Contracts, Termination, Repudiation and Rescission

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

..............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.............

Not trying to pre-empt the judgment but 170 refers to 'sanctions' not 'remedies'. Can not 'remedies' be argued as different to sanctions? Sanctions being penalties.

What I am trying to say is the creditor can still terminate and lose any further rights under contract without this being regarded as a sanction (i.e. penalty).

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

Not trying to pre-empt the judgment but 170 refers to 'sanctions' not 'remedies'. Can not 'remedies' be argued as different to sanctions? Sanctions being penalties.

What I am trying to say is the creditor can still terminate and lose any further rights under contract without this being regarded as a sanction (i.e. penalty).

playing devils advocate, but isnt recovery of monies paid a remedy to the debtor and a sanction to the creditor?

I think that the courts are likely to limit the scope of such arguments,

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

playing devils advocate, but isnt recovery of monies paid a remedy to the debtor and a sanction to the creditor?

I think that the courts are likely to limit the scope of such arguments,

That assumes a debtor wishes to recover monies. All I wish is that I am required to pay no further monies.

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

That assumes a debtor wishes to recover monies. All I wish is that I am required to pay no further monies.

my point is that the recovery of monies paid under a regulated agreement is only possible where expressly set out in the Act.

We ran a case which went to the Court of Appeal and the court took the view that while the agreement was unenforceable, the Defendants counterclaim for restitution was barred by s170

we had argued mistake but the Court said no, as the remedy wasnt prescribed by the act

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

my point is that the recovery of monies paid under a regulated agreement is only possible where expressly set out in the Act.

We ran a case which went to the Court of Appeal and the court took the view that while the agreement was unenforceable, the Defendants counterclaim for restitution was barred by s170

we had argued mistake but the Court said no, as the remedy wasnt prescribed by the act

In the case you speak of in the CoA, were you claimant or defendant?

Like I said, as a possible defendant, I wouldn't require recovery any monies only injunctive relief against re-affirming the contract after a defective DN. Which is allowed under 170(3).

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

In the case you speak of in the CoA, were you claimant or defendant?

Like I said, as a possible defendant, I wouldn't require recovery any monies only injunctive relief against re-affirming the contract after a defective DN. Which is allowed under 170(3).

we were Defendant, we counterclaimed using the common law doctrine of mistake, but the Court said common law remedies, were not available due to the statute preventing them


Id just say, wait til the High Court judgment comes out, it shouldnt be long,but it really puts these arguments to bed.

[cymruambyth]

Re: Contracts, Termination, Repudiation and Rescission

If for example you have lost in court and have had a CCJ awarded against you, when decisions are made in the court of appeals, is it possible to go for a set aside based on the new decisions?
Also, if you couldn't afford an appeal but in the light of these new decisions, is it worth getting transcripts of your cases?
Hope this makes sense and thank you

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

Hi

This is more interesting.
I see no reason why an account cannot be terminated , if the agreement embodies a term allowing it.
I also see no reason why an account cannot be transferred to another party, terminated or not, indeeed they frequently are.

The question is can the agreement be enforced and liablitiies under it recovered.

The answer is, no they cannot for that to happen there needs to be a default and the notice giving time to remedy, as per statute.

Contry to some oppinion an agreement can be terminated at any time if the contract says it can the creditor can even demand payment, he cannot however enforce that demand.

The reason the creditor can unilaterally terminate an agreement is because the debtor gives him permission to when he signs the agrement which contains that facility in its terms.

Peter

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

Hi

This is more interesting.
I see no reason why an account cannot be terminated , if the agreement embodies a term allowing it.
I also see no reason why an account cannot be transferred to another party, terminated or not, indeeed they frequently are.

The question is can the agreement be enforced and liablitiies under it recovered.

The answer is, no they cannot for that to happen there needs to be a default and the notice giving time to remedy, as per statute.

Contry to some oppinion an agreement can be terminated at any time if the contract says it can the creditor can even demand payment, he cannot however enforce that demand.

The reason the creditor can unilaterally terminate an agreement is because the debtor gives him permission to when he signs the agrement which contains that facility in its terms.

Peter

The High Court has ruled that you cannot terminate( which is enforcement per mcguffick) if the default notice is bad.

If it is bad it must be remedied first, and afford the debtor the time to remedy the breach

[cadwallader]

Re: Contracts, Termination, Repudiation and Rescission

So what does this mean where the creditor has advised termination following a bad default notice (and even sold on the debt)? It may be a couple of years down the line, so potentially the arrears may be huge and the debtor is in a far worse position in trying to remedy as may have to fund a significant number of missed payments to remedy the arrears now owing.

Seems this High Court ruling is more bad news for debtors or am I missing something?

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

So what does this mean where the creditor has advised termination following a bad default notice (and even sold on the debt)? It may be a couple of years down the line, so potentially the arrears may be huge and the debtor is in a far worse position in trying to remedy as may have to fund a significant number of missed payments to remedy the arrears now owing.

Seems this High Court ruling is more bad news for debtors or am I missing something?

you cannot take the "next step" to quote Woodchester on the back of a bad notice

So there can be no termination on a bad notice

the statute sets out clear in plain English that the service of a default notice is a prerequisite to being able to terminate.

The High Court judgment is in favour of the debtor, trust me, very very much in favour

[cadwallader]

Re: Contracts, Termination, Repudiation and Rescission

OK, thanks

C

[jumper999]

Re: Contracts, Termination, Repudiation and Rescission

you cannot take the "next step" to quote Woodchester on the back of a bad notice

So there can be no termination on a bad notice

the statute sets out clear in plain English that the service of a default notice is a prerequisite to being able to terminate.

The High Court judgment is in favour of the debtor, trust me, very very much in favour

Great help PT and info. Just my opinion is that this recent win/judgment will be in favor of the debtor, if they are or in any current litigation with their creditor/lender.

What I do not know is what impact this judgment will have on all those debtors whom have had their agreements/contracts terminated on the back of bad notices. I am sure that you have banged your head against the wall enough times in replying to this question but a question that hangs over many of us including myself............that is why we look forward to seeing the outcome of this judgment.

Thanks for giving so many hope :tinysmile_kiss_t4:

[toomanycalls]

Re: Contracts, Termination, Repudiation and Rescission

Great help PT and info. Just my opinion is that this recent win/judgment will be in favor of the debtor, if they are or in any current litigation with their creditor/lender.

What I do not know is what impact this judgment will have on all those debtors whom have had their agreements/contracts terminated on the back of bad notices. I am sure that you have banged your head against the wall enough times in replying to this question but a question that hangs over many of us including myself............that is why we look forward to seeing the outcome of this judgment.

Read more at: Legal Beagles Consumer Forum - Reply to Topic

I'm also very interested in this as I have a current claim against me with exactly this position. Defective default notice, letter stating termination and now claim gone in. What should be put as defence of this claim?

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

you cannot take the "next step" to quote Woodchester on the back of a bad notice

So there can be no termination on a bad notice

the statute sets out clear in plain English that the service of a default notice is a prerequisite to being able to terminate.

The High Court judgment is in favour of the debtor, trust me, very very much in favour

Hi

Yes indeed a default termination must be proceeded by an effective default note. however the agreement can be terminated at ay time if there is provision in the agrement for it(none default termination).

The key factor here is enforcement.

Peter