stepdaughter in the fourth degree and disorderly conduct. Johnson took a plea deal after a three-year litigation battle and after the victim did not give up her medical records, landing him four months in jail and a $6,000 fine. Johnson has no involvement in the family’s business but owns a stake in the company.

Joe Lewis after leaving Manhattan Federal Court in July 2023.

Sentence: 3 years probation

The U.K. billionaire behind investment company Tavistock Group, Lewis was sentenced to three years of probation and a $5 million fine in April after pleading guilty to insider trading charges. He admitted to passing information about four publicly traded companies to his girlfriend, personal pilot, employees and friends. Prosecutors requested to impose penalties less than the 18 to 24 months behind bars called for in federal sentencing guidelines due to Lewis’ age, health issues, cooperation in the investigation and damage to his reputation.

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