Signed as a deed

[R0b]

Re: Signed as a deed

In simple terms, here is a quote from Practical Law Company (i'm sure you've have heard of them) on Insolvency and Guarantees

Insolvency of the principal obligor

Effect on the beneficiary - Legal and practical effects
The insolvency of the principal obligor does not affect the beneficiary's rights against the guarantor.

Effect on the guarantor - Guarantor's liability
The insolvency of the principal obligor does not reduce or extinguish the guarantor's liability under the guarantee.

Are you still going to deny that if the guarantee was valid then there is still no liability?

[Openlaw15]

Re: Signed as a deed

In simple terms, here is a quote from Practical Law Company (i'm sure you've have heard of them) on Insolvency and Guarantees



Are you still going to deny that if the guarantee was valid then there is still no liability?

Rob, my law tutor was a phd, LLM, LLB commercial lawyer.... my course provider, College of Law is responsible for over half the barristers and solicitors in the UK. I have proved my credentials and why my opinion is legally sound. http://www.open.ac.uk/library/digita...cri:W222/study

"who has satisfied the academic requirements of the module belowCommercial transactions: law and practice
(W222)....





....Level of Study Level 2





Inclusive Learning Time 300 Hours"





October 2013
Module Details
Level of Study Level
2 Inclusive Learning Time 300 Hours
Credit Rating 30 Points

[charitynjw]

Re: Signed as a deed

@R0b [MENTION=77627]Openlaw15[/MENTION]

Subbing with interest.

Even judges misinterpret the law sometimes - that's often a reason for appeals.

[Openlaw15]

Re: Signed as a deed

@R0b @Openlaw15

Subbing with interest.

Even judges misinterpret the law sometimes - that's often a reason for appeals.

Well yes but if there is a problem with interpreting the law the judges have certain rules based on Parliament's drafting. 1) Letter of the law verbatim, golden rule, purpose rule, and then to go back to what was the statutory intent by Parliament using Hansard records, ie Parliament debates during the process of the relevant Bill up to it third read before royal assent by the Queen. So the judges must give effect to Parliament they cannot simply interpret the law to suit them as then that would be a constitution violation of the separation of powers and or the rule of law in the UK's constitutional hierarchy.

[R0b]

Re: Signed as a deed

I honestly don't think you will ever accept what I am saying. All the paid for subscription databases lawyers use and rely on and all those authorative texts and cases arising from the Court of Appeal and High Court must be wrong, all because you studied a module and were taught from a PhD lecturer who was also a commercial lawyer... lol

Anyhow, the OP can decide what he/she wishes to rely on

[Openlaw15]

Re: Signed as a deed

I honestly don't think you will ever accept what I am saying. All the paid for subscription databases lawyers use and rely on and all those authorative texts and cases arising from the Court of Appeal and High Court must be wrong, all because you studied a module and were taught from a PhD lecturer who was also a commercial lawyer... lol

Anyhow, the OP can decide what he/she wishes to rely on

Rob my view was and always has been that pari passu is a good defence for the Op. I am not saying it will be successful but it is good defence to use, ergo it was a relevant defence in commercial practice as per the reasoning in said text by the commercial lawyers in the business faculty of the Open University law schools, notwithstanding Sealy and Hooley's contributions who are experts in commercial transactions' law.

[Openlaw15]

Re: Signed as a deed

I honestly don't think you will ever accept what I am saying. All the paid for subscription databases lawyers use and rely on and all those authorative texts and cases arising from the Court of Appeal and High Court must be wrong, all because you studied a module and were taught from a PhD lecturer who was also a commercial lawyer... lol

Anyhow, the OP can decide what he/she wishes to rely on

No Rob, through the OU's law schools' commercial practicing barristers in their day job ...not lecturers. The legal professionals tutor part-time but their practice is based on their day job. They're not just academics in a university they're qualified practicing barristers.

[R0b]

Re: Signed as a deed

How can pari passu be a defence when the company is now dissolved?

[Openlaw15]

Re: Signed as a deed

@Openlaw15 I haven't managed to look at the guarantee yet but the gist of your post there is basically that any company who who enters into a guarantee whether it is a personal guarantee or even a parent company guarantee, is no longer enforceable when a company is dissolved? Is that what you are saying?

Why is the defence that of a defective deed a foolhardy one? Given your relevant posts on wills and probate you should know the requirements of a deed so I'm a bit surprised as to why you sugges that it is a poor argument.

Let's say for example, the DLC brings a claim against the director personally for the recovery of sums outstanding. Why would pari passu be a good defence to plead? Surely if the company is dissolved and the guarantee is ineffective then the defence pleaded should be that the DLC has no standing against the director because it was the Ltd Co who took out the loan not the director.

I am also curious about your credentials so Id be grateful if you could enlighten me as to how long ago you did your law degree? Also what are your sources that you use to back up your claims? Are these the same books when you did the degree or something else? Do you have any experience working in practice?

I have to be honest some of your answers are very dubious and contain a lot of waffle it looks like your taking it straight out of a textbook verbatim - not to mention your legalese!

Now I have proven my credentials in that I had to study commercial transactions' practice course assignments and conduct independent research for every assignment, notwithstanding had to produce an extended very complex research assignment to pass the commercial course. Now what are your qualifications and credentials pertinent to insolvency and commercial law?

[Openlaw15]

Re: Signed as a deed

How can pari passu be a defence when the company is now dissolved?

It is a pari passu defence for the former director of the insolvent company against the third party debt collection agency, were it to claim the debt. It would have been a defence also for said director against the bank were it to force the guarantee against him. The bank likely assigned the receivable (ie sold the right to endeavour to claim for it if a debt were proven) to the debt collection agency as it knew full well that commercial law is murky waters.

[EXC]

Re: Signed as a deed

Now I have proven my credentials in that I had to study commercial transactions' practice course assignments and conduct independent research for every assignment, notwithstanding had to produce an extended very complex research assignment to pass the commercial course. Now what are your qualifications and credentials pertinent to insolvency and commercial law?

Ok that's enough. Let's concentrate on offering pobrm some solutions to his issue please.

[pobrm]

Re: Signed as a deed

It's become more complicated and confusing now. Some very useful and interesting information from both of you but the conflicting opinions are making this more difficult to understand.
I get that the solvency of the guarantor would affect the guarantee but it was the Ltd company that became insolvent and not the guarantor.
With regard to the actual document, are we saying that it doesn't need a physical signature by a representative of the bank to mean that it has been signed?

[R0b]

Re: Signed as a deed

Openlaw and myself will generally always clash with conflicting information :lol:

For a valid deed, the bank must have signed it, they haven't strong argument to say not a deed plus the fact that they have stamped it too without a signature should be confirmation.

As the deed is not valid it falls to a simple contract period for bringing a claim is 6 years, that time has passed your argument is statute barred.

[Openlaw15]

Re: Signed as a deed

It's become more complicated and confusing now. Some very useful and interesting information from both of you but the conflicting opinions are making this more difficult to understand.
I get that the solvency of the guarantor would affect the guarantee but it was the Ltd company that became insolvent and not the guarantor.
With regard to the actual document, are we saying that it doesn't need a physical signature by a representative of the bank to mean that it has been signed?

The idea behind a personal guarantee by a director of a company is to force it against him or her if the company goes into liquidation. However, what am saying unless the bank, also a limited company, had taken out a land charge on your (ie the director's) personal property ie home or other tangible security, there would be no security to withstand against the director for the company going insolvent. Unless you had fraudulently done something wrong, you have the pari passu defence. The company debt has disappeared along with the company, which includes all and former staff, ie 'working directors.' You have a statutory protection against the bank via pari passu, and now the third party debt collection agency. Whether it is successful depends on how far the debt collection company want to go. Commercial law is murky waters. It just depends how much the debt was, how much it (the receivable) was purchased for as to whether the debt collection company would challenge a pari passu defence. If we take the alternate remedy it's the argument that the deed wasn't satisfied based on LP(MP)A 1989, however on your facts the guarantee (which again would be live because we didn't argue the preferential creditor rules) states under acknowledgement: the bank has signed this guarantee and you and the other witnesses signed and date it. So it is effectively 'signed when delivered.'

[Openlaw15]

Re: Signed as a deed

Openlaw and myself will generally always clash with conflicting information :lol:

For a valid deed, the bank must have signed it, they haven't strong argument to say not a deed plus the fact that they have stamped it too without a signature should be confirmation.

As the deed is not valid it falls to a simple contract period for bringing a claim is 6 years, that time has passed your argument is statute barred.

Does the bank have to sign it if there is an express 'acknowledgement' to that effect under the guarantee's terms?