Can rights be assigned without the other party's consent?

A claim can often be assigned (cessie) without consent unless the contract prohibits it, but transferring the whole contractual position (contractsoverneming) always requires the other party's cooperation.

What is a "change of control" clause and how does it relate to assignment?

A change-of-control clause triggers rights (often termination) if ownership of a contracting party changes hands, even without a formal assignment. It is a common risk-management tool in M&A transactions.

Is subcontracting the same as assignment?

No. Assignment transfers rights or the whole contract position. Subcontracting means engaging a third party to perform obligations, but the original party remains liable to the counterparty. Contracts often restrict both separately.

How does cessie work in practice?

Under BW 3:94, a claim is assigned by a deed of assignment between the assignor and assignee. The assignment must be notified to the debtor to be effective against the debtor, after which the debtor can only discharge its obligation by paying the assignee.

Can an assignment prohibition be waived?

Yes, by agreement between the parties. The party holding the benefit of the restriction can waive it, typically in writing. Without waiver, an assignment in breach of a prohibition may still be effective as between assignor and assignee, but the counterparty can hold the assignor liable.

Assignment

Transferring contractual rights or obligations from one party to another.

Définition

Assignment is the transfer of contractual rights (and sometimes the whole position) to a third party. Contracts often restrict assignment, requiring the other party's consent so they are not landed with an unknown counterparty. Dutch law distinguishes the assignment of a claim (cessie) under article 3:94 from the transfer of an entire contractual position (contractsoverneming) under article 6:159, which needs the other party's cooperation.

Exemple

A supplier wishes to assign its right to receive payment to a factoring company; the contract requires the customer's prior written consent.

Pourquoi c'est un risque pour l'entreprise

Unexpected assignment can expose a business to dealing with an unknown third party. A supplier that assigns its receivables to a factor means you now owe money to a financial institution, not your commercial partner. Equally, a prohibition on assignment without consent can block a corporate restructuring if contracts are not reviewed in advance.

Comment le gérer

Include a no-assignment clause if you need to control who your contractual counterparty is; include a carve-out for intra-group transfers if relevant.
Before a corporate restructuring, audit contracts for assignment restrictions so you can seek consents or restructure around restrictions in advance.
If you are assigning rights, notify the counterparty promptly and in the correct form required by the contract.

Références juridiques

Sauf mention contraire, les références renvoient au droit néerlandais (Burgerlijk Wetboek, le Code civil néerlandais) ; les instruments de l'UE tels que le RGPD s'appliquent dans toute l'UE. Il s'agit d'informations générales, pas de conseils juridiques. D'autres juridictions traitent ces concepts différemment. Vérifiez le texte en vigueur et votre situation avec un avocat qualifié.

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