assignment under virginia law

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2006 Code of Virginia § 8.2-210 - Delegation of performance; assignment of rights

8.2-210 . Delegation of performance; assignment of rights.

(1) A party may perform his duty through a delegate unless otherwise agreedor unless the other party has a substantial interest in having his originalpromisor perform or control the acts required by the contract. No delegationof performance relieves the party delegating of any duty to perform or anyliability for breach.

(2) Except as otherwise provided in 8.9A-406, unless otherwise agreed allrights of either seller or buyer can be assigned except where the assignmentwould materially change the duty of the other party, or increase materiallythe burden or risk imposed on him by his contract, or impair materially hischance of obtaining return performance. A right to damages for breach of thewhole contract or a right arising out of the assignor's due performance ofhis entire obligation can be assigned despite agreement otherwise.

(3) The creation, attachment, perfection, or enforcement of a securityinterest in the seller's interest under a contract is not a transfer thatmaterially changes the duty of or increases materially the burden or riskimposed on the buyer or impairs materially the buyer's chance of obtainingreturn performance within the purview of subsection (2) unless, and then onlyto the extent that, enforcement actually results in a delegation of materialperformance of the seller. Even in that event, the creation, attachment,perfection, and enforcement of the security interest remain effective, but(i) the seller is liable to the buyer for damages caused by the delegation tothe extent that the damages could not reasonably be prevented by the buyerand (ii) a court having jurisdiction may grant other appropriate relief,including cancellation of the contract for sale or an injunction againstenforcement of the security interest or consummation of the enforcement.

(4) Unless the circumstances indicate the contrary a prohibition ofassignment of "the contract" is to be construed as barring only thedelegation to the assignee of the assignor's performance.

(5) An assignment of "the contract" or of "all my rights under thecontract" or an assignment in similar general terms is an assignment ofrights and unless the language or the circumstances (as in an assignment forsecurity) indicate the contrary, it is a delegation of performance of theduties of the assignor and its acceptance by the assignee constitutes apromise by him to perform those duties. This promise is enforceable by eitherthe assignor or the other party to the original contract.

(6) The other party may treat any assignment which delegates performance ascreating reasonable grounds for insecurity and may without prejudice to hisrights against the assignor demand assurances from the assignee ( 8.2-609 ).

(1964, c. 219; 2000, c. 1007.)

Disclaimer: These codes may not be the most recent version. Virginia may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.

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• Chapter 8 Assignment and Delegation
• 8.2 Assignment of Rights

8.2 ASSIGNMENT OF RIGHTS

8.201 Assignable Rights.

A. General Rule. Generally speaking, contractual rights may be assigned to a third party. 10 This general rule is codified with respect to the sale of goods in Article 2 of the Uniform Commercial Code (UCC) as adopted in Virginia. 11 UCC section 2-210 provides that buyers and sellers may assign contracts to third parties except where the assignment would materially change the duty of the other party. 12

B. Exceptions to the Rule. Notwithstanding the general rule that contractual rights may be assigned, there are several exceptions.

1. Substantial Change in the Obligor's Duty. If the assignment would substantially change the obligor's duties under the contract, the assignor may not assign the agreement. 13 An example of such a contract is a "requirements contract." 14 Under a requirements contract, one party is required to provide an unspecified amount of goods or services in accordance with the requirements of the other party to the agreement. Using the facts of the sale of Little Hospital to Big Hospital, suppose that Little had a contract with a linen company (Linen Company) whereby Linen Company would provide sheets and towels for all facilities owned by Little. If the agreement were assigned to Big, which owns several more facilities than Little, the assignment would be invalid because Linen Company's duty would be different than originally contemplated.

A personal service contract is another type of contract that cannot be assigned. These personal service contracts may only be assigned with consent. 15 The rationale is that assignment of a personal service contract

would result in the obligor having to perform personal services for someone other than the person originally contemplated and may substantially change the duties of the obligor.

When analyzing whether a contract can be assigned generally, the question to ask is whether the parties' rights are being substantially altered by the assignment. A contract may be assigned as long as the non-assigning party's rights are not materially affected.

2. Substantial Change in the Obligor's Risk. Similarly, when the obligor's risk is substantially altered by an assignment, the assignment will be invalid. 16 For example, suppose that a bank (Bank) agreed to lend money to a valued bank customer (Patron) under a revolving credit line. If Patron assigned his or her revolving credit line rights to another person, arguably Bank's risk would be altered by the assignment because the assignee's creditworthiness may be poor. In such case, the assignment would not be valid.

3. Laws Prohibiting Assignment. A right may not be assigned if the assignment is prohibited by law. Using the example of the sale of Little Hospital to Big Hospital, suppose that Little tries to assign its state medical licenses to Big. If the applicable statute or regulations provide that such licenses are not assignable, then the assignment would be invalid.

Practitioners should be wary of attempts to assign governmental licenses or permits, since most such assignments are prohibited by statute or regulation. Even if a permit is transferable, typically the issuing agency will require some type of notice of the assignment.

C. Non-Assignment Provisions. Under the UCC, unless the circumstances indicate the contrary, a prohibition against assignment of the contract bars only the delegation to the assignee of the assignor's duties and not the transfer of the assignor's rights. 17 However, under Virginia common

law (not dealing with the sale of goods), an assignment will be deemed invalid if the contracting parties agreed that the contract could not be assigned. 18

It is very common for contracts to contain non-assignment provisions. In fact, most commercial contracts contain such provisions. Using the facts of the sale of Little Hospital to Big Hospital, suppose all of the equipment leases and other major contracts have non-assignment provisions in them. Does this mean that Big will have to execute new agreements with vendors so Big can step in and operate the hospital on the closing date? The answer is "probably not." In this situation, the parties to the contract can agree to waive the non-assignment provision. Furthermore, and more commonly, most non-assignment provisions actually provide that the contract may not be assigned without the consent of the non-assigning party to the contract. In an acquisition scenario, the parties typically contact the non-assigning party in advance of the closing and get its consent to the assignment.

D. Assignment of Tort Actions. Actions for personal injury are not assignable. 19 Causes of action for damage to real or personal property are assignable. 20

To avoid confusion on this issue, it is worth reviewing some background regarding the assignment of torts. Generally speaking, tort actions may be assigned if the tort action survives to or against the personal representative if the original party dies. 21 Tort...

To continue reading

• 8.1 Terminology
• 8.3 Delegation of Duties
• 8.4 Limitations on Assignment and Delegation
• 8.5 Effects of Modification or Discharge
• 8.6 Priorities Between Claimants
• Appendix 8-1 Assignment Clause

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Deed of Assignment or Deed of Novation: Key Differences and Legal Implications of Novation and Assignment Contracts

Novation and assignment stand out as pivotal processes for the transfer of contractual rights and obligations. These legal concepts allow a party to the contract to adapt to changing circumstances, ensuring that business arrangements remain relevant and effective. This article explores the nuances of novation and assignment, shedding light on their distinct legal implications, procedures, and practical applications. Whether you’re a business owner navigating the transfer of service contracts, or an individual looking to understand your rights and responsibilities in a contractual relationship, or a key stakeholder in a construction contract, this guide will equip you with the essential knowledge to navigate these complex legal processes.

Table of Contents

• What is a Deed of Novation? 
• What is a Deed of Assignment? 

Key Differences Between Novation and Assignment Deeds

Need a deed of novation or assignment key factors to consider, selecting the right assignment clause for your contract – helping you make the right choice, what is a deed of novation.

Novation is a legal process that allows a new party to a contract to take the place of an original party in a contract, thereby transferring both the responsibilities and benefits under the contract to a third party. In common law, transferring contractual obligations through novation requires the agreement of all original parties involved in the contract, as well as the new party. This is because novation effectively terminates the original contract and establishes a new one.

A novation clause typically specifies that a contract cannot be novated without the written consent of the current parties. The inclusion of such a clause aims to preclude the possibility of novation based on verbal consent or inferred from the actions of a continuing party. Nevertheless, courts will assess the actual events that transpired, and a novation clause may not always be enforceable. It’s possible for a novation clause to allow for future novation by one party acting alone to a party of their choosing. Courts will enforce a novation carried out in this manner if it is sanctioned by the correct interpretation of the original contract.

Novation is frequently encountered in business and contract law, offering a means for parties to transfer their contractual rights and duties to another, which can be useful if the original party cannot meet their obligations or wishes to transfer their contract rights. For novation to occur, there must be unanimous consent for the substitution of the new party for the original one, necessitating a three-way agreement among the original party, the new party, and the remaining contract party. Moreover, the novation agreement must be documented in writing and signed by all involved parties. Understanding novation is essential in the realms of contracts and business dealings, as it provides a way for parties to delegate their contractual rights and responsibilities while freeing themselves from the original agreement.

What is a Deed of Assignment?

A deed of assignment is a legal document that facilitates the transfer of a specific right or benefit from one party (the assignor) to another (the assignee). This process allows the assignee to step into the assignor’s position, taking over both the rights and obligations under the original contract. In construction, this might occur when a main contractor assigns rights under a subcontract to the employer, allowing the employer to enforce specific subcontractor duties directly if the contractor fails.

Key aspects of an assignment include:

• Continuation of the Original Contract: The initial agreement remains valid and enforceable, despite the transfer of rights or benefits.
• Assumption of Rights and Obligations: The assignee assumes the role of the assignor, adopting all associated rights and responsibilities as outlined in the original contract.
• Requirement for Written Form: The assignment must be documented in writing, signed by the assignor, and officially communicated to the obligor (the party obligated under the contract).
• Subject to Terms and Law: The ability to assign rights or benefits is governed by the specific terms of the contract and relevant legal statutes.

At common law, parties generally have the right to assign their contractual rights without needing consent from the other party involved in the contract. However, this does not apply if the rights are inherently personal or if the contract includes an assignment clause that restricts or modifies this general right. Many contracts contain a provision requiring the consent of the other party for an assignment to occur, ensuring that rights are not transferred without the other party’s knowledge.

Once an assignment of rights is made, the assignee gains the right to benefit from the contract and can initiate legal proceedings to enforce these rights. This enforcement can be done either independently or alongside the assignor, depending on whether the assignment is legal or equitable. It’s important to note that while rights under the contract can be assigned, the contractual obligations or burdens cannot be transferred in this manner. Therefore, the assignor remains liable for any obligations under the contract that are not yet fulfilled at the time of the assignment.

Choosing Between Assignment and Novation in a Construction Contract

Choosing between a deed of novation and an assignment agreement depends on the specific circumstances and objectives of the parties involved in a contract. Both options serve to transfer rights and obligations but in fundamentally different ways, each with its own legal implications, risks, and benefits. Understanding these differences and considering various factors can help in making an informed decision that aligns with your goals.

The choice between assignment and novation in a construction project scenario, where, for instance, an employer wishes to engage a subcontractor directly due to loss of confidence in the main contractor, hinges on several factors. These are:

• Nature of the Contract:  The type of contract you’re dealing with (e.g., service, sales) can influence which option is more suitable. For instance, novation might be preferred for service contracts where obligations are personal and specific to the original parties.
• Parties Involved: Consent is a key factor. Novation requires the agreement of all original and new parties, making it a viable option only when such consent is attainable. Assignment might be more feasible if obtaining consent from all parties poses a challenge.
• Complexity of the Transaction: For transactions involving multiple parties and obligations, novation could be more appropriate as it ensures a clean transfer of all rights and obligations. Assignment might leave the original party with ongoing responsibilities.
• Time and Cost: Consider the practical aspects, such as the time and financial cost associated with each option. Novation typically involves more complex legal processes and might be more time-consuming and costly than an assignment.

If the intention is merely to transfer the rights of the subcontractor’s work to the employer without altering the subcontractor’s obligations under a contract, an assignment might suffice. However, if the goal is to completely transfer the main contractor’s contractual role and obligations to the employer or another entity, novation would be necessary, ensuring that all parties consent to this new arrangement and the original contractor is released from their obligations.

The legal interpretations and court decisions highlight the importance of the document’s substance over its label. Even if a document is titled a “Deed of Assignment,” it could function as a novation if it transfers obligations and responsibilities and involves the consent of all parties. The key is to clearly understand and define the objective behind changing the contractual relationships and to use a deed — assignment or novation — that best achieves the desired legal and practical outcomes, ensuring the continuity and successful completion of the construction project.

Understanding the distinction between assignment deeds and novation deeds is crucial for anyone involved in contractual agreements. Novation offers a clean slate by transferring both rights and obligations to a new party, requiring the consent of all involved. Assignment, conversely, allows for the transfer of contractual benefits without altering the original contract’s obligations. Each method serves different strategic purposes, from simplifying transitions to preserving original contractual duties. The choice between novation and assignment hinges on specific legal, financial, and practical considerations unique to each situation. At PBL Law Group, we specialise in providing comprehensive legal advice and support in contract law. Our team is dedicated to helping clients understand their options and make informed decisions that align with their legal and business objectives. Let’s discuss!

Authored By Raea Khan

Director Lawyer, PBL Law Group

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Virginia Assignments for the Benefit of Creditors - What Creditors Need to Know

Assignments for the Benefit of Creditors (“ABCs”) are state law alternatives to bankruptcy that trace their roots back to English common law. ABCs are used frequently in some states, such as California, Florida, and Illinois, and infrequently or rarely in other states, including Virginia. While similar to Chapter 7 bankruptcy proceedings, ABCs must be approached with care due to the lack of formality that governs the administration of the assignor’s assets.

What is an ABC?

In concept, a corporate ABC is relatively straightforward. A distressed entity – the assignor – enters into an agreement with an assignee. The assignee, usually a professional fiduciary charging a fee for their services, agrees by contract to take possession and control of all of the assignor’s assets. Where such a transaction would normally include both the assignor’s assets and liabilities, in an ABC the assignee is shielded from creditor’s claims by operation of either common law or, in most states (including Virginia), statute. The assignee is then free to liquidate the assignor’s assets and distribute them to creditors.

Virginia’s ABC statutes are divided into two articles. Article 1, titled "Assignment of Property," addresses the assignment of general property of an assignor that is a corporate entity (Va. Code Ann. §§ 8.01-525.1 to 8.01-525.5). Article 2, titled "Assignment of Salary, Wages, or Income," addresses an ABC in the context of the salary, wages, or income of an individual (Va. Code Ann. §§ 8.01-525.6 to 8.01-525.12). This article focuses on Article 1.

How is an ABC administered?

In Virginia, a corporate ABC starts when a deed of assignment is filed and recorded with the clerk of court in the county or city where the assignor’s property is located. There are no official forms for ABCs, nor are there any specific rules regarding how to arrange the attached schedules.

After the assignment is filed, the assignee may sell the assigned assets at either a private or public auction after giving notice to creditors. The Virginia ABC Statute specifically requires the assignee to provide notice at least ten days before the sale to each of the creditors named in the deed by certified mail. The assignee has broad powers to administer the liquidation of the assignee’s assets and can hire professionals, such as auctioneers and appraisers, to assist this effort.

Claims are paid under a loose priority scheme. Creditors with liens or preferences created by law are favored, and consensually secured creditors are entitled to be paid the value of their liens (if sufficient assets exist). Under-secured creditors and unsecured creditors receive a pro-rata distribution of any remaining proceeds.

Finally, the assignment concludes as informally as it started – the assignee simply needs to comply with the relevant portions of the assignment deed, while the assignor dissolves as usual under Virginia law.

What Do Creditors Need to Know?

Creditors that receive notice of an ABC must act to protect their interests. The informality that comes with an assignment presents unique challenges for creditors.

One issue on which creditors should focus is the choice of assignee. In bankruptcy court, a court vetted trustee may administer a business’ reorganization or liquidation. Assignees are under no such scrutiny, nor are they required by statute to report settlement or asset distribution requirements in a uniform way. One option for creditors that are unhappy with the assignee is to utilize a statutory mechanism for removing that assignee. In Virginia, a majority of creditors in number and amount may petition the circuit court in the county where the deed of assignment was recorded to appoint a substitute assignee. Importantly, this provision can be used to ensure that the assignee is paid no more than the “reasonable” fee to which they are entitled, and to keep tabs on the fees paid to the professionals the assignee chooses to assist their administration.

Additionally, assignees are not provided with the avoidance powers that are conferred upon a bankruptcy trustee. The onus is therefore on creditors to pursue possible fraudulent transfers made by the assignor prior to the assignment. Secured creditors must also take action, informal or otherwise, to ensure that their collateral is preserved if possible.

Finally, creditors are not guaranteed notice of the ABC by statute, though in practice such notice is generally sent by the assignee. While a creditor can challenge the claims of other creditors, such a challenge must be made within 30 days after the deed is recorded. It is therefore incredibly important for creditors and potential creditors to periodically check in on their debtors, and to enforce notice provisions of any contract.

ABCs are a somewhat obscure and opaque state law creation that allow for businesses to discharge debts quickly and informally. While their efficiency and cost effectiveness cannot be disputed, in Virginia, the general lack of statutory guidance and court oversight can create headaches for creditors. If you need assistance dealing with these challenges, please contact Anthony Tamburro ([email protected]) at 804-377-1268 or Steve Setliff ([email protected]) at 804-377-1261.

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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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Assignment and Assumption Agreement (Novation) (VA)

This assignment and assumption agreement template includes a novation agreement and may be used to transfer an agreement, governed by Virginia law, from one party to another. This template includes practical guidance, drafting notes, and alternate and optional clauses. This template addresses an assignor's transfer of rights and delegation of duties under a contract. Prior to using this template, counsel should confirm the transferability of the applicable agreement, as not all contracts are assignable. Sometimes anti-assignment clauses, legal concerns, and/or public policy issues, among other things, prevent assignment. A novation, which is the substitution of a new obligation for an existing one, extinguishes an assignor's liability under an assigned agreement once it is executed by the assignor, the assignee, and the non-assigning party. Upon execution, the assignee is deemed substituted for the assignor. The parties' intent to enter into the novation must be demonstrated in a clear manner. See Honeywell, Inc. v. John C. Elliott, et al., 213 Va. 86 (1972). Without a novation, the assignor remains secondarily liable to the non-assigning party for the non-performance of delegated obligations. For more information, see Commercial Contract Assignment (VA) and Novation, Accord and Satisfaction, and Substituted Contracts. For a related template, see Novation Agreement (Short Form) (VA).

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What is an assignment of contract.

An assignment of contract is a legal document in Virginia that allows one party to transfer their rights and obligations under a contract to another party. Generally, this type of document is used when there is a change of ownership, as the rights and obligations of the original party will be transferred to the new party. In Virginia, it is important to make sure that the assignment is made in writing and that both parties agree to the terms of the assignment. The agreement should also be signed by both parties and should be legally binding. In addition, the document should be filed with the Virginia Circuit Court. An assignment of contract is usually used in cases where the original party is no longer able to fulfill their obligations under the contract . This could be due to financial constraints, a change in circumstance, or the death of an individual. The agreement should also outline how and when obligations will be fulfilled, and should be carefully reviewed by both parties involved before signing. Overall, an assignment of contract is a legal document used in Virginia that allows one party to transfer their rights and obligations under a contract to another party. It is important to make sure that the agreement is made in writing, is legally binding, and is filed with the Virginia Circuit Court before it is finalized.

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Assignment is a legal term whereby an individual, the “assignor,” transfers rights, property, or other benefits to another known as the “ assignee .”   This concept is used in both contract and property law.  The term can refer to either the act of transfer or the rights /property/benefits being transferred.

Contract Law   

Under contract law, assignment of a contract is both: (1) an assignment of rights; and (2) a delegation of duties , in the absence of evidence otherwise.  For example, if A contracts with B to teach B guitar for $50, A can assign this contract to C.  That is, this assignment is both: (1) an assignment of A’s rights under the contract to the $50; and (2) a delegation of A’s duty to teach guitar to C.  In this example, A is both the “assignor” and the “delegee” who d elegates the duties to another (C), C is known as the “ obligor ” who must perform the obligations to the assignee , and B is the “ assignee ” who is owed duties and is liable to the “ obligor ”.

(1) Assignment of Rights/Duties Under Contract Law

There are a few notable rules regarding assignments under contract law.  First, if an individual has not yet secured the contract to perform duties to another, he/she cannot assign his/her future right to an assignee .  That is, if A has not yet contracted with B to teach B guitar, A cannot assign his/her rights to C.  Second, rights cannot be assigned when they materially change the obligor ’s duty and rights.  Third, the obligor can sue the assignee directly if the assignee does not pay him/her.  Following the previous example, this means that C ( obligor ) can sue B ( assignee ) if C teaches guitar to B, but B does not pay C $50 in return.

            (2) Delegation of Duties

If the promised performance requires a rare genius or skill, then the delegee cannot delegate it to the obligor.  It can only be delegated if the promised performance is more commonplace.  Further, an obligee can sue if the assignee does not perform.  However, the delegee is secondarily liable unless there has been an express release of the delegee.  That is, if B does want C to teach guitar but C refuses to, then B can sue C.  If C still refuses to perform, then B can compel A to fulfill the duties under secondary liability.

Lastly, a related concept is novation , which is when a new obligor substitutes and releases an old obligor.  If novation occurs, then the original obligor’s duties are wiped out. However, novation requires an original obligee’s consent .  

Property Law

Under property law, assignment typically arises in landlord-tenant situations.  For example, A might be renting from landlord B but wants to another party (C) to take over the property.   In this scenario, A might be able to choose between assigning and subleasing the property to C.  If assigning , A would be giving C the entire balance of the term, with no reversion to anyone whereas if subleasing , A would be giving C for a limited period of the remaining term.  Significantly, under assignment C would have privity of estate with the landlord while under a sublease, C would not. 

[Last updated in May of 2020 by the Wex Definitions Team ]

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Enforcing Oral Contracts: The Presumption is Against You

May 1, 2014

Oral contracts are often difficult to enforce because the facts are contested or remembered differently. The age-old admonition to “get it in writing” is as valid today as in the days of scriveners with quill pens. David Martin found this out the hard way when his lawsuit for breach of an alleged oral severance contract was dismissed on summary judgment in Lynchburg, Virginia. David C. Martin v. NAES Corporation was decided in the U.S. District Court for the Western District of Virginia on November 6, 2013.

The Case: David C. Martin v. NAES Corporation

Martin was employed by NAES as a technician under a contract with Dominion Power to operate the Altavista Power Station. In the summer of 2010, NAES notified its Altavista employees that it planned to close the plant and would lay off most of the employees. They would also be provided severance packages based on one week’s pay for each year the employee had worked at the Altavista station.

On November 15, 2010, NAES asked Martin to take a short term assignment at the Gordonsville Power Station. Martin alleged that he agreed to the assignment but only on the condition that he would remain eligible for the anticipated severance package “no matter what.” He contended that this was agreed to between the parties.

Martin received his termination notice and severance offer on December 15, 2010. The notice gave him 21 days to accept the package. He alleged that he accepted it on December 28. However, on December 21, NAES offered Martin a permanent position at the Pittsylvania Power Station. Martin inquired as to whether he could take the job and keep the severance. NAES said he could have one or the other but not both. Martin felt this was contrary to the expressed understanding reached with NAES in November. On December 28, he signed the transfer agreement accepting the Pittsylvania assignment but noted that his signature was “under duress.”

When is Summary Judgment Typically Granted?

Under federal law, summary judgment will be granted when there are no unresolved questions of material fact, and the moving party is entitled to judgment on the law. In this case, the court found there was no factual dispute but only a difference between the parties as to what the facts required. Martin argued that the severance offer had been made, was never revoked and was accepted by him; therefore, his right to this package had been established when he took the Gordonsville job.

While Martin believed that, once accepted, he was entitled to the severance package “no matter what,” the written offer made clear that acceptance of the Pittsylvania assignment would terminate eligibility for the severance package, unless he was laid off from that position on the same timetable as had existed at Altavista. His endorsement of the transfer agreement “under duress” had no legal effect. Under Virginia law, duress is “the application of undue pressure in a contractual bargaining process through the use of improper threats or physical force.” Reluctance for financial reasons does not support a claim of duress.

Oral Agreement vs. Written Agreement

In Virginia, an oral contract is enforceable if it is reasonably certain, definite and complete. But, it is always difficult for the proponent of an oral agreement if the writings between the parties suggest a different arrangement. The facts as reviewed by the court demonstrated that Martin was attempting to have the benefit of both opportunities, even though the documents suggested they were mutually exclusive. If other oral promises had been made, Martin erred by failing to obtain them in writing.

Because writings are permanent, the product of considered thought and available for review and analysis, the law has always preferred written agreements to the variable recollections that can constitute oral understandings. The logic of this conclusion is unshakeable, but it doesn’t stop people from leaving important agreements to the whim of memory every day.

• James V. Irving

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New Virginia Law Codifies Assignment of Benefits in Virginia; How Will Chiropractors, Medpay Carriers & Injured Parties Be Effected?

NOTE: The following is not legal advice.

Effective July 1, 2013, a new law in Virginia took effect, which codifies Assignment of Benefits laws and directs how the law is to be applied by both healthcare providers and medpay carriers.

The bill modifies VA code section 38.2-22 , which indicates that any attempt to assign medical expense benefits is subject to the law. Further Assignments are only valid if conditions under the law are met. It should be noted at the outset that this new law does not affect liability coverages.

It only applies to patients/claimants who have med-pay and health insurance, and it deals with how health providers should bill these patients and under what circumstances the med-pay or auto insurance carrier must honor an Assignment of Benefits (AOB) in Virginia.

Honoring of the AOB will be mandatory when these rules are followed:

• The Assignment of Benefits (AOB) must be in writing.
• The AOB must be signed and dated by the patient.
• AOB and notice forms should be sent to med-pay carriers, liability carriers, and attorneys by certified mail.
• If the patient does not have health insurance, the doctor, chiropractor, or healthcare provider can bill the medpay directly, and the carrier MUST (shall) honor the AOB.
• If the patient has health insurance and the healthcare provider is in network; as long as the patient provides this information to the healthcare provider, the healthcare provider can only bill the patient for co-payment, co-insurance, or deductibles, and the remainder can be billed to auto insurance benefits such as medpay.
• Essentially, where health insurance information is provided to the provider – it must be billed first if it is in the provider’s network, prior to the billing of medpay, by the provider.
• If the patient does not provide health insurance information or the provider is not in network, the provider may bill the full amount to the auto insurance.
• If the health insurance carrier denies a code (for example, denies chiropractic treatment as unnecessary) – the patient’s attorney may still be able to get the bill covered under med-pay. (This is the attorney’s usual job in this situation and is not really affected by this new law. Attorneys frequently must file PIP or Med-pay lawsuits to get auto insurance carriers to honor benefits contracts where medical treatment is unfairly deemed unnecessary, duplicative, or too expensive by the auto insurance carrier)
• If the injured person does not have insurance or is covered by a self-insured or self-funded employee welfare benefit plan, such as ERISA (which requires medical expense coverage to be primary), the motor vehicle insurer shall pay directly to the healthcare provider from any medical expense benefits available to such person under a motor vehicle policy.
• Notwithstanding the above, before signing an Assignment and Authorization Agreement or Assignment of Benefits, patients who are represented by attorneys for motor vehicle accidents should consult with their lawyer to determine the best course of action. Under some circumstances, it may make more sense to utilize health insurance as a primary coverage with Med-pay as secondary, for example. Alternatively, some patients may elect to not use health insurance at all.
• Like all new laws, there are bound to be some kinks as insurance carriers, providers, and attorneys sort out the ramifications of these new rules. Healthcare providers and insurance carriers will be instituting new policies to deal with these laws and/or may be altering their regular practices to cope with the new law. If you are an injured party or a healthcare provider and have questions about how this new Virginia law will affect you, you should consult an attorney, as your circumstances are likely unique.

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CAVEAT APPELLANT

Supreme court cracks down on insufficient assignments of error.

But the dangers relating to assignments cannot be defused simply by plugging something, anything, into that section of your petition. Several very recent developments have convinced me that the Supreme Court is looking with much greater care at assignments, and dismissing appeals where the assignments aren’t satisfactory. This, in turn, leads to the arrival of some very unwelcome orders in attorneys’ incoming mail, followed by some very delicate conversations with the client, describing how the lawyer’s mistake has scuttled the appeal.

As with many of my essays, my goal here is to ensure that my readers never have to place that phone call. But here, it’s a bit more than that. Some of the rulings I’ll describe here caught me genuinely by surprise – though happily I have not received one of these orders in one of my cases – and signal the need for every appellant’s counsel to reevaluate how he or she crafts assignments. Ignore this lesson at your peril.

The Supreme Court has described the purposes of assignments in these terms:

“[A]ssignments of error serve several distinct and important functions. Their chief function is to identify those errors made by a circuit court with reasonable certainty so that this Court and opposing counsel can consider the points on which an appellant seeks a reversal of a judgment. In addition, assignments of error also enable an appellee to prepare an effective brief in opposition to the granting of an appeal, to determine which portions of the trial record should be included in the parties’ joint appendix, and to determine whether any cross-error should be assigned.” Friedline v. Commonwealth , 265 Va. 273, 278 (2003).

I have been informed that Virginia is one of only five states that continue to use what are called “binding” assignments of error, those that irreversibly restrict the scope of the appeal to the issues framed thereby. I’m told that the rest of the country has moved toward a looser standard, one that requires only a forecast of the issues to be presented on appeal. It is not my purpose here to advocate either the current Virginia approach, which puts us in a small minority of states, or a move to the majority rule; I merely want you to understand the difference, and to appreciate that we aren’t likely to change teams any time soon. Here, assignments frame the permissible appellate issues, much as initial and responsive pleadings do in trial courts. If you plead a cause of action for negligence, then the trial court won’t listen to your argument, or admit your evidence, on a breach of contract claim.

Let’s start with the relevant text from Rule 5:17(c):

Under a separate heading entitled “Assignments of Error,” the petition [for appeal] shall list the specific errors in the rulings below upon which the appellant intends to rely. Only errors assigned in the petition for appeal will be noticed by this court. Where appeal is taken from a judgment of the Court of Appeals, only assignments of error relating to questions presented in, or to actions taken by, the Court of Appeals may be included in the petition for appeal to this court. An assignment of error which merely states that the judgment or award is contrary to the law or the evidence is not sufficient. If the petition for appeal does not contain assignments of error, the appeal will be dismissed.

Each of these sentences contains a useful lesson in its own right. The first sentence creates the requirement, and gives us the only available guidance on the level of detail required: “. . . shall list the specific errors in the rulings below . . .” (Just what the word specific means in that sentence is the subject of considerable discussion below.) The second sentence tells you that if you assign errors only to issues A, B, and C, then the court won’t consider your argument on alleged legal errors D and E. If you want the Supreme Court to consider an issue, you must list it. So far, so good.

The third sentence contains an important procedural guideline. If you’re coming from a loss in the CAV, keep in mind that the Supreme Court must address its ultimate ruling to that court, not to the trial court. That means that you have to assign error to what the Court of Appeals did, not to what the trial court did. (If you’re chicken-hearted about this, it is permissible to use the following language: “The Court of Appeals and the trial court erred in ruling that . . .”) In the fourth sentence, the rule gives us one example of an assignment that doesn’t measure up to the requirement of specificity. And the final sentence announces the death penalty for petitions that contain no assignments at all.

Unfortunately, that same death penalty awaits appellants who submit insufficient assignments. If you do include assignments of error, but they aren’t specific enough, the court will dismiss your petition for appeal, citing Rule 5:17(c). (In effect, the rule is applied as though the words, “or does not contain sufficient assignments of error,” were added.) And you don’t get a do-over; you will not be permitted to amend your assignment to make it comply with the rule (as you would have the opportunity to do in the trial court if your complaint had been impermissibly fuzzy). Your appeal simply dies, and all you can do is place two phone calls, one of which is to your client.

Of course, a direct violation of the rule has always been fatal. For example, the Commonwealth Transportation Commissioner saw one legal argument die a premature death last year, when it listed the following assignment in a condemnation appeal: “The trial court erred in failing to find that the jury commissioners’ report is contrary to the evidence at trial.” This assignment, the court ruled, directly violates the fourth sentence of the rule. CTC v. Target Corp ., 274 Va. 341, 352-53 (2007).

But in the past two weeks, I have seen at least anecdotal evidence that the court has ratcheted up its enforcement of this rule. As a result, many assignments that I would once have regarded as safe, are now insufficient in the eyes of the court. And those are the only eyes that matter. Here are some of the more recent developments:

– In late May, the Supreme Court issued an order directing an attorney who has, I understand, a substantial appellate practice, to show cause why the attorney’s privilege to practice in that court should not be suspended. The reasons behind this order are many in number but uniform in nature – the attorney has had nine appeals dismissed for procedural violations, most of those relating to assignments of error.

– On June 4, as I sat in the Supreme Court awaiting my turn to argue orally, I saw an appeal by the Commonwealth in a sexually violent predator case. The chief justice interrupted the AAG and asked her how her assignment of error was sufficient. He then read it aloud, and I think I can paraphrase it accurately here: “The trial court erred in excluding the expert testimony of Dr. John Jones.” When I heard the chief’s question, I wondered to myself what could be wrong with that assignment. After all, the lawyer seemed to “lay his finger on the error” (let’s leave aside the change in gender for the moment; I’m quoting some pretty dusty language here) by specifying the exact legal ruling that was being challenged. That’s been the standard for assignments for a long time in Virginia, going back at least to First Nat’l Bank v. William R. Trigg Co. , 106 Va. 327, 342 (1907) (quoting an 1810 New York case).

– On June 10, the court entered an order dismissing an appeal for an insufficient assignment in a legal malpractice case. In that appeal, the lone assignment read, “The trial court erred in granting [the appellee’s] motion for summary judgment.” Again, this assignment specified the exact legal ruling that was being appealed, but the court found it wanting.

This last ruling made me sit bolt upright in my chair (I’m a fairly laid-back guy, so it takes a considerable stimulus to make me sit bolt upright), as I finally put the three developments together and made an unmistakable deduction. The court is getting noticeably tougher on appellants in evaluating the sufficiency of assignments, and it has done so without advance notice. Hence the title of this essay.

Vagueness is not the only assignment-related issue that gets the court’s unwelcome attention. One particularly venial sin (just ask any justice, and watch as the skin on the back of his or her neck gets red) is where an appellant, after getting a writ, tries to change the wording of the assignments. Perhaps he got some pointed questions from the writ panel, and wants to ensure that his wording is sufficient. Unfortunately, no dice. The general rule is that once you file your petition, the language of the assignment is chiseled in stone. I am aware of no exceptions to this rule. I believe you could get leave of court, if you ask for it nicely, to correct something like an obvious typographical or spelling error, but I have never seen this done. I cannot conceive that the court would ever consent to a substantive change.

This sin is venial and not mortal, by the way, because it doesn’t necessarily carry the death penalty. You can still proceed with your appeal, but you’ll be limited to the original assignment, as set forth in your petition. See, for example, Hamilton Dev. Co. v. Broad Rock Club , 248 Va. 40, 43-44 (1994). Of course, you will have alienated the court by doing this, as the justices will perceive that you’re trying to pull a fast one. The justices are all very pleasant people, but this is one sure-fire way to make them mad.

So, what’s a careful appellant to do? It would be easy to overreact, and start crafting assignments that are replete with detail – say, two pages apiece. The trouble with that is that now the assignments are taking over the brief. This kind of assignment is part of what got the appellate lawyer the show cause order last month. Two pages each is just too long.

The best advice I can give you is something I have heard recently from one of the Robes – use the valuable word because in your assignments. For example, if the appellant in the legal malpractice case had written, “The trial court erred in granting [the appellee’s] motion for summary judgment, because a material dispute of fact existed on causation,” then I sense his appeal would still retain vitality. Similarly, if the AAG in the sexually violent predator case two weeks ago had written, “The trial court erroneously ruled that the expert testimony of Dr. John Jones was speculative and therefore inadmissible,” she’d be sleeping a lot better right now, because that gives the Supreme Court the detail it needs to evaluate the issues in the appeal in something other than a vacuum.

This new development has alarmed — maybe stunned would be an equally accurate word — a number of experienced appellate attorneys, including me, so if we’re worried about it, the casual appellate practitioner had better be very concerned. My own editorial comment is that I regard this as a very unfortunate trend, among other reasons because it’s always best to have decisions made on the merits instead of based on technical rules violations. In addition, those who follow the court only casually may well chalk this up to a common misperception that the justices look for any excuse they can find in order to dunk as many cases as possible, purely to cut down on their workload. (That perception, from everything I’ve been able to discern, is completely incorrect.) But the court has the right to interpret its rules as it sees fit, and it is not wrong to view this kind of defect in terms of the court’s very jurisdiction. And that, you will readily understand, is something the court will never take lightly.

Postscript – June 19

I have learned that the language in the assignment of error in the legal malpractice case described above is virtually indistinguishable from the assignment in the successful appeal of Shutler v. Augusta Heath Care , 272 Va. 87 (2006). Two years ago, the Supreme Court granted Shutler’s petition based on the following single assignment of error:

“The trial court erred in granting the defendant’s motion for summary judgment.”

There is, you will readily discern, no meaningful difference between these two assignments. But the Shutler assignment led to a reversal, while the one in the legal malpractice claim led to a dismissal. I cannot explain to you the reasons for the court’s collective change of heart, but I emphatically can warn you about it, so you won’t suffer the same fate.

National Politics | More than 500 people have been charged with…

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National politics | more than 500 people have been charged with federal crimes under the gun safety law biden signed.

WASHINGTON (AP) — More than 500 people — some linked to transnational cartels and organized crime rings — have been charged with gun trafficking and other crimes under the landmark gun safety legislation President Joe Biden signed two years ago Tuesday.

A White House report obtained by The Associated Press on the implementation of the Bipartisan Safer Communities Act also said that enhanced background checks under the new law have stopped roughly 800 sales of firearms to people under age 21 who would be prohibited from buying them.

It highlights that 14 states are using or planning to use funding from the legislation to make better use of red flag laws, which allow law enforcement to remove weapons from people in crisis but are often underused or not well understood. And the report lays out how $85 million in funding has been awarded to 125 school districts across 18 states to help identify students who need mental health care and help them access it.

“It was designed to reduce gun violence and save lives,” Biden said recently of the law. “And I’m so proud of the tremendous progress we’ve made since then.”

The bill was a signature achievement for the Democratic president, and the particulars on how it has been implemented come as he seeks reelection in November. But Biden is also quick to say the law didn’t go far enough , as he continues to push for stricter background checks and has called for a ban on assault weapons.

Republican presumptive presidential nominee Donald Trump, meanwhile, has promised no new gun regulations if he returns to the White House.

Trump has spoken twice this year at National Rifle Association events and was endorsed by the group in May. The former president has claimed that Biden “has a 40-year record of trying to rip firearms out of the hands of law-abiding citizens.” His campaign and the Republican National Committee also announced the creation of a Gun Owners for Trump coalition that includes gun rights activists and those who work in the firearms industry.

Biden created the first-ever White House office of gun violence prevention and issued new rules that mean tens of thousands more firearms dealers across the United States will have to run background checks on buyers at gun shows or other places outside brick-and-mortar stores. He’s also pushed to make firearms storage safer.

Biden’s campaign believes gun control is a motivating issue for voters, in particular suburban college-educated women who may be decisive in several key battlegrounds this fall. Biden’s campaign and allies have circulated clips of Trump saying, “We have to get over it,” after an Iowa school shooting in January and then telling NRA members in May that he “did nothing” on guns during his presidency.

About 7 in 10 suburban college-educated women who voted in the 2022 midterm elections supported stricter gun control laws, although fewer than 1 in 10 named it as the top problem facing the country, according to AP VoteCast, a wide-ranging survey of voters.

Violent crime dropped in 2023 , reversing a coronavirus pandemic-era spike, but firearms are the No. 1 killer of children in the U.S., according to research from the American Academy of Pediatrics. So far this year, 110 children younger than 11 have died by guns, and 566 between the ages of 12 and 17 have died. The number of children and teenagers killed by gunfire in the U.S. increased 50% between 2019 and 2021, according to the Pew Research Center.

And there have been 12 mass killings by firearms in 2024, according to data tracked by the AP . A mass killing is defined as an attack in which four or more people have died, not including the perpetrator, within 24 hours. The U.S. surgeon general on Tuesday declared gun violence a public health crisis , driven by the fast-growing number of injuries and deaths involving firearms in the country.

Efforts to control guns are often stymied by the courts. The conservative-majority U.S. Supreme Court last year expanded gun rights and changed the way courts are supposed to evaluate restrictions on firearms. It recently overturned a Trump-era ban on bump stocks , the rapid-fire gun accessories used in the deadliest mass shooting in modern U.S. history.

But late last week, the court upheld a gun control law intended to protect victims of domestic violence. The case had been closely watched for its potential to affect cases in which other gun ownership laws have been called into question, including the prosecution of Hunter Biden . The president’s son was convicted of lying on a form to buy a firearm while he was addicted to drugs, and his lawyers have signaled they will appeal.

President Biden signed the gun safety legislation on June 25, 2022, a bipartisan compromise forged following a series of mass shootings, including the massacre of 19 students and two teachers at a Texas elementary school .

The federal cases prosecuted under the new law include a defendant sentenced to 23 years in prison for trafficking guns in gang-related shootings and another who got two years for running an illegal gun trafficking enterprise.

In March, five men were arrested in Texas on charges of trafficking military-grade weapons headed for a drug cartel in Mexico. The charges include gun trafficking and straw purchases, in which a gun is bought by one person on behalf of another who is legally unable to make the purchase. Hundreds of illegal firearms were pulled off the streets.

The Biden administration has also funded nearly 80 organizations nationwide using $250 million from the legislation and other appropriations to expand community violence intervention initiatives, according to the implementation report.

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Spanberger Statement on Supreme Court Ruling to Allow Emergency Abortion Care Under EMTALA

Congresswoman: “Today’s Ruling Still Invites Attacks Against a Woman’s Ability to Receive Emergency Medical Care”

WASHINGTON, D.C. — U.S. Representative Abigail Spanberger today released the following statement after the U.S. Supreme Court’s ruling to allow emergency abortion care under federal law — for the time being.

“Since the Supreme Court overturned Roe v. Wade and undermined a woman’s right to privacy and reproductive healthcare, 21 states have passed additional restrictions on abortion — and six of those states have banned abortion, even when the mother’s life or fertility are at risk.

“Unfortunately, today’s ruling still invites attacks against a woman’s ability to receive emergency medical care. This ruling keeps medical providers in the dark about whether they must wait until their patients are on the verge of death to provide lifesaving care — or face felony charges.

“In the two years since the Dobbs decision, women in Virginia and across America have feared additional attacks on their fundamental rights. This blatant questioning of physicians who perform emergency abortion care only validates these fears. In Congress, I will not stop working to protect reproductive care until the right to abortion is codified under federal law — because extreme, anti-abortion politicians and judges should not dictate these personal healthcare decisions.”

In March 2024, following a federal district court judge’s ruling that the Emergency Medical Treatment and Active Labor Act (EMTALA) requires Medicare-participating hospitals to provide abortion as an emergency medical treatment, Spanberger joined 257 Members of Congress in filing an amicus brief to the U.S. Supreme Court in Moyle v. United States and Idaho v. United States , two consolidated cases concerning EMTALA. Spanberger and her colleagues urged the Supreme Court to affirm the district court’s ruling.

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