Contracts, Termination, Repudiation and Rescission

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Re: Contracts, Termination, Repudiation and Rescission

Nope wouldn't work.
Simply if the creditor had not loaned the money he cold have invested it elsewhere in order for the rescission to be equitable the agreement would have to leave both parties in no worse position( de futoro).

What you might be missing here is that the rescission is a mutual decisions. Therefore, if the OC has rejected the agreement, they have rejected everything in it, including any claim to interest. They are not due it, as they have rejected the agreement that allowed for it. As they also acted unlawfully in terminating, they have no right to claim damages. Only the injured party has the right to do that. It is the penalty for terminating an agreement unchecked and without process.

This also ignores the fact that there would be (and could not be repudiation of contract in any case).

I don't see this. If the OC ceases to observe any part of CCA, they have fundamentally breached the contract. Once the account is terminated, it is no longer overseen by CCA 1974.

Termination of the contract is a fundamental breach (i.e. repudiation). If the OC chooses to do this without due processes, they act unlawfully, injuring the debtor, and if the debtor so chooses, they can accept the repudiation as an invitation to rescission. The OC cannot just roll back to the contract as if they haven't done anything unless the debtor allows it.

Re Contractual termination. I can find nothing about it in the T&Cs I have. However, I believe completely that they would have to demonstrate that the termination was a deliberate and considered act, which would have to be supported by notice and consideration being given. This did not happen.

The only case law for successful claims of this nature are in cases where an advance was promised and then not forthcoming, the resultant losses incurred by the debtor, due to loss of trade or reputation are recoverable under common law.

Re Case law. If a creditor recognises that it has unlawfully breached the contract, they are not going to let it get to court.

We are talking about something completely different in consumer credit agreements, the "rescission" is the removal of the right to repay under the terms of the contract, more correctly it is termination of contract.

What you describe here is how the OC would play it. They would say that the debtor breached, rejected the contract, and are now no longer held by the agreement to pay back in installments. The creditor, as the injured party, could claim losses and damages (interest and charges) and that is pretty much what they do. But where the debtor is the injured party, they can claim back the money they have paid plus statutory interest and damages. Fair is fair, and if rescission is available to the creditor, it must be available to the debtor.

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

HI
No I don't think i am missing anything.

Simply, the whole argument revolves around the idea that the creditor has done something wrong by terminating an agreement.
Fact is that he has not, if there is a term in the agreement that says he can terminate, then he can.

So again we agree to differ. still as said let us know how you get on.

D

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Re: Contracts, Termination, Repudiation and Rescission

...if there is a term in the agreement that says he can terminate, then he can.

Hi Davy,




I can find nothing in the T&Cs mentioning termination, so I can only assume that there is nothing other than what is available in CCA 1974 applied to the agreement.

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

Hi Davy,




I can find nothing in the T&Cs mentioning termination, so I can only assume that there is nothing other than what is available in CCA 1974 applied to the agreement.

It will be there somewhere, if it isn't they cannot terminate, the CCA does not enable the creditor to terminate, that has to be part of the contract, it just says he must give notice before he does.

D

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Re: Contracts, Termination, Repudiation and Rescission

Hi Davy,


Why do banks use CCA 1974? They seem to be better protected by simply saying they can ask for their money back at anytime. And if they choose to, the consumer cannot do anything about it, as the CCA makes them powerless to act.

I thought the CCA was their to protect us.

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

In this instance the CCA protects us by ensuring that they give notice before they enforce a contractual term, the use the CCA because they must.

An open ended agreement must have a termination clause , if it didn't the banker wold be committing himself to an eternal contract, irrespective of what may happen down the line, it is not like a fixed term agreement.


D

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Re: Contracts, Termination, Repudiation and Rescission

Thanks Davy,

Sorry if there is confusion, but I am talking about a fixed term loan. Have I missed something major here?