Contracts, Termination, Repudiation and Rescission

Re: Contracts, Termination, Repudiation and Rescission

I find this hard to understand too, although Peter has provided an explanation.

It seems strange that a creditor can terminate the agreement on breach without following the regs, take the debtor to court and obtain enforcement of the arrears without entitlement (and why the judge allowed this is puzzling) and then serve a new DN on (presumably) the missed intervening payments when he had withdrawn the facility to make them.

In the case above, it appears that the judge has enforced a term of an agreement where there was no entitlement, as with Brandon. Hopefully these cases will disappear now we have PT's judgement.

HI

Isnt this just because section87 lists all the acts that require a default notice,and recovering monies already due is not one of them.No notice is requied to enforce this is it?.
Again ther is nothing within the act that says notice is required to pujrsue current debt on the account it is silent on it

Peter

Re: Contracts, Termination, Repudiation and Rescission

[quote=Lord_Alcohol;201895]Well I must be the biggest idiot here because I still don't get it...although am beginning to wonder whether this is a communication problem more than anything else.

Reading the recent posts, we have the following (I think!)...

1. The agreement is terminated because the lender terminated it. The debtor may or may not have accepted that termination. There remains confusion as to what termination means.
2. quote]

Hi
this is what i have been asking for les do it one step at a time.

See if we can agree

I say the termination of either party is allowable under the act.When either party unilatterally terminates the effect is the same , the terms of the contract no longer apply.

In other words any tems involving repayment are terminated.

If the creditor does this he is entitled to ask for early payment however he would not be able to enforce that request because the act prohibits that enforcement by requiring a crediotr to produce a section 87 notice and this can only be done on breach by the debtor.

If the creditor did try to enforce the court would say no you cannot because it is inequitable to demand early repayment, the debtor has done nothing wrong(no breach section87), if the debtor chose to take advantage of the termination of the agrement by the creditor and cease payment the court when presented with a compliant DN would say yes the agrement has been breached, (section87 does not say under an agement it just says an agrement) no reason why the agreement could not be a contracturally terminated one.

If the debtor decides to terminate the agrement (which he is fully entitled to do he would be very fooish because he is terminating his rights to repay as per its terms. The full amount under the agrement would become due and payable as per pumpkin head. This does not have to be billateral the debtor has refused to abbide by the terms of the agrment in writing what is the court to do It has to award the liabilities to the creditor. No default would be required in this case the debtor has stated to the court that he does not intend to abide by the contract by the act and by his obligaitons to pay.

A termnaion of an Consumer credit agrement can be made by either party at any time so accepting a termination is an irrellavance.

A contractural termination differs from a default temrnation in that a default termination has to be made after a default ,it will contain the details of the enforcement , usually saying "you have failed to comply with the default notice and the account is now terminated."This part of the enforcement process.
A contractural termination merely release both parties from being bound by the terms of the agreement.

So ok what do you not agree with

Peter

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

There was a case (multi track) last year where the claimant was only allowed arrears up until judgment on the back of a bad default notice. The Claimant has now issued a compliant default notice. Why?

I find this hard to understand too, although Peter has provided an explanation.

It seems strange that a creditor can terminate the agreement on breach without following the regs, take the debtor to court and obtain enforcement of the arrears without entitlement (and why the judge allowed this is puzzling) and then serve a new DN on (presumably) the missed intervening payments when he had withdrawn the facility to make them.

In the case above, it appears that the judge has enforced a term of an agreement where there was no entitlement, as with Brandon. Hopefully these cases will disappear now we have PT's judgement.

Re: Contracts, Termination, Repudiation and Rescission

Thank you basa, you and LA picked up the rather silly shifts in stance rather quicker than I did. It took me a reread

I asked a simple question which relates directly to statements made by the poster concerned earlier in this thread and he is unable totally to answer it.

HHJ Chambers did not as far as I can see actually make the alleged agreement void. Therefore based on 'bard's previous arguments the agreement/contract therefore endures or the original arguments are falacious.

Any question as to the authroity of this poster leads to this i.e we are all idiots except him.

And yet another shift in stance.

Garlok.

Never said anyone is an idiot

If i implied it i appologise.
The judge in the case discharged the liabilities under the agrement i understand .When and if this happened the agreement became void or it was rescinded "De futuro" in the future, meanting that the unt paimounts already paid under the agrment were not reclaimable but all future liabilites were discharged.

It as a matter of great interest to me that the judge ws able to do this i was aware of the possibility because i had read section 140 but i had not come across it before, i think it is agreat boon for peope fight ing injustice as i have already said.Even more so than section127(3), because the debt now does not exist and niether does the contract because the liabilities have been disharged. THis means that DCA can no longer pursue as they could in an unenforcable ageement under section 127(3)

Peter
------------------------------- merged -------------------------------

Yes, but also to be top dog is clearly of great importance...:beagle:

Not to me

Re: Contracts, Termination, Repudiation and Rescission

The crediotr can terminate any time he wants, he can demand full and immediate repayment any time he wants

Read more at: Contracts, Termination, Repudiation and Rescission - Page 23 - Legal Beagles Consumer Forum

no, i'm sorry but he CANNOT!

if the consumer has defaulted in any way (missed payments usually)- the creditor CANNOT terminate when he wants. he cannot terminate unless and until he serves a valid DN- which you have on numerous occassions confirmed- any termination in furtherance to no/invalid DN is not termination

the suggestion that he can- having served an invalid DN- simply then turn to another clause in the agreement (which itself would be in contravention of the CCA) is not right

I have and continue to be of the opinion that any other clause in an agreement ( not being a fixed term agreement) which gives the creditor the right to terminate- does NOT give the creditor the right to immediate repayment of sums outstanding.

running credit agreements are not overdrafts and not subject to early recall



i think i now understand what you have been banging on about for months (hoepfully)- and that is that you keep saying the the creditor can termination anytime he likes as under a separate clause in the agreement

well yes, he can - but he cant legally ENFORCE the immediate repayment of sums that were not yet due under the agreement- if he has done so not under s87 and the debtor has been performing satisfactorily



1/ if under s87 he has not become entitled

2/ under any other clause in the agreement which seeks to override the CCA


there is only ONE (being appealed i beleive) judgement that says differently

Pointless entering such an agreement if there are no obligations on either side !! I do understand your argument, but fail to see its relevance.

Agin you are not reading what i have said i said creditors do not have onligations debtors do this again is a quote put it in your browser you will se it is accpted civil law.

Just as debtors have rights and creditors have obligations. Your statement is perverse.

No it is fact the what obligations do the creditors have under a loan agreement?


No one lender or borrower would write such a phrase into a contract. It is a silly thing to say. That does not mean a creditor cannot be in breach of the agreement for any number of reasons.

am

I still feel that 'convenience' termination clauses in running-account credit agreements may be contrary to 140A. The credit is the whole and only reason for the agreement and there are after all perfectly good remedies of deferment and restriction in the Act.

Also I don't care whether an agreement is live, dead, terminated, ended or buried 6ft under, all the provisions of the regulating Act still apply, which includes contracting out. Common Law never trumps Statute.

I think i must have said this a hundre times the creditor can terminate at any time he can demand early repayment at any time just look at any copy of the regs its in there.
he cannot howcer or more correctly a court cannot enforce that demand because of the restriction imposed on it by the CCA.

Yes i see what you are saying If i get this right youare saying that if the account is in default the creditor cannot use the contractual termination clause.

This may be true it is certainly true that he could not start enforcement proceedings until the required statutory period has expired so he would not be able to issue a default termination, the question is would the contractural termiantaion suffice and the rest of the enforcement be able to continue. Really i do not see any difference.
I think that the default termination would not be valid just as the default itself would not be valid but if a contractural termination was in place then the enforcement would still be flawed beacaus of the faulty dn.

The fact that the contractural termiantion was still in affect would not have an effect on the reissue of a dn, dns are issued all the time on aggrements that have been contracturally terminated. It would just be hard to do the same on a default termination because the details of the breach on that termination would be incorrect as per the default notice.

This seems to tie in with Brandon anyway.

Peter
------------------------------- merged -------------------------------

There was a case (multi track) last year where the claimant was only allowed arrears up until judgment on the back of a bad default notice. The Claimant has now issued a compliant default notice. Why?

Because the notice was bad so it did not entitle the creditor to enforce the agrement in breec and pursue the full liabilites.

HOwever it does not stop the crediotr re presenting

Peter

[Ihaterbs]

Re: Contracts, Termination, Repudiation and Rescission

There was a case (multi track) last year where the claimant was only allowed arrears up until judgment on the back of a bad default notice. The Claimant has now issued a compliant default notice. Why?

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

The crediotr can terminate any time he wants, he can demand full and immediate repayment any time he wants

Read more at: Contracts, Termination, Repudiation and Rescission - Page 23 - Legal Beagles Consumer Forum

no, i'm sorry but he CANNOT!

if the consumer has defaulted in any way (missed payments usually)- the creditor CANNOT terminate when he wants. he cannot terminate unless and until he serves a valid DN- which you have on numerous occassions confirmed- any termination in furtherance to no/invalid DN is not termination

the suggestion that he can- having served an invalid DN- simply then turn to another clause in the agreement (which itself would be in contravention of the CCA) is not right

I have and continue to be of the opinion that any other clause in an agreement ( not being a fixed term agreement) which gives the creditor the right to terminate- does NOT give the creditor the right to immediate repayment of sums outstanding.

running credit agreements are not overdrafts and not subject to early recall



i think i now understand what you have been banging on about for months (hoepfully)- and that is that you keep saying the the creditor can termination anytime he likes as under a separate clause in the agreement

well yes, he can - but he cant legally ENFORCE the immediate repayment of sums that were not yet due under the agreement- if he has done so not under s87 and the debtor has been performing satisfactorily



1/ if under s87 he has not become entitled

2/ under any other clause in the agreement which seeks to override the CCA


there is only ONE (being appealed i beleive) judgement that says differently

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

well i did get a little annoyed, and i would simply say, to describe keiths situation as a "Horror" story does not do it justice.

But you are right its not all set out in the judgment, and its why we are doing an interview with the BBC in a weeks time to give the full picture

well let's hope that they ALSO give some coverage to the lies told under oath as to the posting of the DN and his ability to prove them wrong!!

[volvodriver]

Re: Contracts, Termination, Repudiation and Rescission

Been away from the thread for a few days. What an excellent summary. Its my view that various court judgements around various parts of the CCA have rendered it unintelligible.

I completely concur with the above, but wonder how it can now be rectified, and return to being for the protection of consumers.?

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

Well I must be the biggest idiot here because I still don't get it...although am beginning to wonder whether this is a communication problem more than anything else.

Reading the recent posts, we have the following (I think!)...

1. The agreement is terminated because the lender terminated it. The debtor may or may not have accepted that termination. There remains confusion as to what termination means.
2. There remain contractual obligations and these are in essence the liabilities under the previous agreement. S87(1) seems to say what those liabilities must be where the agreement is (was) regulated.
3. The discussion is moving on to those liabilities; CCA seems to say that they are the arrears up to termination (if the DN is bad), while the contract says it is everything.
4. Pumpkinhead (OTR) has found that acceptance of the lender's termination causes contractual liabilities to apply. Whether this is "correct" or not I have no idea, although it seems incredible that previous regulation is wiped in these circumstances.
5. There are here two views of service of a new DN; Peter, supported by HH Chambers and others (probably), sees no problem in service of a new DN where the agreement remains closed. My view, which I share with others, is that this conflicts with the 1983 enforcement notices regs and makes the wording required to be carried in the DN nonsensical and that the agreement should be reopened in full.
6. Point 5 above is not resolved by important judgements that include Woodchester and Harrison; IMHO, this point remains open to debate.

I would also say that there are major problems with the above, which include;

• How far does the creditor have to go before the debtor can seek protection under S140? Remember that Peter in an earlier post said that the debtor should look to the harassment regs rather than S140, so this is/has been a serious point for debate.
• Is the creditor's service of a TN and/or statement to the debtor that the agreement is terminated (following a bad DN) an act to which some form of sanction can apply, or is the creditor wholly imune from sanction for his endless cockups?
• If the agreement is terminated without entitlement, how is it that the creditor is still able to successfully obtain all the contractual benefits of the agreement?

I suppose bottom line is that I am finding it increasingly difficult to see where the regulation of regulated contracts applies; the lender seems to be able to do almost anything and still get his money. For example, in the pumpkinhead judgement, the lender terminates the contract unilaterally and outside of the regs, then finds that he has access to all contractual liabilities as his actions have caused regulation to be erased. How long will it be before we see lenders coaxing recalcitrant debtors into accepting "unlawful repudiation" of contracts so that they can get a judge to erase previous regulation?

So why bother with regulation at all?

[Angry Cat]

Re: Contracts, Termination, Repudiation and Rescission

Any question as to the authority of this poster leads to this i.e we are all idiots except him.
Garlok.

Yes, but also to be top dog is clearly of great importance...:beagle:

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

Thank you basa, you and LA picked up the rather silly shifts in stance rather quicker than I did. It took me a reread

I asked a simple question which relates directly to statements made by the poster concerned earlier in this thread and he is unable totally to answer it.

HHJ Chambers did not as far as I can see actually make the alleged agreement void. Therefore based on 'bard's previous arguments the agreement/contract therefore endures or the original arguments are falacious.

Any question as to the authroity of this poster leads to this i.e we are all idiots except him.

And yet another shift in stance.

Garlok.

Re: Contracts, Termination, Repudiation and Rescission

Pointless entering such an agreement if there are no obligations on either side !! I do understand your argument, but fail to see its relevance.

If you understood the argumentyou would se its relevance
Just as debtors have rights and creditors have obligations. Your statement is perverse.

Just civil law


No one lender or borrower would write such a phrase into a contract. It is a silly thing to say. That does not mean a creditor cannot be in breach of the agreement for any number of reasons.

None rin respect of the termination of the agrement or the issuance of a credit

I still feel that 'convenience' termination clauses in running-account credit agreements may be contrary to 140A.

You are mistaken as shown many many times and evidenced even more times

The credit is the whole and only reason:beagle: for the agreement and there are after all perfectly good remedies of deferment and restriction in the Act.

?

Also I don't care whether an agreement is live, dead, terminated, ended or buried 6ft under, all the provisions of the regulating Act still apply, which includes contracting out. Common Law never trumps Statute

Doesnt requir answer it is nonesense how can anything appy to an agrement that does not exist?

.

Had another minute

Re: Contracts, Termination, Repudiation and Rescission

For God's sake grow up Peter!!!

I think maybe you should look at your self in this respect

I had just followed the argument and pussyfooting around your sensitivities is becoming a nonsense for all of us. No one is scoring points BUT:-



If you make the arguments which in the end are contradictory and of shifting position, I WILL ask questions as will others. Just read what you have put. It is you who has made the argument for enduring contracts and liabilities on an ad infinitum basis NOT ME!

Contracts do exist as long as the liabilities are undicharged this is an accepted tenent of law i am affraid

Secondly the very author of the Act aid that whilst it should not be used as a debt avoidance tool, it was perfectly proper that the creditor should FORFEIT ALL RIGHTS AND BENEFITS SHOULD HE NOT COMPLY IN FULL WITH HIS OBLIGATIONS UNDER THE ACT. He also expressed his discontent with the team of civil service auhtors who actually drafted the wording of the Act which was subsequently brought onto the Statute books. This is also backed up by Professor Goode in his treatises on the subject and was the clearly defined intent of Lord Crowther.

And Beniuns comments are relevant to this debate how exactly.By the way he drafted the act and was responcible for the wording of the statute or much of it the civil servants he critisised were the ones that drafted the various statuory instruments that accompany it.
The rest of this paragraph is either similarily facturaly incorrect or as i say irrellavant.

So when you present dessicated arguments across a broad spectrum of posts it is wise to remember what you have actually said. In this case your presentation is contradictory, you have shifted stance a number of times, as others have also noted well and I asked for clarification of the position Mr Harrison now found himself in.

I remember every thing i say it is a curse i bear i remember everything i say every thing i read and every thing others say, cant spel for toffee but i remember everything.

If you cannot give a sensible civil answer then clearly "option two" applies.

Garlok

Had a minute

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

At no time is a creditor contractually obliged to offer or issue credit under a consumer credit agreement, any more than the customer is contractually obliged to receive that credit. The only contractual obligation that exists on such an agreement is that of the debtors obligation to repay the loan.

Pointless entering such an agreement if there are no obligations on either side !! I do understand your argument, but fail to see its relevance.

Creditors have rights debtors have obligations.

Just as debtors have rights and creditors have obligations. Your statement is perverse.

Nowhere in the act or in any terms and conditions will you see the phrase "should the creditor commit a breach by failing to provide credit", it is absurd, how can he repudiate the agreement by failing to lend you money.

No one lender or borrower would write such a phrase into a contract. It is a silly thing to say. That does not mean a creditor cannot be in breach of the agreement for any number of reasons. I still feel that 'convenience' termination clauses in running-account credit agreements may be contrary to 140A. The credit is the whole and only reason for the agreement and there are after all perfectly good remedies of deferment and restriction in the Act.

Also I don't care whether an agreement is live, dead, terminated, ended or buried 6ft under, all the provisions of the regulating Act still apply, which includes contracting out. Common Law never trumps Statute.