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Assignment - Nemo Dat Quod Non Habet (Assignee Stands in the Shoes of the Assignor)

. Peace River Hydro Partners v. Petrowest Corp.

In Peace River Hydro Partners v. Petrowest Corp. (SCC, 2022) the Supreme Court of Canada, in the course of making an example in a case about insolvency and arbitration, states a fundamental feature of assignment:
[106] .... It is a “fundamental” and “universal commercial legal principle” that an assignor may not assign contractual rights in such a way as to “convey the benefits and nullify the burdens”. Stated differently, a party seeking to enforce assigned rights under an agreement “can only do so subject to the terms and conditions therein”, including the condition that disputes are to be resolved by arbitration (ABN Amro Bank Canada v. Krupp Mak Maschinenbau GmbH (1996), 1996 CanLII 12449 (ON SCDC), 135 D.L.R. (4th) 130 (Ont. C.J. (Gen. Div.)); see also Casey, at ch. 3.5.1; Petro‑Canada v. 366084 Ontario Ltd. (1995), 1995 CanLII 7418 (ON SC), 25 B.L.R. (2d) 19 (Ont. C.J. (Gen. Div.)), at para. 55).
. Urmila Holding, Inc. v. Anand Holdings Inc.

In Urmila Holding, Inc. v. Anand Holdings Inc. (Ont CA, 2021) the Court of Appeal considered nemo dat, the obvious legal principle that one cannot assign an interest that one does not have:
[32] The application judge bolstered his conclusion through his reliance on the nemo dat principle. In Green v. Green, 2015 ONCA 541, 387 D.L.R. (4th) 512, in the family law context, this court said, at para. 53: “at common law, an assignor may not assign more than it has, or put differently, nemo dat quod non habet, no one gives who does not possess.” Applying this principle, the application judge held that, although the exclusive usage right belonged to Urmila as the owner of Unit 20, as a tenant, Dr. Anand had a limited right to assign the exclusive usage for as long as he was entitled to the benefit of the exclusive use under the lease.


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Last modified: 03-06-24
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