California Civil Jury Instructions (CACI)

326. Assignment Contested

[Name of plaintiff] was not a party to the original contract. However, [name of plaintiff] may bring a claim for breach of the contract if [he/ she/it] proves that [name of assignor] transferred [his/her/its] rights under the contract to [name of plaintiff]. This transfer is referred to as an “assignment.”

[Name of plaintiff] must prove that [name of assignor] intended to transfer [his/her/its] contract rights to [name of plaintiff]. In deciding [name of assignor]’s intent, you should consider the entire transaction and the conduct of the parties to the assignment.

[A transfer of contract rights does not necessarily have to be made in writing. It may be oral or implied by the conduct of the parties to the assignment.]

New February 2005

Directions for Use

The bracketed third paragraph should be used only in cases involving a transfer that may be made without a writing.

Sources and Authority

  • Civil Code section 1052 provides: “A transfer may be made without writing, in every case in which a writing is not expressly required by statute.”
  • Restatement Second of Contracts, section 324, provides: “It is essential to an assignment of a right that the obligee manifest an intention to transfer the right to another person without further action or manifestation of intention by the obligee. The manifestation may be made to the other or to a third person on his behalf and, except as provided by statute or by contract, may be made either orally or by a writing.”
  • “While no particular form of assignment is required, it is essential to the assignment of a right that the assignor manifest an intention to transfer the right.” (Sunburst Bank v. Executive Life Insurance Co. (1994) 24 Cal.App.4th 1156, 1164 [29 Cal.Rptr.2d 734], internal citations omitted.)
  • “The burden of proving an assignment falls upon the party asserting rights thereunder. In an action by an assignee to enforce an assigned right, the evidence must not only be sufficient to establish the fact of assignment when that fact is in issue, but the measure of sufficiency requires that the evidence of assignment be clear and positive to protect an obligor from any further claim by the primary obligee.” (Cockerell v. Title Insurance & Trust Co. (1954) 42 Cal.2d 284, 292 [267 P.2d 16], internal citations omitted.)
  • “The accrued right to collect the proceeds of the fire insurance policy is a chose in action, and an effective assignment thereof may be expressed orally as well as in writing; may be the product of inference; and where the parties to a transaction involving such a policy by their conduct indicate an intention to transfer such proceeds, the courts will imply an assignment thereof. In making such a determination, substance and not form controls.” (Greco v. Oregon Mutual Fire Insurance Co. (1961) 191 Cal.App.2d 674, 683 [12 Cal.Rptr. 802], internal citations omitted.)
  • “An assignor may not maintain an action upon a claim after making an absolute assignment of it to another; his right to demand performance is extinguished, the assignee acquiring such right. To ‘assign’ ordinarily means to transfer title or ownership of property, but an assignment, to be effective, must include manifestation to another person by the owner of his intention to transfer the right, without further action, to such other person or to a third person. It is the substance and not the form of a transaction which determines whether an assignment was intended. If from the entire transaction and the conduct of the parties it clearly appears that the intent of the parties was to pass title to the chose in action, then an assignment will be held to have taken place.” (McCown v. Spencer (1970) 8 Cal.App.3d 216, 225 [87 Cal.Rptr. 213], internal citations omitted.)

Secondary Sources

1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 707–719

6 California Forms of Pleading and Practice, Ch. 60, Assignments, § 60.20 (Matthew Bender)

27 California Legal Forms, Ch. 76, Assignments of Rights and Obligations, § 76.201 (Matthew Bender)

2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 22, Suing or Defending Action for Breach of Contract, 22.51–22.56, 22.58, 22.59