Introductory Note - G. Gilmore, Security Interests in Personal Property §7.3 (1965)

1 G. GILMORE, SECURITY INTERESTS IN PERSONAL PROPERTY S7.3 (1965): "It is undoubtedly true that there was a time in the development of English law when intangibles — choses in action — could not be effectively assigned.^[1] It is not clear from our imperfect historical knowledge whether this had been true from the time of the rebirth of a commercial society after the Dark Ages or whether the rule, despite its appearance of antiquity, was a later invention. Several quite different explanations are offered of why there should ever have been such a rule at any time. One is that our simple-minded ancestors were incapable of conceiving the transfer of rights in property that was not visible and tangible.^[2] Such an explanation does as little credit to ourselves as it does to our ancestors, who appear to have been capable of conceiving quite difficult thoughts indeed. Another (which may be called the Ames-Holdsworth approach) looks on the rule of non-assignability as a deduction from, or an integral part of, an early phase of contract theory: a contract created a 'personal' bond between the parties who were 'in privity of contract,' and therefore (?) contractual rights could not be assigned to one not in privity.^[3] This explanation has the merit of linking the development of the law of choses in action to the general historical development of contract law but ultimately explains nothing, since it fails to tell us why the contractual bond should have been considered 'personal'  in this sense and with this result. A third idea, ably put forward by Glenn, is that the rule had nothing to do with conceptual difficulties or deductions from premises but was a rule of public policy based on economic grounds.^[4] Lord Coke remarked in Lampet's Case that if choses in action were assignable the result would be 'the occasion of multiplying contentions and suits, great oppression of the people, and chiefly terre-tenants, and the subversion of the due and equal execution of justice.'^[5] The results which Coke feared were perhaps of the same order as those which have prompted modern legislation prohibiting or restricting the assignment of wage claims.^[6] Consistently with this approach the transfer of choses in action — the buying up of claims — was long condemned under the law against champerty and maintenance.^[7] The maintenance cases, as early as the sixteenth century, make the interesting distinction (apparently accepted both in chancery and in the law courts) that what was forbidden was buying up claims for a present consideration; assignment of claims for a past debt was recognized and protected.^[8]

"It is familiar knowledge that the device used to escape the nonassignability rule was to allow the assignee to bring suit on the claim in the name of the assignor, on the theory that he held a 'power of attorney' by virtue of the assignment.^[9] Proponents of the personal contract or tie-that-binds explanation of the origin of the rule have looked on this as proof of the soundness of their position; the conceptual difficulties of contract were overcome by a conceptual borrowing from another developing body of law, that of agency. Although a person to whom a contract right was owed could not transfer it to one whom the obligor was not bound in privity, he could appoint an agent or attorney to collect in his place or stead.^[10] In time the fictitious agency became irrevocable and the nominal owner, after notice of the assignment to the obligor, lost any power to interfere with the assignee's rights. Thus by the typically muddle-headed process of thinking known as the genius of the common law, assignments of intangibles were made effective in fact while basic theory still proclaimed them to be legal impossibilities.

"A quite different and peculiarly fascinating theory has been put forward to explain the practice of the assignees' suing in the name of the assignor. From the time of the Norman conquest until the end of the twelfth century Jews were permitted to live in England and were to a considerable extent under royal protection. Under Jewish law, assignments of claims were recognized. Disputes between Jews were settled in Jewish courts but, by royal license, a Jew could sue a Christian in the royal courts. It has been suggested that if a Christian took an assignment from a Jew (for which a royal license was required) he would sue on the debt in the name of the Jewish assignor because 'by this method, the assignee obtained all the Jewish privileges of security, action and execution, which were not otherwise available to Christians.'^[11] So attractive an explanation ought to be true, even if it is not; the present author disclaims sufficient learning to entitle him to an opinion. As Glenn points out, the Jewish theory offers an explanation which does not require resort to the assumed conceptual impossibility of transferring 'personal' contract rights.^[12]

"History is quite as much what has been believed about the past as what happened in the past. In this sense what nineteenth century judges and lawyers believed about English practices and rules in the sixteenth, seventeenth and eighteenth centuries is history even though modern research may prove that the supposed practices and rules never existed. The treatises and judicial opinions of the first half of the nineteenth century leave no doubt about the pattern into which the sense of history had transmuted the past. It was believed that the English courts had at one time refused to give effect to assignments of claims; that courts of equity had rejected the legal rule and recognized assignments; that courts of law, bowing to the injunctive powers of equity, had in turn recognized the rights of assignees to sue on assigned claims, but only in the name of the assignor and on the theory that the assignment constituted an irrevocable power of attorney; that although assignees could thus enforce their claims in either the law courts or the equity courts, chases in action remained, theoretically, assignable in equity but non-assignable at law; that the interest of an assignee was therefore equitable and not legal."^[13]

[1] The statement in the text requires this qualification: some types of intangible claims and rights which a present-day lawyer might instinctively assume to be (and always to have been) "choses in action" were not so regarded by lawyers during the period when the rule of non-assignability of "choses" prevailed. Rents, annuities and advowsons (the right to fill certain church offices), for example, were not thought of as choses in action and were assignable under certain conditions. See 7 Holdsworth, A History of English Law 264, 528 (1922); 2 Pollock and Maitland, History of English Law 138 (1905). An illustrative case is Sir Anthony Sturlyn v. Albany, Cm. Eliz. 67, 78 Eng. Rep. 327 (Q.B. 1587) [supra p. 707 — EDS.]

[2] See Maitland, The Mystery of Seisin, 2 L.Q. Rev. 481 (1886). This theory has been criticized by Bordwell, The Alienability of Non-Possessory Interests, 19 N.C.L. Rev. 279 (1941).

[3] Ames, The Inalienability of Choses in Action, Lectures on Legal History 210 et seq. (1913); Holdsworth, The Treatment of Choses in Action by the Common Law, 33 Harv. L. Rev. 997 (1920); 8 Holdsworth, A History of English Law 115 (1922); the "personal bond" theory was put forth earlier in 2 Spence, The Equitable Jurisdiction of the Court of Chancery 849 et seq. (1850).

[4] Glenn, The Assignment of Choses in Action: Rights of Bona Fide Purchaser, 20 Va. L. Rev. 621, 635 et seq. (1934).

[5] 10 Co. Rep. 46b, 48a (publ. 1727), 77 Eng. Rep. 994.

[6] See, e.g., Strasburger, The Wage Assignment Problem, 19 Minn. L. Rev. 536 (935).

[7] This was the traditional approach up to the early nineteenth century. See, e.g., 2 Story, Commentaries on Equity §§1048, 1049 (2d ed. 1839).

[8] Glenn, The Assignment of Choses in Action: Rights of Bona Fide Purchaser, 20 Va. L. Rev. 621, 639 (1934), collects the authorities. See in particular two articles by Winfield, History of Maintenance, 35 L.Q. Rev. 50 (1919); Assignments in Relation to Maintenance, id. at 143.

[9] See Holdsworth, The History of the Treatment of Choses in Action by the Common Law, 33 Harv. L. Rev. 997, 1018 et seq. (1920), for a detailed treatment.

[10] See, e.g., Ames, The Inalienability of Choses in Action, Lectures on Legal History 210, 213 (1913).

[11] Bailey, Assignment of Debts in England from the Twelfth to the Twentieth Centuries, 47 L.Q. Rev. 516, 527 (1931).

[12] Glenn, The Assignment of Choses in Action: Rights of Bona Fide Purchaser, 20 Va. L. Rev. 621, 638 (1934).

[13] In fact the law courts had become the normal forum for suits by assignees and were becoming the exclusive forum:

If the theory had actually been applied, that choses in action were not transferable, the assignee therefore needing the aid of equity, then two things would have followed. The assignee, in order to collect his debt, could have come into equity as of course; and we would not find earlier writers discussing any other reason why a common law court would not enforce assignments. But at the very time when nineteenth century writers were urging this theory, neither of its logical consequences was in application.

In the first place, the common law courts were open to the assignee, and equity courts were not, save in exceptional cases. While Justice Story was writing his book on equity, he received a shock in the shape of an English decision where the Court of Chancery refused to entertain a bill by an assignee for the collection of the debt, because no special circumstances had been shown to justify equitable aid. This the learned writer treated as an innovation by no means to be commended: it was a rule “comparatively new,” said he. But in this he was mistaken. The English Chancery had done the same thing on previous occasions; the first reported instance having occurred over a century before Story wrote. Further, the intervening period had been marked by similar decisions on both sides of the Atlantic. From these decisions as well as those of the common law courts themselves, it appeared that the right of the assignees to sue at law, using the assignee’s name for that purpose, was recognized not only in rules of court but in rules of law laid down by decisions.

Citations omitted. Glenn, supra note 12 at 32.

By the middle of the nineteenth century some writers were aware of the changing situation. See e.g., 1 Parsons, Law of Contract 192-197 (1855) (Parson's most detailed statement appears in footnote (f) at 193); 2 Spence, The Equitable Jurisdiction of the Court of Chancery 853-855 (1850).

[With the abolition of separate law and equity courts and the enactment of "real party in interest" statutes under which the assignee was required to sue in his own name, one would assume that the debate over whether an assignment creates a legal or equitable interest would have lost its significance. As the cases in this chapter suggest, however, this ancient distinction may have some life left in it still. — EDS.]