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Rumbin v. Utica Mutual Insurance Co.8/15/2000
n specified way'"); First England Funding, L.L.C. v. Travelers Indemnity Co., Docket No. BER-L-5608-99 (N.J. Super. August 20, 1999) (" he court further concludes that if the parties had wished to make any assignment void, that any clause purporting to invalidate assignments must contain language that it would be void or invalid if not made in a certain specified way"); University Mews Associates v. Jeanmarie, 122 Misc. 2d 434, 440, 471 N.Y.S.2d 457 (1984) (" or a contractual clause forbidding or restricting an assignment of rights thereunder to reveal the intent necessary to preclude the power to assign, or cause an assignment violative of contractual provisions to be wholly void, such clause must contain express provisions that any assignment shall be void or invalid if not made in a certain specified way"); Reuben H. Donnelley Corp. v. McKinnon, 688 S.W.2d 612, 615 (Tex. App. 1985) ("because the contract term only forbids assignment . . . it does not render an assignment ineffective"); see also 3 E. Farnsworth, supra, § 11.4, pp. 82-83 ("such anti-assignment clauses . . . are often read as imposing a duty on the assignor not to assign, but are not read as making an assignment invalid"); J. Murray, Jr., supra, § 138, p. 807 ("The contract may contain a promise by one or both parties to refrain from assigning. . . . The promise creates a duty in the promisor not to assign. It does not deprive the assignor of the power to assign and its breach, therefore, would simply subject the promisor to an action for damages while the assignment would be effective." [Emphasis in original.]). Thus, the modern approach finds support in the majority of jurisdictions.
The modern approach, however, is not adopted by some courts, which uphold antiassignment clauses regardless of whether the parties have included contractual language that expressly limits the power to assign or expressly invalidates the assignment itself. We agree with these courts that contracting parties can exercise their freedom to contract to overcome free alienability when they include the appropriate contractual language. See Parrish Chiropractic Centers, P.C. v. Progressive Casualty Ins. Co., 874 P.2d 1049, 1054-55 (Colo. 1994) ("The policy supporting free alienability is not such an absolute one that it must override a contract provision prohibiting assignment in a specific context. . . . To hold otherwise would be to force [the obligor] to deal with parties with whom it has not contracted, regardless of . . . express contractual provision . . . ." [Citations omitted; internal quotation marks omitted]); Portland Electric & Plumbing Co. v. Vancouver, 29 Wash. App. 292, 295, 627 P.2d 1350 (1981) ("The primary purpose of clauses prohibiting the assignment of contract rights without a contracting party's permission is to protect him in selecting the persons with whom he deals. . . . When a contract prohibits assignment in `very specific' and `unmistakable terms' the assignment will be void against the obligor." [Citation omitted.]). We disagree, however, with these courts that the antiassignment provisions in these cases contained the necessary contractual language. See Parrish Chiropractic Centers, P.C. v. Progressive Casualty Ins. Co., supra, 1051 (enforcing an antiassignment provision in insurance policy that stated " nterest in this policy may not be assigned without our written consent" [emphasis in original]); Cloughly v. NBC Bank-Seguin, N.A., 773 S.W.2d 652, 655 (Tex. App. 1989) (prohibiting assignment when annuity agreement provided that " eller . . . shall not have the right to make any assignment . . . under this greement without the prior written consent of the urchaser"); Portland Electric & Plumbing Co. v. Vancouver, supra, 294 (prohibiti
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