Contracts, Termination, Repudiation and Rescission

[Guest]

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

[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.

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

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

No Problem

Peter

[Guest]

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

[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.

[Guest]

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

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

[Guest]

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

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

At no time is a creditor contractually obliged to offer or issue credit under a consumer credit agreement, any more than the customer is contractually obliged to receive that credit. The only contractual obligation that exists on such an agreement is that of the debtors obligation to repay the loan.

Pointless entering such an agreement if there are no obligations on either side !! I do understand your argument, but fail to see its relevance.

Creditors have rights debtors have obligations.

Just as debtors have rights and creditors have obligations. Your statement is perverse.

Nowhere in the act or in any terms and conditions will you see the phrase "should the creditor commit a breach by failing to provide credit", it is absurd, how can he repudiate the agreement by failing to lend you money.

No one lender or borrower would write such a phrase into a contract. It is a silly thing to say. That does not mean a creditor cannot be in breach of the agreement for any number of reasons. I still feel that 'convenience' termination clauses in running-account credit agreements may be contrary to 140A. The credit is the whole and only reason for the agreement and there are after all perfectly good remedies of deferment and restriction in the Act.

Also I don't care whether an agreement is live, dead, terminated, ended or buried 6ft under, all the provisions of the regulating Act still apply, which includes contracting out. Common Law never trumps Statute.

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

For God's sake grow up Peter!!!

I think maybe you should look at your self in this respect

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!

Contracts do exist as long as the liabilities are undicharged this is an accepted tenent of law i am affraid

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.

And Beniuns comments are relevant to this debate how exactly.By the way he drafted the act and was responcible for the wording of the statute or much of it the civil servants he critisised were the ones that drafted the various statuory instruments that accompany it.
The rest of this paragraph is either similarily facturaly incorrect or as i say irrellavant.

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.

I remember every thing i say it is a curse i bear i remember everything i say every thing i read and every thing others say, cant spel for toffee but i remember everything.

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

Garlok

Had a minute

[Guest]

Re: Contracts, Termination, Repudiation and Rescission

Pointless entering such an agreement if there are no obligations on either side !! I do understand your argument, but fail to see its relevance.

If you understood the argumentyou would se its relevance
Just as debtors have rights and creditors have obligations. Your statement is perverse.

Just civil law


No one lender or borrower would write such a phrase into a contract. It is a silly thing to say. That does not mean a creditor cannot be in breach of the agreement for any number of reasons.

None rin respect of the termination of the agrement or the issuance of a credit

I still feel that 'convenience' termination clauses in running-account credit agreements may be contrary to 140A.

You are mistaken as shown many many times and evidenced even more times

The credit is the whole and only reason:beagle: for the agreement and there are after all perfectly good remedies of deferment and restriction in the Act.

?

Also I don't care whether an agreement is live, dead, terminated, ended or buried 6ft under, all the provisions of the regulating Act still apply, which includes contracting out. Common Law never trumps Statute

Doesnt requir answer it is nonesense how can anything appy to an agrement that does not exist?

.

Had another minute

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

Thank you basa, you and LA picked up the rather silly shifts in stance rather quicker than I did. It took me a reread

I asked a simple question which relates directly to statements made by the poster concerned earlier in this thread and he is unable totally to answer it.

HHJ Chambers did not as far as I can see actually make the alleged agreement void. Therefore based on 'bard's previous arguments the agreement/contract therefore endures or the original arguments are falacious.

Any question as to the authroity of this poster leads to this i.e we are all idiots except him.

And yet another shift in stance.

Garlok.

[Angry Cat]

Re: Contracts, Termination, Repudiation and Rescission

Any question as to the authority of this poster leads to this i.e we are all idiots except him.
Garlok.

Yes, but also to be top dog is clearly of great importance...:beagle:

[Lord_Alcohol]

Re: Contracts, Termination, Repudiation and Rescission

Well I must be the biggest idiot here because I still don't get it...although am beginning to wonder whether this is a communication problem more than anything else.

Reading the recent posts, we have the following (I think!)...

1. The agreement is terminated because the lender terminated it. The debtor may or may not have accepted that termination. There remains confusion as to what termination means.
2. There remain contractual obligations and these are in essence the liabilities under the previous agreement. S87(1) seems to say what those liabilities must be where the agreement is (was) regulated.
3. The discussion is moving on to those liabilities; CCA seems to say that they are the arrears up to termination (if the DN is bad), while the contract says it is everything.
4. Pumpkinhead (OTR) has found that acceptance of the lender's termination causes contractual liabilities to apply. Whether this is "correct" or not I have no idea, although it seems incredible that previous regulation is wiped in these circumstances.
5. There are here two views of service of a new DN; Peter, supported by HH Chambers and others (probably), sees no problem in service of a new DN where the agreement remains closed. My view, which I share with others, is that this conflicts with the 1983 enforcement notices regs and makes the wording required to be carried in the DN nonsensical and that the agreement should be reopened in full.
6. Point 5 above is not resolved by important judgements that include Woodchester and Harrison; IMHO, this point remains open to debate.

I would also say that there are major problems with the above, which include;

• How far does the creditor have to go before the debtor can seek protection under S140? Remember that Peter in an earlier post said that the debtor should look to the harassment regs rather than S140, so this is/has been a serious point for debate.
• Is the creditor's service of a TN and/or statement to the debtor that the agreement is terminated (following a bad DN) an act to which some form of sanction can apply, or is the creditor wholly imune from sanction for his endless cockups?
• If the agreement is terminated without entitlement, how is it that the creditor is still able to successfully obtain all the contractual benefits of the agreement?

I suppose bottom line is that I am finding it increasingly difficult to see where the regulation of regulated contracts applies; the lender seems to be able to do almost anything and still get his money. For example, in the pumpkinhead judgement, the lender terminates the contract unilaterally and outside of the regs, then finds that he has access to all contractual liabilities as his actions have caused regulation to be erased. How long will it be before we see lenders coaxing recalcitrant debtors into accepting "unlawful repudiation" of contracts so that they can get a judge to erase previous regulation?

So why bother with regulation at all?

[volvodriver]

Re: Contracts, Termination, Repudiation and Rescission

Been away from the thread for a few days. What an excellent summary. Its my view that various court judgements around various parts of the CCA have rendered it unintelligible.

I completely concur with the above, but wonder how it can now be rectified, and return to being for the protection of consumers.?