California Civil Jury Instructions (CACI)

327. Assignment Not Contested

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

New February 2005

Directions for Use

This instruction is intended to explain to the jury why a party not named in the original contract is nevertheless a party to the case.

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.”
  • “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