13.1 Legal effects of silent assignment

Chapter 1. Under the Dutch Civil Code of 1838, an assignment of claims required only a written deed. Notice to the debtor was not a prerequisite for transfer. It was possible to effect an assignment either with notice (a socalled disclosed or public assignment, 'openbare cessie') or without notice (a so-called undisclosed or silent assignment, 'stille cessie'). The assignment could also be employed for the purpose of providing security. In 1992, the new Civil Code of the Netherlands ('BW') was enacted. In the BW, the fiduciary security transfer was prohibited (art. 3:84 (3) BW), including the assignment of claims as security. In return, claims could be pledged withor without notice. After notice, the pledgee could collect the pledged claim. In this context it was considered that there was no need for the assignment without notice. The provision on assignment thus required both a written deed of assignment and notice (art. 3:94 (1) BW). Debtor notice for assignment was considered cumbersome as it often posed problems for bulk assignments, such as securitisations. In 2003, assignment without notice (the silent assignment) was reintroduced in art. 3:94 (3) BW, along with the existing provision on assignment with notice (the public assignment).

The current legal requirements for executing a silent assignment are similar to a silent pledge of claims (cf. the first sentence of art. 3:94 (3) BW and art. 3:239 (1) BW). Much has already been written about these legal requirements. However, not much is known or has been written about the legal effects of the silent assignment. Consequently, this book addresses the legal effects of the silent assignment, and in particular the legal effects between the creditor assigning the claim (assignor, 'oude schuldeiser'), the new creditor receiving the claim (assignee, 'nieuwe schuldeiser') and the debtor (schuldenaar).

The book's main premise is that the legal effects of a silent assignment are determined by three elements, as outlined below.

After assignment, the new creditor (the assignee; the cessionaris) becomes the legal owner of the claim and all accessory rights, just as with any transfer of a claim. The first element of a silent assignment therefore consists of the legal effects of the claim transfer. These are addressed for the most part in Book 6 BW (on the law of obligations).

After the claim transfer and before notice to the debtor, it is very likely that both the new and previous creditor (the assignor; the cedent) will agree that the assignor will retain some powers with respect to the claim, such as the power to collect the claim. The assignor will keep these powers on the basis of a contract of mandate. The second element of a silent assignment therefore deals with the scope of the assignor's mandate, and the legal effects of exercising any powers relating to the assigned claim.

The second sentence of art. 3:94 (3) BW states that an assignment cannot affect the debtor until the debtor is notified of the assignment by either the assignor or the assignee. This sentence governs the legal effects of the silent assignment with regard to the debtor (the debitor cessus) and therefore constitutes the third element of the legal effects of the silent assignment.

Chapter 2 examines the three elements of the legal effects of the silent assignment. The legal effects of the transfer of claims are mostly regulated in Book 6, title 2, division 1 BW (afdeling 6.2.1 BW). If a claim is transferred, the assignor also becomes the owner of the accessory rights, such as the rights of pledge and rights of mortgage (art. 6:142, 3:82 BW). The debtor can raise all defences against the assignee that could have been raised against the assignor before assignment (art. 6:145 BW). The debtor's powers and rights are regulated separately in various provisions, particularly in Book 6 BW (for example, art. 6:32, 6:34 BW (payment), art. 6:130 (1) BW (set-off) and art. 6:149 BW (dissolution and nullification of the underlying contract)). The assignee does not become a party to the underlying legal relationship between the assignor and the debtor, such as a contract from which the assigned claim arose. Also, the assignee does not succeed the assignor in his contractual obligations vis-a-vis the debtor.

Although the silent assignee is the debtor's new creditor, the debtor will generally continue to view the silent assignor as the creditor of the claim. According to the second sentence of art. 3:94 (3) BW, the debtor can also consider the assignor as the creditor of the claim until notification of the assignment. The assignee and the assignor can agree that from the moment of assignment to the moment of notice, the assignor is authorised to collect the claim and to perform other legal acts related to the assigned claim. If the assignor is authorised to do so, he can perform those legal acts not as the owner or the creditor of the claim, but as a third party. The legal ground for attributing those powers to the assignor is a contract of mandate (art. 7:414 (1) BW; lastgeving). The assignor will act as the mandatee (lasthebber), and the assignee as the mandator (lastgever). On the basis of art. 7:414 (2) BW it is possible for a mandatee to perform legal acts in his own name for the account of the mandator. On the basis of art. 7:423 (1) BW it is also possible for the mandatee to exercise his powers to the exclusion of the mandator, a so-called exclusive mandate (privatieve last). The contract of mandate can be implicit. In this chapter, I refute the legislative view that the second sentence of art. 3:94 (3) BW is the legal basis for designating the assignor with the power to collect the claim, as art. 3:94 (3) BW only deals with the position of the debtor, not with the attribution of powers to the assignor.

In the contract of mandate, the assignee and the assignor can determine the scope of powers to be attributed to the assignor. In the absence of such an agreement, I have investigated which powers are most likely to be attributed to the assignor. For this, I have compared and systematically analysed other legal institutions, where third parties have been attributed powers with regard to another person's goods, including claims. In this book, I analyse these legal institutions under the heading 'exercising someone else's right' (uitoefening van andermans recht). From this analysis, I allege that powers attributed to a third party for the benefit of the owner (cf. fiducia cum amico) are wider in scope than those powers attributed for the benefit of creditors (cf. fiducia cum creditore). Moreover, if powers with regard to an owner's entire patrimony are attributed to a third party, the third party generally has more powers than if powers are attributed to him with regard to one or more specific goods.

On the basis of this systematic analysis, four categories of uitoefening van andermans recht are distinguished. The first category consists of pledge (pand) and attachment (beslag). In this situation, powers are attributed for the benefit of the creditor with regard to one or more goods. The pledgee and the creditor only have specific powers, that is, only those powers necessary to execute the goods. If a claim is pledged or attached, the pledgee and the creditor have the power to collect or sell the claim. The second category consists of usufruct (vruchtgebruik), bewind (cf. trust without ownership), community of property (gemeenschap) and third party account (kwaliteitsrekening). Powers in this category are attributed for the benefit of the owner(s) or other co-owners with regard to one or more goods. The usufructuary, the bewindvoerder (cf. trustee), the sharer in the common property and the third party account holder have the power to manage or to administer the goods (beheersbevoegdheid). They share the power to dispose of the goods with the owner(s) or other co-owners (beschikkingsbevoegdheid). If the beheersbevoegdheid is attributed to a third party, that person has the power to perform those legal acts considered favourable for the administration or the management of goods. The third category consists of liquidation (faillissement), suspension of payment (surséance vanbetaling), execution of hereditary estates (vereffening van nalatenschappen) and similar legal institutions. In these situations, powers are attributed for the benefit of creditors with regard to a whole patrimony. The liquidators and the other third parties have the power to manage and execute the patrimony. The fourth category consists of legal institutions such as legal persons, including corporations (rechtspersonen), partnerships (vennootschappen) and marital/community of property (huwelijksgemeenschap). In these situations, powers are attributed for the benefit of the owners with regard to a patrimony. The directors, the partners and the respective spouses have full powers (bestuur) with regard to the patrimony, in principle equal to those of the (single) owner of a patrimony. I argue that the powers of the assignor, as a mandatee, belong in the second category. The assignor will not only have the power to collect the claim, but also the power to perform other legal acts if they can be considered favourable for the management of the claim. This book refutes the position held by the legislature that the assignor, just as a pledgee, only has the power to collect the claim. Throughout the following chapters, I will use insights derived from comparable legal institutions to investigate the meaning of the beheersbevoegdheid relating to claims, and the legal effects of a third party exercising powers relating to another person's claim.

The second sentence of art. 3:94 (3) BW states that an assignment cannot affect the debtor until the debtor is notified by either the assignor or the assignee. From the second sentence of art. 3:94 (3) BW it follows that the debtor can consider the assignor the creditor in the claim, until notification of the assignment. For the debtor's protection, good faith is not required. The debtor is also protected if he knew or should have known about the assignment, as long as he was not notified of the assignment by the assignor or the assignee. On the basis of the second sentence of art. 3:94 (3) BW, in the case of a silent assignment, the legal provisions relating to the defences, powers and the debtor's rights in the event of a transfer of a claim become applicable at the moment of notice, and not at the moment of assignment.

Chapter 3 examines the power to collect claims (inningsbevoegdheid), the power to serve notice on the debtor. requiring a failure in payment to be remedied (ingebrekestelling; the default notice) and the legal effects of exercising these powers vis-a-vis the debtor. The power to collect includes the powers to receive payment, to demand payment out of court and to sue the debtor in court. The powers to collect and to serve default notice form part of the creditor's powers in a claim, and after a transfer, the new creditor has these powers. The silent assignor can exercise these powers in his own name, if he and the silent assignee agreed to do so in a contract of mandate. The silent assignor can also exercise these powers if he has the beheersbevoegdheid. The beheersbevoegdheid includes the power to collect and the power to serve default notice, if the exercise of these powers is considered favourable for the management of the claim, which is generally the case. To avoid liability, the assignor can request the assignee's permission when performing certain legal acts regarding the assigned claim. If the assignor is declared bankrupt, the contract of mandate is terminated (art. 7:422 (1) BW). The bankruptcy trustee is not authorised to collect the assigned claim for the benefit of the assignor's bankruptcy estate, as the claim does not form part of the estate. Throughout the book, I operate under the assumption that the silent assignor has the power to collect the claim and to serve default notice on the debtor.

When the assignor receives payment of the assigned claim in his own name, the legal effects of receiving payment vary according to the type of payment. Three categories of payment can be distinguished. First, the delivery of moveable assets and rights payable to bearer or to order. Second, the delivery of goods, such as immoveable assets (real property), intellectual property rights and claims. Third, the book-entry payments (payments by giro) of money, securities or carbon dioxide emission rights. If the assignor receives payment of moveable assets or rights payable to bearer or to order by delivery of the asset or the paper in his own name, the assignee becomes the owner (art. 3:110 BW). If the assignor receives payment of immoveable assets, intellectual property rights and claims and is mentioned as the transferee in the written act of transfer (which written act constitutes the transfer), he - and not the assignee - becomes the owner. If the assignor receives payment by giro on an account administered in his own name, he- and not the assignee -becomes the owner of the balance administered in the account. If the assignor becomes the owner, he must transfer the goods or the book-entry balance to the assignee. With regard to the second and third category, it is assumed that the assignee consents to the assignor becoming the temporary owner. If this assumption were not permitted, the assignor would be forced to act as the assignee's disclosed agent compromising the character of the silent assignment.

According to the BW, for non-monetary claims and claims for the payment of the purchase price (contract of sale), the place of payment is the residence of the debtor (art. 6:41 (1), 7:26 (2) BW). For other monetary claims, the place of payment is the domicile of the creditor (art. 6:116 (1) BW). On the basis of the second sentence of art. 3:94 (3) BW, the debtor is not affected by this until the moment of notice. The new creditor is bound by any agreements between the previous creditor and debtor regarding the place of payment. The arrangement is accessory to the claim, as it determines the content of the claim. A beheersbevoegde assignor has the power to enter into such an arrangement with the debtor, if entering into such an arrangement can be considered favourable for the management of the claim. If the assignor enters into such an arrangement, the assignee is directly bound by it, as the arrangement concerns his claim. Indeed, the claim has been altered by the contractual arrangement. The creditor can designate a different place of payment in the country, such as the creditor's location at the moment of the claim's existence or at the moment of payment of the claim. After assignment, the assignee is authorised to do so. An assignor with the authority to manage the claim also has the power to allocate a different place of payment, if doing so can be considered favourable for the management of the claim. However, if the residence of the assignee is in a different country, the assignor cannot designate this country for allocating a different place of payment, as the debtor is not affected by the change of creditor until the moment of notice.

As the result of the transfer of a claim, the assignee has the power to demand payment out of court and the power to service a default notice. If the assignor has the power to collect the claim on the basis of the contract of mandate, the assignor will be authorised to demand payment out of court and to serve default notice on the debtor. A debtor in default before the assignment remains so after the assignment. It is not necessary for the assignee to serve a new default notice to the debtor. The assignee also benefits when the assignor as a third party serves the default notice in his own name after assignment and before notice. After notice to the debtor, the assignee does not have to serve a new default notice. The assignor must inform the assignee if a debtor is in default.

After assignment, the assignee has the power to sue the debtor in court. If the debtor has not been notified, the assignor has the power to sue on the basis of mandate. He can sue in his own name, and need not disclose that he is suing on behalf of another party, the assignee, and not on his own behalf (the case Haantjes v. Damstra). The assignor is the formal party (formele procespartij) to the procedure, the individual who performs the legal acts in court. The assignee is the material party (materiele procespartij), the party whose interest is at stake. As the material party to the procedure, the assignee is bound by the judgment. In bankruptcy proceedings, the assignor is authorised to file a claim with bankruptcy trustees.

If the assignor has sued the debtor in court and the claim is subsequently assigned, the assignor will continue to act as the formal party. The assignor can only be replaced as the formal party to the procedure if the assignee files a formal request for replacement during the procedure or by lodging an appeal. The assignor has the right to appeal if he has an interest in the procedure, such as an obligation to pay the legal costs. If the debtor and the assignor have agreed to arbitration or have made other arrangements as to the competent court, the assignee is bound by these agreements. Chapter 3 explores various technical aspects of civil proceedings related to assignment.

Chapter 4 explores the rights of a creditor to make a claim due and payable, and the assignor's right to stop the limitation period. An example of exerting a contractual right to make a claim due and payable arises in the event of default. Another example is the contractual right to make a choice in alternative obligations. The assignee acquires these accessory rights by operation of law. An analysis of comparable legal institutions shows that third parties authorised to collect a receivable, are also authorised to exercise these rights. I suggest that an assignor with the power to collect should also be authorised to exercise these rights, unless the parties have agreed otherwise.

I contend that an assignor has the authority to interrupt the period of limitations, and that he can do so not only in his capacity as former creditor of the claim, but also as a third party authorised to collect the claim. Barring the claim in his own name has legal effects on the claim itself and, therefore, has legal consequences for the assignee as the creditor of the claim.

Chapter 5 deals with the various security rights of a creditor. Among other items, the chapter discusses the right of pledge, the right of mortgage, statutory preference, special recourse rights on goods of third parties, retention of title (eigendomsvoorbehoud), lien (retentierecht), bail (borgtocht), plurality of debtors, abstract bank guarantees and financial collateral arrangements. Two questions are central to these security rights. 1) If the secured claim is assigned, does the assignee acquire the security rights by operation of law? 2) If a secured claim is assigned and additional security rights are granted to the assignor in his own name, does the assignee acquire these additional security rights and if so, how?

Rights of pledge and rights of mortgage are accessory rights and are transferred by operation of law if the secured claim is transferred. I propose that, based on case law regarding the attachment of claims (the case Rabobank v. Stormpolder), if the assignor has the power to collect the claim, he should also be authorised to exercise the accessory security rights.

If the matter concerns an all sums right of pledge or an all sums right of mortgage, and only one claim is transferred, the assignor and the assignee become joint owners of the all sums right of pledge or mortgage. Only the assignor benefits from the all sums character of the security right. The share in the all sums right of pledge or mortgage is determined at the moment of execution when the debtor is in default. The share may vary according to the acquisition of new secured claims by the assignor or by the loss of existing claims by the assignor or assignee.

It is possible for a creditor and a debtor to agree that the security exists only for the creditor's claims, and not for assigned claims. It is not possible for the assignor and the assignee to agree to the assignment of the claim without any accessory security rights, in such a way that the assignor stays the owner of the accessory security rights and that the assignee becomes the owner of the claim. If new rights of pledge or mortgage are vested in the name of the assignor after the assignment and before the notice to the debtor, I contend that the assignee automatically acquires these rights because of the accessory character of the security right.

The discussion arising out of the rights of bail agreements, statutory preferences and special recourse rights on goods of third parties follows the lines of reasoning surrounding the rights of pledge and the rights of mortgage.

Retention of title is not an accessory right, as ownership in assets cannot be accessory. The same holds true for rights arising from a fiduciary security transfer, which are in principle not allowed under the current BW ex art. 3:84 (3) BW. The assignor shall either be obliged to exercise the retention of title on behalf of the assignee or transfer the asset to the assignee.

A lien is not an accessory right either. A creditor in possession of goods owned by the debtor may retain the goods as security for payment. If necessary, recourse can be sought on the assets, and normal court procedures must be followed. By doing so, the creditor's statutory preference ranks above all individuals in upholding his right to payment. While the right to retain the asset is not an accessory right, the statutory right of preference is. Thus, the assignor must exercise his right of retention to assist the assignee in obtaining payment for the claim.

Where two or more debtors are bound to perform the same obligation (plurality of debtors), it is generally assumed that the creditor has two claims. If one of those claims is assigned, the other claim does not follow by operation of law. In order to avoid difficulties, both claims should preferably be assigned to the assignee. In situations where this is not the case, I hold that the rules on joint ownership of claims should apply by analogy. This means that the assignor and the assignee should in principle collect the claims together and share the proceeds equally.

Abstract bank guarantees are non-accessory rights. They can only be transferred separately with the assigned claim if the guarantor has agreed to this, as the right to call upon the bank guarantee is strictly personal to the beneficiary (the creditor). However, if the bank guarantee has been called upon, the claim arising out of the bank guarantee can be transferred, just as any other claim can be.

Where security rights are non-accessory (retention of title, lien, plurality of debtors, abstract bank guarantees), the assignor can exercise these right on behalf of the assignee, not as a third party, but as the owner of the right. Financial collateral arrangements are treated like rights of pledge and rights out of fiduciary security transfers.

Chapter 6 discusses any new claims by the creditor that may replace the 'main' claim or accrue next to the main claim.

If the claim has been replaced by a claim for damages towards the debtor or a third party before assignment, whether the claim for damages will be assigned instead of the main claim depends on the agreement between the assignor and the assignee. Any additional claims for damages which arise before assignment are acquired by and remain with the assignor, unless they are assigned separately. These claims are considered independent claims, and as in the case of ownership of assets, these claims cannot be accessory. Any additional claims for damages which arise after assignment are acquired by the assignee. This also holds true for interest claims and various penalty claims. These claims arise out of an interest clause, a penalty clause or a penalty court order and only exist at the moment they become due. The existing claims are not accessory rights, unlike the clauses and the court orders out of which they arise. For various reasons, I argue that if the assignor can collect the assigned main claim and unless parties agree otherwise, he should also be authorised to collect claims on behalf of the assignee which replace or assist the main claim. After assignment, damages are determined by those suffered by the assignee. Damages arising from the assignee's personal circumstances cannot be held against the debtor if they are more than what the debtor could have reasonably expected when the assignor was the creditor. This holds true on the basis of the second sentence of art. 3:94 (3) BW. Chapter 6 further explores various technicalities relating to those claims.

Chapter 7 investigates the contracts of sale, insurance and mandate relating to the assigned claim, and the power to transfer and to vest limited rights on the assigned claim. The assignor may have contracted with third parties before the assignment. If the rights arising from this contract are closely connected with the assigned claim, and the assignor has no interest in them, if he is no longer the owner of the claim, the assignee acquires these rights by operation of law. These rights are not accessory rights, but qualitative rights. They are closely connected with the quality of the owner of the good. The assignee acquires rights vis-a-vis a previous seller of the claim, a mandatee and a credit insurance company, respectively.

Before and after the assignment, both the assignor and the assignee can enter into any contract with regard to the claim. Only the owner of the claim can transfer it or vest a limited right on it. In general, before an assignment, only the assignor has the power to dispose of the claim; after an assignment, only the assignee has this power. However, I hold that if the assignor retains authorisation with regard to the assigned claim on the basis of a contract of mandate, the assignor and the assignee should only be able to dispose of the claim together or with the consent of the other. Reference is made to similar legal institutions such as bewind.

Chapter 8 deals with legal acts which may be detrimental to the value of a claim. Three categories are distinguished. First, legal acts of the creditor vis-a-vis the debtor, such as agreeing to new conditions, a different performance, a different debtor or the renouncement of a claim. Second, inaction by the creditor, such as not appearing in civil proceedings, not demanding payment and not cooperating when payment is offered by the debtor. Third, legal acts by third parties and the necessary measures which can be taken to protect the value of the claim. Prior to the assignment, the assignor has the power to decide whether to perform, and the power to take action against third parties. After assignment, the assignee has these powers.

If the assignor has a mandate to collect the claim, I assert that the assignor should be able to perform the legal acts of the first category if they are favourable for the management of the claim, which is sometimes the case. I also suggest that if the assignor is authorised to collect the claim, he also has the obligation to sue and appear in civil proceedings, demand payment, and to cooperate with the debtor when offered payment. In this chapter, I elaborate on the technicalities of doing nothing as well as the legal consequences of inaction by both the assignor and the assignee. Last, I argue that if the assignor is authorised to collect the claim, whether he is also allowed to take action against third parties threatening the value of the claim depends on the content of the mandate. The assignor could be authorised to take such action if this would be favourable for the management of the claim, which is generally the case.

Chapter 9 explores the various powers held by each party to the contract from which the assigned claim arises, and the powers relating to reciprocal obligations. These powers include the power to dissolve, to nullify and to cancel the contract, the power to change and transfer the contract, the power to suspend payment and the power to set off.

The powers to dissolve, to nullify and to cancel a contract remain with the assignor, as he remains a party to the contract. When exercising these powers and ending the contract, the assignor, must take the assignee's interests into account. As these powers remain with the assignor, they do not have to be granted to the assignor in the contract of mandate. However, the contract between the assignor and assignee may regulate the execution of these powers.

The power to change and the power to transfer the contract also remain with the assignor. In principle, any changes or transfer of the contract will not influence the assigned claim, as the claim is separated from the contract at the moment of assignment. However, if the assignment is silent, the assignment cannot affect the debtor until the debtor is notified. The debtor can therefore consider a change in the contract that took place before notice as a change in the assigned claim. Thus, he can consider the new party his new creditor after the transfer of the contract. For these reasons, the assignor is not authorised vis-a-vis the assignee to make changes in the contract or transfer the contract without the consent of the assignee.

If the debtor does not perform with regard to the assignee, the assignor can suspend performance if he has any obligations towards the debtor which are closely connected with the assigned claim. In this chapter, I hold that reciprocity in creditorship is not a prerequisite to exercise the power of suspension of performance. Should the assignee have any obligation to the debtor which is closely connected with the assigned claim, which is rare, he can suspend performance.

If the assignor has an obligation for an assigned claim with regard to the debtor, he cannot set off this obligation. Set-off happens by declaration, after the moment of assignment and before the moment of notice. The assignee in principle can do so if he has an obligation which can be set-off vis-a-vis the debtor. However, on the basis of the second sentence of art. 3:94 (3) BW he can only do so from the moment of notice, which will be implied by the declaration of a set-off. The debtor and his creditor can agree to a different contractual arrangement.

Chapter 10 deals with the position of the debtor, which is- apart from his main obligation to perform- constituted by his defences, his powers and his counterclaims.

The debtor can raise all defences against the assignee that could have been raised against the assignor before notice of assignment. This follows from the second sentence of art. 3:94 (3) BW in conjunction with the general rule that the debtor can raise all defences against the assignee that could be raised before assignment against the assignor (art. 6:145 BW). Similar to this latter rule, the debtor can also raise all defences against a third party collecting a claim that could have been raised against the creditor. Various defences that a debtor can use are discussed.

The debtor's powers are not covered by the aforementioned rules. On the basis of the second sentence of art. 3:94 (3) BW, the debtor can disregard the assignment until receiving notice by the assignor or the assignee. Once notice is served, the normal rules regarding assignment apply. The debtor retains powers which relate solely to the claim, such as the power to perform or the power to transfer his debt with the creditor's consent. These legal acts must be conducted vis-à-vis the assignee after notice.

The powers of the debtor relating to a counterclaim are outlined in various provisions. The debtor can exercise his right of set-off against the assignor with regard to 1) a debt that was due before the date of notice, and 2) a debt that arises out of the same contractual relationship out of which the assigned claim arose, whether the debt is due at the moment of notice. From the moment of assignment, the debtor can set-off a debt of the assignee with the assigned claim. The debtor can suspend payment if the assignor does not cancel his debt vis-à-vis the debtor which is closely connected to his claim, disregarding whether the assignor's claim has been assigned. However, after receiving notice the debtor can neither file a counterclaim against the assignor in civil proceedings nor attach the assigned claim for a counterclaim.

If the debtor wishes to terminate the contract, he should direct the declaration of dissolution or nullification to the assignor. After receiving notice, he should also inform the assignee if the dissolution or the nullification would be detrimental for the assigned claim. If the debtor is sued by the assignee, he cannot file a counterclaim for dissolution or nullification in the same civil proceedings. He will have to include the assignor in separate civil proceedings, which is a cumbersome process.

If the assignor assigns the claim, any existing counterclaims by the debtor against the assignor are not transferred to the assignee by operation of law. However, the obligations vis-à-vis the debtor arising out of the creditorship and the accessory security rights, such as the obligation to return a pledged asset if and when the secured claim is paid, are transferred to the assignee upon notice. The assignor is liable for the assignee's performance of these obligations (art. 6:144 (1) BW). If the debtor can reclaim what he has paid, for example after the nullification of the contract, he can raise a claim against the assignor. This is not the case if the assignor transferred the payment to the assignee in a period when he reasonably did not expect the obligation to repay the debtor. The debtor can make a claim on the basis of unjustified enrichment against the assignee.

Chapter 11 investigates the rights and obligations in the legal relationship between the assignor and the assignee. The rights and obligations are determined by two aspects: (i) the contract of sale and the transfer of the claim, and (ii) the contract of mandate. Three types of obligations can be distinguished.

The first type of obligations relates to the possession of the claim and to publicity. On the basis of the contract of sale and the transfer of the claim, the assignor- as seller and transferor- is required to 'hand over' the claim to the assignee in such a way that the assignee - as buyer and transferee -can present himself as the rightful owner of the claim. On the basis of the contract of mandate, the assignee - as the mandator - is also required to 'hand over' the claim to the assignor- as the mandatee -in such a way that the assignor can collect the claim. These obligations result in the postponed obligation of the assignor to only 'hand over' the claim at the moment of notice. Other related obligations arising out of the contract of sale are further discussed.

The second type of obligations is fiduciary in nature. Before the moment of assignment, the assignor- as transferor and seller- has a duty of care relating to the assigned claim. After the moment of assignment, he also has a duty of care relating to the security rights that are not transferred by operation of law, and to the underlying contractual relationship, insofar as these can influence the position of the assignee. If the assignor receives payment from the debtor after the moment of assignment, he must transfer payment to the assignee. As a mandatee, the assignor also has a duty of care with regard to the assigned claim as long as he is authorised to collect the claim. Among other things, he must maintain separate accounts, ensure their accuracy and avoid a conflict of interest.

The third type of obligations relates to costs and remuneration. The assignee is responsible for the costs of the assignment and for the costs and remuneration of the assignor as a mandatee.

If neither assignor nor assignee complies with these obligations, the other party has the right to: (i) claim performance, (ii) suspend performance of his own obligations, (iii) claim damages or (iv) terminate the contract.

Chapter 12 outlines the legal effects of the silent assignment.

This chapter begins with an overview on the rights and powers of creditors, followed by an explanation of the rights and powers which are transferred to the assignee after assignment, and the rights and powers which remain with the assignor. This section also discusses the difference between the various accessory rights, as distinguished from qualitative rights and independent rights.

The chapter also investigates the acquisition of rights and distinguishes it with the acquisition of new claims in conjunction with or in the place of the original claim, the acquisition of new accessory (security) rights and the acquisition of money and goods through payment of the claim by the debtor.

I also explore the exercise of a right by a third party, and investigate the content of the power to collect a claim, the content of the power to dispose of a claim, the content of the power to administer a claim (beheersbevoegdheid) and the meaning of the case Rabobank v. Stormpolder. I also review the outcomes of the systematic analysis of the various legal institutions described in Chapter 2, as applied to the content of the contract of mandate relating to the silent assignment.

The fourth and fifth paragraph summarise the legal relationship between the assignor and the assignee and the legal position of the debtor.