Template:Assignment and set off: Difference between revisions

*An [[assignment by way of security]] is a preferred claim in the assignor’s {{tag|insolvency}} over the realised value of certain rights the assignor holds against its counterparty. It is not a direct transfer of those rights to an assignee: the counterparty is still obliged to the assignor, not the assignee, and any claim the assignee would have against the counterparty would only be by way of [[subrogation]] of the assignor’s claim, should the assignor have imploded in the meantime or something.

*“''[[Nemo dat quod non habet]]''”:<ref>“A chap cannot give away what he doesn’t own in the first place.” Of course, try telling that to a [[prime brokerage]] lawyer, or a counterparty to a {{nycsa}}.</ref> the unaffected counterparty’s rights cannot be improved (or worsened) by assignment and, it being a [[single agreement]], on termination of the agreement the assignee’s claim is to the termination amount determined under the Agreement, which involves terminating all transactions and determining the aggregate mark-to-market and applying [[close-out netting]]. No one can give what they do not have.<ref>Except under [[New York law]] — isn’t that right, [[rehypothecation]] freaks?</ref>

   

At the point of closeout, the assignee’s right is to any termination payment payable to the Counterparty. Therefore any assignment of rights is logically ''subject'' to the netting, as opposed to potentially ''destructive'' of it.