Contracts, Termination, Repudiation and Rescission

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

P accpted re recsission of the agreement difficult to do without terminating,the creditor could not termnate they were stopped due to the fault DN, when p offerd the termination and subsequent rescission the court had no option but to find for the creditor.
What else could they do he stated that he was no longer bound by the terms of the agreement to repay the debt.
The liabilities became immediately due as soon as he did this.
No need for a DN the enforcrement was no longer down to a breach just a simple unwillingnes to abide by the contract. Nothing in the at that forbids enforcement for actions other than a breach as long as it is justifyable.

Peter

Let me get this straight. There is a breach, and the creditor terminates having served a bad DN. The debtor hasn't a clue, so agrees that the agreement is terminated. That just leaves liabilities to sort out, as we have recently agreed.

There is a termination in fact, although not in law. The debtor does not know this and neither, apparently, does the creditor.

So, what are the liabilities? As the agreement was regulated until P agreed it was ended, the liabilities would be regulated by the Act.

The judge in this farcical case, however, has said that the act of accepting the creditor's mistake somehow removes all prior regulation. How? I see no mechanism that provides for this.

Whether the debtor agreed with the termination or not, the agreement was regulated. It was the creditor, after all, that terminated. And it was the creditor that has decided to waive his entitlement under Part VII. I am finding it very hard to understand how it is that the responsibility for the creditor's mistakes somehow passes to the debtor, purely through an amateurish letter accepting that the agreement is ended.

Unbelievable...

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Basa, the wording I quoted was the wording used at trial, it worked against the debtor.
I sought to clarify if this wording was the cause of the problem or to define how the debtor had terminated.
For the sake of completeness, here is the wording I used for just such a letter

Following receipt of your Default Notice dated XXof whenever
I herby accept your termination of our contract as evidenced by the Default Notice received dated XXof whenever.
The repudiation of our contract I believe to be unlawful in that the Default Notice served was not valid in that it did not comply with the prescribed wording.
As the Default Notice you provided was incompliant the contract has been unlawfully repudiated.

Neither set of words,in my mind, causes termination by the debtor - merely an acceptance of the creditors actions.
This is why I asked for clarification

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

I amstruggling with this argument Peter, please enlighten me
Are you saying:
P accepted recession of the agreement, difficult (impossible?) to do without terminating.

As I believe P accepted the actions of the creditor, which if the actions could not have happened (because the Dn was bad) then P could not have accepted.

The wording of P's letter to the creditor contains:
I therefore am writing to accept your unlawful recession of the agreement and note that you are now only entitled to claim the arrears genuinely due at the time of the termination [my emphasis]

Why does everyone talk about 'rescission', when what we should be discussing is 'repudiation'.

Rescission is the unmaking or rewinding of an agreement. That is not what a termination is about - is it?

Unlawful termination would be a 'repudiation' (a refusal to perform - i.e. provide credit). In contract law this gives the non breaching party (the debtor) the option of accepting the end of the contract and sue for damages.

Note that I am assuming the creditors 'termination' is ruled ineffective (after a bad DN), but the creditor still refuses to perform by closing the account and threatening legal action to recover the amount of the debt.

This is what I perceive to be the 'repudiation' by the creditor which can then be accepted by the debtor who is released from the contract and may also sue for damages.

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

I amstruggling with this argument Peter, please enlighten me
Are you saying:
P accepted recession of the agreement, difficult (impossible?) to do without terminating.

As I believe P accepted the actions of the creditor, which if the actions could not have happened (because the Dn was bad) then P could not have accepted.

The wording of P's letter to the creditor contains:
I therefore am writing to accept your unlawful recession of the agreement and note that you are now only entitled to claim the arrears genuinely due at the time of the termination [my emphasis]

Why does everyone talk about rescission, when what we should be discussing is repudiation.

Rescission is the unmaking or rewinding of an agreement. That is not what a termination is about - is it?

Unlawful termination would be a repudiation

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

P accpted re recsission of the agreement difficult to do without terminating,the creditor could not termnate they were stopped due to the fault DN, when p offerd the termination and subsequent rescission the court had no option but to find for the creditor.
What else could they do he stated that he was no longer bound by the terms of the agreement to repay the debt.
The liabilities became immediately due as soon as he did this.
No need for a DN the enforcrement was no longer down to a breach just a simple unwillingnes to abide by the contract. Nothing in the at that forbids enforcement for actions other than a breach as long as it is justifyable.

Peter

I amstruggling with this argument Peter, please enlighten me
Are you saying:
P accepted recession of the agreement, difficult (impossible?) to do without terminating.

As I believe P accepted the actions of the creditor, which if the actions could not have happened (because the Dn was bad) then P could not have accepted.

The wording of P's letter to the creditor contains:
I therefore am writing to accept your unlawful recession of the agreement and note that you are now only entitled to claim the arrears genuinely due at the time of the termination [my emphasis]

Re: Contracts, Termination, Repudiation and Rescission

It was Mint that terminated, not Pumpkinhead. Although letters were very close together.

The CAG link is here;

http://www.consumeractiongroup.co.uk...ht=pumpkinhead

Worth a read.

P accpted re recsission of the agreement difficult to do without terminating,the creditor could not termnate they were stopped due to the fault DN, when p offerd the termination and subsequent rescission the court had no option but to find for the creditor.
What else could they do he stated that he was no longer bound by the terms of the agreement to repay the debt.
The liabilities became immediately due as soon as he did this.
No need for a DN the enforcrement was no longer down to a breach just a simple unwillingnes to abide by the contract. Nothing in the at that forbids enforcement for actions other than a breach as long as it is justifyable.

Peter

Re: Contracts, Termination, Repudiation and Rescission

Almost!

I have some difficulty understanding how a creditor can terminate an account via a bad DN and then claim under S88 that the agreement cannot be remedied! This to serve a new DN but without re-opening the contract.

He canno9t terminate on Bad DN if the agreement canot be remedied that would have been apparent from the form of the ntice.

If the agreement can be remedied the second corrwct notice wil give the same oppertunity as the first.Dony forget the agreement has not been terminated

Peter

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

Originally Posted by Lord_Alcohol
Peter

As far as pumpkinhead is concerned, it was the creditor that terminated the agreement not the debtor; the debtor merely went along with it. I do not see what difference agreeing with a TN makes at all. The fact remains that the contract was regulated until terminated. Pumpkinhead agreed with the termination, not that contractual regulation should not apply.

NO here you are wrong it was P who terminated

I am sure you will see this if you re read his report
I think that's about it...

Peter

It was Mint that terminated, not Pumpkinhead. Although letters were very close together.

The CAG link is here;

http://www.consumeractiongroup.co.uk...ht=pumpkinhead

Worth a read.

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

every body Ok with the above?

Peter:beagle:

Almost!

I have some difficulty understanding how a creditor can terminate an account via a bad DN and then claim under S88 that the agreement cannot be remedied! This to serve a new DN but without re-opening the contract.

Re: Contracts, Termination, Repudiation and Rescission

Yes, but the notice must still be good. It is supposed to accurately reflect the breach so that the debtor knows what to do, as we saw in Woodchester.

Only if it is to be used to enable him to take one of the actions listed in secvtion87 ofthe act.
Recovering amounts already due on the conrtaqct is not one of them.

Peter

Re: Contracts, Termination, Repudiation and Rescission

every body Ok with the above?

Peter:beagle:
------------------------------- merged -------------------------------

According to the banks, an agreement once terminated cannot be reinstated without a new contract. Amazing thing, Google:
http://www.cashquestions.com/forum/s...ad.php?p=37621

This is absolutely true i got the same response from the nat wes when i posed ythe same quetion its on here somewhere.
It is of course absolutely true

Peter

Re: Contracts, Termination, Repudiation and Rescission

Peter

This is good. The points I do not fully agree with are;

1. Termination of the agreement by either party: yes, you are right, but there is no entitlement to terminate the agreement on breach by the debtor without a DN (S87(1)(a)).

Agreed

1. You say that terms involving repayment are terminated; I say that all terms are terminated, because the debtor is not informed that some terms remain (other than contractual liabilities). At the point he receives his TN, the creditor merely states that the agreement is "terminated".

All terms of the agrement are contractural, some are regulated some are not. Some are not mentioned in the act.
All terms regualted or not, are terminate on the termination of the contract/agreement.
SO i agree all terms are terminated it makes no difference if they are regualted by the act or not

1. I don't agree that a DN can be served where the contract is terminated because of the wording required to be placed in the DN itself. I may be wrong, but the 1983 regs seem to make it a necessity that a breach must be allowed to be remedied, and if the breach is remedied the creditor has no cause of action.

NO 87 does not nessesarily reqiuire a rememdy the agrement can be beyond remedy and still require a default notice look in section 88, i havent got my CCA to hand but it says something like "if the breach is incapable of remedy."
If the breach if incapable of remedy then all compliance with the act by fully paying the ballance just prevents enforcement

As far as pumpkinhead is concerned, it was the creditor that terminated the agreement not the debtor; the debtor merely went along with it. I do not see what difference agreeing with a TN makes at all. The fact remains that the contract was regulated until terminated. Pumpkinhead agreed with the termination, not that contractual regulation should not apply.

NO here you are wrong it was P who terminated

I am sure you will see this if you re read his report
I think that's about it...

See above

Peter

[Shepherdess]

Re: Contracts, Termination, Repudiation and Rescission

According to the banks, an agreement once terminated cannot be reinstated without a new contract. Amazing thing, Google:
http://www.cashquestions.com/forum/s...ad.php?p=37621

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

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

Yes, but the notice must still be good. It is supposed to accurately reflect the breach so that the debtor knows what to do, as we saw in Woodchester.

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

Peter

This is good. The points I do not fully agree with are;

1. Termination of the agreement by either party: yes, you are right, but there is no entitlement to terminate the agreement on breach by the debtor without a DN (S87(1)(a)).
2. You say that terms involving repayment are terminated; I say that all terms are terminated, because the debtor is not informed that some terms remain (other than contractual liabilities). At the point he receives his TN, the creditor merely states that the agreement is "terminated".
3. I don't agree that a DN can be served where the contract is terminated because of the wording required to be placed in the DN itself. I may be wrong, but the 1983 regs seem to make it a necessity that a breach must be allowed to be remedied, and if the breach is remedied the creditor has no cause of action.
4. As far as pumpkinhead is concerned, it was the creditor that terminated the agreement not the debtor; the debtor merely went along with it. I do not see what difference agreeing with a TN makes at all. The fact remains that the contract was regulated until terminated. Pumpkinhead agreed with the termination, not that contractual regulation should not apply.

I think that's about it...