Contracts, Termination, Repudiation and Rescission

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

PT,

You seem to have a collection of reserved judgments as we are still waiting the earlier Court of Appeal judgment you alluded to on another thread.

Is there any progress on that front?

All the best

Dad

Case Tracker for Civil Appeals

yes, as above, we went last year and got adjourned by Lord Justice Ward. This was due to listing errrors on the courts part.

As regards the High Court judgment, i have it here, but it is draft and therefore anyone who knows the rules on drafts will know they are confidential to Counsel, Solicitors and Clients only.

[dad]

Re: Contracts, Termination, Repudiation and Rescission

you will need to wait til the judgment is out, as i cannot really say without going into what the court said,and im not allowed

PT,

You seem to have a collection of reserved judgments as we are still waiting the earlier Court of Appeal judgment you alluded to on another thread.

Is there any progress on that front?

All the best

Dad

[jumper999]

Re: Contracts, Termination, Repudiation and Rescission

No probs PT, will it be long before you can say?

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

so that would mean that the contract has not ended and would have to re send a good notice.........and have to start all from the beginning again?

you will need to wait til the judgment is out, as i cannot really say without going into what the court said,and im not allowed

[jumper999]

Re: Contracts, Termination, Repudiation and Rescission

so that would mean that the contract has not ended and would have to re send a good notice.........and have to start all from the beginning again?

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

Great news on your win PT, sorry for asking but what if the creditor terminates on a bad notice? if I understand correctly this means that the creditor will be able to send a correct notice?

he cannot terminate, without a good notice, that is what the view of counsel was, and also the High Court

[jumper999]

Re: Contracts, Termination, Repudiation and Rescission

Great news on your win PT, sorry for asking but what if the creditor terminates on a bad notice? if I understand correctly this means that the creditor will be able to send a correct notice?

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

the issue of the Default notice and its operation has been decided by the High Court.

Cannot say what the judgment says til its formal handing down, (i do have a copy) but lets just say we won, and a creditor is not able to terminate without a good notice, if the notice is bad he cannot because he is barred by statute, terminate no matter what he says

Also a point to mention, s170 of the act bars any remedy unless provided for expressly by the act, this is said to also exclude the common law repudiatory breach, on the basis that its not prescribed by the act as being available for breach of s87

It is worth noting the remedies available to hire purchase agreements, these are very very heavily in favour of the debtor if the Claimant does something outside its powers under the Act, however, the same cannot be said about s87

The only bar on s87 is that they cannot take the next step til a good notice has been served and this reinforces Woodchester vs Swain

Re: Contracts, Termination, Repudiation and Rescission

unlike a normal commercial contract- the CCA makes distinct differences between the circumstances in which a creditor may terminate.

Nor can ANY term or condition in the agreement seek to override the CCA and defeat the will of parliament.

The act clearly distinguishes between a right by either party to terminate- and the right of the CREDITOR (alone- since the purpose of the act is to protect the consumer not assist the creditor) to terminate in circumstances where the consumer is in arrears is limited to his compliance with s87/8

the notion that a creditor who wrongly claims the benefits of s87/8 and then seeks to remedy his mistake by then claiming that (despite the written evidence of his seeking to terminate under s87) he really was terminating under another term of the agreement is (IMO) poppycock

the suggestion that a creditor can simply stick a term or condition into the agreement that effetively bypasses the very act that polices the agreement-and to whose rules the agreement is subject ..... is what is being proposed and again is poppycock


BOTH parties sign to accept the agreement " regulated by the consumer credit act 1974"


IMO

Hi

We all i presume now accept that this is complete and utter garbage. And not really worth any further debate by anyone who knows anything about either the CCA or the function of law in general.

Peter

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

HI Dad
Re Contractual termination as opposed to termination due to breach an repudiation.
I used for reference her the case mentioned at the bottom of the post.
The issue here was that the termination was contractual rather than a repudiatory breach of the agreement.
If the termination was contractual then it meant that the party had acknowledged the existence of the contract so he could not claim repudiation and thus could not go for damages under the contract as they would be classed as penalties.
Peter

unlike a normal commercial contract- the CCA makes distinct differences between the circumstances in which a creditor may terminate.

Nor can ANY term or condition in the agreement seek to override the CCA and defeat the will of parliament.

The act clearly distinguishes between a right by either party to terminate- and the right of the CREDITOR (alone- since the purpose of the act is to protect the consumer not assist the creditor) to terminate in circumstances where the consumer is in arrears is limited to his compliance with s87/8

the notion that a creditor who wrongly claims the benefits of s87/8 and then seeks to remedy his mistake by then claiming that (despite the written evidence of his seeking to terminate under s87) he really was terminating under another term of the agreement is (IMO) poppycock

the suggestion that a creditor can simply stick a term or condition into the agreement that effetively bypasses the very act that polices the agreement-and to whose rules the agreement is subject ..... is what is being proposed and again is poppycock


BOTH parties sign to accept the agreement " regulated by the consumer credit act 1974"


IMO

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

If the Creditor conducts themselves as if they have terminated the contract, what is the debtor supposed to assume has happened??

And following such action by the Creditor whether "entitled" to or not it has carried out a Negligent Breach of the Contract (and or provision of Statute)

At the end of the day remember that the CCA1974 was enacted for the protection of consumers



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

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the most telling (IMO) comment on the entire thread IMO

some posters have "lost sight" whilst demonstrating their skills as potential "advocates" the the CCa is a replacement for the moneylenders act and at its core is the protection of the vulnerable and mostly legally ill informed debtor against the goliath lender

thus what is important in a CCa agreement as opposed to any other type of contract is what the ORDINARY chap on the clapham omnibus is to make of the creditors stated intentions and the agreement he signed

unlike a commercial contract the CCA does not require that the debtor should suffer from the addage that "ignorance of the law" is no excuse

in a normal commercial contract- of which many instances have been quoted.both sides usually have the benefit of legal advice.

the cca never envisaged that every debtor would go scuttling off to his solicitor (if indeed he had one) to check every credit card and credit agreement before signing it

instead the law steps in on the side of the debtor to even up the playing field

point one

the debtor is NOT in breach of contract simply by being in arrears on 99% of credit card debts- so the suggestion that because he is in breach and therefore cannot hold the creditor to an unlawful rescission .because he himself is in firsts breach is (IMO) flawed

the debtor is not in breach until such time as he has failed to remedy a properly served default notice........

Further- the non payment of a couple of payments would not in any event (IMO) amount to a repudiation by the debtor of a major benefit to the creditor or of a substantial part of the agreement since that act does not materially affect the overall tenor of the agreement

Whilst it might be a tidying up excercise........It is not necessary for the debtor to wait until the creditor ACTUALLY carries out his threat to unlawfully repudiate his obligations , nor is it necessary for the debtor to wait until the creditor confirms the agreement is terminated ........... the unlawful rescission takes effect from the time that the creditor ENVINCES by his words or actions that he INTENDS to repudiate there is ample house of lords rulings that the creditor would be bound by his written words and that if he does not expect to be held to his word- then he should not commit them to writing

therefore if the chap on the clapham omnibus is told in writing by the creditor that he intends on such a date to terminate or demand earlier repayment of sums not yet due- unless the debtor does some thing (as contained in a faulty DN) which the creditor may not lawfully demand that he do- then he (the chap on the Clapham omnibus ) will reasonably take the view that the creditor will carry out the threat and he is entitled to make an election there and then either to hold the creditor to the agreement (in which case he need in fact do nothing) or to relieve himself of any further obligations under the agreement- it is at the point that the injured party makes known his election that the agreement effectively ends (although he may still sue the wrongdoer under the agreement) since by that time neither party is carrying out their obligations - and NOT when the creditor threatens or carries out his threat to repudiate.

The matter of returning parties to their original positions or of proving that the injured party has sustained some financial prejudice is not as it is with a normal commercial contract and was also dealt with clearly both in the drafting of the CCA and confirmed in the house of lords which clearly ruled that even if mistakes made by the creditor in carrying out their prescribed duties were no more than an accident-that in the wider interests of consumer protection the act had indeed envisaged that some individuals would benefit from a windfall but that the greater good overrides that eventuality and that the creditor must act with precission

it is the failure IMO of certain parties to recognise these important distinctions from ordinary contract law that leads to mis guidance

Re: Contracts, Termination, Repudiation and Rescission

As you know i already have my different opinion and add to this thread only for the purpose of "rounding out" the discussion.
I think the point that Dad raised was extremely pertinant - it doesnt say that "they cannot or maynot or is prohibited from" it says "become entitled". This connotes a right to but not an exemption from doing, surely making any action that can be deemed Termination a Repudiation of contract without further argument?

It has already been much discussed that both Contract and Common Law will accept a repudiation (and subsequent acceptance by virtue of unlawful rescission) by virtue of failure to do, carry out, provide, something contractually required.

If the Creditor conducts themselves as if they have terminated the contract, what is the debtor supposed to assume has happened??

And following such action by the Creditor whether "entitled" to or not it has carried out a Negligent Breach of the Contract (and or provision of Statute)

At the end of the day remember that the CCA1974 was enacted for the protection of consumers

Hi as you know my opinion on this concides with the ones the courts currently take and that is that the use of the word "can" in the section means that if he does not issue a Effective defense he cannot be intitled to enforce.

I dont ant to get bogged down on this and i suggest that unless either of us gets positive proof in the form of judgement , we agree to differ and move on, i am fully prepared to be proven incorrect as always.

Ptr

[paulb2905]

Re: Contracts, Termination, Repudiation and Rescission

As you know i already have my different opinion and add to this thread only for the purpose of "rounding out" the discussion.

The relevant parts Section 87, 88 and 89 read as follows. Section 87 (1):
"Service of a notice on the debtor or hirer in accordance with section 88 (a `default notice') is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement, -"

I think the point that Dad raised was extremely pertinant - it doesnt say that "they cannot or maynot or is prohibited from" it says "become entitled". This connotes a right to but not an exemption from doing, surely making any action that can be deemed Termination a Repudiation of contract without further argument?

It has already been much discussed that both Contract and Common Law will accept a repudiation (and subsequent acceptance by virtue of unlawful rescission) by virtue of failure to do, carry out, provide, something contractually required.

If the Creditor conducts themselves as if they have terminated the contract, what is the debtor supposed to assume has happened??

And following such action by the Creditor whether "entitled" to or not it has carried out a Negligent Breach of the Contract (and or provision of Statute)

At the end of the day remember that the CCA1974 was enacted for the protection of consumers

Re: Contracts, Termination, Repudiation and Rescission

HI Dad
Re Contractual termination as opposed to termination due to breach an repudiation.
I used for reference her the case mentioned at the bottom of the post.
The issue here was that the termination was contractual rather than a repudiatory breach of the agreement.
If the termination was contractual then it meant that the party had acknowledged the existence of the contract so he could not claim repudiation and thus could not go for damages under the contract as they would be classed as penalties.
Peter

Re: Contracts, Termination, Repudiation and Rescission

Peter,

A very useful post, although I disagree with some of your points

YOu must remember my intention was to keep this as simple as possible

at leat it appeare we agree on most things.
I think we also agree on the none ability to take action on 87!(1) in an inefective default therfore the termination cannot be, although i may have expessed it badley.

In woodchester i believe the agreement either could have continued or the claiment could have termnated i dont think we are told in the judgement unless i missed it.

The arrears where paid but they where not alowed to pursue the damges, if the agrement was live before the default notice then it would have continued to be so if not then it would continue to be terminatd.

Peter