LEGAL PRINCIPLE: CIVIL PROCEDURE – Pleadings – Statement of Claim – Agreement to Transfer Property Not Constituting Actual Transfer
PRINCIPLE STATEMENT
An agreement to assign is not an assignment; the argument that the plaintiff admitted that they had transferred the property to the defendant is based on an error; what was averred is an agreement to assign and not an assignment; this case is clearly distinguishable from those cases in which, although the plaintiff averred they had parted with the subject-matter of the action, they nevertheless sought a declaration of title to the same.
RATIO DECIDENDI (SOURCE)
"An agreement to assign is not an assignment. The argument that the plaintiff admitted that he had transferred the property to the 1st defendant is based on an error. What was averred is an agreement to assign and not an assignment. This case is clearly distinguishable from those cases in which, although the plaintiff averred that he had parted with the subject-matter of the action, he nevertheless sought a declaration of title to the same."
EXPLANATION / SCOPE
Critical distinction: agreement to assign (executory promise) versus assignment (executed transfer). “Agreement to assign is not an assignment” means: promise to transfer ≠ actual transfer, executory contract ≠ completed conveyance, and future obligation ≠ present disposition. Pleading “agreement to assign”: doesn’t admit transfer occurred, alleges only contractual obligation, and maintains plaintiff’s current ownership pending assignment completion. This distinguishes from: cases where plaintiff admits parting with subject matter (actual transfer), then inconsistently seeks title declaration (impossible after transfer). Here: plaintiff pleads agreement to assign (executory), not completed assignment, therefore still has title to declare, and no inconsistency exists. This serves: recognizing executory/executed distinction, preventing conflation of agreement with performance, and allowing claims based on uncompleted agreements. Plaintiff alleging agreement to assign: claims breach of executory contract, retains title until assignment completed, and can seek title declaration (still owns it). Versus plaintiff admitting completed transfer: cannot seek title declaration (parted with it), pleading is inconsistent, and claim may be struck out. The principle: carefully distinguish executory promises from executed transfers—legal consequences differ fundamentally. Agreement to assign creates contractual obligation, not property transfer—transfer requires more than mere agreement.