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Equitable Assignment: Everything You Need to Know

An equitable assignment is one that does not fulfill the statutory criteria for a legal assignment, but is binding and upheld by the courts in the interest of equability, justice, and fairness. 3 min read updated on September 19, 2022

An equitable assignment is one that does not fulfill the statutory criteria for a legal assignment, but is binding and upheld by the courts in the interest of equability, justice, and fairness.

Equitable Assignment

An equitable assignment may not appear to be self-evident by the law's standard, but it presents the assignee with a title that is protected and recognized in equity. It's based on the essence of a declaration of trust; specifically, essential fairness and natural justice. As long as there is valuable consideration involved, it does not matter if a formal agreement is signed. There needs to be some sort of intent displayed from one party to assign and the other party to receive.

The evaluation of a righteous equitable assignment is completed by determining if a debtor would rationally pay the debt to another party alleging to be the assignee. Equitable assignments can be created by:

• The assignor informing the assignee that they transferred a right to them
• The assignor instructing the other party to release their obligation from the assignee and place it instead on the assignor

The only part of an agreement that can be assigned is the benefit. Generally speaking, there is no prerequisite for the written notice to be received or given. The significant characteristic that separates an equitable assignment from a legal assignment is that most of the time, an equitable assignee may not take action against a third party. Instead, it must rely on the guidelines governing equitable assignments. In other words, the equitable assignee must team up with the assignor to take action.

The Doctrine of Equitable Assignment in Wisconsin

In Dow Family LLC v. PHH Mortgage Corp ., the Wisconsin Supreme Court issued in favor of the doctrine of equitable assignment. The case was similar to many other foreclosure cases, except this one came with a twist. Essentially, Dow Family LLC purchased a property and the property owner insisted the mortgage on the property had been paid off. However, in actuality, it wasn't. 

Prior to the sale, the mortgage on the property was with PHH Mortgage Corp. When PHH went to foreclose on the mortgage, Dow Family LLC contested it. There was one specific rebuttal that caught the attention of the Wisconsin Supreme Court. The official mortgage on record was with MERS, an appointee for the original lender, U.S. Bank.

Dow argued that PHH couldn't foreclose on the property because the true owner was MERS. Essentially, Dow was stating that the mortgage was never assigned to PHH. Based on this argument, PHH utilized the doctrine of equitable assignment.

Based on a case from 1859, Croft v. Bunster, the court determined that the security for a note is equitably assigned when the note is assigned without a need for an independent, written assignment. Additionally, Dow contended that the statute of frauds prohibits the utilization of the doctrine, mainly because it claimed every assignment on a property must be formally recorded.

During the case, Dow argued that the MERS system, which stored the data regarding the mortgage, was fundamentally flawed. According to the court, the statute of frauds was satisfied because the equitable assignment was in accordance with the operation of law. Most importantly, the court avoided all consideration regarding the MERS system, concluding it was not significant in their decision. 

The outcome was a major win for lenders, as they were relying on the doctrine specifically for these types of circumstances.

Most experts agree that this outcome makes sense in the current mortgage-lending environment. This is due to the fact that it is still quite common for mortgages to be bundled up into mortgage-backed securities and sold on the secondary market.

Many economists claim that by not requiring mortgages to be recorded each time a transfer is completed, the loans are more easily marketed to investors. Additionally, debtors know who their current mortgage company is because the new lender must always notify the current borrower in order to receive payment. It was determined that recording and documenting the mortgage merely provides a signal to the rest of the world that the property owner secures a debt.

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Equitable Assignment

Equitable Assignment: What is Equitable Assignment?

In the world of law and business, contracts are a common way to formalize agreements between two parties. Sometimes, these contracts involve intellectual property, such as patents, trademarks, or copyrights. When one party wants to transfer ownership of this intellectual property to another party, they may use an equitable assignment.

So, what is an equitable assignment?

An equitable assignment is a type of contract that transfers the rights and benefits associated with intellectual property from one person (the assignor) to another person (the assignee). This can happen when someone wants to sell or give away their patents, trademarks, or copyrights, but there are specific rules and regulations governing these types of transactions.

In an equitable assignment, the assignor agrees to transfer their rights in the intellectual property to the assignee. The assignee then gains the right to use, license, or monetize the intellectual property as they see fit. Equitable assignments are often used when someone wants to pass on ownership of their intellectual property after they have developed it, or when a company acquires another business and needs to take ownership of its patents, trademarks, or copyrights.

Here's an example: let's say John has spent years developing a new software program and now wants to sell the rights to use that software. He can enter into an equitable assignment with Jane, who is willing to pay him for the rights to use the software. Once the assignment is complete, Jane gains the right to use, modify, or distribute the software as she sees fit, while John no longer has any claim to the intellectual property.

Equitable assignments are important because they help ensure that intellectual property is transferred correctly and legally. This is especially crucial in today's digital age, where patents, trademarks, and copyrights can have significant value and impact on businesses and individuals alike.

In summary, an equitable assignment is a type of contract that transfers ownership of intellectual property from one party to another. It's a common way for people or companies to buy, sell, or give away their patents, trademarks, or copyrights, and it helps ensure that these valuable assets are transferred correctly and legally.

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Legal Framework of Equitable Assignments in Finance

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Simple English definitions for legal terms

equitable assignment

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A quick definition of equitable assignment:

A more thorough explanation:.

An equitable assignment is a transfer of rights or property from one person to another, which may not be legally valid but is recognized and enforced in equity. This type of assignment is often used for choses in action or future acquisitions of the assignor.

For example, if John owes money to Mary, he may assign his future paycheck to her as collateral. This assignment may not be legally valid, but if John defaults on his debt, Mary can seek enforcement of the assignment in equity.

Another example is when a person assigns their right to receive an inheritance to someone else. This assignment may not be legally valid, but if the assignor dies and the inheritance is received, the assignee can seek enforcement of the assignment in equity.

Overall, an equitable assignment is a transfer of rights or property that may not be legally valid but is recognized and enforced in equity.

equitable asset | equitable-benefit doctrine

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• > Understanding the Law of Assignment
• > Different Models of Equitable Assignment

Book contents

• Understanding the Law of Assignment
• Copyright page
• Legislation
• Abbreviations
• Part I Introduction
• Part II The Model
• 3 Invariability
• 4 Different Models of Equitable Assignment
• 5 Misconceptions
• 6 Combination
• Part III Joinder
• Part IV Notice
• Part V Statutes
• Part VI Consequences
• Bibliography

4 - Different Models of Equitable Assignment

from Part II - The Model

Published online by Cambridge University Press:  10 October 2019

This chapter explores the two main conceptions of equtiable assignment as are currently found in the academic discourse, namely, a ‘substitutive transfer’ model, and a ‘partial trust’ model. The former denies that an equitable assignment operates by way of a trust, at all. The latter, however, admits taht where a legal chose in action is equtably assigned, some form of trustee-beneficiary relationship arises between the assignor and her assignee. But it denies that this arises when an equtiable chose in action is equitably assigned. The ‘partial trust’ model therefore takes equitable assignment to be a fragemented doctrrine which works differently, depending on whether the chose that is to be assigned is a common law chose, or one which arises in equity. This chapter then shows how each of these models are deficient, before showing how a composite model of equitable assignment would avoid these deficiencies.

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• Different Models of Equitable Assignment
• C. H. Tham , Singapore Management University
• Book: Understanding the Law of Assignment
• Online publication: 10 October 2019
• Chapter DOI: https://doi.org/10.1017/9781108636674.010

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equitable assignment

• A transfer of property or rights, particularly those in which the transferor has a future interest, that may not technically be legal, but would be considered fair and just by a court focusing on justice and fairness
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Lipetsk Oblast, Russia

The capital city of Lipetsk oblast: Lipetsk .

Lipetsk Oblast - Overview

Lipetsk Oblast is a federal subject located in the central part of European Russia, about 370 km south of Moscow, part of the Central Federal District. Lipetsk is the capital city of the region.

The population of Lipetsk Oblast is 1,114,000 (2022), the area - 24,047 sq. km.

Lipetsk oblast flag

Lipetsk oblast coat of arms.

Lipetsk oblast map, Russia

Lipetsk oblast latest news and posts from our blog:.

28 April, 2022 / Summer in the Lipetsk Nature Reserve .

12 August, 2021 / Church of the Vladimir Icon of the Mother of God in Balovnevo .

25 June, 2021 / Kudykina Gora - the most popular sight of Lipetsk Oblast .

5 July, 2020 / Pseudo-Gothic Orthodox Church in Veshalovka .

14 May, 2019 / Yelets - the view from above .

More posts..

History of Lipetsk Oblast

According to archaeological and historical data, the territory of today’s Lipetsk Oblast was inhabited since ancient times. Before the Mongol invasion, there were the towns of Yelets, Dobrinsk (the village of Dobroye now), Dubok (Dubki). During the Mongol yoke, a lot of fortified towns were destroyed, the region depopulated.

In the initial period of feudal fragmentation, this land belonged to the Chernigov principality. After the death of Prince Igor Svyatoslavich (1202), Yelets, Lipetsk and Vorgol principalities appeared. Taking advantage of the weakness of the Chernigov principality, Ryazan princes seized all the lands of the upper Don and Voronezh rivers and annexed them to their possessions.

The revival of the region began following the expulsion of the nomads. In a relatively short period of time (the end of the 16th - the early 17th centuries) the fortress-towns of Dankov, Talitsky ostrog, Yelets, Lebedyan were rebuilt. In 1635, construction of the Belgorod fortified line began.

More Historical Facts…

In connection with the reforms of Peter the Great, industry and agriculture began to develop in the region. Since the end of the 17th century, construction of large factories began here: the steel works on the Beliy Kolodez River (1693), the Lipsky Iron Works (1700), the Kuzminsky Anchor Plant with a workshop for assembling weapons (1703). Settlements of workers were constructed near the plants. Lipetsk was initially one of these settlements.

Because of the formation of the Russian regular army and navy, the demand for flax, hemp and wool increased. Therefore, agriculture began to develop actively too. In the 18th century, large farming estates continued to grow. This province rich in black soil was the breadbasket of Russia. Lipetsk became widely known as a mineral waters resort.

In the early 20th century, Yelets was the largest town in the region. Lipetsk, thanks to its curative mineral water and mud, was a popular resort town. Rapid industrial development of Lipetsk and other towns in the area began during the first Soviet five-year plans. However, it was interrupted by the Second World War. During the war, 246,000 inhabitants of the region were drafted into the Soviet army, 128,500 of them were killed or gone missing.

In the postwar years, the restoration of the destroyed industry and agriculture began. The decision on the establishment of a powerful metallurgical industry in the center of Russia played an important role in it. Novolipetsk Steel was built by the entire USSR. Lipetsk, originally a small provincial town, turned into a large city. January 6, 1954, a separate Lipetsk oblast was formed from adjacent districts of Ryazan, Voronezh, Kursk, and Orel regions.

Nature of Lipetsk Oblast

Lipetsk Oblast scenery

Author: Constantin Silkin

Lipetsk Oblast landscape

Author: Aleksandr Dezhin

The road through the field in Lipetsk Oblast

Author: Anton Savin

Lipetsk Oblast - Features

The length of the Lipetsk region from north to south is 200 km, from west to east - 150 km. The main rivers are the Don and Voronezh. The largest cities and towns are Lipetsk (496,500), Yelets (99,200) and Gryazy (46,000).

The climate is temperate continental with moderately cold winters and warm summers. The average temperature in January is minus 11 degrees Celsius, in July - plus 20 degrees Celsius.

There are about 300 deposits of various minerals on the territory of the Lipetsk region: limestone, dolomite, sand, clay, cement raw materials. The region takes the first place in Russia by stocks of carbonate material. Also there are significant deposits of peat.

Metallurgy, food industry and machine building are the main industries of the local economy. Lipetsk Oblast produces about 20% of Russian pig iron and finished rolled steel, 18% - steel, 28% - washing machines, 26% - refrigerators and freezers, 70% - children’s fruit and vegetable preserves and juices, 13% - sugar, 12% - starch, 7% - mineral water.

Favorable climatic conditions and fertile black soil (more than 85% of the territory) contribute to the development of agriculture. The area of cultivated land is more than 1.8 million hectares. There are about 22 thousand hectares of fruit orchards (mainly apples, pears and plums). The region produces different crops, sugar beet, potatoes, cattle, pigs, and poultry.

Attractions of Lipetsk Oblast

The world’s first hyperboloid construction (1896), a steel openwork lattice tower built by the engineer and scientist Vladimir Shukhov, is located in the village of Polibino in Dankovsky district of Lipetsk Oblast. In Polibino you can also see a classical palace built in the Empire style in the 18th century and an extensive park.

The city of Yelets has numerous monuments of church and secular architecture, including the Cathedral of the Ascension (1889).

In Zadonsk, there are important monuments of church architecture and history, including three active monastery.

Meschersky Arboretum in Stanovlyansky district.

Borki Manor (Borki Castle) in the village of Borki in Terbunsky district - the only monument of architecture in the region built in the English Gothic style, an architectural monument of the last quarter of the 19th century.

The Memorial Museum of P.P. Semenov-Tyanshansky in Ryazanka Estate in Chaplyginsky district.

There are two reserves in the region: “Galichya Mountain”, the smallest nature reserve in Russia with preserved pre-glacial flora, and part of the Voronezh Reserve.

Lipetsk oblast of Russia photos

Pictures of lipetsk oblast.

Country road in the Lipetsk region

Author: Skuratov S.S.

Author: Vladimir Orlov

Orthodox church in Lipetsk Oblast

Author: Frantsuzov Sergey

Cathedral in Lipetsk Oblast

Author: Fomenko Aleksey

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