There is a computer programming mantra which says “Garbage In / Garbage Out”.  In other words, if you write bad computer code (garbage in), you will not get the results you were looking for (garbage out).  While that can apply sometimes for the legal process, a variation is that what a non-litigation lawyer will sometimes see is “Incomplete In / Garbage Out”.  This is because of the rules of evidence for the legal process.  For example, if Daisy tells me that Gatsby went to Oxford, I naturally assume that Gatsby is an Oxford graduate.  Why?  Because (i) I have no reason to disbelieve Daisy; (ii) I have no reason to believe that Gatsby would lie to Daisy; and (iii) because, in the grand scheme of things, I probably don’t care too much about where Gatsby went to school.  Those factors being the case, I’m content to accept that Gatsby went to Oxford and eventually over time I will have accepted it so much that I will probably tell someone who asks me that Gatsby went to Oxford.  In a trial, however, the court will not accept this type of evidence.  Firstly, if evidence is being put before the Court, then it is assumed that everything has some importance.  Thus, where Gatsby went to school will mean something (either as a material fact or even as a factor in assessing Gatsby’s credibility as a witness).  Secondly, I cannot prove that Gatsby went to Oxford by having Daisy get in the witness box and say that Gatsby told her that he went to Oxford.  I will have to either put Gatsby in the box to give that evidence or else go through a reliable third party – such as someone from the Oxford registrar’s office who can confirm that Jay Gatsby was an Oxford student.

What does this mean for the litigant.  Well, first and foremost, it means that judges are coming to the lawsuit with a ”clean slate”.  Jay Gatsby is seen as a person of first impression.  The judge will not have gone to any of Gatsby’s parties and will (in most cases) not even have heard of Gatsby.  So all of the “background knowledge” that exists between the parties will not be known to the judge.  The only way that the judge learns these facts are if they are put into evidence before the judge.  If they are not put in front of a judge, either because they are not permitted (such as Daisy saying that Gatsby went to Oxford) or because a tactical decision was made to not introduce that evidence at trial, then the judge will not know that information.  That is where the disconnect often happens when someone says “I can’t understand how the judge could have come to this conclusion …”  The answer is often because everything that YOU know wasn’t made known to the judge for one reason or another.

If you want pure and total fairness, then you will have to appeal to God (or whichever higher being or authority you profess faith in) because God is all-knowing and only God can truly determine who is right and who is wrong.  Judges aren’t gods and they don’t profess to be.  They do the best they can with what is presented to them.  If Party A decides to not introduce facts X, Y and Z for some tactical reason, and if the judge decides against Party A – but might have found in Party A’s favour if the judge had known about any or all of X, Y or Z – then Party A cannot blame the judge.

Beyond the facts that are put to the judge, however, there is also the issue of how it is presented.  Judges are not robots with absolutely no biases.  Judges are human and they have biases – like everyone else.  If you have a car crash involving a sweet little old lady and a punk rock drummer who abuses cocaine, the chances are that if both of their stories are completely equal, the judge is more likely than not to accept the evidence of the little old lady.  Now, if you give the punk rock drummer a shave and a haircut, whiten his teeth, put him in a nice suit that covers up his tattoos, remove his piercings and keep out any evidence that relates to his cocaine abuse (which is quite possible if it is not relevant to the lawsuit), then the chances of the punk rock drummer winning the lawsuit go up substantially.  And if he wins, then the little old lady and her family will likely be the ones saying “I can’t understand how the judge could have come to that decision” – because they know what he looked like on the day of the accident and for one reason or another didn’t bring to the judge’s attention that the punk rock drummer wasn’t the “clean cut All-Canadian boy” that he appeared to be in court.

One of the keys to winning your lawsuit is to bear in mind that the judge’s thinking will be greatly influenced by both what is presented to the judge but also in some instances how it is presented.  If you are handling your own small claims court trial, don’t go in looking like the punk rock drummer in my example.  But however you go before the judge, make sure that the judge gets ALL of the facts necessary to find in your favour and don’t assume that the judge knows what you know.

Something to think about.

CALC

At this link, you will see an episode of Family Matters which is a show on CHCH in Hamilton.  As its name implies, it relates to family law cases.  However, this particular episode is a discussion with a retired judge who talks about some of the limitations of the court system.  Dealing with self-represented litigants; dealing with people who have the idea that the court should be like they see on The People’s Court or Judge Judy; dealing with the fact that judges are presented with only a portion of all of the facts; dealing with the all-or-nothing nature of the adversarial system; all of these issues apply to all types of litigation and are not exclusive to family law cases. 

That said, the discussion about mediation should be taken with a huge grain of salt since in a family law situation you have parents who are often trying to still raise their children and should therefore work together.   The example used is of mountain climbers who have to work together to get to the top.  In a dispute related to your business, sometimes that process will also apply – for example, if you have a dispute with one of your key suppliers and you both still have to get along.  But if you do not have an ongoing relationship with the other side, then, again, using the mountain climber example, neither you nor the other side will care if you cut the rope and let the other fall to his/her death.  So you have to be aware of these differences and realize that mediation may not work as well in non-family law cases.

If you have about 25 minutes, it’s a pretty good show to watch.  And if you have family law issues at home, you may want to check out some of the other episodes to see if any of them might be helpful for you.

Something to think about.

CALC

For those of you who might remember your Bible lessons on Sunday mornings, 1 Kings Chapter 3, Verses 16 to 28 tells the story of the two mothers who go before King Solomon.  Each mother claims that the child is hers and wants custody of the child.  Solomon says “OK, cut the baby in half and give each mother half and they’ll both be satisfied.”  One mother says “no, please don’t do that, give the baby to the other woman and let the child live.”  The other mother says “that’s fine, go ahead.”  Solomon gave the child to the first woman since she was clearly the mother and loved it.  This story lead to the (incredibly gruesome if you think about it) saying of “cutting the baby in two” to determine a dispute.   (Of course, all sorts of weird things happen to babies in sayings – they get thrown out with the bathwater, candy gets taken from them, etc.)

I was once told by a judge “I know I’ve made the right decision if both parties walk away and are both ticked off with my decision -but for different reasons.”  And that’s where the judicial thinking comes into play.  Everyone thinks of litigation as having one winner and one loser.  But is that really the case?  I would suggest that it isn’t the case.  It is very rare that there will be a 100% winner and a 100% loser.  A plaintiff, for example, will want 5 types of relief.  The judge may give him/her 2 or 3 types of relief.  Who is the “winner”?  The plaintiff who wins on 2 points or the defendant who wins on 3 points.  The plaintiff went from nothing to, say, $100,000 in damages.  The defendant went from facing a claim of $2,000,000 to only having to pay $100,000.

In many cases, the judge will “cut the lawsuit”.  Perhaps not in two, but into something less than the whole of what was sought.  The result is that if you are suing someone, you should be prepared from the absolute outset to realize that you are unlikely to get everything that you ask for in the lawsuit.  On the flip side, if you are defending you should be prepared from the outset that you are likely to face the plaintiff getting at least SOME relief and you should be prepared to have to pay something at the end of the day.  If you go into your lawsuit realizing that you are likely to win something and lose something, it will make you assess more quickly the strengths and weaknesses of your case and determine how far you want to fight the lawsuit and, in turn, how much money you want to spend for the fight.

Something to think about.

CALC

Well, I’ve finally figured out a new series of things to write about and it is going to be a series from time to time about judicial thinking.  In other words, our system is based on laws but it is also based on principles of equity – that is, fairness.  This mixture means that there are definite rules, but also enough exceptions that the system remains “human”.  If it was simply making and applying rules without exceptions then we wouldn’t need judges, we could just hand disputes over to a computer and it would run some calculations on the variables and spit out the judgment.

Since we have a “human” system, I have come to learn a series of what one of my kids would call “cheat codes” that sometimes can help to understand the system or to appreciate what you might expect if you have to go through a lawsuit.  So, in this series, I will provide some of these examples of judicial thinking.

CALC

I often say to my clients that a judgment from a court is a lovely and fancy piece of paper but if the other side does not have the money to pay the judgment or the ability to comply with the judgment, then the judgment is not much more than a lovely and fancy (and expensive!) piece of paper.  With arbitral awards, the matter takes an extra step.  For a judgment, the only issue is whether it can be collected upon, so to speak.  For arbitral awards, the first step after the award is made is to have the award recognized by the local courts so that the award can be enforced with the power of the court backing up the enforcement.  Once that support is obtained, then you get to the next, and regular, step of trying to get the other side to actually pay or comply with the award.

It is in this context that I read an interesting article in Canadian Lawyer magazine’s latest issue on difficulties in enforcing arbitral awards in China.  I have not yet had the pleasure of dealing with a commercial arbitration involving a party from China.  However, after reading this article, it makes me question whether I want my clients agreeing to arbitration in China if there are significant difficulties in enforcing the arbitral award there.  Given the increase in business with China, it may be wiser for businesses to ensure that they are in situations where they do not have to go to China to enforce their rights – either through arbitration or litigation.  For example, let the Chinese be the supplier so that if problems arise you can look at the option of withholding payment.  Or if you are supplying goods or services to the Chinese firm, always ensure that you have sufficient deposits against goods or services so that you will not be caught short if they terminate the agreement or refuse to pay anything more.  (I know, easier said than done sometimes.)

But if you are conducting business with the Chinese, the article is a very interesting read and something you will want to consider before your next contract so that you can decide how much risk you have for the transaction. 

Something to think about.

CALC

I did manage to find one continuing legal education program in which oral hearings were quickly mentioned.  Unfortunately, I only copied the two pages that covered the section – if anyone ever happens upon this program again and wants to let me know who said these passages I’ll happily give credit to the author where it is due.  It was written:

Hearings are held in Hull, Quebec before a one-person board.  Note also that is is possible to participate in hearings by way of telephone conference call. … French language hearings along with simultaneous language translation facilties are available.  …  There is currently a backlog of approximately 190 cass for which hearings have been requested and are scheduled or await scheduling, or for which decisions are pending.  The actual hearing date that is granted is typically anywhere from nine months to one year from teh date the request is made.  Decisions typically issue within one month of a hearing.

…

One can expect a high level of adjudication in oppositions, indeed often better than other venues.  … With this in mind, it is advisable not to waste the Board’s time by restating the obvious, belabouring issues of law which have long been decided, or droning on about basic points which are raised in every hearing in which an Officer participates.  The experienced practitioner quickly and succinctly canvasses issues such as the onus on the parties, and the material dates for considering the various grounds of opposition.  Keep in mind that each Hearing Officer has the pleasure of listening to a trade-mark agent or lawyer remind him or her on an almost weekly basis that the onus on the parties has not changed since the week before.

Nor does it advance a party’s case to reread its written argument.  The better approach is to simply inquire of the Board whether they have had an opportunity to read the party’s written argument and might have any qustions regarding same.  The one should go on to either add points not included in one’s own written argument or to add commentary on the other side’s case.  Do not be afraid to try out new points of law, even if prior Opposition Board decisions are against you.  The Board will at least consider and rule on them in writing, which may provide an opportunity to pursue the argument on appeal, if the case goes that far.

From my experience yesterday, I can add the following updates or my comments.  Firstly, Hull, Quebec is now known as Gatineau, Quebec (which threw me off a little and shows my age I suppose).  Second, as it now stands, the Board is finishing off its new swanky hearing room (we used it but it’s not done) and in a few months it will be ready for use with video conferencing which will be better than hearings by way of conference call.  Third, yes, English-French translation service is available, but one has to be somewhat wary of it.  The translators that they had for my hearing were good but they were not legally trained.  To give an example, the moving party or the applicant in a legal proceeding is a “Requerant”  The literal, non-legal translation would be “the requirer” or “the requiring party”.  In this case, however, the translator should have said “the applicant” but I was given the translation of “the requirer” and it took me a few seconds to figure out that it should have been the applicant – which meant that I lost a few seconds worth of translation.  After about the half-way point, I started to wear my headphones half on my ear and was listening more to the French than to the translation (I really should have more faith in my French abilities).

I’m not sure how many cases are backlogged now, but I can say that between the time the other side requested the oral hearing and yesterday was slightly more than one year.  In this instance, I cannot stress enough how important it was that I had the research updated between the time of the written arguments and yesterday’s hearing.  Why?  Because as it turned out the Supreme Court of Canada had released its decision in Masterpiece Inc. about five months after our written arguments had been submitted and that case changed the way one approaches trade-mark oppositions now.  As the Board member put it yesterday, she viewed Masterpiece Inc. as “Trade-Mark Oppositions 101″ – so that should be your starting point for the next few years at least – and I would have been very sorry if the research wasn’t updated and that case wasn’t found and addressed.

In addition, the Board member indicated that the Board’s internal guideline now is to get decisions released within four months – and that’s just the guideline so it could conceivably be a little longer.

I’m personally not a fan of assuming that the Board has read all of my arguments and I’m not a proponent of the “just ask them if there are any questions” approach.  I decided to hit the highlights at least of each of my arguments and still make the additional points or comments on the other side’s written argument.

In terms of logistics, the Oppositions Board hearing room has now moved to Room C232 of Phase II of Place du Portage.  Place du Portage runs from rue Victoria on one side to rue de l’Hôtel de Ville on the other side.  Phase II is on the Hôtel de Ville side – so if you have lots of materials to haul with you, have the taxi go to the Hotel de Ville side rather than the rue Victoria side.  Once you get into Phase II at the Hôtel de Ville side, go up the escalator and you will see Room C232 at the top of the escalator – so you don’t have to go through the security checkpoint.

I should also mention that it was stated by the Board Member that the Board does also hold hearings in Montreal – but only where both the applicant and the opponent are represented by lawyers or trade-mark agents based in Montreal.

There is a Practice Notice that is in effect for trade-mark opposition proceedings.  Suprisingly, it also says little about the actual procedure at the oral hearing.  The only portion that deals with the requirements for the hearing itself is found at Section X.8 and that simply says that parties are required to send to each other and to the Board at least five working days before the hearing a list of the case law and copies of any unreported decisions that they intend to rely upon at the hearing.  In this instance, I focused on the wording “to be relied upon at the hearing”.  I had cited about 20 cases, but I only planned to address about 6 of them in my oral arguments – the other 14 or so were either additional examples of my main case citations or else they dealt with items like on whom a certain onus rested.  So, I put in my 6 cases on the list and left it at that.  The other side, however, had cited over 30 cases and their lawyer sent in a list that had all of their cases listed.  The Board member said absolutely nothing about this – even though only a handful of cases were cited by the other lawyer.  I’m not complaining about this and it really didn’t matter in the end.  Next time, though, I will simply send in a list of all of my cases cited in the written arguments and any new cases that came up in between the written arguments and the hearing and then I can refer to whatever ones I want.

What was not clear was who speaks and when.  The onus is on the applicant to satisfy the Board that there is no likelihood of confusion.  As such, I presumed that I would go first, then the other lawyer and I would get a chance of reply.  As it turned out, the order of speaking was the Opponent’s lawyer first, then myself for the applicant, and then the Opponent got a chance of reply.  I was fine with either order, but at least now I know who speaks when.

When I was first married I had problems dealing with how to address my mother-in-law.  I was brought up not to call my elders by their first name.  I wasn’t going to call her “Mom” because she isn’t my mother.  I wasn’t going to call her “mother-in-law” because that sounded too formal and inappropriate.  I honestly had no idea what to call her so for over a year I simply spoke with her directly and never called her anything.  The “difficulty” (to the extent that there was one) was alleviated after a year with the birth of our first child and my ability to now call her “Grandma”.  Fortunately, though, that year gave me practice for speaking with the Board Member.  I couldn’t call her Your Honour, because she isn’t a judge.  I just couldn’t bring myself to referring to a woman (or a man for that matter) as a “member” – for reasons which should be obvious.  I did not feel comfortable referring to her by her personal name since I had never met her before and it seemed awfully familiar (although, in fairness, it wasn’t a stuffy or overly formalistic hearing).  So, I just spoke directly with the Board Member and didn’t address her directly but I did make mention from time to time along the lines of “if the Board should find …”  I had asked the registrar before the hearing how to address the Board Member and he had no idea.  I guess you’ll have to figure out what works for you and you are comfortable with.  I would still be calling judges “Mi’Lord” and “Mi’Lady” if we weren’t required to call them “Your Honour” nowadays – I like the old formalities.

In terms of the hearing itself, the Board Member basically said at the outset that she had a few questions she wanted to ask of each side and that some other questions might arise as we made our arguments, but that she was basically willing to let us make our arguments with little interference from her.  The hearing did proceed in that manner.  Compared to other hearings I’ve been in, it was quite painless.

The final issue to mention is that there are no costs provisions under the Trade-Mark Act or the regulations or the practice notice for opposition board hearings.  So, my last minute panic (that I always get before a hearing, motion, etc.) that I have forgotten to prepare a bill of costs or costs outline was quickly relieved when I ran into the office late the night before and saw in Hughes on Trade-Marks that there are no costs provisions so I didn’t have to prepare anything related to costs.  At least one less thing to worry about from a practice standpoint (although if my client wins the hearing I’m sure it would like its costs – but the same could be said for the other side if it wins).

Hopefully some of the above information might be useful to someone else facing their first opposition board hearing and looking for some practical tips on how it works.  Best of luck in your hearing!

CALC

In this case, the locks were changed and certain items remained within the rented space.  Ultimately, the landlord was able to re-lease the space and in doing so the lease appeared to include some of the equipment that was owned by the tenant.  The tenant therefore sued for conversion – which is when one party unlawfully appropriates the property of another party.  One of the defences to a claim of conversion is that the plaintiff abandoned his/her/its property.  Abandonment requires a “giving up, a total desertion, and absolute relinquishment” of the items by the owner.  On the facts of this specific case, the Court of Appeal found that the tenant had not taken such steps.

The Court does make mention of the fact that abandonment could be found where the defendant took steps to contact the owner of the property before the property was disposed of and no response was made by the owner.  In this particular case, there was no notice or attempts by the landlord to contact the tenant. 

There are two points for commercial landlords to remember: the first is that if the lease is being foreclosed upon and being treated as at an end, you do not have a right to distrain the tenant’s goods in the rented speace.  The second is that if you do proceed to take the goods and sell them, you had better give notice to the tenant of your intention to do so – otherwise you could end up having to pay damages for conversion like the landlord in the Dean case.

Something to think about.

CALC

I have said in the past that the key to good collections is to get deposits or retainers up front and to never extend credit too far.  This is especially true in service industries like law, accounting, consulting, etc.  With that practice, it is still not uncommon, though, to experience a 1 or 2% bad debt level.  But even in 2008 and 2009 I did not experience problems like I did in 2011.  The final numbers aren’t in yet (because it’s too early to talk about collections on December bills for example), but it’s looking like I will have ended the year being stiffed to the tune of about 10% of my invoices.  Thankfully, it’s not all on one or two files, so we’re still talking relatively small numbers.  The problem, though, is that a bunch of small numbers can still easily add up to the equivalent of one large number.

The storm clouds are on the horizon in terms of the economic forecasts for 2012.  I’m not sure that they ever really left the horizon but the issue becomes whether it’s better to keep a tighter rein on your customers’ receivables or to chase after them later to sue for a larger amount.  Alternatively, it might be time to start looking at your contracts with your customers – especially if you are a service-provider.  I have a couple of versions of retainer agreements.  When the economy gets really bad, I have a version that says that if my invoices go unpaid for 2 months or more, then I am fully entitled to stop working and that the client will consent to any motion I bring to get off the record so that I can get out of a bad situation as quickly as possible (although I then have professional responsibilities which always will temper that ability).  What does your contract say?

Something to think about.

CALC

Normally there is something called “privity of contract”.  Suppose that you agree to pay me $10 to paint your fence.  I then hire a teenager to actually paint the fence and I agree to pay him $5.  The teenager paints the fence and you are happy with the result, so you pay me the $10.  I then don’t pay the teenager.  Normally, the teenager cannot go after you for his $5 because his contract was with me, not with you.  That’s the concept of “privity of contract”.  You and I have privity of contract – that is, we are the parties to a contract – and the teenager and I have privity of contract, but you and the teenager are complete strangers for contract purposes.

The concept of privity of contract can create real problems when it comes to shipping because often the actual truck or vehicle used to physically move the goods is done by a sub-contractor.  When we’re talking $5 and $10 it’s not a big deal, but when we’re talking about thousands of dollars in freight costs – especially for truckers who might not make a lot of money from their loads to begin with – it can be a huge problem when it comes to the shipper getting paid but then not passing on the trucker’s portion.  To the rescue (of the actual carrier, but not of the sender) comes Section 2 of the federal Bills of Lading Act and Section 7 of the Ontario Mercantile Law Amendment Act.  Both of these do away with the concept of privity of contract in shipping cases.

The result is that even if you pay the shipping company, if they turn around and don’t pay the actual carrier (eg. trucker), you could end up paying twice and then having to chase after the shipping company to get a refund on what you had to pay to the carrier.  How can you avoid this?  Make sure that the shipper you use owns the vehicles and doesn’t use sub-contractors.  Will they charge you more than the smaller operations?  Probably.  But the question is one of risk – which will cost you more: paying the higher cost now or potentially having to pay twice later on.

Something to think about.

CALC

A complained that the arrangement between B and C was champertous and therefore should not be an enforceable assignment – that is, that A should still have to deal with C, not with B.  Why?  In part, I’m sure, because of the bad blood between A and B.  In part, I would expect, in that A would be concerned that his competitor, B, would now be in a position to potentially run him out of business, etc.

Madam Justice Feldman rejected the argument that this was a champertous situation.  She quoted from a prior decision of the Court of Appeal that nicely summarizes the law of champerty and maintenance:

Although the type of conduct that might constitute champerty and maintenance has evolved over time, the essential thrust of the two concepts has remained the same for at least two centuries. Maintenance is directed against those who, for an improper motive, often described as wanton or officious intermeddling, become involved with disputed (litigation) of others in which the maintainer has no interest whatsoever and where the assistance he or she renders to one or the other parties is without justification or excuse.  Champerty is an egregious form of maintenance in which there is the added element that the maintainer shares in the profits of the litigation.

The law had long held, however, that the mere assignment of a debt (even if it is does for an improper motive) is not, in and of itself, champertous.  In upholding this law, the assignment from C to B was not champertous and therefore was valid.

Similarly, the assignment was valid because there had been compliance with Section 53 of the Conveyancing and Law of Property Act.  That section reads as follows:

53.  (1) Any absolute assignment made on or after the 31st day of December, 1897, by writing under the hand of the assignor, not purporting to be by way of charge only, of any debt or other legal chose in action of which express notice in writing has  been given to the debtor, trustee or other person from whom the assignor would  have been entitled to receive or claim such debt or chose in action is effectual  in law, subject to all equities that would have been entitled to priority over  the right of the assignee if this section had not been enacted, to pass and  transfer the legal right to such debt or chose in action from the date of such  notice, and all legal and other remedies for the same, and the power to give a  good discharge for the same without the concurrence of the assignor.

Is there anything earth-shattering in this case.  Not really.  However, it does give me a good excuse to set out for you the law of champerty and to advise of Section 53 of the Conveyancing and Law of Property Act.

Let’s talk quickly about champerty and maintenance.  Litigation is not for the faint of heart – or of wallet.  What often happens is that people start the lawsuit expecting it to cost $X and soon realize that it is going to cost more than $X.  So, they start borrowing money from friends, relatives, etc. to help pay for their legal fees.  This is borderline maintenance but usually will not be overly problematic.  What is far more problematic is when Person X says to Person Y – go ahead and sue Person Z and I’ll cover your costs.  If that happens, then Persons X and Y are going to be in trouble.  So, you should watch out when you are asked to give guarantees or agree to cover legal fees for any business associates.

Section 53 of the Act, is also important for you to know about.  Why?  Because it has two aspects.  The first is that any assignment is not effective as against a debtor unless and until notice of the assignment is given.  So, suppose that one of your customers cannot pay you, but he says that he is owed a lot of money by one of his customers and he agrees to assign over to you the accounts receivable so that when that customer pays, the money goes to you.  That could be a very good setup and ensure that you get paid.  However, unless and until the customer is given written notice of this assignment, he has the right to continue to pay your customer directly, instead of paying to you, and you will have no right to complain (especially when, as usually happens, your customer then proceeds to blow the money instead of forwarding it to you).

The other aspect to bear in mind is the fact that Section 53 of the Act preserves the concept that a person takes an assignment “subject to the equities”.  So, in my example immediately above, suppose that the assignment occurs and then you go to your customer’s customer and say “you owe my customer $100,000 and you are now to pay me.”  The customer’s customer has the right (assuming it is a valid claim) to say something like “I admit that I would owe $100,000, except for the fact that the product / services / whatever provided by your customer to us was deficient / non-existent / whatever and so we do not have to pay $100,000 but only $X (being some amount less than $100,00) because of the problems caused by your customer.”  If it is a valid claim, then you will be stuck with this reduction and will not be able to say “that’s between you and our customer, pay us the $100,000 and then any rebate or reduction you will have to take up with our customer.”

So, if you are either giving or taking an assignment of a debt, always bear in mind that you will want to ensure that it is not seen as being a form of maintenance or champerty that will invalidate the assignment and also keep in mind the requirements of Section 53 of the Conveyancing and Law of Property Act to ensure that you can enforce the assignment and also to ensure that either there are no set-offs or reductions that can be applied or that a sufficient discount is given on the price paid for the assignment to take such potential set-offs or reductions into account.

Something to think about.

CALC