Contracts, Termination, Repudiation and Rescission

[toomanycalls]

Re: Contracts, Termination, Repudiation and Rescission

you are quite right.......and whilst i accept that there appears to have been no success yet in this area.............i still do not believe (especially when - as you say - the fault has been pointed out to the creditor and he has the opportunity to correct it) that the argument for the debtors right to consider the creditors actions as UR and make an election cannot be succesfully made in court

We are talking in this instance of a creditor deliberately and wilfully not only refusing to perform- but arrogantly dismissing the representation of the debtor as to this fact.

I have not won on this issue in court per se- but the fact that the creditor discontinued in the face of this lodged defence would seem to me to be a clear indication of the creditor being uncomfortable with having to continue in these circumstances

i suspect that the reason this has never been resolved to the debtors advantage in court- is that creditors have backed down as in my case rather that proceed

of course these go unreported

The only thing I wonder being in the situation myself is that if it was the DN or the s78 breach that caused them to back down in your case. Its my opinion that either one would be sufficient.

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

The only thing I wonder being in the situation myself is that if it was the DN or the s78 breach that caused them to back down in your case. Its my opinion that either one would be sufficient.

i think they actually did eventually conform to their s78 obligations- the judge merely criticised the fact that not until well into the trial

i am SURE the DN did for them

[toomanycalls]

Re: Contracts, Termination, Repudiation and Rescission

i think they actually did eventually conform to their s78 obligations- the judge merely criticised the fact that not until well into the trial

i am SURE the DN did for them

I'm glad about that, much better for my case then, thanks for clarifying.

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

One of the risks with this argument of repudiation and affirmation/election is that as I understand it (and I stress I am no expert in common law) that if it is shown there is no longer a formal contract between parties then common law comes into play.

Common law tends to operate on the issues of fairness & reasonableness and I would expect a judge to consider that if a debtor has borrowed money then it should be repaid.

The only real areas for argument would be how much and how quickly.

A long time ago I successfully argued the lack of a proper contract with an estate agent. The judge simply said that therefore we owed the agents reasonable expenses (which funnily enough worked out almost the same amount as the state agent's argued fee amount !!!)

[New_Age_Biker]

Re: Contracts, Termination, Repudiation and Rescission

Is a 'compound' defence more the correct way to go?
i.e.
Faults with agreement
Faults with Dn / Termination
Faults with assignement
Behaviour of creditor / DCA
Maybe counterclaim

[diddydicky]

Re: Contracts, Termination, Repudiation and Rescission

certainly the more faults the better, for sure

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

Hi basa,

Re your post above no. 679. I have argued this before and have always been "shouted down" shall we say on the basis that "CCA law is different from the Common Law of Contract" and that "Contract" can never apply in CCA disputes. But something has to govern the circumstances of a "non-agreement" ??????

Whether I actually agree is irrelevant really, the point remains to be proved. However it IS an established principle of the Common Law of Contract that should a contract be breached so that it is legally declared void, in my humble view, exactly what happens when a CCA dispute arises and the agreement is found defective, then Common Law requires that the parties to that void agreement/contract are returned to the exact position that they were in prior to the existance/inception of the flawed contract, i.e that there should be no benefit, gain or loss by EITHER party.

Therefore any CC agreement which has any maturity to it would have to be looked at right back to the date of its inception, all purchases and cash withdrawals would have to be paid for but there can be no gain on behalf of the alleged creditor, he has no right to the interest and charges he has collected on the way nor is he entitled to the income he has generated from the collection of such charges and interest. You then get into a similar scenario of statutory interest and interest in restitution as is often discussed on these forums about crdit card charges.

I think you would find in most cases of a mature "agreement", it is in fact the alleged debtor who is owed monies from the creditor.

Some points to ponder if you enter the minefield of Contract Law and I suspect why the banks try to steer clear at every turn.

regards
Garlok

[toomanycalls]

Re: Contracts, Termination, Repudiation and Rescission

Interesting post Garlock. When I SARed a number of my accounts some of the screen prints seemed to show payments made to the account from inception and purchases/transfers separate to charges and interest. Alomost to support that theory or maybe so that they know their true liability when they discharge/sell on an account.

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

Hi TMC.

yes we have heard of this before, and in our cases we have two which date back over 28years and the simplest of calculations illustrate that we have paid for EVERYTHING several times over. One of the others (of four) dates back 20years and they can only supply 6 years worth of documentation and no agreements or supporting documents at all.

Hence one of several reasons why they fight shy of a hearing, to which they have been invited (IMVHO).

regards
Garlok

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

Hi basa,

Re your post above no. 679. I have argued this before and have always been "shouted down" shall we say on the basis that "CCA law is different from the Common Law of Contract" and that "Contract" can never apply in CCA disputes. But something has to govern the circumstances of a "non-agreement" ??????

Whether I actually agree is irrelevant really, the point remains to be proved. However it IS an established principle of the Common Law of Contract that should a contract be breached so that it is legally declared void, in my humble view, exactly what happens when a CCA dispute arises and the agreement is found defective, then Common Law requires that the parties to that void agreement/contract are returned to the exact position that they were in prior to the existance/inception of the flawed contract, i.e that there should be no benefit, gain or loss by EITHER party.

Therefore any CC agreement which has any maturity to it would have to be looked at right back to the date of its inception, all purchases and cash withdrawals would have to be paid for but there can be no gain on behalf of the alleged creditor, he has no right to the interest and charges he has collected on the way nor is he entitled to the income he has generated from the collection of such charges and interest. You then get into a similar scenario of statutory interest and interest in restitution as is often discussed on these forums about crdit card charges.

I think you would find in most cases of a mature "agreement", it is in fact the alleged debtor who is owed monies from the creditor.

Some points to ponder if you enter the minefield of Contract Law and I suspect why the banks try to steer clear at every turn.

regards
Garlok

Well it is certainly something I have pondered.

What we are discussing here is 'rescission' where the contract is 'wound back' to inception. I always thought it would be the case the creditor would be in debt to the consumer.

However this thread has been arguing about 'repudiation' where, as I understand it, one party or the other has indicated it will no longer perform the contract. But I don't think that could be considered 'rescission' which is more concerned with parties changing their minds very soon after inception and before much in the way of performance.

It is my worry that a 'repudiated' contract is stopped in its tracks at that point and all parties settle up what is reasonably outstanding.

The waters are somewhat muddied IMO by who repudiated and who was innocent and claims for damages.

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

Hi basa,

Perhaps you have hit the nail on the head. As I said in an earlier post it would seem the the terms "repudiation", "recission", and "termination" are poorly defined and poorly understood even by legal minds.

If you cast your mind back not so many months ago on CAG there was much discussion about on these very points. However the word termination was very loosely used and the term we were advised to use was in fact recission in the advised letters to creditors. Hence my comments on Contract Law. Like nature, the law abhors a vacuum and something must fill the gap.

Just theorising a bit, if there is no compliant agreement (and never has been) with the Statute then it cannot exist in a legal form. How can the Statute govern something that does not exist under its own rules? Whether or not both parties "perform" under what should have been a compliant agreement, that agreement, it has been discovered by one of the parties (and the other party must have known this fact!) is defective, one party (the creditor) still in non compliance with Statute proceeds on a course of action which leads the other party to believe that the "performance" has ceased, what laws now govern the conduct of both parties?

It cannot be Statute can it? That has already been breached and the "agreement" under it has to be void and has been void since inception. Hence something has to move in, otherwise we all just walk away and they have to send the bad boys with baseball bats.

Like I say I know its all bit contentious, but it would seem the banks want their cake and eat it, but I do know they will not willingly face a "contract" law action or bring one. A failure would bring the whole shoddily built edifice down around their ears.

regards
Garlok.

[StoneLaughter]

Re: Contracts, Termination, Repudiation and Rescission

Garlok - in the case of the CCA, isn't it enshrined in there that an agreement to lend money between a commercial body and a consumer is, by definition, regulated by the Act; and that an agreement which does not conform precisely to the Act's specifications, does not bind either party in Law?

This would mean that a non-compliant "agreement" is null and void; which would mean that Recission (return to a pre-agreement state) is the only possible outcome at a court hearing.

[Garlok]

Re: Contracts, Termination, Repudiation and Rescission

Hi StoneLaughter,

There has been so much contradictory information put out on these points and so much dissection that I don't think many of us actually know where these points in reality stand. For example the Act is clear that the original documents must be available (and presented) for the courts to enforce, now we have the situation on the ground that the banks may submit forged documents to get a judgement, Yes I say forged documents because that is what they are. The House of Lords ruled on these issues like "within the four corners etc" yet they are blatantly ignored.

I think that you may be right in your assessments (within the limitations laid down in the Act but it does not quite stack up with both judgements in the lower courts nor does it quite stack up with argument presented here previously.

Hence I was opening up the discussion for consideration by those more knowledgeable than me. You see if you trace back through several posts on this very thread, you could be left with the impression that the things about which the Act says nothing are in fact more important than the things it does actually say.

This does frighten new people who, faced with this sort of presentation feel that their cases are hopeles when they are clearly not so.

I really am not being perverse, just trying to bring some cohesive conclusions to the fore so that we can make up our own minds.

And I thank you for your time to read and reply.

Best regards
Garlok

[Angry Cat]

Re: Contracts, Termination, Repudiation and Rescission

Without a shadow of doubt, many new members may have become confused/frightened by some posts within this thread!

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

In my opinion where there is a financial relationship there is an agreement (or 'contract' if you like - the term 'credit agreement' is just another name for a specific type of financial contract).

The only difference is the ones we are interested in are either non compliant with the regulations (for the reason for example the credit is not stated correctly) or it was never compliant (for example the debtor never signed one).

Neither situation would mean the contract is null and void. just that it cannot be enforced.

I am due in court next week to argue this type of case and I'm being very careful not to fall into the trap where I argue there is no contract whatsoever.

I am having to stress forcefully that the financial relationship is a regulated relationship by virtue of the fact that personal credit is involved and the law says it must therefore be a regulated agreement and should comply with the requirements and provisions of the Act.

Since I am no master of common contract law I do not want to dip my toes into that pool only to find it is full of piranhas!!

I take the point of things not mentioned in the Act and the main one I know of is the termination of agreements where there is no debtor default.

I know most credit agreements have the 'we can terminate anytime' clauses in but this will not give the creditor the right to demand the full sum in one payment. Simply because the agreement still exists and still allows for monthly payments.