Re: Contracts, Termination, Repudiation and Rescission
Actually, I believe it is within either party's right to terminate at any time, though they face consequences. I believe the faulty DN does not prevent a creditor from terminating, but should they not have followed proper procedure, it is considered unlawful. The argument is that the faulty document cannot be assumed as termination as it is, for the reasons identified, a faulty document.
Sorry for waking up this tired old thread, but it is of great interest to me, as I have had an agreement terminated, but without any proper notice at all. The OC has not provided me with anything like the documents specified by CCA 1974 and the galling part of it is that I have not, nor at any point before the lender's repudiation, missed a payment. Despite warnings from me following a DN which was not just faulty, but plucked completely from the air, the OC engaged an agency to collect the outstanding balance, and despite repeated requests for the parties to desist in their unlawful actions, I have now received a further notice from the agency to pay. I am yet to receive anything other automatic notices from either in response to my communications.
I do not believe that in my case, where their actions could be considered as negligence, the OC can simply wind back the clock stating that their DN was faulty and they should be able to revert. This would be ridiculous. It would mean that they could defend cases in their favour based on their own incompetence, possibly encouraging sly use of faulty documents.
Surely the truth of this is that a faulty DN issued in a justified action cannot be considered to be implied repudiation, as it is merely a technical fault in an otherwise proper situation. The debtor could accept the faulty DN, if they so wished given that the content was truthful, even though the form was incorrect. In such a case the termination that followed would not in anyway be invalid as both parties were prepared to proceed; That is, it is not the faulty DN that repudiates, but further actions stemming from it, e.g. termination. In such a case, it could be seen that there is a duty on the part of, or at least that it would not be unreasonable to expect, the debtor to query the faulty DN within the timescale of the notice given. Not to do so may appear to be a little opportunistic if you then go on to claim repudiation by the OC. That does appear to be a little lacking in grace, and be as likely a reason for allowing the reissue of a DN as any.
However, if there is a DN, whether faulty, completely proper or simply cuckoo, and the OC terminates outside of CCA 1974 or their own stipulated conditions, then the termination may be considered unlawful, yet acceptable as the creditors repudiation of the agreement by the debtor, providing an opportunity to accept it as such and all the associated rights. I believe that this is the case with my unlawfully terminated agreement, and have informed the OC, but I would like to know what my rights would now be, assuming that what I have put here is correct.
Can anyone point me in the right direction, as some previous links on the site have expired.
Originally posted by peterbard
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Sorry for waking up this tired old thread, but it is of great interest to me, as I have had an agreement terminated, but without any proper notice at all. The OC has not provided me with anything like the documents specified by CCA 1974 and the galling part of it is that I have not, nor at any point before the lender's repudiation, missed a payment. Despite warnings from me following a DN which was not just faulty, but plucked completely from the air, the OC engaged an agency to collect the outstanding balance, and despite repeated requests for the parties to desist in their unlawful actions, I have now received a further notice from the agency to pay. I am yet to receive anything other automatic notices from either in response to my communications.
I do not believe that in my case, where their actions could be considered as negligence, the OC can simply wind back the clock stating that their DN was faulty and they should be able to revert. This would be ridiculous. It would mean that they could defend cases in their favour based on their own incompetence, possibly encouraging sly use of faulty documents.
Surely the truth of this is that a faulty DN issued in a justified action cannot be considered to be implied repudiation, as it is merely a technical fault in an otherwise proper situation. The debtor could accept the faulty DN, if they so wished given that the content was truthful, even though the form was incorrect. In such a case the termination that followed would not in anyway be invalid as both parties were prepared to proceed; That is, it is not the faulty DN that repudiates, but further actions stemming from it, e.g. termination. In such a case, it could be seen that there is a duty on the part of, or at least that it would not be unreasonable to expect, the debtor to query the faulty DN within the timescale of the notice given. Not to do so may appear to be a little opportunistic if you then go on to claim repudiation by the OC. That does appear to be a little lacking in grace, and be as likely a reason for allowing the reissue of a DN as any.
However, if there is a DN, whether faulty, completely proper or simply cuckoo, and the OC terminates outside of CCA 1974 or their own stipulated conditions, then the termination may be considered unlawful, yet acceptable as the creditors repudiation of the agreement by the debtor, providing an opportunity to accept it as such and all the associated rights. I believe that this is the case with my unlawfully terminated agreement, and have informed the OC, but I would like to know what my rights would now be, assuming that what I have put here is correct.
Can anyone point me in the right direction, as some previous links on the site have expired.
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