reason for no assignment

Rethinking the “No Assignment” Provision

27 November 2023 20 November 2012 | Ken Adams

In this post , Brian Rogers explains how, as an experiment in crowdsourcing contract language, he has posted on Quora ( here ) his candidate for “the best anti-assignment provision in a contract ever.” He says that it’s “probably lifted” from Negotiating and Drafting Contract Boilerplate (Tina Stark ed. 2003) ( NDCB ). Here’s Brian’s provision:

Neither party may assign any of its rights under this agreement, either voluntarily or involuntarily, whether by merger, consolidation, dissolution, operation of law, or any other manner, except with the prior written consent of the other party. Neither party may delegate any performance under this agreement, except with the prior written consent of the other party. Any purported assignment of rights or delegation of performance in violation of this section is void.

It so happens that I’ve been idly contemplating shortcomings in standard no-assignment language. That’s something that I’ve tackled previously ( here ), and Brian’s post prodded me to revisit the topic.

I’ll start by offering the following comments on Brian’s provision:

• In the interest of consistency I prefer using “shall not” for language of prohibition, but that’s something I’m still exploring. Using “neither party may” works too.
• If you provide for the possibility of consent, it would be safest to assume that consent can’t be unreasonably withheld. If you have a problem with that, omit any mention of consent.
• Isn’t “voluntarily or involuntarily” needless elaboration, analogous to saying “I don’t eat fish, whether fresh-water or salt-water”?
• To avoid having to be all encompassing (“or in any other manner”), I’d use “including”.
• You might want to make it clear whether the prohibition applies to mergers regardless of whether the party is the surviving or disappearing entity (see this post ).
• The distinction between assigning rights and delegating obligations is pointless; in this context, “assign” and “delegate” constitute what I call “misapplied terms of art” (see this post ). Because the provision refers to what is being assigned and delegated, a generic alternative to both words would work just as well, and I opt for “transfer”. Regarding that choice, NDCB , at 56, says, “The problem, however, is that there are reams of cases that analyze ‘assign,’ but not ‘transfer.’ If ‘transfer’ were used alone, the precedential value of the existing cases might be compromised. Moreover, the cases already question the meaning of ‘transfer.'” This doesn’t worry me, as the context makes it clear what’s going on.
• It’s unclear what “rights” refers to. (I don’t use the word “rights” anywhere in MSCD .) I think it refers to discretion granted to a party under an agreement and any remedy that a party has under an agreement, and I’d rather make that explicit.
• By referring to delegation of performance rather than delegation of obligations, Brian’s provision seeks to reflect that a party might delegate not only a duty but also a condition. See NDCB at 26, 74. But I think it’s unrealistic to expect readers to deduce that nuance from a reference to delegation of performance; it would be better to make it explicit.
• The last sentence is language of policy. I suggest that because it relates to a contingent future event, most native English speakers would say “will be void” rather than “is void”.

So here’s my initial version (it’s certain to change) [ Updated 9 August 2016: Language tidied up]:

Except with the prior written consent of the other party, each party shall not transfer, including by merger (whether that party is the surviving or disappearing entity), consolidation, dissolution, or operation of law, (1) any discretion granted under this agreement, (2) any right to satisfy a condition under this agreement, (3) any remedy under this agreement, or (4) any obligation imposed under this agreement. Any purported transfer in violation of this section X will be void.

Because my version makes explicit what Brian’s version only alludes to, it’s longer, but not by much (85 words versus 72 words).

I’ve posted my version on Quora, under Brian’s. (Hey, Brian! In. Yo. Face!) But crowdsourcing is still no way to identify optimal contract language. In particular, I wouldn’t rely on contract language select by haphazard vote. Instead, what you have here is the usual process of Brian, me, and others hashing stuff out. I look forward to having readers point out the weaknesses in my version.

[ Updated 27 November 2023: Bear in mind that in some contexts—notably bankruptcy—no-transfer provisions are unenforceable by law. See my 2014 article on termination-on-bankruptcy provisions, here .]

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of  A Manual of Style for Contract Drafting , and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.

17 thoughts on “Rethinking the “No Assignment” Provision”

I have several concerns here. First, I have never been happy with the “each party shall not” formulation. I don’t mind “may not,” or better yet, “no party may,” but if you really want to use “shall not,” then I recommend “a party shall not” as being less awkward and contrary to normal usage.

Second, I’m surprised that you would allow “by operation of law” to survive here. For the most part, this phrase is used to refer to the “automagic” continuation of the disappearing company’s contracts under the aegis of the surviving company in a merger, in which case the language is redundant when you’ve already discussed mergers. Moreover, if this language relates to some other operations of law, for example an order of a bankruptcy court, it’s rather hubristic to think a contract can trump the ruling authority. Better, if it’s such a big deal, to handle the consequences of such a mandated transfer by giving the affected party an explicit termination right (without the nasty consequences of breach).

Third, in my experience the issues surrounding “delegation” are not only that it’s a misapplied term of art, but that it mistakes the transfer of a contractual obligation for a subcontracting of its performance. In fact, reliance on delegation or transfer is misplaced if one is concerned about subcontracting (since it doesn’t really amount to a transfer of any contractual obligation, only having that obligation physically performed by someone else). A drafter should inquire carefully what the client is really concerned about here, and if it’s subcontracting, that should be explicitly mentioned.

Ah, thank you Vance. I thought My discomfort with ‘delegate’ was a translation issue from US to UK English. I,too, Think that is the wrong word to use.

“No purported transfer of one or more of the following arising from this agreement will be valid without prior written consent of the other party: (1) discretion, (2) right to satisfy a condition, (3) remedy under this agreement, and (4) obligation.”

Other than light trimming, the principal thing this version does is dump the duty not to transfer and go solely with the avoidance of purported transfers. Why prohibit killing the dead?

Because failure to comply with a prohibition gives rise to a remedy; voiding purported transfers doesn’t. I can imagine situations where that might be significant.

No one can fail to comply with a prohibition against transfer when purported transfers are void. Void transfers are non-transfers. Killing the dead isn’t wicked, it’s just impossible.

It’s wicked and depraved! Actually, what happens if Acme makes a purported assignment that results in costly and protracted litigation? Widgetco would like to be able to go after Acme. Wouldn’t that be easier if Widgetco could point to breach? Should the obligation refer to not attempting to transfer?

“Any purported transfer by Acme, without Widgetco’s advance written consent, of one or more of Acme’s rights or obligations under this agreement will be void and will constitute a breach of this agreement.”

This game is based so much on underlying US laws on the meaning of assignment, merger, etc, that it is impossible for a non-US lawyer to participate. We don’t generally have mergers where a party disappears into a puff of smoke. A sale of a business [nearly] always happens by a sale of shares or a sale of assets.

I think the concept of assigning rights under a contract is well established in case law and using different terminology is reinventing the wheel.

I think the “if you do it despite the prohibition, it will be void” concept is strange, but one that I have seen before in US contracts. I don’t think it works, under English law, in respect of prohibitions on assignments of IP. I am doubtful whether it works for assignments of rights under contracts.

For what it is worth, my English law version would be very different and would simply say:

Neither party may assign any rights, or transfer any obligations, under this agreement, without the prior written agreement of the parties.

I have used the word “agreement” rather than “consent” to try to avoid case law on whether a term should be implied that consent should not be unreasonably withheld. The terminology of assignment and transfer is based on a House of Lords case, Linden Gardens v Lenesta Sludge – see http://www.bailii.org/uk/cases/UKHL/1993/4.html

As usual, caselaw is of less interest to me than the scope for confusion. I suspect that if you ask many lawyers what is meant by assignment of rights under a contract, you’d get quite a variety of answers.

Okay, Ken I’ll take your word for it. English lawyers who keep Chitty on Contracts under their pillows won’t be so variegated

Mark: Regarding your statement, “I think the ‘if you do it despite the prohibition, it will be void’ concept is strange, but one that I have seen before in US contracts,” consider the probable source of such provisions:

Since U.S. contract law is the province of the states, we have the high court of each of the 50 states reviewing the handiwork of probably twice that number of state appellate courts, which in turn have reviewed the work of probably thousands of trial courts. In addition, we have almost 90 federal district courts trying to predict how the supreme courts of the various states would rule if they were hearing the contracts cases that have fallen into the laps of the federal courts due to accidents of jurisdiction, plus the dozen courts of appeals and the Supreme Court. Then there are specialty federal courts such as the bankruptcy and tax courts which provide an additional source of cases for the federal district and appellate courts to review. And did I mention the extensive administrative law system that probably dwarfs all of the above in scope and which I’m sure has plenty to say about contracts?

Somewhere, sometime in the distant past one of those courts had an unfortunate fact pattern and, wanting to avoid the effect of an anti-assignment provision, decided that although the purported assignment was a breach of the contract in which it was found, the assignment was still effective. Other courts picked up on the work-around, and commercial lawyers have all been covering that base ever since.

Thanks Brian, interesting insight. I would have posted on your site but For the reasons given above I didn’t have a useful contribution.

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The language as being quoted from Negotiating and Drafting Boilerplate is incomplete. Here is the full language, along with explanations of some of the text. Many of my points will be at odds with those of Ken and arise because of differences in drafting philosophy.

Assignment and Delegation.

(a) No Assignments. No party may assign any of its rights under this Agreement, except with the prior written consent of the other party. [That party shall not unreasonably withhold its consent.] All assignments of rights are prohibited under this subsection, whether they are voluntary or involuntary, by merger, consolidation, dissolution, operation of law, or any other manner. For purposes of this Section,

(i) a “change of control” is deemed an assignment of rights; and

(ii) “merger” refers to any merger in which a party participates, regardless of whether it is the surviving or disappearing corporation.

(b) No Delegations. No party may delegate any performance under this Agreement.

(c) Consequences of Purported Assignment or Delegation. Any purported assignment of rights or delegation of performance in violation of this Section is void.

1. The provision is divided into three separate subsections, each dealing with a different topic. A long provision violates the so-called “three-line rule.” Sentences longer than three lines are hard for the reader to take in. Also, by separating assignment from delegation, the drafter is reminded that each of these provisions may need to be elaborated based on facts. (Perhaps delegation is permitted subject to certain conditions.)

2. Generally, exceptions should not begin a sentence. The usual rule is to state the rule – so that the reader has context – and then state the exception. This is also helpful if the sentence contains multiple exceptions that the drafter might want to tabulate.

3. I prefer “No party may” to “Each party shall not.” The sentence’s purpose is to express a prohibition that applies to all – no one can do it. In this context, a negative subject is appropriate: no party/neither party. When using a negative subject “may” is correct. “Shall not” works perfectly well when the subject of the sentence is a single party. “Sam shall not borrow any money.”

4. As to whether consent can be unreasonably withheld is a matter of state law. Some states read into a provision that grants discretionary authority an implied promise of good faith and fair dealing, stated differently, they read in reasonableness. Others do not imply a reasonableness requirement. For example, in New York, landlords may be unreasonable in denying consent to assignment.

5. Courts seriously dislike anti-assignment provisions. They view them as interfering with the free flow of commerce. They insist that if a particular assignment is to be prohibited, it must be listed. For example, if a provision prohibits the assignment of rights, the issue arises as to whether the provision prohibits the assignment of rights by merger. In all states that I’ve checked, unless the assignment by merger is explicitly prohibited, it’s permitted. The courts are rather adamant. They’ll turn their decisions inside out to find the anti-assignment provision unenforceable. They don’t like them and if the provision isn’t explicit, the courts will say that if the parties had really wanted to prohibit assignments by merger, they knew how to use their words. “Voluntarily or involuntarily” is used consistent with these cases.

6. Drafters have tried multiple ways to create all-inclusive provisions, but the courts reject them as not having been specific. “or in any other manner” was blessed by one court, so it’s used in the provision. Another court rejected the phrase “or by any other transfer,” stating that it did not know what “transfer” meant and it therefore could not act as an omnibus savings provision.

7. An anti-assignment provision should also address whether a change of control is deemed an assignment. If Parent Company A sells all of its issued and outstanding shares in Subsidiary A to Buyer Company, Subsidiary A becomes a wholly-owned subsidiary of Buyer Company. Nothing has happened at the Subsidiary A level; there’s been no assignment. Courts hold that unless the change of control is expressly prohibited, it does not rise to the level of an assignment. This prohibition can generally be accomplished in one of two ways: either through a definition, as in the stated provision, or by including a change of control as a default.

8. Assignment and delegation are terms of art, not misapplied terms of art. The Restatement (Second) of Contracts carefully defines them, as do legions of cases. Unfortunately, some lawyers are unfamiliar with them because their contracts courses didn’t cover them. That doesn’t mean new words should be created.

9. Rights are the flip-side of an obligation. If I have an obligation to pay you $100, you have a right to my performance. The transfer of the right to performance is what the assignment is all about. It’s technical. Using terms in a technical way creates precision. If one has discretionary authority, that is a colloquial right but not a contract right. That’s the reason why “right” is not used to signal discretionary authority. Instead, the correct verb to signal discretionary authority is “may”. Incorrect: The publisher has the right to reject the book. Correct: The publisher may reject the book.

Rights can also refer to remedies, but that is consistent with the definition of rights. If a party has a right to have its deposit returned, the flipside obligation is the obligation to return it. If a party has a right to an injunction, the flipside obligation is the promise not to contest the right to the injunction.

10. “Will be void” v. “is void.” I can’t get too excited about this issue. I start from the premise that the contract should always read as if it presently applies and that, therefore, the present tense is correct.

11. Subsection (c) is another consequence of the courts’ dislike for anti-assignment provisions. Mere prohibition does not void the assignment. The courts draw a distinction between the “right” to assign and the “power” to assignment. A flat prohibition merely prohibits the assignment of the right to assignment. Violation of the prohibition is a breach, like any other contract breach. The assignment is enforceable, but gives rise to damages. Unfortunately, the nonassigning party often has trouble finding damages to claim. What difference does it make to whom it pays money? If the nonassigning party’s performance is somehow changed, then damages might be claimed. To make the purported assignment unenforceable, a provision must take away the “power” to assign. That is accomplished through language along the lines of subjection (c).

Tina: Thanks; some readers might find that extract helpful.

More generally, the only drafting philosophy I buy into is identifying the clearest contract language.

Do you see any issues with making the transfer voidable by the non-transferring party instead of void ab initio?

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• assignments basic law

Assignments: The Basic Law

The assignment of a right or obligation is a common contractual event under the law and the right to assign (or prohibition against assignments) is found in the majority of agreements, leases and business structural documents created in the United States.

As with many terms commonly used, people are familiar with the term but often are not aware or fully aware of what the terms entail. The concept of assignment of rights and obligations is one of those simple concepts with wide ranging ramifications in the contractual and business context and the law imposes severe restrictions on the validity and effect of assignment in many instances. Clear contractual provisions concerning assignments and rights should be in every document and structure created and this article will outline why such drafting is essential for the creation of appropriate and effective contracts and structures.

The reader should first read the article on Limited Liability Entities in the United States and Contracts since the information in those articles will be assumed in this article.

Basic Definitions and Concepts:

An assignment is the transfer of rights held by one party called the “assignor” to another party called the “assignee.” The legal nature of the assignment and the contractual terms of the agreement between the parties determines some additional rights and liabilities that accompany the assignment. The assignment of rights under a contract usually completely transfers the rights to the assignee to receive the benefits accruing under the contract. Ordinarily, the term assignment is limited to the transfer of rights that are intangible, like contractual rights and rights connected with property. Merchants Service Co. v. Small Claims Court , 35 Cal. 2d 109, 113-114 (Cal. 1950).

An assignment will generally be permitted under the law unless there is an express prohibition against assignment in the underlying contract or lease. Where assignments are permitted, the assignor need not consult the other party to the contract but may merely assign the rights at that time. However, an assignment cannot have any adverse effect on the duties of the other party to the contract, nor can it diminish the chance of the other party receiving complete performance. The assignor normally remains liable unless there is an agreement to the contrary by the other party to the contract.

The effect of a valid assignment is to remove privity between the assignor and the obligor and create privity between the obligor and the assignee. Privity is usually defined as a direct and immediate contractual relationship. See Merchants case above.

Further, for the assignment to be effective in most jurisdictions, it must occur in the present. One does not normally assign a future right; the assignment vests immediate rights and obligations.

No specific language is required to create an assignment so long as the assignor makes clear his/her intent to assign identified contractual rights to the assignee. Since expensive litigation can erupt from ambiguous or vague language, obtaining the correct verbiage is vital. An agreement must manifest the intent to transfer rights and can either be oral or in writing and the rights assigned must be certain.

Note that an assignment of an interest is the transfer of some identifiable property, claim, or right from the assignor to the assignee. The assignment operates to transfer to the assignee all of the rights, title, or interest of the assignor in the thing assigned. A transfer of all rights, title, and interests conveys everything that the assignor owned in the thing assigned and the assignee stands in the shoes of the assignor. Knott v. McDonald’s Corp ., 985 F. Supp. 1222 (N.D. Cal. 1997)

The parties must intend to effectuate an assignment at the time of the transfer, although no particular language or procedure is necessary. As long ago as the case of National Reserve Co. v. Metropolitan Trust Co ., 17 Cal. 2d 827 (Cal. 1941), the court held that in determining what rights or interests pass under an assignment, the intention of the parties as manifested in the instrument is controlling.

The intent of the parties to an assignment is a question of fact to be derived not only from the instrument executed by the parties but also from the surrounding circumstances. When there is no writing to evidence the intention to transfer some identifiable property, claim, or right, it is necessary to scrutinize the surrounding circumstances and parties’ acts to ascertain their intentions. Strosberg v. Brauvin Realty Servs., 295 Ill. App. 3d 17 (Ill. App. Ct. 1st Dist. 1998)

The general rule applicable to assignments of choses in action is that an assignment, unless there is a contract to the contrary, carries with it all securities held by the assignor as collateral to the claim and all rights incidental thereto and vests in the assignee the equitable title to such collateral securities and incidental rights. An unqualified assignment of a contract or chose in action, however, with no indication of the intent of the parties, vests in the assignee the assigned contract or chose and all rights and remedies incidental thereto.

More examples: In Strosberg v. Brauvin Realty Servs ., 295 Ill. App. 3d 17 (Ill. App. Ct. 1st Dist. 1998), the court held that the assignee of a party to a subordination agreement is entitled to the benefits and is subject to the burdens of the agreement. In Florida E. C. R. Co. v. Eno , 99 Fla. 887 (Fla. 1930), the court held that the mere assignment of all sums due in and of itself creates no different or other liability of the owner to the assignee than that which existed from the owner to the assignor.

And note that even though an assignment vests in the assignee all rights, remedies, and contingent benefits which are incidental to the thing assigned, those which are personal to the assignor and for his sole benefit are not assigned. Rasp v. Hidden Valley Lake, Inc ., 519 N.E.2d 153, 158 (Ind. Ct. App. 1988). Thus, if the underlying agreement provides that a service can only be provided to X, X cannot assign that right to Y.

Novation Compared to Assignment:

Although the difference between a novation and an assignment may appear narrow, it is an essential one. “Novation is a act whereby one party transfers all its obligations and benefits under a contract to a third party.” In a novation, a third party successfully substitutes the original party as a party to the contract. “When a contract is novated, the other contracting party must be left in the same position he was in prior to the novation being made.”

A sublease is the transfer when a tenant retains some right of reentry onto the leased premises. However, if the tenant transfers the entire leasehold estate, retaining no right of reentry or other reversionary interest, then the transfer is an assignment. The assignor is normally also removed from liability to the landlord only if the landlord consents or allowed that right in the lease. In a sublease, the original tenant is not released from the obligations of the original lease.

Equitable Assignments:

An equitable assignment is one in which one has a future interest and is not valid at law but valid in a court of equity. In National Bank of Republic v. United Sec. Life Ins. & Trust Co. , 17 App. D.C. 112 (D.C. Cir. 1900), the court held that to constitute an equitable assignment of a chose in action, the following has to occur generally: anything said written or done, in pursuance of an agreement and for valuable consideration, or in consideration of an antecedent debt, to place a chose in action or fund out of the control of the owner, and appropriate it to or in favor of another person, amounts to an equitable assignment. Thus, an agreement, between a debtor and a creditor, that the debt shall be paid out of a specific fund going to the debtor may operate as an equitable assignment.

In Egyptian Navigation Co. v. Baker Invs. Corp. , 2008 U.S. Dist. LEXIS 30804 (S.D.N.Y. Apr. 14, 2008), the court stated that an equitable assignment occurs under English law when an assignor, with an intent to transfer his/her right to a chose in action, informs the assignee about the right so transferred.

An executory agreement or a declaration of trust are also equitable assignments if unenforceable as assignments by a court of law but enforceable by a court of equity exercising sound discretion according to the circumstances of the case. Since California combines courts of equity and courts of law, the same court would hear arguments as to whether an equitable assignment had occurred. Quite often, such relief is granted to avoid fraud or unjust enrichment.

Note that obtaining an assignment through fraudulent means invalidates the assignment. Fraud destroys the validity of everything into which it enters. It vitiates the most solemn contracts, documents, and even judgments. Walker v. Rich , 79 Cal. App. 139 (Cal. App. 1926). If an assignment is made with the fraudulent intent to delay, hinder, and defraud creditors, then it is void as fraudulent in fact. See our article on Transfers to Defraud Creditors .

But note that the motives that prompted an assignor to make the transfer will be considered as immaterial and will constitute no defense to an action by the assignee, if an assignment is considered as valid in all other respects.

Enforceability of Assignments:

Whether a right under a contract is capable of being transferred is determined by the law of the place where the contract was entered into. The validity and effect of an assignment is determined by the law of the place of assignment. The validity of an assignment of a contractual right is governed by the law of the state with the most significant relationship to the assignment and the parties.

In some jurisdictions, the traditional conflict of laws rules governing assignments has been rejected and the law of the place having the most significant contacts with the assignment applies. In Downs v. American Mut. Liability Ins. Co ., 14 N.Y.2d 266 (N.Y. 1964), a wife and her husband separated and the wife obtained a judgment of separation from the husband in New York. The judgment required the husband to pay a certain yearly sum to the wife. The husband assigned 50 percent of his future salary, wages, and earnings to the wife. The agreement authorized the employer to make such payments to the wife.

After the husband moved from New York, the wife learned that he was employed by an employer in Massachusetts. She sent the proper notice and demanded payment under the agreement. The employer refused and the wife brought an action for enforcement. The court observed that Massachusetts did not prohibit assignment of the husband’s wages. Moreover, Massachusetts law was not controlling because New York had the most significant relationship with the assignment. Therefore, the court ruled in favor of the wife.

Therefore, the validity of an assignment is determined by looking to the law of the forum with the most significant relationship to the assignment itself. To determine the applicable law of assignments, the court must look to the law of the state which is most significantly related to the principal issue before it.

Assignment of Contractual Rights:

Generally, the law allows the assignment of a contractual right unless the substitution of rights would materially change the duty of the obligor, materially increase the burden or risk imposed on the obligor by the contract, materially impair the chance of obtaining return performance, or materially reduce the value of the performance to the obligor. Restat 2d of Contracts, § 317(2)(a). This presumes that the underlying agreement is silent on the right to assign.

If the contract specifically precludes assignment, the contractual right is not assignable. Whether a contract is assignable is a matter of contractual intent and one must look to the language used by the parties to discern that intent.

In the absence of an express provision to the contrary, the rights and duties under a bilateral executory contract that does not involve personal skill, trust, or confidence may be assigned without the consent of the other party. But note that an assignment is invalid if it would materially alter the other party’s duties and responsibilities. Once an assignment is effective, the assignee stands in the shoes of the assignor and assumes all of assignor’s rights. Hence, after a valid assignment, the assignor’s right to performance is extinguished, transferred to assignee, and the assignee possesses the same rights, benefits, and remedies assignor once possessed. Robert Lamb Hart Planners & Architects v. Evergreen, Ltd. , 787 F. Supp. 753 (S.D. Ohio 1992).

On the other hand, an assignee’s right against the obligor is subject to “all of the limitations of the assignor’s right, all defenses thereto, and all set-offs and counterclaims which would have been available against the assignor had there been no assignment, provided that these defenses and set-offs are based on facts existing at the time of the assignment.” See Robert Lamb , case, above.

The power of the contract to restrict assignment is broad. Usually, contractual provisions that restrict assignment of the contract without the consent of the obligor are valid and enforceable, even when there is statutory authorization for the assignment. The restriction of the power to assign is often ineffective unless the restriction is expressly and precisely stated. Anti-assignment clauses are effective only if they contain clear, unambiguous language of prohibition. Anti-assignment clauses protect only the obligor and do not affect the transaction between the assignee and assignor.

Usually, a prohibition against the assignment of a contract does not prevent an assignment of the right to receive payments due, unless circumstances indicate the contrary. Moreover, the contracting parties cannot, by a mere non-assignment provision, prevent the effectual alienation of the right to money which becomes due under the contract.

A contract provision prohibiting or restricting an assignment may be waived, or a party may so act as to be estopped from objecting to the assignment, such as by effectively ratifying the assignment. The power to void an assignment made in violation of an anti-assignment clause may be waived either before or after the assignment. See our article on Contracts.

Noncompete Clauses and Assignments:

Of critical import to most buyers of businesses is the ability to ensure that key employees of the business being purchased cannot start a competing company. Some states strictly limit such clauses, some do allow them. California does restrict noncompete clauses, only allowing them under certain circumstances. A common question in those states that do allow them is whether such rights can be assigned to a new party, such as the buyer of the buyer.

A covenant not to compete, also called a non-competitive clause, is a formal agreement prohibiting one party from performing similar work or business within a designated area for a specified amount of time. This type of clause is generally included in contracts between employer and employee and contracts between buyer and seller of a business.

Many workers sign a covenant not to compete as part of the paperwork required for employment. It may be a separate document similar to a non-disclosure agreement, or buried within a number of other clauses in a contract. A covenant not to compete is generally legal and enforceable, although there are some exceptions and restrictions.

Whenever a company recruits skilled employees, it invests a significant amount of time and training. For example, it often takes years before a research chemist or a design engineer develops a workable knowledge of a company’s product line, including trade secrets and highly sensitive information. Once an employee gains this knowledge and experience, however, all sorts of things can happen. The employee could work for the company until retirement, accept a better offer from a competing company or start up his or her own business.

A covenant not to compete may cover a number of potential issues between employers and former employees. Many companies spend years developing a local base of customers or clients. It is important that this customer base not fall into the hands of local competitors. When an employee signs a covenant not to compete, he or she usually agrees not to use insider knowledge of the company’s customer base to disadvantage the company. The covenant not to compete often defines a broad geographical area considered off-limits to former employees, possibly tens or hundreds of miles.

Another area of concern covered by a covenant not to compete is a potential ‘brain drain’. Some high-level former employees may seek to recruit others from the same company to create new competition. Retention of employees, especially those with unique skills or proprietary knowledge, is vital for most companies, so a covenant not to compete may spell out definite restrictions on the hiring or recruiting of employees.

A covenant not to compete may also define a specific amount of time before a former employee can seek employment in a similar field. Many companies offer a substantial severance package to make sure former employees are financially solvent until the terms of the covenant not to compete have been met.

Because the use of a covenant not to compete can be controversial, a handful of states, including California, have largely banned this type of contractual language. The legal enforcement of these agreements falls on individual states, and many have sided with the employee during arbitration or litigation. A covenant not to compete must be reasonable and specific, with defined time periods and coverage areas. If the agreement gives the company too much power over former employees or is ambiguous, state courts may declare it to be overbroad and therefore unenforceable. In such case, the employee would be free to pursue any employment opportunity, including working for a direct competitor or starting up a new company of his or her own.

It has been held that an employee’s covenant not to compete is assignable where one business is transferred to another, that a merger does not constitute an assignment of a covenant not to compete, and that a covenant not to compete is enforceable by a successor to the employer where the assignment does not create an added burden of employment or other disadvantage to the employee. However, in some states such as Hawaii, it has also been held that a covenant not to compete is not assignable and under various statutes for various reasons that such covenants are not enforceable against an employee by a successor to the employer. Hawaii v. Gannett Pac. Corp. , 99 F. Supp. 2d 1241 (D. Haw. 1999)

It is vital to obtain the relevant law of the applicable state before drafting or attempting to enforce assignment rights in this particular area.

Conclusion:

In the current business world of fast changing structures, agreements, employees and projects, the ability to assign rights and obligations is essential to allow flexibility and adjustment to new situations. Conversely, the ability to hold a contracting party into the deal may be essential for the future of a party. Thus, the law of assignments and the restriction on same is a critical aspect of every agreement and every structure. This basic provision is often glanced at by the contracting parties, or scribbled into the deal at the last minute but can easily become the most vital part of the transaction.

As an example, one client of ours came into the office outraged that his co venturer on a sizable exporting agreement, who had excellent connections in Brazil, had elected to pursue another venture instead and assigned the agreement to a party unknown to our client and without the business contacts our client considered vital. When we examined the handwritten agreement our client had drafted in a restaurant in Sao Paolo, we discovered there was no restriction on assignment whatsoever…our client had not even considered that right when drafting the agreement after a full day of work.

One choses who one does business with carefully…to ensure that one’s choice remains the party on the other side of the contract, one must master the ability to negotiate proper assignment provisions.

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What is an Anti-Assignment Clause?

When business owners are negotiating contracts to gear up for the sale of their business, they are rightly concerned with key questions such as the sale price for the business including assets such as how much the sale will cost them and what happens if something goes wrong.  At the end of the contracts, there are usually several pages of type that usually look like boilerplate. Inside those clauses is usually something called an assignment clause, or more accurately, an anti-assignment clause.

It’s one of those clauses that everyone glosses over – after all, it’s just standard legal text, right?

For a business owner hoping to sell their business, an anti-assignment clause can dissuade potential buyers and play a crucial role in the selling price of a business.  If this sounds familiar and you’re in the process of negotiating the merger or acquisition of your business, read on – we’ve put together a practical guide to anti-assignment clauses and what to look out for.

Looking for legal help? feel free to get in touch with our  commercial lawyers  for matters related to contracts.

What is an assignment clause?

The anti-assignment clause states that neither party can transfer or assign the agreement without the consent of the other party. On a basic level, that makes sense – after all, if you sign a contract with a specific party, you don’t expect to be entering into an agreement with a third party you didn’t intend to be.

However, when you sell your business, you will want to transfer ownership of those contracts to the buyer. If your contracts all contain an anti-assignment clause, they effectively restrict you from transferring ownership to the interested party. Now, you’re presented with a new challenge altogether – before you can focus on the sale of your business, you must first renegotiate the terms of your contracts with each party.

Language to look out for in anti-assignment clauses

If you’re thinking about selling your business or even have potential buyers interested, it’s better to know in advance if you’ve got anti-assignment clauses in your contracts. There are generally two types of anti-assignment clause to look out for. The first relates to the complete bar on assignment of rights and responsibilities and is typically worded in this way, or similar:

“Neither Party may assign, delegate, or transfer this agreement or any of its rights or obligations under this agreement.”

The second type prevents the transfer of rights or duties without prior written consent of the other party. This will read along the lines of:

 “Neither this agreement nor any right, interest, or obligation herein may be assigned, transferred, or delegated to a third party without the prior written consent of the other party, and whose consent may be withheld for any reason.”

So, where the first prohibits assignment altogether, the second prohibits assignment unless permission is sought in advance. Some clauses may even explicitly state that a change of control such as a merger or acquisition is an assignment. The last thing you want is to cause a dispute by breaching the contract, but if you’ve already agreed to these terms, you’ll have to open a fresh set of negotiations with the contracting party before you sell the company.

Assignment clauses in M&A: what’s the problem?

Due diligence is the bread and butter of any merger or acquisition. Rather than a leap of faith, due diligence ensures the purchase of a business is a calculated decision with minimal risk to the buyer. Typically carried out by specialist lawyers, the process is designed to lift the hood on the target business to determine the valuation of assets and liabilities and identify any glaring issues that could leave the buyer open to risk.

During the due diligence process, the buyer will look through all of the major contracts the business has open, and specifically keep a close eye out for assignment clauses.

Despite the virtual environment that many businesses have been forced to operate in in 2020, most companies will have commercial leases for the premises from which they typically work. Almost all leases have an anti-assignment clause, and this is a perfect example of an instance that is often overlooked by commercial tenants when selling a business which includes a leasehold property.  This transfer of ownership may well be prohibited under an anti-assignment clause so that prior to the sale of the business, you would be required to ask permission from your landlord. The issue here is that the landlord may well see this as the perfect opportunity to renegotiate and secure a better deal for themselves. What’s worse, if they don’t sign off on the transfer, you’ll have an obstruction on your hands that will stand in the way of the sale.

In any case, an unexpected anti-assignment clause usually winds up being a last-minute hitch in the sale, and it never comes at a good time. Whether it delays the sale or obstructs it altogether, overlooking an anti-assignment clause can cost you considerably in an M&A transaction.

What makes anti-assignment clauses enforceable?

Generally speaking, an anti-assignment clause will be enforced by the courts if it was agreed upon by both parties to the contract. Many contracts exclude or qualify the right to assignment – according to the courts, a clause that states that a party to a contract may not assign the benefit of that contract without the consent of the other party is legally effective and will extend to all rights and benefits arising under the contract.

Courts won’t always enforce assignments to which the counterparty did not give permission, even where there is no anti-assignment clause that specifies this provision.

How to negotiate anti-assignment clauses

The best practice for business owners is to be vigilant when negotiating new contracts and ensure that any anti-assignment clauses still allow for the transfer of ownership when they decide to sell the business.

Remember, even though the buyer is purchasing the assets of the business, this usually means that all of the contracts of the business go with it because the business remains intact. Therefore, the best way forward is to negotiate these clauses upfront from the outset of the relationship, so that when you do decide to sell your business, you automatically have permission to transfer the ownership without having to delay the sale by entering into fresh negotiations.

If your agreement does not permit assignments, it’s worth seeking the advice and support of a specialist lawyer who can help protect your interests through negotiation with your counterparty on this point. You may be able to include a provision that allows for assignment of your rights and obligations upon the prior written consent of the other party. Your lawyer will likely advise you to carve out a specific provision to prohibit the counterparty from unreasonably withholding or delaying consent or making it subject to unreasonable conditions – an issue which, if not provided for within the contract, can cause serious delay and disruption to the sale of your business. Further, it may be beneficial to add an extra element to the contract that makes exceptions to the clause for assignments between affiliates.  If you’re planning to sell your business, this would be the right place to carve out an exception within the clause to the change of control via a merger or acquisition.

It’s important to bear in mind that anti-assignment clauses tend to be viewed narrowly by courts, and that there have been several instances whereby anti-assignment clauses have not been enforced since the clause itself did not explicitly state that the assignment of rights, duties or payment would render the contract void or invalid. So, if you’re in the process of negotiating an agreement and wish to protect your interests through the addition of an anti-assignment clause, it’s critical that you include the consequences of assignment within the clause itself and state that assignments would invalidate or be in breach of the contract.

If you do not wish for the counterparty to be able to transfer the legal obligation to perform their duties as stated in the contract to a third party, this must be explicitly stated in one of three ways:

• Specify the need for consent

There’s no need to be unreasonable – you can protect your interests while still giving the counterparty the space to re-negotiate should they wish to assign rights by including a clause that asks for consent.

• Provide an exemption to consent for affiliates, successors or new owners

Ask your lawyer to draft an exception into the clause that permits assignment to affiliates or successors to the counterparty, such as:

“Neither party may assign or delegate this agreement or its rights or obligations under this agreement without the prior written consent of the other party, except that no consent is required (a) for assignment to an entity in which the transferring party will own greater than 50 per cent of the shares or other interests; or (b) in connection with any sale, transfer, or disposition of all or substantially all of its business or assets; provided that no such assignment will relieve an assigning party of its obligations under this agreement. Any assignment or delegation that violates this provision shall be void.”

• Require reasonable consent

Just as you would not wish for consent to be held back from you unreasonably in the renegotiation of contract terms prior to a sale, your assignment clause should make clear that you will not unreasonably withhold or delay consent should the third party request permission to assign their legal obligations. This may read something like this:

 “Neither party may assign or delegate this agreement or its rights or obligations under this agreement without the prior written consent of the other party, whose consent shall not be unreasonably withheld or delayed. Any assignment or delegation that violates this provision shall be void.”

Whatever the circumstances, we strongly recommend calling upon a contract law specialist, whether you’re undergoing due diligence in the run up to an M&A transaction, are considering selling your business or are negotiating new contracts with customers and suppliers. Our lawyers bring in-depth expertise in the area of anti-assignment clauses and will work closely with you to protect your interests and ensure no clauses in your contracts negatively impact the sale of your company.

For a free consultation, get in touch with our team through the contact form below or using our online chat service.

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Anti-Assignment Clause: Everything You Need To Know

An anti-assignment clause prevents either of the parties to a contract from assigning tasks to a third party without the consent of the non-assigning party. 3 min read updated on September 19, 2022

An anti-assignment clause prevents either of the parties to a contract from assigning tasks to a third party without the consent of the non-assigning party.

Anti-assignment clauses are of two types:

One that prohibits the assignment of work or service pursuant to the contract.

One that prohibits the assignment of payment under the contract.

The clause that prohibits the assignment of work or service is a valid clause, completely enforceable and does not bear much importance. However, the clause that prohibits the assignment of payment is a more complex clause that affects crucial buying and selling decisions.

Are Anti-Assignment Clauses That Prohibit Assigning Payments Enforceable?

As an anti-assignment clause prohibits the assignment of payment, it affects business and thus is unenforceable and ineffective under Section 9-406 of the Uniform Commercial Code. The code clearly states that clauses pertaining to "Discharge of Account Debtor, Notification of Assignment, Identification and Proof of Assignment, Restriction on Assignment of Account, Chattel Paper, Payment Intangibles and Promissory Notes" are ineffective and void.

What Should a Factor Do If a Client's Contract Contains an Anti-Assignment Clause?

Most factors prefer not to enter into an agreement with a client whose contract contains any anti-assignment clause to avoid hassle in the future. However, legal experts suggest that factors should ignore the anti-assignment clauses in the contract and proceed with business as usual along with providing a Notice of Assignment to the account debtor.

Even if the factor decides to proceed with the business decision with the said client, he should be aware that the account debtor may not want to engage in commercial activities with the factor, and may even create difficulties in dealings and collection. Though an anti-assignment clause does not deter the factor's decision to enter into a business arrangement with an account debtor or his ability to be paid given the issuance of a Notice of Assignment, it is for him to decide if the efforts are worth the business. However, to ensure a fool-proof commercial and business dealing, the factor can obtain a signed Estoppel Letter from the account debtor to avoid all future disputes.

What Are the Anti-assignment Provisions and Their Effect on Transaction Structures?

Most commercial contracts end with a clause, ”Neither this Agreement nor any of the rights, interests or obligations under the Agreement shall be assigned, in whole or in part, by operation of law or otherwise by either party without the prior written consent of the other party.” This is the anti-assignment clause that ensures the interest of both the parties and that none of the two parties transfer any rights to any other individual with our prior consent of the other main party.

Often, a contract assignment issue plays an important factor in merger and acquisition prospects as buyers want to acquire all customer and vendor contracts. However, if any of the contracts bound by the anti-assignment clause need the approval of the other party, it could lead to additional costs for the buyer, which may affect the decision. The general notion is that most contracts are assignable unless categorically included anti-assignment clauses .

What Is the Typical Anti-assignment Language to Look Out For?

There are numerous ways of including an anti-assignment provision in the contract. However, the AIA Standard Form of Agreement contains the following anti-assignment provision:

• The Party 1 and Party 2, respectively, bind themselves, their partners, successors, assigns, and legal representatives to the other party to this Agreement and to the partners, successors, assigns, and legal representatives of such other party with respect to all covenants of this Agreement. Neither Party 1 nor Party 2 shall assign this Agreement without the written consent of the other.

What Are the Recommendations for Parties Entering Into Construction Contracts?

Usually, when commercial agreements are drawn, parties tend to focus on the key business aspects but pay no heed to anti-assignment provisions. It is thus the main responsibility of a corporate lawyer to study, analyze, and dissect agreements to ensure the best for their clients.

• Check the miscellaneous sections of any agreement to rule out any anti-assignment clause in the contract.
• Read and understand the finer points of the anti-assignment clause in the contract, if any.
• Negotiate changes in the anti-assignment clause prior to signing the contract.

If you need help with an anti-assignment clause, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.

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Content Approved by UpCounsel

• Assignment Law
• Legal Assignment
• Assignment Contract Law
• Assignment of Rights and Obligations Under a Contract
• Consent to Assignment
• What Is the Definition of Assigns
• Assignment Legal Definition
• Assignment Of Contracts
• Assignment of Rights Example
• What is an Assignment and Assumption Agreement

Non-Assignability of Contracts Without Counterparty Consent

Yvette mishev.

Feb 28, 2018

• Non-assignment provisions are governed by contract law, which generally varies state by state, but the end goal is always the same—to give effect to the parties’ intent.
• A non-assignment provision should clearly and explicitly set forth the contracting parties’ intent and anticipate all possibilities.
• If you value the identity of a vendor as much as you value the vendor’s products, then you need to include a non-assignment provision in your contract.

What Is a Non-Assignment Provision and Why Do You Need It?

Generally speaking, contracts can be freely assigned to third parties.  Non-assignment provisions are designed so that contracts cannot be as freely assigned to third parties; or at least, not without first obtaining the contracting counterparty’s consent. The purpose of a non-assignment provision is to ensure that the identities of the original two contracting parties remain the same throughout the term of the contract.  A basic non-assignment provision reads something like the following:

“This contract cannot be assigned to anyone without the written consent of both parties.”

A non-assignment provision is highly recommended if the service or product contracted for is unique to the party being contracted with and/or if the identity of the service or product provider is valued as much as the service or product being provided. 

For example, if Layla contracts Monique Lhuillier to make a dress for her wedding, a part of the benefit Layla is bargaining for is a dress designed by Monique Lhullier. Consequently, if Monique Lhuillier assigned the design and making of the dress to a third party, Wal-Mart, even if the final product was on par with a Monique Lhullier gown in every way, Layla would nonetheless be deprived of the benefit she bargained for when she contracted Monique Lhullier—having a wedding dress designed by Monique Lhuillier. A non-assignment provision safeguards the contracting parties’ exclusive relationship under the contract; it ensures that Monique Lhullier designs Layla’s dress.

Which Contractual Rights Are Assignable?

There are two types of rights one can assign under a contract—the right to receive performance under the contract, and the right to delegate performance. If a contract contains a basic non-assignment provision like the illustration above, a contracting party may still be able to assign its rights to receive performance under the contract, without acquiring its counterparty’s consent. In some states, a party that has fully performed under a contract can freely assign its right to enforce the other party’s liability despite the existence of a non-assignment provision in the governing contract, because the right to money is not considered personal in nature. E.g. Mail Concepts, Inc. v. Foote & Davies, Inc., 409 S.E.2d 567 (Ga. Ct. App. 1991); Kenneth D. Corwin, Ltd. v. Missouri Medical Service, 684 S.W.2d 598, 600 (Mo. App. 1985).

For example, in some states, if Monique Lhullier designs Layla’s wedding dress but, in turn, Layla does not perform her end of the contract—payment for the dress—Monique Lhullier may be able to assign her right to payment to a third party-despite the contract having a non-assignment provision. And when rights to payment under a contract are assigned, the assignee not only gets a right to the outstanding balance owed but is also entitled to pursue any and all default remedies provided for in the contract.

To further assure that neither contracting party can assign its rights to payment under the contract without first obtaining the counterparty’s consent, the non-assignment provision should explicitly address the issue. Courts will give effect to contract provisions that specifically prohibit the assignment of one's right to receive money due under a contract. See  Raytown Consol. Sch. Dist. No. 2 v. Am. Arbitration Assoc. ,  907 S.W.2d 189, 191 (Mo. Ct. App. 1995).

The following is an example of a non-assignment provision encompassing the right to payment:

“This contract cannot be assigned to anyone without the written consent of both parties. No party to this contract has the power to sell, mortgage, encumber, or anticipate the future payments by assignment or otherwise.”

See, e.g. In re Kaufman , 37 P.3d 845 (Okla. 2001).

All Non-Assignment Provisions Are Not Created Equal

Like any contract provision, a non-assignment provision must contain clear and unambiguous language. It is important to anticipate the circumstances you wish to avoid and include language to reflect that. A non-assignment provision should be clear about the consequences of the counterparty’s breach.

In some jurisdictions, assignment of rights under a contract containing a non-assignment provision without the counterparty’s consent would qualify as a breach and would entitle the non-breaching party to damages, but all other obligations under the contract would remain intact and enforceable against the non-breaching party and assignee.

For example, the Supreme Court of Connecticut has held that without express contractual language providing otherwise, a provision restricting the assignment of a contract will be construed to be a covenant like any other contractual covenant, so that a breach will render the breaching party liable in damages but will not make the contract a nullity. David Caron Chrysler Motors, LLC v. Goodhall’s, Inc., 43 A.3d 164 (Conn. 2012) (collecting cases from other jurisdictions). Once assigned, the contract is voidable—it has been breached but the burden is on the original counterparty to sue the assignor for damages. The assignee would still be entitled to his assigned rights. Wheelabrator Techs. of N. Am., Inc. v. Fin. Sec. Assur. of Oklahoma, Inc. , No. 88 CIV. 7623 (LMM), 1990 WL 180552, at *3 (S.D.N.Y. Nov. 15, 1990) (New York law).

In other jurisdictions, however, the contract becomes void upon assignment. Physicians Neck & Back Clinics, P.A. v. Allied Ins. Co. , No. A05-1788, 2006 WL 2053142, at *4 (Minn. Ct. App. July 25, 2006). Applied to the dressmaking illustration from before—Layla contracts with Monique Lhullier to make her wedding dress in exchange for money and widgets. Monique Lhullier then assigns the contract to Wal-Mart. Wal-Mart makes the dress and Layla accepts but does not deliver the widgets to Wal-Mart. Wal-Mart then sues Layla for breach of the contract. Wal-Mart could not sue Layla for breach of contract because Monique Lhullier’s assignment to Wal-Mart, without Layla’s consent rendered the contract void.

There are also jurisdictions where the effect of assignment in the face of a non-assignment provision requires a fact sensitive inquiry. Bank of America, N.A. v. Mogila, 330 F.3d 942 (7th Cir. 2003) (“the question whether breach of the promise discharges the obligor’s duty depends on all the circumstances.”) citing to Restatement (Second) of Contracts § 322(2).

To avoid surprises and ensure that assignment without your consent renders the contract void, the contract must explicitly provide that “assignment without consent will result in the assignment (or contract) being null and void.”

“Assignment” Should Be Defined

A non-assignment provision should also make clear whether it applies to change of control transactions where assignment of ownership of the contracting party occurs, either through a merger or a sale. For example, in some jurisdictions, where a non-assignment provision in a contract does not explicitly prohibit a transfer of property rights to a new entity by merger, the general rule is that the court should not presume the parties intended to prohibit the merger. Tenneco Auto. Inc. v. El Paso Corp. ,  2002 WL 453930, at *3–4 (Del. Ch. Mar. 20, 2002) (noting that the Court looks to whether the nonmerging party would suffer “any adverse consequences” as a result of the merger).

Consent Must Be Withheld in Good Faith

But even if the contract has a clear, explicit non-assignment provision requiring a counterparty’s consent does not mean that consent can be freely withheld. In numerous jurisdictions, if the non-assignment provision itself does not account for circumstances under which consent may be withheld, the provision is interpreted in accordance with the implied covenant of good faith and fair dealing which requires the exercise of reasonableness and good faith in deciding whether to consent to a proposed assignment. Dick Broad. Co. of Tennessee v. Oak Ridge FM, Inc.  395 S.W.3d 653, 662 (Tenn. 2013) (collecting cases).

For example, in Alabama, consent cannot be withheld merely because doing so would be financially rewarding. The Alabama Supreme Court held that it was unreasonable to deny consent to an assignment of a lease just so the landlord may charge a higher rent than was originally contracted. The Pantry, Inc. v. Mosley, 126 So. 3d 152 (Ala. 2013). It reasoned that the landlord’s desire for a better bargain than it contracted for had nothing to do with the permissible purposes of the restraint on alienation—to protect the landlord’s interest in the preservation of the property and the performance of the contract.

Non-assignment provisions are governed by contract law, which generally varies state by state, but the end goal is always the same—to give effect to the parties’ intent. Thus, a non-assignment provision should clearly and explicitly set forth the contracting parties’ intent and anticipate all possibilities.

Novack and Macey LLP

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Don’t Confuse Change of Control and Assignment Terms

• David Tollen
• September 11, 2020

An assignment clause governs whether and when a party can transfer the contract to someone else. Often, it covers what happens in a change of control: whether a party can assign the contract to its buyer if it gets merged into a company or completely bought out. But that doesn’t make it a change of control clause. Change of control terms don’t address assignment. They say whether a party can terminate if the other party goes through a merger or other change of control. And they sometimes address other change of control consequences.

Don’t confuse the two. In a contract about software or other IT, you should think through the issues raised by each. (Also, don’t confuse assignment of contracts with assignment of IP .)

Here’s an assignment clause:

Assignment. Neither party may assign this Agreement or any of its rights or obligations hereunder without the other’s express written consent, except that either party may assign this Agreement to the surviving party in a merger of that party into another entity or in an acquisition of all or substantially all its assets. No assignment becomes effective unless and until the assignee agrees in writing to be bound by all the assigning party’s obligations in this Agreement. Except to the extent forbidden in this Section __, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.

As you can see, that clause says no assignment is allowed, with one exception:

• Assignment to Surviving Entity in M&A: Under the clause above, a party can assign the contract to its buyer — the “surviving entity” — if it gets merged into another company or otherwise bought — in other words, if it ceases to exist through an M&A deal (or becomes an irrelevant shell company).

Consider the following additional issues for assignment clauses:

• Assignment to Affiliates: Can a party assign the contract to its sister companies, parents, and/or subs — a.k.a. its “Affiliates”?
• Assignment to Divested Entities: If a party spins off its key department or other business unit involved in the contract, can it assign the contract to that spun-off company — a.k.a. the “divested entity”? That’s particularly important in technology outsourcing deals and similar contracts. They often leave a customer department highly dependent on the provider’s services. If the customer can’t assign the contract to the divested entity, the spin-off won’t work; the new/divested company won’t be viable.
• Assignment to Competitors: If a party does get any assignment rights, can it assign to the other party’s competitors ? (If so, you’ve got to define “Competitor,” since the word alone can refer to almost any company.)
• All Assignments or None: The contract should usually say something about assignments. Otherwise, the law might allow all assignments. (Check your jurisdiction.) If so, your contracting partner could assign your agreement to someone totally unacceptable. (Most likely, though, your contracting partner would remain liable.) If none of the assignments suggested above fits, forbid all assignments.

Change of Control

Here’s a change of control clause:

Change of Control. If a party undergoes a Change of Control, the other party may terminate this Agreement on 30 days’ written notice. (“Change of Control” means a transaction or series of transactions by which more than 50% of the outstanding shares of the target company or beneficial ownership thereof are acquired within a 1-year period, other than by a person or entity that owned or had beneficial ownership of more than 50% of such outstanding shares before the close of such transactions(s).)

• Termination on Change of Control: A party can terminate if controlling ownership of the other party changes hands.

Change of control and assignment terms actually address opposite ownership changes. If an assignment clause addresses change of control, it says what happens if a party goes through an M&A deal and no longer exists (or becomes a shell company). A change of control clause, on the other hand, matters when the party subject to M&A does still exist . That party just has new owners (shareholders, etc.).

Consider the following additional issues for change of control clauses:

• Smaller Change of Ownership: The clause above defines “Change of Control” as any 50%-plus ownership shift. Does that set the bar too high? Should a 25% change authorize termination by the other party, or even less? In public companies and some private ones, new bosses can take control by acquiring far less than half the stock.
• No Right to Terminate: Should a change of control give any right to terminate, and if so, why? (Keep in mind, all that’s changed is the party’s owners — possibly irrelevant shareholders.)
• Divested Entity Rights: What if, again, a party spins off the department or business until involved in the deal? If that party can’t assign the contract to the divested entity, per the above, can it at least “sublicense” its rights to products or service, if it’s the customer? Or can it subcontract its performance obligations to the divested entity, if it’s the provider? Or maybe the contract should require that the other party sign an identical contract with the divested entity, at least for a short term.

Some of this text comes from the 3rd edition of The Tech Contracts Handbook , available to order (and review) from Amazon  here , or purchase directly from its publisher, the American Bar Association, here.

Want to do tech contracts better, faster, and with more confidence? Check out our training offerings here: https://www.techcontracts.com/training/ . Tech Contracts Academy has  options to fit every need and schedule: Comprehensive Tech Contracts M aster Classes™ (four on-line classes, two hours each), topical webinars (typically about an hour), customized in-house training (for just your team).   David Tollen is the founder of Tech Contracts Academy and our primary trainer. An attorney and also the founder of Sycamore Legal, P.C. , a boutique IT, IP, and privacy law firm in the San Francisco Bay Area, he also serves as an expert witness in litigation about software licenses, cloud computing agreements, and other IT contracts.

© 2020, 2022 by Tech Contracts Academy, LLC. All rights reserved.

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No assignment or delegation

No assignment or delegation clause samples

14.6     No Assignment or Delegation. No party may assign any right or delegate any obligation hereunder, including by merger, consolidation, operation of law, or otherwise, without the written consent of the other parties hereto; provided, that such assignment shall not prevent or impede the Acquisition Merger from qualifying for the Intended Tax Treatment. Any purported assignment or delegation that does not comply with the immediately preceding sentence shall be void, in addition to constituting a material breach of this Agreement.

09/10/2020 (Chelsea Worldwide Inc.)

Section 5.12 No Assignment or Delegation. No Party may assign any right or delegate any obligation hereunder, including by merger, consolidation, operation of law, or otherwise, without the written consent of the all of the other Parties and any purported assignment or delegation without such consent shall be void, in addition to constituting a material breach of this Agreement. This Agreement shall be binding on the permitted successors and assigns of the Parties.

11/01/2019 (Lone Star Value Management LLC)

Section9. Binding Effect; No Assignment or Delegation. This Pledge Agreement shall be binding upon and inure to the benefit of the Pledgor, the Pledgee and their respective successors and assigns, except that the Pledgor may not assign or transfer its rights hereunder without the prior written consent of the Pledgee (which consent shall not unreasonably be withheld). Each duty or obligation of the Pledgor to the Pledgee pursuant to the provisions of this Pledge Agreement shall be performed in favor of any person or entity designated by the Pledgee, and any duty or obligation of the Pledgee to the Pledgor may be performed by any other person or entity designated by the Pledgee.

06/06/2016 (Ottawa Bancorp Inc)

Section 10.16 No Assignment or Delegation. No Party may assign any right or delegate any obligation hereunder, including by merger, consolidation, operation of law, or otherwise, without the written consent of the all of the other Parties and any purported assignment or delegation without such consent shall be void, in addition to constituting a material breach of this Agreement. Notwithstanding this restriction, the Buyer may assign this Agreement to an affiliate that effectuates the Roll-Up Transactions (the “Permitted Assignee”). In the event of any assignment to the Permitted Assignee, the capitalization of the Assignee shall be identical to the capitalization of the Buyer as provided for in this Agreement (only with such changes as are not adverse to the Sellers and do not diminish any rights to which the Sellers were otherwise entitled) and all other representations and warranties of the Buyer shall be true and correct as they apply to the Permitted Assignee, and the Buyer shall continue to be bound by the terms of this Agreement as a primary obligor hereunder such that should the Permitted Assignee fail to perform any of its obligations hereunder, the Sellers and Sellers’ Representative shall be entitled to pursue performance against the Buyer. This Agreement shall be binding on the permitted successors and assigns of the Parties; provided, however, no such assignment will relieve any Party of their obligations under this Agreement.

11/05/2020 (HARVEST HEALTH & RECREATION INC.)

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Spotting issues with assignment clauses in M&A Due Diligence

Written by: Kira Systems

January 19, 2016

6 minute read

Although not nearly as complex as change of control provisions , assignment provisions may still present a challenge in due diligence projects. We hope this blog post will help you navigate the ambiguities of assignment clauses with greater ease by explaining some of the common variations. (And, if you like it, please check out our full guide on Reviewing Change of Control and Assignment Provisions in Due Diligence. )

What is an Assignment Clause?

First, the basics:

Anti-assignment clauses are common because without them, generally, contracts are freely assignable. (The exceptions are (i) contracts that are subject to statutes or public policies prohibiting their assignment, such as intellectual property contracts, or (ii) contracts where an assignment without consent would cause material and adverse consequences to non-assigning counterparties, such as employment agreements and consulting agreements.) For all other contracts, parties may want an anti-assignment clause that allows them the opportunity to review and understand the impact of an assignment (or change of control) before deciding whether to continue or terminate the relationship.

In the mergers and acquisitions context, an assignment of a contract from a target company entity to the relevant acquirer entity is needed whenever a contract has to be placed in the name of an entity other than the existing target company entity after consummation of a transaction. This is why reviewing contracts for assignment clauses is so critical.

A simple anti-assignment provision provides that a party may not assign the agreement without the consent of the other party. Assignment provisions may also provide specific exclusions or inclusions to a counterparty’s right to consent to the assignment of a contract. Below are five common occurrences in which assignment provisions may provide exclusions or inclusions.

Common Exclusions and Inclusions

Exclusion for change of control transactions.

In negotiating an anti-assignment clause, a company would typically seek the exclusion of assignments undertaken in connection with change of control transactions, including mergers and sales of all or substantially all of the assets of the company. This allows a company to undertake a strategic transaction without worry. If an anti-assignment clause doesn’t exclude change of control transactions, a counterparty might materially affect a strategic transaction through delay and/or refusal of consent. Because there are many types of change of control transactions, there is no standard language for these. An example might be:

In the event of the sale or transfer by [Party B] of all or substantially all of its assets related to this Agreement to an Affiliate or to a third party, whether by sale, merger, or change of control, [Party B] would have the right to assign any or all rights and obligations contained herein and the Agreement to such Affiliate or third party without the consent of [Party A] and the Agreement shall be binding upon such acquirer and would remain in full force and effect, at least until the expiration of the then current Term.

Exclusion for Affiliate Transactions

A typical exclusion is one that allows a target company to assign a contract to an affiliate without needing the consent of the contract counterparty. This is much like an exclusion with respect to change of control, since in affiliate transfers or assignments, the ultimate actors and responsible parties under the contract remain essentially the same even though the nominal parties may change. For example:

Either party may assign its rights under this Agreement, including its right to receive payments hereunder, to a subsidiary, affiliate or any financial institution, but in such case the assigning party shall remain liable to the other party for the assigning party’s obligations hereunder. All or any portion of the rights and obligations of [Party A] under this Agreement may be transferred by [Party A] to any of its Affiliates without the consent of [Party B].

Assignment by Operation of Law

Assignments by operation of law typically occur in the context of transfers of rights and obligations in accordance with merger statutes and can be specifically included in or excluded from assignment provisions. An inclusion could be negotiated by the parties to broaden the anti-assignment clause and to ensure that an assignment occurring by operation of law requires counterparty approval:

[Party A] agrees that it will not assign, sublet or otherwise transfer its rights hereunder, either voluntarily or by operations of law, without the prior written consent of [Party B].

while an exclusion could be negotiated by a target company to make it clear that it has the right to assign the contract even though it might otherwise have that right as a matter of law:

This Guaranty shall be binding upon the successors and assigns of [Party A]; provided, that no transfer, assignment or delegation by [Party A], other than a transfer, assignment or delegation by operation of law, without the consent of [Party B], shall release [Party A] from its liabilities hereunder.

This helps settle any ambiguity regarding assignments and their effects under mergers statutes (particularly in forward triangular mergers and forward mergers since the target company ceases to exist upon consummation of the merger).

Direct or Indirect Assignment

More ambiguity can arise regarding which actions or transactions require a counterparty’s consent when assignment clauses prohibit both direct and indirect assignments without the consent of a counterparty. Transaction parties will typically choose to err on the side of over-inclusiveness in determining which contracts will require consent when dealing with material contracts. An example clause prohibiting direct or indirect assignment might be:

Except as provided hereunder or under the Merger Agreement, such Shareholder shall not, directly or indirectly, (i) transfer (which term shall include any sale, assignment, gift, pledge, hypothecation or other disposition), or consent to or permit any such transfer of, any or all of its Subject Shares, or any interest therein.

“Transfer” of Agreement vs. “Assignment” of Agreement

In some instances, assignment provisions prohibit “transfers” of agreements in addition to, or instead of, explicitly prohibiting “assignments”. Often, the word “transfer” is not defined in the agreement, in which case the governing law of the contract will determine the meaning of the term and whether prohibition on transfers are meant to prohibit a broader or narrower range of transactions than prohibitions on assignments. Note that the current jurisprudence on the meaning of an assignment is broader and deeper than it is on the meaning of a transfer. In the rarer case where “transfer” is defined, it might look like this:

As used in this Agreement, the term “transfer” includes the Franchisee’s voluntary, involuntary, direct or indirect assignment, sale, gift or other disposition of any interest in…

The examples listed above are only of five common occurrences in which an assignment provision may provide exclusions or inclusions. As you continue with due diligence review, you may find that assignment provisions offer greater variety beyond the factors discussed in this blog post. However, you now have a basic understand of the possible variations of assignment clauses. For a more in-depth discussion of reviewing change of control and assignment provisions in due diligence, please download our full guide on Reviewing Change of Control and Assignment Provisions in Due Diligence.

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Why it’s hard for students to “just turn in” missing assignments, and how to get them unstuck

Mar 29, 2023 | Blog

With the end of the semester on the horizon, many students may feel overwhelmed by low grades or feeling behind in some of their classes.

As a parent, it can be stressful to see that your student has overdue work, or get notifications from their teacher that they’re missing assignments. 

It’s even more frustrating when you’ve told them over and over again how important it is to “just turn it in”…but the work is still showing up as missing.

The reality is that no matter how simple it might seem to an outside observer, doing missing work is almost never as easy as “just getting it done.” If they haven’t done the work yet, there’s a good chance that something is getting in their way. 

If you can figure out what the problem is before jumping in to help them (or make them) do the work, you’ll dramatically increase your chances of success.

In our experience, there are usually 3 main reasons students resist submitting their missing work…even when it seems like “just turning it in” would be SO much easier!

Reason 1: They think it won’t make a difference

Once the due date for an assignment has passed, students often de-prioritize it and move on to focus on upcoming assignments instead. It’s tempting for students to justify this by thinking “there are lots of other assignments, missing one or two won’t matter.”

But what they often don’t realize is that because of the way most grading scales are weighted, even one or two zeros can have an enormous impact on their grade. Showing students the difference it makes to turn in just a few assignments can increase their motivation to get the work done. 

Here’s an example of the difference it can make to turn in just a few missing assignments before the end of the semester:

Overall grade with 3 missing assignments: 78.3%

Overall grade when assignments are turned in: 90.1%

It’s hard for students to calculate these averages in their head, so it can be really powerful for them to run the numbers and see firsthand exactly how much they have to gain from making up their missing assignments.

When we do calculations like this with our students, they are almost always surprised by how much this makeup work could improve their grades, and feel much more motivated to submit the assignments when they can see for themselves the difference it will make.

Reason 2: They think it’s too late

Another reason students often resist doing makeup work is that they think it’s too late to get credit for it. 

Even if they’ve done the math and know that submitting the work would make a difference in their grade, they still won’t want to turn it in if they think the teacher won’t accept it.

Especially for introverted or anxious students, it can be very intimidating to have conversations with their teachers. They might think they’ll get in trouble for asking to submit their work late, or worry that the teacher will say “no.”

The good news is that many teachers are flexible with their late work policies and allow students to turn in overdue assignments even when it is past the “official” deadline to submit them.

So if students can find the courage to ask for help, there is a good chance that their teachers will respond positively and allow them an opportunity to make up the work.

For students who are struggling to reach out to teachers, we often find it is helpful to roleplay these conversations in coaching sessions if they’re not sure what to say, or work with them to email their teachers if they’re not sure what to say.

Reason 3: They feel overwhelmed

Students who are behind on their work often have challenges keeping track of due dates, managing time, breaking down complex assignments, prioritizing work, staying focused, or following through with plans….which is why they fell behind in the first place. 

These challenges can become even more daunting when they are behind in their classes, and trying to complete makeup assignments on top of their normal workload.

This can feel so stressful that a lot of students avoid or put off doing makeup work even when they   know   how much it would improve their grade.

For these students to get their work submitted, it’s essential to help them find ways to…

• Break down the assignments so they have a realistic plan for getting the work done that they’re confident they can actually follow through with
• Lower the stress they feel while they are doing the work so they will be less tempted to avoid it
• Visualize the progress they are making so they can see that their efforts are making a difference

Providing support

When students have a lot of makeup work to complete, having some additional support to help them work through it can be invaluable. 

For some students, this may mean finding a tutor to help them with the content they didn’t understand when their teacher was first presenting the material. 

For other students, having a family member or friend nearby as a source of moral support to keep them company while they are working (and a motivating reward to look forward to as soon as the work is completed) can be enormously helpful.

Other students may benefit from working with an academic coach to help them get unstuck and started on their missing work. Sometimes, having someone else who is not a family member step in to help can reduce stress and conflict at home and make it easier for students to take the steps they need to get back on track in their classes. If you think this type of support would be helpful for your student, please feel free to reach out and we’ll be happy to help! 

The Importance of Saying No

As explained in the Harvard Business Review, saying no doesn't come easily to many of us. We want to live up to attributes valued in the workplace, such as being a team player and a go-to person. Guilt and anxiety can prompt us to accept more work when we shouldn't. However, Forbes magazine says that when you strategically and respectfully decline an assignment, you can actually give your career a boost. Here's why:

You earn respect. Say you're given an assignment outside your job description. The assignment could easily be done by someone else, and by accepting the assignment, you jeopardize the work you're paid to do. Respectfully decline, and you earn respect by demonstrating your commitment to the job you were hired for.

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How to respond to the need for extra effort in an employee evaluation, job interview tips for ex-felons, how to deal with a reprimand, how to communicate unequal workload, how to deal with a coworker who refuses to help.

You keep priorities straight​.​ It's important to stay focused on short-term and long-term priorities in a busy work environment. By saying no, you can keep your attention and your energies on the tasks that matter most.

You establish boundaries. Say no if the request sets a precedent that makes you uncomfortable, such as picking up the boss's children from day care or firing a co-worker.

You set yourself up for success. Accepting an assignment that takes you out of your comfort zone can be an opportunity to expand your skill range. However, it's better to say no when something is clearly beyond your capabilities, and you won't be able to deliver.

Evaluate the Request

Before responding with an automatic no, experts suggest you think about what's being asked of you. Does the assignment interest you? Is it a good opportunity for you? Think about your current responsibilities and whether you have the time to take on something else in addition.

It's helpful to give some context to the request. For example, you can ask if the assignment needs to be completed right away or if it's a long-term assignment. You can briefly summarize your current workload, so the person making the request gets a better idea, from your perspective, of what's being asked.

Ways to Respectfully Decline

The employment website Indeed lists 50 different ways to say no. It's important to be straightforward with the person asking. You want to explain reasonably rather than appear defiant or as though you are making excuses. Here are additional examples:

• I'm sorry, but no. I am busy with my own work now, but if you still need help at the end of the week, let me know. I'll have more time then.
• No, thank you. I appreciate the opportunity, but my team needs me right now.
• I have to say no. This doesn't fall under my job description. Please ask our manager to refer you to the right person.
• No, I don't have the right skills for this assignment. Can I help you with something else?
• I'm not confident this will work out, but may I have a little time to think about it?
• Sorry, but I don't have the time for this right now. I can help you think of someone else to ask.
• I appreciate your confidence in me, but I'm going to say no. This assignment would take a great deal of time, and I need to prioritize my own work right now.
• I enjoyed helping you last time, but I'm currently too busy to take on an additional assignment.
• Harvard Business Review: How to Say No to Taking on More Work
• Forbes: When to Say No at Work (and Why It's Important)
• Indeed: How to Nicely Say "No" (With 50 Examples)

Denise Dayton, M.Ed., M.S., is a writer whose work has appeared in national publications in print and online. A Certified Master Gardener, she has gotten her hands dirty in the Midwest, the Deep South and way out West. She currently lives and gardens in New England.

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What would be the best way to convince a professor to waive late submission penalties?

I am a grad level student and I am completing my last course this semester. The professor is reducing our grade by 20%/day if we submit our assignment late. It is a lot. For example, my grade is 18/20 and he reduced it by 4 because I submitted it a day late. My total GPA is A+. It is a significant amount of grade that he is taking off. This will ruin my grade.

I understand that a late submission is not good. Having said that, I have always been trying my best to submit them on time. His assignments were more difficult than what he was teaching us during lectures and I always need to study extra books and material to solve problems.

I was thinking of sending an email and asking for him to waive the penalties. Especially now due to COVID it is somehow cruel to enforce these penalties.

Reason for late submission: Due to my research internship, I have been working part-time in a company in another city (not the city that the university is located). So it was pretty hard for me to keep up with the deadline. Before COVID, I had to even commute in between cities to attend classes and that drained me.

Edited: I wrote this letter, please feel free to edit or add more details.

Dear zyx, I am writing regarding the late-submission penalties. Due to my research internship and displacement, It was pretty hard for me to keep up with the deadlines. During this time I had to commute in between cities and I had only slid to follow up the course and solve assignments that I can save them for submitting my assignments earlier. Not accessing the in-person classes made me spend hours studying other references to solve my assignments. So I was wondering if you could please waive late submission penalties? Best regards, XYZ

• Comments are not for extended discussion; this conversation has been moved to chat . –  eykanal Commented Apr 17, 2020 at 15:49
• 1 "...I had only slid to follow up the course and solve assignments that I can save them for submitting my assignments earlier." The meaning of this particular statement isn't very clear, so you would want to rewrite it. –  Panzercrisis Commented Apr 17, 2020 at 23:14

8 Answers 8

Professors will say no by default to all such requests, but a lot of the time they secretly want to say yes, so you need to help them help you by providing all the relevant context, being logical and reasonable, and generally convince them that you are worthy of their attention and understanding.

Here is my attempt at a draft email.

Dear Professor xyz, my name is ZYX, I’m a student in your Programming for Programmers class. I submitted the first class project one day late on February 17 and as a result you imposed a 20% late submission penalty, which reduced my project grade from 18/20 to 14/20. I know that this penalty is in the course policies and accept that there is a good reason for such penalties and that you have the right to decide such things. But I wonder if you considered that such a high penalty may be unreasonably harsh? I am an excellent student and have worked very hard to maintain an overall GPA of A+ in the program. Because of the penalty it seems almost certain that my final grade for the class will end up lower than what my performance would merit without the penalty, which in turn would lower my overall GPA and future academic and career chances. The consequences seem disproportionate relative to the one time mistake of submitting an assignment late by just one day. I therefore want to ask respectfully if you might consider waiving or at least reducing the penalty for this late submission. I do sincerely apologize for the late submission, and for not contacting you in advance of the deadline to request an extension (something that in hindsight I obviously should have done when I realized I was going to be late). Normally I am very good at keeping up with my workload, but back in February, because of a research internship I was doing at [name of company], which required me to commute back and forth between [name of city 1] and [name of city 2] and took up a lot of my time and energy, my commitments ended up piling up in an unexpected way, which caused me to fall a little behind and miss the deadline. I nonetheless worked diligently to catch up and ended up managing to submit what I think you’ll agree is a high quality project the next day. Thanks for your consideration. I hope you understand my anxiety and do not think less of me for making this request. In this difficult period when students like me are facing an uncertain job market and other unusual difficulties related to the COVID-19 crisis, we could use a bit of leniency. Regards, ZYX

• 46 This line jarred for me " But I wonder if you considered that such a high penalty may be unreasonably harsh? " - It seems a bit confrontational. Perhaps something like "I was hoping there might be some scope for leeway " –  Valorum Commented Apr 16, 2020 at 20:10
• 12 @Valorum yes, it’s clear that I’ve forgotten how to speak like a true grad student . –  Dan Romik Commented Apr 16, 2020 at 20:31
• 9 I wonder if mentioning that this will bring down OP's GPA would be a plus. Some professors might stop reading there and assume OP cares more about grades than learning and dismiss the request. –  The Hagen Commented Apr 16, 2020 at 22:06
• 7 @DanRomik - To me if feels like you're questioning his judgement. "Hey, don't you think you're being capricious and stupid?" –  Valorum Commented Apr 17, 2020 at 6:49
• 5 This wouldn't move me much. However if there was a hint of asking whether there is a possibility of doing an extra assignment or doing something more in order to regain the lost score, I'd be more inclined to bend the rules. I mean, If I was the student, I'd try to argue if I could do another assignment to get the score. If the professor was to waive completely he'd be doing wrong to all the other students. But letting a student have a do-over upon request would be within tolerable moral limits, IMHO. –  Stian Commented Apr 17, 2020 at 7:59

I'm going to guess that you won't be able to convince them, no matter what you say. I think the rule that they imposed is very strict, but not unreasonable. They may have done so as a goad to get you to work early and often on assignments, rather than to let things go to the last moment. They may have done it simply to aid their own workflow in grading and giving feedback.

You can ask, and give the reasons. State them honestly. You can ask for an exception. You'd be more likely to get a one time exception than a general change in policy. But the prof would be doing you a favor in that case and you'd have to recognize it as such.

But, you made your own decisions to take on a workload that may have been to heavy for the conditions. Since those decisions were yours to make, it isn't the responsibility of others, including this prof, to get you out of the consequences.

I was once in a similar situation and wound up needing to drop a course to get back to a more reasonable work load. It required a favor from the dean who was, fortunately, inclined to grant it.

• 1 it was only a day late, –  nikki Commented Apr 16, 2020 at 13:35
• 23 @programmer Feels to me that the policy is pretty explicitly designed to cover cases that are "only a day late" - since you were only a day late you get -20%, if you were three days late you would get -60% off. I'm not saying it's a particularly lenient policy, but I feel "it was only a day" will not impress this specific professor much. –  xLeitix Commented Apr 16, 2020 at 14:59

I'm going to go against the flow here and say it's likely not worth drafting a letter to your professor asking for a reduced penalty:

• However you phrase it, it easily comes across as "needy" to me and so may negatively impact the professor's opinion of you;
• Your circumstances aren't exceptional (essentially boiling down to "I was busy so didn't have enough time");
• 20% per day actually seems rather lenient to me (we had a strict 0% policy for any late submission without an exceptional excuse.)

I've received a few requests like this from students in the past - the answer was almost always "no", and for better or worse, it made them seem desperate and/or lazy. (Of course, exceptions for situations such as "my father passed", "I was admitted to hospital", etc.)

Where you might receive more leeway is if you contact the professor well in advance of the deadline, demonstrate that you're working on the problem, say that you'll struggle to finish in time and ask if there's anything that can be done. This puts across the impression of "I'm trying but really struggling, what should I do?" rather than "I didn't work hard enough and submitted late, could you maybe get rid of that penalty pretty please?" - and most reasonable professors would want to help you out in the first situation.

• 3 You seem to miss the point that this professor is not you. Many profs accept the requests (especially since Covid is an exceptional suggestion) and you do not really point out why it could be a disadvantage to write such a letter. From your answer, it seems like the only thing lost when writing a letter is a small amount of time. Also, the one who judges if the circumstances are exceptional is the prof, not we on the Internet (as we do not have enough information on the situation). –  user111388 Commented Apr 17, 2020 at 11:08

I think you have a unique "opportunity" with the pandemic: True reason for being late or not, it is an extraordinary situation. Your professor may feel they can make an exception this semester without violating sacred principles.

One thing which would convince me was if the whole class/course would write a polite request that late penalties were suspended under these extraordinary circumstances. I don't know how many students are in your course, and if anybody else was late. But I would try to contact everybody (including punctual submitters!) and write a common letter detailing the problems which you all faced and stating that you all scrambled, and some simply had it easier with setting up home office, commuting etc.

Including everybody would make it more palatable to the professor because they might conceive a waiver as an unjust advantage of those who could not manage their time well. If everybody is OK with that it's easier to relax their principles just once under these extraordinary circumstances.

You need to get out in front of things. Acceptable reasons for a waiving of late penalties after the fact are usually limited to personal illness, serious illness or death in the family, or some other serious unexpected incident.

Other work commitments, commuting, picking up children from school, time for studying, etc. are expected situations for students. It is completely unreasonable to ask after the fact for a waiver of your late penalties for any of these reasons. You haven't failed your assignment, so let this 20% penalty teach you about your own personal capacities.

Now asking before the assignment is due is another matter. If you are having trouble keeping up, especially with unprecedented events like the COVID-19 pandemic, many schools will have rules allowing for extensions. So get in front of this: consider all of your subjects and their assessments. If there are any that are bunched together (for example if you have a week with 3 major things due in it) then it's quite plausible that you can get an extension for one or more. You should ask both your lecturers and your school's dean of studies/student department/etc, so that they can coordinate extensions between different subjects. Or you may be able to withdraw from a subject without academic penalty. But there's no guarantee that flexibility will be granted to you. Your problems aren't unexpected.

Your professor has good reasons for their late submission penalties.

Employment demands timely delivery, even when the work is tough. Lateness has real consequences, projects and relationships can be ruined. Sometimes negotiation is possibly; other times it is not.

Exploiting current events for personal gain may pay off, but not without cost. Other avenues should be sought, overtime considered.

An unanticipated or uncommon personal situation might merit delayed delivery. For instance, a prestigious, honourable activity on-top of a usual workload.

A combination of current events and a personal situation might also merit delay.

In the words of George Davis, Tell It Like It Is .

• @programmer Please read How should I phrase an important question that I need to ask a professor? –  Nobody Commented Apr 16, 2020 at 11:26
• 7 I think the appeal to academic policy as preparation for employment is particularly weak here. In many careers, a delay in a deliverable will be noticed or even anticipated long before the deadline, which can be shifted to accomodate, as deadlines are rarely as immutable as academia presents them to be. Let alone the simple fact that employment rarely involves the requirement to find both energy and free time at home to complete significant amounts of work, as most work is done during dedicated paid time. While it is a reason for late submission penalties, I wouldn't call it a good reason. –  Klaycon Commented Apr 16, 2020 at 20:38
• @Klaycon Spot on! I'd fully anticipated your comment. That's why I wrote: projects and relationships can be ruined and that sometimes negotiation is possibly ; other times it is not . As for employment rarely involves the requirement to find both energy and free time at home to complete significant amounts of work , that really depends on your job. Many will strongly disagree with you. Similarly for dedicated paid time , many work well beyond contracted hours. –  user2768 Commented Apr 17, 2020 at 7:15
• 2 @user2768: Please note that in many couuntries,working beyond contracted hours is against the law and not something people should be taught as a good thing. –  user111388 Commented Apr 17, 2020 at 16:29
• @user111388 I didn't suggest breaking the law. Regardless, contracted hours may be unbounded for practical purposes. Specifically for academia: I've never known a academic to record nor cap their hours. –  user2768 Commented Apr 20, 2020 at 10:43

It may be that the professor has no discretion to waive the late penalty. At my institution we have an "extenuating circumstances" panel that does have the discretion to waive late penalties if the student can give reasonable evidence of an "extenuating circumstances" that are beyond their control or ability to foresee (such as health problems) that adequately explains the late submission. There are good reasons for this, such as to ensure consistency and fairness, but also students may have deeply personal circumstances that they would not want to be shared more widely than absolutely necessary. Having a small panel that evaluates requests (in this case for a retrospective extension) limits the number of people that need to know about such circumstances, which may make students less reticent to apply.

So don't contact the professor until you have investigated the regulations and found out how these things are handled at your institution.

The penalty is set for some good reason, or at least the professor who set it must think so. However, the penalty is reasonable because of some assumptions work, and those assumptions are likely to work for all students, because if they weren't, the professor would have changed the deadline for all students after some of them asked in time.

Therefore, if you are going to request a change for you and not for the other students, you need to explain why the assumptions on which the penalty is based don't hold for you, and just telling that you are a good student is not going to do the word.

Furthermore, you are asking for an extension when the deadline has already passed. Then, in addition to give a good reason you need to explain why that reason was unforeseeable.

And last but not least, such a hard penalty seems a reaction with the professor not wanting students being late with excuses, probably as a reaction to past experiences. That means that the excuse needs to be very good and very well documented.

And Covid-19 alone doesn't seem to be a good excuse, but documented days of hospitalisation may be, or being unexpectedly confined without a computer or a pencil too.

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How to respectfully decline an assignment.

Turning down an assignment offered by a superior, or saying no to a task requested by a colleague, can be uncomfortable and challenging. To prepare yourself, you need a firm understanding of the responsibilities and requirements of your job so you can diplomatically and professionally express yourself if you are unable to take on an assignment.

Optional Assignment

Your supervisor might extend an opportunity to stretch your skills or challenge yourself professionally by offering you an assignment outside your everyday work responsibilities. Accepting this type of assignment can endear you to your boss and demonstrate your willingness to be a team player. However, if the assignment is not something you feel comfortable or qualified to take on, or if it puts you at risk of not giving full attention to your other responsibilities, politely decline by explaining the circumstances. For example, you might say, “While I appreciate the opportunity to head up this task force, I feel I would be more effective in a committee member role. I've never done this before, and I know this is a critical project for the team.”

Job-Related Assignment

If your supervisor gives you an assignment that’s in direct relationship to your job duties and responsibilities, your rationale for declining it needs to be strong. For example, if you have other pressing tasks with critical deadlines looming, and the assignment would jeopardize your ability to give full and necessary attention to your other projects, you need to have a conversation with your boss about prioritization. You might say, “I'm currently working on the advertisements for the upcoming educational program as well as finalizing newsletter copy for print deadline. I feel it is best to decline this new assignment so I can attend to my existing responsibilities."

Colleague Request

While co-workers are typically expected to assist one another in a team environment, don't let yourself get into the habit of taking on a co-worker’s tasks and responsibilities on a regular basis. In particular, try to avoid getting entwined with a colleague who leaves her own projects until the last minute and then asks you to drop what you’re doing and help her meet her deadlines. You might say, “I understand you're frustrated this project isn't complete. But I have several things I'm in the middle of that I need to get finished by the end of the week as well, so I'm not going to be able to help you.”

Recommend Alternatives

Declining an assignment can be easier if you offer your manager or colleague an option outside yourself. For example, you might tell your boss, “If you're looking for a group leader, Jim has been talking about how he’d like to take on more leadership roles, and I know he's enthusiastic about this particular project. He might be a good resource for you.” Suggest to a colleague that she ask for an extension on her deadline or say, “I know our intern just finished up a major project. She might have some free time if you need an extra set of hands.”

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