CAMPBELL, Justice.
Plaintiffs, vendors on a land sale contract, brought this action for specific performance of the contract against the vendee's assignees. The trial court granted plaintiffs' motion for summary judgment and the Court of Appeals affirmed. Kunzman v. Thorsen,83 Or.App. 392, 732 P.2d 49 (1987). We accepted review of this case to consider the circumstances under which the assignees of a vendee's interest in a land sale contract will be held to have assumed the vendee's contract obligations.
The Court of Appeals' summary of the facts reads:
83 Or. App. at 394, 732 P.2d 49.
The Court of Appeals, relying upon this court's opinion in Hodges v. Servine,211 Or. 428, 316 P.2d 312 (1957), concluded that defendants had impliedly assumed the vendee's contractual duties by "claiming the benefits" of the contract. Defendants argue that their actions did not constitute a claim of contract benefits within the meaning of Hodges. For the reasons set out below, we affirm.
It is well-settled in Oregon that "[e]ither party to a contract for the sale of land generally may have specific performance of the contract." Wittick v. Miles, 274 Or. 1, 6, 545 P.2d 121 (1976).1 A vendor's rights against the assignee of a land sale contract derive from the vendor's status as third party beneficiary to the contract of assignment between the vendee and the vendee's assignee. No independent obligation arises between the vendor and the assignee as a result of the acceptance of contract benefits. The scope of the assignment defines the scope of relief available to the vendor. In essence, the vendor's action is one for specific performance of the assignee's agreement to assume the vendee's duties. See 4 Corbin, Contracts 627, § 906 (1964 & Supp 1984).
The dispute in this case is over construction of the instrument of assignment. That instrument conveys to the assignees "all of the vendee's right, title and interest in and to" the land sale contract "and to the real estate described therein." The issue is whether this broad and inclusive language was intended by the parties to impose upon the assignees duties of performance under the original contract. As one treatise has stated:
Id. at 628-29, § 906.
In contracts for the sale of goods that ambiguity has been resolved in favor of a presumption that the assignee has assumed the contract duties. ORS 72.2100(4) reads:
The Restatement (Second) of Contracts (and its predecessor, the 1932 Restatement) adopted the same presumption as a general rule of contract construction. Restatement (Second) Contracts § 328 (1981); Restatement Contracts § 164 (1932).2 The justification advanced for this rule is that it most probably conforms to the parties' intent and to their understanding of the meaning of such broad language of assignment. 3 Williston, Contracts 109, § 418A (3d ed 1960); Langel v. Betz, 250 N.Y. 159, 162-63, 164 N.E. 890 (1928). However, the Restatement (Second) includes a caveat in which the American Law Institute reserves its opinion as to whether that presumption "applies to an assignment by a purchaser of his rights under a contract for the sale of land." Restatement (Second) Contracts § 328 (1981). The Institute explains this reticence in a comment:
Restatement (Second) Contracts § 328, comment c at 46 (1981).
In Hodges v. Servine, supra, this court stated the rule of interpretation for use in such cases. The vendee under a land sale contract had assigned the contract to defendants, who took possession of the property and began making payments to plaintiffs. Defendants eventually fell behind in their payments, and the vendors brought an action for strict foreclosure. Defendants answered that plaintiffs had waived strict performance of the payment terms of the contract, breached the contract and repudiated and rescinded the contract. Defendants claimed a lien for the amount of payments received by plaintiffs under the contract and for the value of permanent improvements defendants made on the property. This court affirmed the trial court's judgment for plaintiffs. Among the issues this court addressed was whether defendants were bound by a provision in the contract authorizing attorney fees in the event of a foreclosure. This court concluded:
Hodges v. Servine, supra, 211 Or. at 437-38, 316 P.2d 312.
In the instant case the Court of Appeals concluded from this passage that "an assignee may become liable under a contract by engaging in conduct that indicates that he has assumed it." 83 Or. App. at 394, 732 P.2d 49. The court scrutinized defendants' conduct and concluded:
83 Or. App. at 395, 732 P.2d 49.
Defendants argue that their actions did not constitute a claim of the contract's benefits within the meaning of Hodges, an argument made possible by the fact that the Hodges court did not specify which of the assignees' acts constituted a claim of benefits. Defendants contend that an assignee should be held to have claimed the benefits (and so to have assumed the duties) of a contract only when the assignee has resorted to the courts for relief under the contract. The Court of Appeals disagreed, stating that "[a]lthough bringing an action to enforce a contract is one way to claim its benefits, that is not the exclusive means by which an assignee may become liable." Id. Defendants point to the Hodges assignees' claim for rescission and to the citation in Hodges of the New York case of Langel v. Betz, supra, as support for their contention. Our reading of Langel, our consideration of the purposes to which it was put by the Hodges court and our examination of the other cases in which this court has considered the assumption of contract duties by an assignee on the ground that the assignee accepted the benefits of the contract lead us to agree with the Court of Appeals.
In Langel v. Betz, supra, the assignee of a land sale contract requested of the vendors an extension of the date for performance of the contract in order to allow the title company to complete its search and report on the title to the property. The vendors granted this request. However, upon the arrival of the new date for performance, the assignee did not appear. The vendors sought specific performance of the contract against the assignee, arguing that the assignee's request for an extension was an act sufficient to constitute an assumption of the contractual duties. The court recognized that "[t]he assignee may * * * expressly or impliedly, bind himself to perform the assignor's duties," and noted that under its previous decisions "where the assignee of the vendee invokes the aid of a court of equity in an action for specific performance, he impliedly binds himself to perform on his part," but that the converse of this rule, "that the assignee of the vendee would be bound when the vendor began the action," did not follow from those decisions. 250 N.Y. at 162, 164 N.E. 890.
The Langel court next discussed and rejected the rule of the first Restatement presuming assumption by the assignee, and it is for this discussion that Hodges cites the case. The Langel court stated:
250 N.Y. at 163-64, 164 N.E. 890. The court last concluded that because the assignee's request for an extension was not clearly "an assertion of a right" to the extension, the court would reserve consideration of the question of whether a "demand for performance by the vendee's assignee creates a right in the complaining vendor to enforce the contract against him." 250 N.Y. at 165, 164 N.E. 890.
Hodges cites Betz not for its tangential reference to the rule of implied assumption where the assignee has sued on the contract, but for its criticism of the Restatement.3 This court joined the New York court in rejecting the Restatement rule and requiring some objective manifestation of intent to be bound where the words of assignment are ambiguous. However, while the New York court declined to consider whether an assertion of a right under the contract might constitute such manifestation, this court held in Hodges that a claim of the contract benefits creates a presumption that the assignee assumed the contract obligations.
As we read the opinion in Hodges, the court was impressed less with the fact that the assignees sought restitution for their expenditures than with the fact that the assignees took possession of the land and made payments directly to the vendors, behaving generally as if they were party to the original contract. This interpretation of Hodges is supported by the only other cases in which this court has determined that acceptance of contract benefits imposed liability upon a contract assignee.
In Oregon & Western Colonization Co. v. Strang, 123 Or. 377, 260 P. 1002 (1927), this court considered the issue of whether the assignee of a land sale contract was bound by a provision requiring the vendee to "pay all taxes that may be hereafter levied" on the property. The court stated:
123 Or. at 382-83, 260 P. 1002 (emphasis added).
In Miller v. Fernley,280 Or. 333, 337, 570 P.2d 1178 (1977), this court cited Hodges in holding that an assignee who sold his assigned interest under a separate land sale contract, received payments from his vendee and later defaulted on the payments under the original contract had "assumed the burden of [an attorney fees] provision [in the original contract] since he accepted the benefits of the contract." Because no mention is made of the assertion by the assignee of any claim or counterclaim, it is clear that the court considered the assignee's sale of his interest and his receipt of payments an acceptance of benefits, just as it is clear that the Strang court considered the possession of and right to sell the land the "benefits" of the contract.
From this mash of precedent we distill the following principle: An assignee "claims the benefits" of a land sale contract when he or she exercises the rights in the contract's subject matter conferred upon the vendee by the contract. Where a party accepts a broadly worded assignment of a land sale contract, "steps into the shoes" of the assignor and asserts the interests the contract conveys, the presumption arises that the assignee intended also to assume the duties the contract imposes.
Defendants aver that "every assignee, even assignees for security purposes, `claim the benefits' of contracts assigned to them," and they express concern that the Court of Appeals' decision consequently renders every contract assignee liable for performance of the contract assigned. This concern is unfounded.
Accepting the benefits of a contract does not impose liability on an assignee. The Hodges rule is a rule of construction only. It considers the probable intent of the parties at the time the assignment was made for the purpose of determining whether expansive words of the assignment imply an assumption of duties by the assignee. Where the parties clearly intend otherwise (as evinced either by the terms of the assignment or by the surrounding circumstances, e.g., an assignment for security), the implication that the assignee assumed the vendor's contractual duties is dispelled.
Defendants further contend that vendees under land sale contracts will be unable to assign their interests in land as freely as mortgagors or grantors of trust deeds, pointing out that holders of those interests can assign their interests in the land "subject to" the mortgage or trust deed. Of course, nothing prevents the parties to an assignment of a vendee's interest in a land sale contract from including such a provision or otherwise limiting the assignee's exposure in the instrument of assignment.
The rule developed in Hodges, Fernley and Strang is closer to that of the Restatement and the UCC than it is to the probable majority rule on this issue. However, we are not persuaded that a more rigorous test than that adopted in this court's previous decisions is needed to safeguard the interests of the parties to a land sale contract or to its subsequent assignment.
Defendants argue that this case was not appropriately decided by summary judgment because defendants introduced to the trial court "evidence of language and circumstances fairly suggesting an intention not to assume" the contract. Our scrutiny of the affidavit and exhibits introduced by defendants in opposition to plaintiffs' motion reveals no such evidence. Defendants deny having expressly assumed or agreed to assume the contract duties, argue that their situation in this matter was such that they would not have wanted to assume the duties, and maintain that the relative bargaining positions of the parties were such that plaintiffs could have required an express assumption of duties but that the assignor could not. There is no indication that defendants sought affirmatively to disclaim the contract duties or that the understanding of the parties was anything other than that the assignment would affect a delegation and assumption of duties. We agree with the trial judge that this "evidence" was insufficient as a matter of law to dispel the presumption arising from the language of the assignment and the actions of the parties. Even viewed in the light most favorable to the nonmoving party, defendants' submissions to the trial court created no "genuine issue as to any material fact." ORCP 47 C. See Seeborg v. General Motors Corporation,284 Or. 695, 588 P.2d 1100 (1978).
In this case the trial court and the Court of Appeals properly construed defendants' acts as a claim of the benefits of the land sale contract. The trial court properly concluded that defendants had assumed the duties created by the contract and that summary judgment in favor of plaintiffs was appropriate. We affirm.