Contracts, Termination, Repudiation and Rescission

[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.

[Guest]

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

[Guest]

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

[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]

[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

[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.

[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

[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...

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

I think i must have said this a hundre times the creditor can terminate at any time he can demand early repayment at any time just look at any copy of the regs its in there.
he cannot howcer or more correctly a court cannot enforce that demand because of the restriction imposed on it by the CCA.


Read more at: Contracts, Termination, Repudiation and Rescission - Page 24 - Legal Beagles Consumer Forum

halleluhah-- agreement at last

i think where some folk were getting frustrated peter is that you made it sound sometimes when you said "the creditor can terminate at any time and demand repayment" that he could LEGALLY enforce his demand- the fact that he cannot means that the point is not really significant since presumably the creditor could demand that you stick your finger up your bum and whistle dixie ................if it is not a legally enforceable demand....who cares!!

now we have the full statement and you are right he can demand what the hell he likes- but without compliance with s87 he is impotent in enforcing a demand for earlier repayment

if he is terminating where there is no default under this mutual termination agreement- then despite terminating the agreement the creditor would still allow the debtor to discharge the current outstanding debt as per the normal terms of the agreement

(this from the horses(banks) mouth:_

[Bank] is a subscriber to the Lending Code and two of its key commitments are
to lend responsibly and to act sympathetically and positively when
considering a customer's financial difficulties. Where notice to terminate
the card agreement is given by the bank then the bank will generally give
time for any debt on the card account to be paid, for example allowing the
balance to be paid down on the same terms as under the card agreement.

the fact is that whilst they may state that they may "generally give time"- they know damn well that they cannot lawfully enforce immediate repayment since the debtor had done nothing wrong and would be SEVERELY prejudiced by the creditor who demanded repayment in full in these circumstance

therefore we have another "non argument" since if it is not a legally enforceable demand for payment in full- no cagger really gives a *****

all we have left now to disagree over is the notion that the creditor- with all his financial and legal clout can either deliberately or accidentally terminate an agreement on the back of a DN which he himself (the creditor) might be unaware is not a valid termination..............and yet if the debtor accepts his "termination that isnt"- the debtor is then held to have terminated the agreement

this (not you) is total utter and complete poppycock- even if one judge has had a bad hair day

it is wrong by any stretch of the imagination, credulity, common sense or legal argument

plainly simply barmy

a debtor cannot be held to have accepted a termination which the act says is/was not really a termination, - since there was clearly no termination to accept!

a debtor acting in such a way is doing so in the genuine beleif that the creditor has unlawfully repudiated and is seeking to relieve himself of his own continuing obligations due to the creditors actions.

The creditor- in serving the DN was legally obliged to convey "with precision" what the debtor had done wrong , and what he must do to put it right- so as to leave the debtor in no uncertainty.

therefore if the creditor whether by error, omission, carelessness, negligence or just plain stupidity- does not convey this information with precision (which i would suggest even forest gump would recognise that an invalid DN would not do) then the creditor has not complied with his obligations and has in fact given false information to the debtor which might cause him to make a transactional decision that he would otherwise not have made (enterprise act anybody)

so,, the proposition that the creditor with all his might can make a mistake and have it cancelled out- but then lead the debtor astray by leading him to make a transactional decision that he would not otherwise have taken (now where have we heard that before?) is totally against natural justice.


to take matters a stage further..... a creditor who, having been alerted to his invalid DN and therefore subsequent invalid termination- by the debtor - (even if that alert comes through the debtor mistkenly assuming and "accepting" an unlawful repudiation- would be obliged to re visit his paperwork and his actions and /or enter into discussion with the debtor as to why he believes this to be the case BEFORE continuing any action against the debtor and if he fails to do so (IMO) will leave himself wide open to the consequences of his actions not only in terms of costs but run the risk of being accused of misuse of the court process and i for one would definately use the decision in BOS v Robert Mitchell to highlight the creditors failings from the point at which he was alerted on points of law
IMO

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

HI NOt really sure what you mean here DD

What ruling do you refer to?

Peter

you say that everything after the DN is enforcement

the judge in mcguffic disagreed and said that the TN and subsequent bringing of court proceedings was NOT enforcement- only actions LEADING UP TO enforcement

so in other points you raise you say to caggers "this is what has been ruled in court so accept it"

yet in the foregoing case- although the point was decided in court- you yourself do NOt accept the courts ruling and insist that everything post DN is enforcement

that make sense?

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

all we have left now to disagree over is the notion that the creditor- with all his financial and legal clout can either deliberately or accidentally terminate an agreement on the back of a DN which he himself (the creditor) might be unaware is not a valid termination..............and yet if the debtor accepts his "termination that isnt"- the debtor is then held to have terminated the agreement

this (not you) is total utter and complete poppycock- even if one judge has had a bad hair day

it is wrong by any stretch of the imagination, credulity, common sense or legal argument

plainly simply barmy

a debtor cannot be held to have accepted a termination which the act says is/was not really a termination, - since there was clearly no termination to accept!

a debtor acting in such a way is doing so in the genuine beleif that the creditor has unlawfully repudiated and is seeking to relieve himself of his own continuing obligations due to the creditors actions.

Even if it were accepted that the creditor could 'terminate' after a bad DN, that termination would also be bad (unlawful if you like) such that it represents a repudiation that the debtor can affirm quite properly and possibly sue for damages.

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

Thank you AC, LA and basa, you put your arguments better than I ever could. Well I have been away over the weekend and am just catching up. However, as I have an elderly relative who I do not meet as often as we would both wish as circumstance dictates, I sought opinion. He read for the bar but took a career in commerce instead, specialist area of expertise --- CONTRACT. I took screen dumps of some of the arguments presented here for proper opinion. (I am trying to persude him to come on LB for his own amusement and entertainment).

I am afraid the clear instruction to me was that I should NEVER act on the sequence of arguement provided by the OP in this case, and should I wish to do so then it is imperative that I obtain fullest corroboration of what he has said from a properly trained and practising professional who by definition is an officer of the court.

I will not detail the demolition of the posts I took because they need to be read and re-read as a whole to ascertain the exact kernel of his argument which shifts emphasis. This is a standard courtroom "trick" which has not been brought off very well, i.e thow up a whole smoke screen of spurious legal argument couched in legalese which may or may not have substance, in the hope that the "opposition" will flounder in counter argument. The real expertise, I am told, is being able to cut directly through this smokescreen to expose the real intent and substance of the argument if it had any in the first place.

I do note that some of you on here are very able to do that, please continue to do so for the sake of those less fortunate (if thats the right word in our circumstances) than ourselves.


The end expert opinion is good enough for me. Proof beyond reasonable doubt of my own simplisitic views on the subject.

END OF.

regards to all
Garlok

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Peter, have you a comment on post 604 please?

[volvodriver]

Re: Contracts, Termination, Repudiation and Rescission

Even if it were accepted that the creditor could 'terminate' after a bad DN, that termination would also be bad (unlawful if you like) such that it represents a repudiation that the debtor can affirm quite properly and possibly sue for damages.

Which is why there's a long, protracted debate OTR on Pumkinhead's thread.

But I do believe there is starting to be a consensus on a common sense approach, and a flawed judgement in an earlier case which needs revisiting and clarification.

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

For me there is only one question:

After a bad DN and a subsequent termination, is that termination ineffective or simply contrary to regulations? Is the agreement terminated or not?

Some say the termination has no affect and everything winds back to a pre (bad) DN time, others say the termination is effective but without the entitlement of s87.