Contracts, Termination, Repudiation and Rescission

Re: Contracts, Termination, Repudiation and Rescission

For God's sake grow up Peter!!!

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!

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.

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.

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

Garlok

I do not really see what much of this has to do with what was being disscused and really just betrays your true reason for your comments.

But if you would like to itemise the comments i have made that you consider contradictory i will explain to you in simple language why they are not as i did the other person who had a similar missconseption.

As for your other remarks regarding the structure of the act i do not as i say see their rellavance, they do however illustrate you poor understanding of the act, its function, the reasons it was produced and the manor in which was drafted.
I think this was much more civil than the post that prompted this reply

Petr

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

For God's sake grow up Peter!!!

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!

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.

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.

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

Garlok

Re: Contracts, Termination, Repudiation and Rescission

There is another issue which flows from the statements on this thread. In Mr Harrison's judgemnt, HHJ Chambers ordered, quite correctly in my view, that MBNA write off the whole debt and declared the agreement/contract "unenforceable".

Now based on the arguments presented on this thread it would appear that it is the view of some the debt liability endures and the contract (large C or small c) endures and Mr Harrison could in fact based on those arguments be pursued still for the outstanding liabilities he has incurred under his agreement. HHJ Chambers has not specifically voided the contract has he? therefore MBNA are allowed to continue.

Please look at what has actaully been said.

regards
Garlok.

Hi
Yes by all means you will find that i said that the contract endures unil the liabilities are dicharged.
The court under section 140B c of the consumeer credit act has the ability to discharge the liabilitites under the contract.
NOw if you would stop trying to point score agaionst me and acually listen you may learn something.

My point was that if section 127 was used to render the agrement unenforceable and section 140 was used to dischare the liabilities since i do not believe that the ability to do that is available under 127.

NOw it occurs to me that the oppostite may be true and a breach under section 65 may be liable to action under 140.Which would raise the question, could the liablity for say a serious breach in say the APR requirement which would normally be addresed under section65/127 be subject to the more vigorous sanctions of section 140?

Peter

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

There is another issue which flows from the statements on this thread. In Mr Harrison's judgemnt, HHJ Chambers ordered, quite correctly in my view, that MBNA write off the whole debt and declared the agreement/contract "unenforceable".

Now based on the arguments presented on this thread it would appear that it is the view of some the debt liability endures and the contract (large C or small c) endures and Mr Harrison could in fact based on those arguments be pursued still for the outstanding liabilities he has incurred under his agreement. HHJ Chambers has not specifically voided the contract has he? therefore MBNA are allowed to continue.

Please look at what has actaully been said.

regards
Garlok.

Re: Contracts, Termination, Repudiation and Rescission

Hi
I was interested that the judge in the case brought together sections 127 and 140.
I wonder did the judge give any indication which of these he used in reaching his judgement. I mean was the judgement based on the amount of prejudice or was it on the unfairness issue, or did he decide that they were one of the same and interchangeable, I am sure you can see where I am going with this.
Peter

Re: Contracts, Termination, Repudiation and Rescission

Ah, yes, I see what you mean. Thanks.

No Problem

Peter

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

I utterly sympathise with Keith Harrison and the judgement in his favour is fully deserved. In our case it is ME that has the serious heart problem and when we went to barclaycard very reasonably to try and discuss our situation in reasonable fashion it was THEY that turned the dogs on us and it was THEIR OWN collections teams in India and South Africa (or purporting to be so on caller witheld numbers) that did the damage over a period of 2 years. When they could not crack us it was handed over to Mercers and the rest of the detritus BUT NONE OF THE COWARDLY B******S WILL FACE OUR SOLICITORS ACROSS A COURTROOM FLOOR despite being invited to do so 18 months ago now on four accounts.

PLEASE ALSO NOTE THAT THE TIME OUR CARDS WERE FULLY PAID UP AND HAD NOT BEEN LATE LONGER THAN TWO DAYS FOR THE PREVIOUS 10 YEARS!!!!

We now just get threatening letters fom school playground bullies who run away like the cowards they are when a return threat of anything legal starts heading back in their direction. ALL of course outside the guidelines laid down for their and the OCs conduct.

Full marks to pt and HHJ Chambers for starting to set the record straight.

best regards
Garlok.

Re: Contracts, Termination, Repudiation and Rescission

yet when you put forward a (sensible that i totally agree with) view, such as " everything after DN IS enforcement-- you totally ignore the ruling made that everything after the DN is NOT enforcement.. and that termination, and service of proceedings does NOT amount to enforcement- only obtaining the judgement is enforcement!!


clearly terminating an agreement and demanding payment of sums not yet due and taking your customer to court is enforcement- any judge who says otherwise is living in a parallel universe!

HI NOt really sure what you mean here DD

What ruling do you refer to?

Peter

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

Ah, yes, I see what you mean. Thanks.

Re: Contracts, Termination, Repudiation and Rescission

Eh?

Just because something is not in the Act surely doesn't mean it is allowed?

S8 describes regulated agreements. There is no separation of contract. Both parties merely agree to a single (regulated) agreement.

I would also say that the creditor may not terminate when he wants (on breach); he must follow the regs, surely?

Yes i am affraid it does this is a basic feature of statute it regulates.
In the case of a commertial credit agreement it regulates the contract.

If there is something within the contract that the act does not refer to then as you say it is allowed. Unless of course it is prohibited under some other statute.

If the only things allowed to be in a contract wher those listed in statute it would be a very long list dont you think

Peter

Re: Contracts, Termination, Repudiation and Rescission

Semantics Peter.

The contract runs. There is a breach. The creditor terminates without following the regs. It ends up in court.

The agreement is dead in the sense that none of it's contractual provisions apply, but it was a regulated agreement and liabilities accrued while regulated. For example, I have a letter from the Halifax which tells me that my CC ag was terminated and there is now an account which remains open.

We know that the creditor should not have terminated on a bad DN but he did anyway. S87(1)(b) tells us that he is unable to claim the balance without following the regs. We are all agreed on that, yes?

To serve a new DN at this point (in court or shortly after), there needs to be a live agreement with the previous contractual provisions re-enabled, otherwise the 1983 Enforcement Notices regs make no sense whatsoever. Now, I may be wrong about this (and I know you will correct me in forthright terms!), but looking at the 1983 regs it is seriously difficult to understand how all the requirements contained therein can apply to a contract whose provisions have been disabled and which will continue to remain disabled even if the debtor remedies.

However, the creditor has told the debtor that the contract is ended. The debtor may or may not have agreed. But what liabilities are in question? Contractually, it is every penny of the sum loaned with interest. But as the contract was regulated but was terminated outside of the regs (the bad DN), the creditor is apparently unable to claim sums falling due in the future (S87(1)(b)). Therefore his claim can only be those contractual payments due before the contract was terminated.

The Pumpkinhead judgement tells us that both parties can agree to terminate a regulated contract on breach when, miraculously for the creditor, all the provisions of the Act disappear. To me, this is bizarre.

The Harrison judgement says that a new DN could have been served, implying that the contract endured, but this is not exactly clear.

The Durkin judgement agreed that a regulated contract could be ended on breach by the creditor, although admittedly for completely different reasons than those discussed here.

So my point is that, while the status of a contract following termination may be clear to you, it is not clear to me and does not seem to be especially clear to others. This is simply because there does not appear to be any definitive judgement either way.

It really is not that complicated.A teminated agrement still exists as a terminated agrement, and will continue to do so for as long as liabilities exist under it. Once those are disposed of the agrement is ended.
The terms of the agreement are simply the method that the liabilities are discharged,if those terms are "terminated" then the liabilites become immediatly due as in Pumpkinheads case.

Peter

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

HI

In a further attempt to explain

No the contractural termination of an agrement is not regulated by the act, with respect that is the whole point.
There is nothing in the act that says the contractural termiantion canot take place therefore it can

The crediotr can terminate any time he wants, he can demand full and immediate repayment any time he wants, can he enforce given that enforcemnt is regulated udner the act no he cannot.

Eh?

Just because something is not in the Act surely doesn't mean it is allowed?

S8 describes regulated agreements. There is no separation of contract. Both parties merely agree to a single (regulated) agreement.

I would also say that the creditor may not terminate when he wants (on breach); he must follow the regs, surely?

Re: Contracts, Termination, Repudiation and Rescission

No.

The clauses in an agreement which peter maintains allow a creditor to contractually terminate are written into a regulated agreement which is also supposed to comply with the provisions of the Act.

.

HI

In a further attempt to explain

No the contractural termination of an agrement is not regulated by the act, with respect that is the whole point.
There is nothing in the act that says the contractural termiantion canot take place therefore it can

The crediotr can terminate any time he wants, he can demand full and immediate repayment any time he wants, can he enforce given that enforcemnt is regulated udner the act no he cannot.

Faux said demanding payment is not enforcement.

High Court decides on legality of referring information to credit reference agencies and clarifies meaning of ‘enforcement’ in relation to consumer credit agreements



Yesterday, the Commercial Court gave judgment in the case of Phillip McGuffick v The Royal Bank of Scotland Plc. This was a case referred from Judge Halbert in the Chester County Court with the aim of providing guidance on issues surrounding the meaning of enforcement in the context of the Consumer Credit Act 1974 (“CCA”).
The case succeeded in clarifying many of the issues relating to this area of law and this Judgment will be invaluable to all lenders who are currently dealing with challenges to the enforceability of credit agreements.
Effect of unenforceability and what constitutes enforcement?
Mr Justice Flaux reached the conclusion that unenforceability does not mean that the rights of the parties under a credit agreement were never acquired or are extinguished. Rights under an agreement continue but cannot be enforced.
The Court also determined that bringing legal proceeding is only a step taken with a view to enforcement and not actually enforcement. Consequently, steps naturally taken prior to the commencement of proceedings, including demanding payment and threatening legal action, cannot be enforcement.
For these reasons, the Court decided that reporting to the credit reference agencies or passing on information about credit agreements or the conduct of accounts does not “come anywhere near amounting to enforcement”.

The Court therefore decided that the following activities would not constitute enforcement:

• reporting or threatening to report information about the conduct of a credit agreement to a credit reference agency
• passing on, or threatening to pass on, personal data in respect of a credit agreement
• demanding payment from a debtor
  
• issuing a default notice
• threatening legal action
• bringing legal proceedings.

Notice in this list there is no mention of termination.

Petr

[Angry Cat]

Re: Contracts, Termination, Repudiation and Rescission

MBNA/Link Financial, pursuing irredeemably unenforcable credit agreement(s), whilst in default of Section 78.

And, these covert/bad business practice continues...
Link Financial, use every dirty trick in the book in order to intimidate, embarass; bring the consumer to heel.

HHJ Chambers QC, is absolutely correct in his view:
such conduct should no be allowed in society!

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

So the court is enforceing an account

would that be breach of an account?

Interesting

Semantics Peter.

The contract runs. There is a breach. The creditor terminates without following the regs. It ends up in court.

The agreement is dead in the sense that none of it's contractual provisions apply, but it was a regulated agreement and liabilities accrued while regulated. For example, I have a letter from the Halifax which tells me that my CC ag was terminated and there is now an account which remains open.

We know that the creditor should not have terminated on a bad DN but he did anyway. S87(1)(b) tells us that he is unable to claim the balance without following the regs. We are all agreed on that, yes?

To serve a new DN at this point (in court or shortly after), there needs to be a live agreement with the previous contractual provisions re-enabled, otherwise the 1983 Enforcement Notices regs make no sense whatsoever. Now, I may be wrong about this (and I know you will correct me in forthright terms!), but looking at the 1983 regs it is seriously difficult to understand how all the requirements contained therein can apply to a contract whose provisions have been disabled and which will continue to remain disabled even if the debtor remedies.

However, the creditor has told the debtor that the contract is ended. The debtor may or may not have agreed. But what liabilities are in question? Contractually, it is every penny of the sum loaned with interest. But as the contract was regulated but was terminated outside of the regs (the bad DN), the creditor is apparently unable to claim sums falling due in the future (S87(1)(b)). Therefore his claim can only be those contractual payments due before the contract was terminated.

The Pumpkinhead judgement tells us that both parties can agree to terminate a regulated contract on breach when, miraculously for the creditor, all the provisions of the Act disappear. To me, this is bizarre.

The Harrison judgement says that a new DN could have been served, implying that the contract endured, but this is not exactly clear.

The Durkin judgement agreed that a regulated contract could be ended on breach by the creditor, although admittedly for completely different reasons than those discussed here.

So my point is that, while the status of a contract following termination may be clear to you, it is not clear to me and does not seem to be especially clear to others. This is simply because there does not appear to be any definitive judgement either way.