<!-- [if gte mso 9]><xml>
We’ve all heard the expressions before: someone is going to cede something to someone else. A supervisor or someone of that position is constantly delegating tasks to someone below themselves, or someone is being given an assignment that requires completion. All of these refer to some kind of a right, or obligation being given to another person. What are each of these and what is it that they do or mean?
The principles of Cession were very well set out by the South African Appellate Division in 1983 during the case of Johnson v Incorporated General Insurance Ltd in which it was held that cession in modern law is an act of transfer: it enables the transfer of a right to take place which is accomplished by way of an agreement to transfer the right. It is entered into between a Cedent and a Cessionary, which arises from a lawful cause in which a Cedent intends to transfer its right to a claim to a Cessionary who intends to become the holder of the right. The Cessionary is then further entitled to cede that right to someone should they choose to do so. This means that any right that Cedent once had is given to the Cessionary who becomes the owner of the right and a Cedent would no longer have any claim to that right.
A very simple example would be the following; lets say that X renders services to Y for an amount of R100. Z owes Y R100 because they lost a bet with one another. In order to make things simple, Y could cede his right to receive payment from Z to X, and X could therefore claim the R100 from Z directly. This has the effect of putting a new creditor into the shoes of the old creditor. However, let’s say that Z does not pay X, and court proceedings ensue. X would no longer be able to claim from Y as Y ceded his right to the R100 from Z to X. Y therefore no longer has the capacity to sue or be sued for that amount, his role would be no more than that of a witness who may testify to that effect.
Delegation, put simply, is the act of giving another person the responsibility of carrying out a performance that you contracted into. Therefore, in the commission of delegation there are 3 persons involved; The delegator (this is the person who actually incurred the obligation to perform), the delegate (this is the person to whom the responsibility of performing the obligation has been given), and finally the person to whom the obligation is due to, this person is known as the obligee.
A very practical example would be the following; A contacts B who owns a well known swimming pool company. A explains to B that his pool is terribly dirty and would like for B to arrange for his pool to be cleaned. B, after obtaining consent from A, then sends an employee, C, to go and clean the swimming pool. The contract was entered into between A and B, however the actual task of fulfilling the obligation was done by C. Should anything go wrong however, for example C accidentally broke the pool light while sweeping; B (as the delegator) would be held liable and accountable by A for any damage caused by C in carrying out what he had been delegated to do.
Assignment is a process which denotes a transfer of both rights and obligations. Christie, in the book The Law of Contract in South Africa, 4th Edition, 2001, describes assignment as the following; “Stepping into another’s shoes involves acquiring his rights , which can be done by cession without the debtors consent, and undertaking his obligations, which can be done by delegation with the creditors consent. Since the lesser is included in the greater it follows that the whole process of substitution cannot take place without the consent of the other Party to the contract.” It therefore combines both cession and delegation.
An example of assignment could be this. You sought out a new business venture and as a result of this you bought a company. This company came with numerous clients and employees. With assignment having taken place, you carry all the rights and responsibilities of an employer as the previous employer has now fallen away.
In the most basic way possible, Cession, Delegation and Assignment could be explained like this;
Cession is the transfer of a right from one person to another, delegation is the transfer of an obligation or duty from one person to another and assignment is a combination of the two.