Monday, April 23, 2018

Assignment as a Form of Security under Omani Law

There are a number of different ways in which lenders in Oman can take security over a borrower’s assets so as to help ensure repayment of a loan. These include mortgages over land, commercial mortgages, pledges over shares or bank accounts, and various different types of assignment. Lenders should be aware, however, of the restrictions under Oman law that might affect the nature and enforceability of the available forms of security.

Assignment of rights under Oman law 
Neither the assignment of rights nor the assignment of debts (or obligations) had been expressly regulated in Oman until the introduction of the Civil Transactions Law by Sultani Decree 29/2013 (the “Code”). The Code now has provisions governing the assignment of debts, but it still does not address the assignment of rights directly, nor does it set out the requirements for such an assignment. 

While the requirements for the assignment of debts are clear under the Code, care must be taken when attempting to assign rights by way of security - and special caution is required when considering the creation of security by way of a purported conditional assignment.

In practice, the assignment of contractual rights is recognised in Oman - based on current commercial custom and comparative law - subject to the terms and conditions of an assignment agreement entered into between the assignor and the assignee, and provided the assignor notifies the debtor of the assignment.

As assignee, the lender should, as a matter of best practice, obtain from the debtor an acknowledgement of the assignment in order to perfect the assignment as a contractual arrangement. 

Lenders should note that Oman law does not recognise an assignment as true security, so the assignment need not, indeed cannot, be registered. Accordingly, an assignment of rights will not give a creditor security that can be enforced against other creditors. The assignment is only enforceable against the assignor in contract, and the assignee will rank only as an unsecured creditor in the event of the assignor’s bankruptcy.

Conditional assignment 
Under Oman law an assignment must be absolute. Full legal ownership is transferred to the assignee on the effective date of the assignment. A conditional assignment - whereby the secured asset would be transferred to the creditor only in the event of a default by the assignor - might be respected as between the contracting parties, but would be unenforceable against third parties in the event the condition, i.e., default on the obligation secured by the assignment, had not yet been fulfilled. 

Lenders should beware the possibility that, in such circumstances, there is at least a theoretical risk that the Oman courts could consider a conditional assignment agreement to be void, notwithstanding the intention of the parties, because its effect would be to transfer title to the secured asset to the creditor before the debt is due to be repaid.