法律英语中的转让

存在一种观点，认为 Assignment/Assign 只能转让权利，不能转让义务。涉及权利义务的概括转让必须用 Novation。

第一，讨论法律或法律翻译之前，要确定司法管辖区和部门法。

An assignment of a contract involves transferring the rights (but not the obligations) of the outgoing party to the incoming party.
In legal terms, novation refers to the substitution of a new contract for an existing one, maintaining the same terms as the original contract, but between the continuing party and the incoming party instead of between the continuing party and the outgoing party. Unlike assignment, a novation transfers both the rights and obligations under the relevant contract from the outgoing party to the incoming party.

第三，虽然都是 Common Law 国家，但英国、澳大利裔、美国的法律是有差异的。具体而言，文首提到的观点和美国证监会（SEC）披露的公开文件明显是矛盾的。在涉及权利义务转让时，美国的法律文书并未使用 Novation 一词。

比如，在下面这份适用特拉华州法律的转让协议（Assignment Agreement）中，在同一段条款，约定了转让权利和义务：

WHEREAS, the Assignor wishes to transfer and assign to the Assignee all of the Assignor’s rights and interests in and to, and obligations under, the Stock Purchase Agreement, and the Assignee wishes to be the assignee and transferee of such rights, interests and obligations;
Assignment and Assumption. The Assignor hereby transfers and assigns to the Assignee, and the Assignee hereby acquires from the Assignor all of the Assignor’s rights, and interests in and to the Stock Purchase Agreement, of whatever kind or nature, and the Assignee hereby assumes and agrees to perform all obligations, duties, liabilities and commitments of the Assignor under the Stock Purchase Agreement, of whatever kind or nature.

在以下这份适用特拉华州法律的转让协议（Assignment and Assumption Agreement）中，也是在同一条款约定转让权利和义务：

Assignment. Effective as of the Effective Time, Assignor hereby assigns to Assignee all of its rights and obligations under the Assumed Agreements.

在以下这份适用特拉华州法律的转让协议（Form of Assignment and Assumption Agreement）中，也是在同一条款约定转让权利和义务：

Assignment and Assumption. (a) Assignor hereby irrevocably transfers and assigns to Assignee all of Assignor’s rights, assets, privileges and powers under the following Assumed Contracts, with all liabilities, obligations, covenants and representations and warranties of Assignor thereunder, as the same were held, performed and observed by Assignor immediately prior to the Effective Date, except as otherwise set forth below, and Assignee hereby accepts such transfer and assignment and assumes the due and punctual observance and performance of each and every such liability, obligation, covenant and representation and warranty:

在以下这份适用纽约州法律的转让协议（Assignment Agreement）中，在第1条中约定转让权利，在第2条中约定继受义务。

Assignment of Assigned Interests. Assignor hereby assigns, transfers and conveys to Assignee the right to purchase the Assigned Interests and the corresponding rights pursuant to the Purchase Agreement effective as of the date hereof.
Assumption. Assignee hereby accepts the foregoing assignment, transfer and conveyance and assumes and agrees to perform all of the duties and obligations of Assignor under the Purchase Agreement, in accordance with the terms thereof, applicable to or otherwise allocated to or with respect to the Assigned Interests.

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