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Annual Survey of International & Comparative Law

Abstract

This paper deals with the problem of the transfer of interest in the context of litigation, which occurs with reasonable frequency in commercial law. The transfer of interest after pendency arises when a litigant assigns his rights or obligations to a third party while the action is pending. This is illustrated by the following short example: A – the owner of some jewelry – brings a suit against B, claiming the restitution of the jewelry, which he lent to B. During the lawsuit, B sells the jewelry to C and tells him about the pending lawsuit, and that A had sold the jewelry to him. However, transfer of interest is not only employed when an individual litigant transfers an asset; it is also relevant in a corporate context when a business organization merges or dissolves pendente lite. As a result, another legal entity is created and, thus, becomes the successor.

In this example, the question arises how different legal systems treat the problem of transfer of interest. The answers vary and give cause for shedding more light on the respective rules in a civil law country like Germany, whose procedures are characterized as “inquisitorial,” and a common law country, like the U.S., whose procedure is described as “adversarial.” The procedural rules concerning the transfer of interest play a considerable role in modern civil procedure and interestingly have not been subject to any comparative analysis so far. This article will analyze the different concepts of transfer of interest. It will focus on the various criteria for substitution and its effects. Furthermore, it will discuss the central objectives of the rules and differences in the legal cultures.

Cite as: 19 Annl. Survey Int'l. Comp. L. 301 (2013).

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