Die Wirkung vertraglicher Abtretungsverbote im deutschen und ausländischen Privatrecht
Jahrgang 73 (2009) / Heft 2, S. 314-335 (22)
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The Effect of Non-Assignment Clauses in German and Foreign Law This paper analyzes the effects of non-assignment clauses under the law of Germany, other European countries and the United States of America. The latest developments in European law (especially the Draft Common Frame of Reference [DCFR]) and international conventions are also considered. First it is shown that the concept used in the jurisdiction of Germany, that prohibited assignments are absolutely void, is inadequate for the interpretation of German law. This follows especially from the comparison of § 399 2. case BGB and § 354a HGB and from the analysis of the interests of all parties. The best interpretation of § 399 2. case BGB de lege lata is the concept of the relative voidness of prohibited assignments. In the second part of the paper it is shown that the concept of relative voidness has been successfully used by the U.S. Supreme Court and in British literature. In France an absolute effect for non-assignment clauses is totally unknown. Such clauses have only an effect inter partes. In Italy, Spain and Portugal, this restrictive interpretation of non-assignment clauses is used to protect the assignee in the case of bona fides. A combination of a relative effect of non-assignment clauses and good faith is also found in the Code Européen des Contrats and in the Principles of European Contract Law (PECL). The DCFR even suggests that prohibited assignments should be absolutely effective. Eidenmüller suggests de lege ferenda that a prohibited assignment of monetary claims should be absolutely effective. In all other cases he prefers an effect of relative voidness for prohibited assignments. The international conventions do not contemplate an absolute effect for non-assignment clauses. Either such clauses are void or they have only a relative effect. The analysis of international law establishes that the German concept of absolute voidness resulting from non-assignment clauses is not compatible with international developments. De lege lata, the effect of § 399 2. case BGB should be interpreted as relative voidness. De lege ferenda, there is no sense in introducing the combination of a relative effect of non-assignment clauses and bona fides at least as long as Germany has no register of claims. It would be better to follow the suggestion of Eidenmüller.