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equity and trusts. EQUITY AND TRUSTS ‘The statute does not forbid or destroy
equitable assignments or impair their efficacy in ...
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... trust the courts have gone so far as to undermine the formalities that are required
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Submitted by hosanna on December 12, 2005
Category: Miscellaneous
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EQUITY AND TRUSTS
‘The statute does not forbid or destroy equitable assignments or impair their efficacy in the slightest degree." Per Lord Macnaghten in William Brandt's & Sons & Co v Dunlop Rubber Co Ltd [1905] AC 454, 461
Discuss critically the above statement with regard to the Malaysian legal position.
Before receiving his title deed, a person may obtain a loan from a financier by assigning the rights to the property to the financier. Similarly, a creditor may obtain a loan from a factor by assigning in his favor all his rights over a debt. These type of assigned rights are called ‘choses in action', which are intangible rights as opposed to ‘choses in possession' (a right to tangible objects). Channell J defined the expression ‘choses in action' in Torkington v Magee , to mean "all personal rights of property which can only be claimed or enforced by action, and not by taking possession." When a right in the nature of a chose in action is transferred from an assignor to an assignee, an assignment is made.
Assignment is commonly used in Malaysia to transfer rights to book debts, securitisable assets, goods, and other receivables. An assignment is not itself a contract between assignor and debtor: its legal nature is that of a direction amounting to the transfer of a right. There are two types of assignment, namely legal and equitable; with the main distinction between the two being the degree of legal right being transferred. Since legal and equitable assignments have different requirements, a pertinent issue arising is whether or not an assignee has the right to take action against the debtor without involving the assignor, or vice versa.
The rules governing this area have been settled after the Civil Law Act 1956 (CLA) came into force on 7 April 1956 for West Malaysia and 1 April 1972 for East Malaysia. According to S4(3) CLA, if the assignment fulfils the criteria of a statutory assignment...
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