Contracts, Termination, Repudiation and Rescission

Re: Contracts, Termination, Repudiation and Rescission

Hi

This is more interesting.
I see no reason why an account cannot be terminated , if the agreement embodies a term allowing it.
I also see no reason why an account cannot be transferred to another party, terminated or not, indeeed they frequently are.

The question is can the agreement be enforced and liablitiies under it recovered.

The answer is, no they cannot for that to happen there needs to be a default and the notice giving time to remedy, as per statute.

Contry to some oppinion an agreement can be terminated at any time if the contract says it can the creditor can even demand payment, he cannot however enforce that demand.

The reason the creditor can unilaterally terminate an agreement is because the debtor gives him permission to when he signs the agrement which contains that facility in its terms.

Peter

[cymruambyth]

Re: Contracts, Termination, Repudiation and Rescission

If for example you have lost in court and have had a CCJ awarded against you, when decisions are made in the court of appeals, is it possible to go for a set aside based on the new decisions?
Also, if you couldn't afford an appeal but in the light of these new decisions, is it worth getting transcripts of your cases?
Hope this makes sense and thank you

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

In the case you speak of in the CoA, were you claimant or defendant?

Like I said, as a possible defendant, I wouldn't require recovery any monies only injunctive relief against re-affirming the contract after a defective DN. Which is allowed under 170(3).

we were Defendant, we counterclaimed using the common law doctrine of mistake, but the Court said common law remedies, were not available due to the statute preventing them


Id just say, wait til the High Court judgment comes out, it shouldnt be long,but it really puts these arguments to bed.

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

my point is that the recovery of monies paid under a regulated agreement is only possible where expressly set out in the Act.

We ran a case which went to the Court of Appeal and the court took the view that while the agreement was unenforceable, the Defendants counterclaim for restitution was barred by s170

we had argued mistake but the Court said no, as the remedy wasnt prescribed by the act

In the case you speak of in the CoA, were you claimant or defendant?

Like I said, as a possible defendant, I wouldn't require recovery any monies only injunctive relief against re-affirming the contract after a defective DN. Which is allowed under 170(3).

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

That assumes a debtor wishes to recover monies. All I wish is that I am required to pay no further monies.

my point is that the recovery of monies paid under a regulated agreement is only possible where expressly set out in the Act.

We ran a case which went to the Court of Appeal and the court took the view that while the agreement was unenforceable, the Defendants counterclaim for restitution was barred by s170

we had argued mistake but the Court said no, as the remedy wasnt prescribed by the act

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

playing devils advocate, but isnt recovery of monies paid a remedy to the debtor and a sanction to the creditor?

I think that the courts are likely to limit the scope of such arguments,

That assumes a debtor wishes to recover monies. All I wish is that I am required to pay no further monies.

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

Not trying to pre-empt the judgment but 170 refers to 'sanctions' not 'remedies'. Can not 'remedies' be argued as different to sanctions? Sanctions being penalties.

What I am trying to say is the creditor can still terminate and lose any further rights under contract without this being regarded as a sanction (i.e. penalty).

playing devils advocate, but isnt recovery of monies paid a remedy to the debtor and a sanction to the creditor?

I think that the courts are likely to limit the scope of such arguments,

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

..............Also a point to mention, s170 of the act bars any remedy unless provided for expressly by the act, this is said to also exclude the common law repudiatory breach, on the basis that its not prescribed by the act as being available for breach of s87.............

Not trying to pre-empt the judgment but 170 refers to 'sanctions' not 'remedies'. Can not 'remedies' be argued as different to sanctions? Sanctions being penalties.

What I am trying to say is the creditor can still terminate and lose any further rights under contract without this being regarded as a sanction (i.e. penalty).

[jumper999]

Re: Contracts, Termination, Repudiation and Rescission

Better to make sure all the cracks n creases are all ironed out beforehand.........that way it leaves no spaces for any further or future hiccups :tinysmile_grin_t:

Understandably as this judgment will be binding will be very important that is why I know you want to do things correctly. Thanks for letting us all know PT.

That's 2 important events in my diary to look forward to now, this and the Brandon one.

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

Ahhh nooo, thought there would be a hiccup, no worries pt a few more days won't hurt hey......

I know if was up to you then you would have shown all the same day.........but as law abiding citizens we have to abide by what the law of the land says [not speaking on behalf of the creditors that is].

The difficulty was, counsels view was that the judgment had a point which hadnt been properly clarified, therefore, there is a rule, called the Barrel Rule, See Re T (A child) and also Paulin and Paulin (2009)

The barrel rule allows you to ask the judge to consider any points which he hasnt addressed , and seeing as the point we have taken is a serious point, our client decided that we ought to pursue it properly, as the judgment will be binding it ought to be correct.

So we had little choice but to apply

[jumper999]

Re: Contracts, Termination, Repudiation and Rescission

a minor hiccup

Advice from counsel, there is now a barrel rule application meaning judgment is not being handed down until the barrell rule app is resolved.

Ahhh nooo, thought there would be a hiccup, no worries pt a few more days won't hurt hey......

I know if was up to you then you would have shown all the same day.........but as law abiding citizens we have to abide by what the law of the land says [not speaking on behalf of the creditors that is].

[basa48]

Re: Contracts, Termination, Repudiation and Rescission

a minor hiccup

Advice from counsel, there is now a barrel rule application meaning judgment is not being handed down until the barrell rule app is resolved.

One of my main contentions with a creditor is the termination and sale of an account following a (very) bad DN.

Should I be worried the DCA can reissue a DN?

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

Thank you, I will look out for it.

Dad

a minor hiccup

Advice from counsel, there is now a barrel rule application meaning judgment is not being handed down until the barrell rule app is resolved.

[dad]

Re: Contracts, Termination, Repudiation and Rescission

The High Court judgment will be formally handed down on the 25th January, it has been confirmed.

Also it is going to be reported on BAILLI

Thank you, I will look out for it.

Dad

[pt2537]

Re: Contracts, Termination, Repudiation and Rescission

Case Tracker for Civil Appeals

yes, as above, we went last year and got adjourned by Lord Justice Ward. This was due to listing errrors on the courts part.

As regards the High Court judgment, i have it here, but it is draft and therefore anyone who knows the rules on drafts will know they are confidential to Counsel, Solicitors and Clients only.

The High Court judgment will be formally handed down on the 25th January, it has been confirmed.

Also it is going to be reported on BAILLI