n Stellenbosch Law Review = Stellenbosch Regstydskrif - Once again : agreements prohibiting cession
|Article Title||Once again : agreements prohibiting cession|
|© Publisher:||Juta Law Publishing|
|Journal||Stellenbosch Law Review = Stellenbosch Regstydskrif|
|Publication Date||Jan 2008|
|Pages||483 - 494|
This note reconsiders the validity and effect of agreements prohibiting cession. The current legal position in South Africa, as set out in Capespan (Pty) Ltd v Any Name 451 (Pty) Ltd 2008 4 SA 510 (C), is evaluated in light of an analysis of international and European sources. Personal rights as assets in an estate enjoy increasing importance in global commerce, and the demands of commerce necessitate free and effective transfer of these rights. However, in striving to satisfy the demands of commerce and the interests of the creditor, the debtor's interests cannot be ignored. The current legal position is thus considered in light of all parties' positions. It is concluded that although agreements prohibiting cession should be valid in terms of the principle of freedom of contract, such agreements should only have an effect inter partes. In exceptional cases, the interests of the debtor may render an agreement prohibiting cession effective against third parties as well. The suggested reform diverges drastically from the current legal position, and thus a plea is made for the codification of the law of cession.
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