California Civil Jury Instructions (CACI) (2017)

326. Assignment Contested

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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
• Oral Assignments. Civil Code section 1052.
“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.)
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• “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
6California 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
CONTRACTS CACI No. 326
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