In Retmil Financial Services (Pty) Ltd/Sanlam Life Insurance Company Ltd e.a.  3 All SA 337 (WCC), the Court held that a transfer entitled to act as a survivor with respect to the surrendered right, and the assignee is required to exercise due diligence with respect to the surrendered right and to defend the interests of the Ce. If it acts for the assignee, this situation may be problematic and give rise to a claim against the assignee if the assignee has not performed his duties as intended in this case. What is often overlooked is the principle that a transfer into nature is accessory. The case of Brayton Carlswald (Pty) Ltd and Another v Brews SCA illustrates the main principles surrounding this problem. The security of a debt can only be held by the property of another person, not by your own property. The bank has no guarantee on the debts sold, it “holds” the debts transferred. A similar situation arises in the case of a notarized general loan – the bank can only benefit from the guarantee of the loan by personal assets belonging to the bank`s debtor, but if the bank takes ownership of the assets in accordance with the executable partie clause, the guarantee disappears because the bank now owns the underlying asset. The obligations of a member of the assignment are also determined by the terms of the contract of engagement. It is therefore necessary for the parties to the assignment to clearly and unequivocally state the content and form of the assignment member`s obligations with respect to the rights transferred in the undertaking agreement, including in cases where the ceding party is not in default of secured debt. Security breaches can be complicated and should be developed with caution.
The analysis of the contracts.tech`automated security assignment agreement ensures that you take into account several important considerations that may relate to a security assignment. As noted above, the obligations of a member of the assignment are determined by the law applicable to the nature of the security instrument, which creates the guarantee. The authority in this matter is in Bisnath/Absa Bank Limited; Absa Bank Limited/Bisnath and Another  3 All SA 219 (SCA) in which the SCA has ruled on a number of appeals, in particular on the question of whether the bank, as a borrower holding assets allegedly in possession of assets belonging to a judicial order, should have withdrawn the rents due and due, which should have been the subject of the debt for which a breach had been cancelled. If this is the case, a court order declaring the property executable was wrongly ordered, the complainants argued. The assignment is a bilateral legal act by which the Cedent transfers its rights to the transfer member.