Stupid question time :D - What is the definition of Repudiation and Recission ?

[Amethyst]

In the context everyone seems to talk about surrounding the CCA and DN's - because although I have tried I still really don't get it. In laymans terms please

[Guest]

Re: Stupid question time - What is the definition of Repudiation and Recission ?

Hi

Repudiation of contract is the act of denying the existance of an agrement. In other words not complying with any of the core requirements or obligations set out in the contract.

The breach must be of one of the core terms of the contract.
The serious default of the debtor would be repudiation.

If a contract is repudiated the injured party can under contractual law accept that the other party has dissavowed the contract by accepting that repudiation when he does the contract is at an end.

This would be the case in a defaulted credit agrement if the statute did not intervene and force the crditor to give a final chance to cure the breach(section 87) before the repudiation is accepted and the agrement terminated.

Repudiation of an agrement differs from contratural termination(ie a term of the contract that says the creditor may terminate) in that if an agrement is repudiated the injured party is able to recover guenuine pre estimates of losses on the agrement.
This means that if for instance it was a hire agrement the crediotsr would be able to sue for losses of future rental if the debtor repudiated.

IF the agrement was contracturally terminate the creditor would have acknowledged the agrement exists so only the arrears would be due on a hire agrement.
This makes sense . If it were not true a creditor could just terminate a hire agrmenet at any time and claim the full amount of advance rentals without having to perform.

This scenario does not apply to a credit agrement of course because all liabilities due are actual not a pre estimate of future losses. This wa what lead tlo the confusion in the widely held annalysis of the woodchester hearing.

Recission is the action of returning the parties of an agrement to the point and condition that they where in before the contract was entered into.

This is comparitavly simple in a business contract because most of the obligations that are discharged are down to performance, (buiding a bridge or cleaning your car.)
It is easy to rescind the contract because there are no liabilities under the contract just obligations.

In a credit agrement it is more complex in order to return the agrement to its formative state the liabilities under the agrement would have to be repaid.

That is why when recissiton is refferd to on here, really what is meant is termination of the contract since on termination the liabilities still exist.

Peter

[basa48]

Re: Stupid question time - What is the definition of Repudiation and Recission ?

Hi

Repudiation of contract is the act of denying the existance of an agrement. In other words not complying with any of the core requirements or obligations set out in the contract.

The breach must be of one of the core terms of the contract.
The serious default of the debtor would be repudiation.

If a contract is repudiated the injured party can under contractual law accept that the other party has dissavowed the contract by accepting that repudiation when he does the contract is at an end.

This would be the case in a defaulted credit agrement if the statute did not intervene and force the crditor to give a final chance to cure the breach(section 87) before the repudiation is accepted and the agrement terminated.

Repudiation of an agrement differs from contratural termination(ie a term of the contract that says the creditor may terminate) in that if an agrement is repudiated the injured party is able to recover guenuine pre estimates of losses on the agrement.
This means that if for instance it was a hire agrement the crediotsr would be able to sue for losses of future rental if the debtor repudiated.

IF the agrement was contracturally terminate the creditor would have acknowledged the agrement exists so only the arrears would be due on a hire agrement.
This makes sense . If it were not true a creditor could just terminate a hire agrmenet at any time and claim the full amount of advance rentals without having to perform.

This scenario does not apply to a credit agrement of course because all liabilities due are actual not a pre estimate of future losses. This wa what lead tlo the confusion in the widely held annalysis of the woodchester hearing.

Recission is the action of returning the parties of an agrement to the point and condition that they where in before the contract was entered into.

This is comparitavly simple in a business contract because most of the obligations that are discharged are down to performance, (buiding a bridge or cleaning your car.)
It is easy to rescind the contract because there are no liabilities under the contract just obligations.

In a credit agrement it is more complex in order to return the agrement to its formative state the liabilities under the agrement would have to be repaid.

That is why when recissiton is refferd to on here, really what is meant is termination of the contract since on termination the liabilities still exist.

Peter

I would just like to add that there is growing belief that there can never be a repudiation of a Consumer Credit Agreement (contract) since such an agreement is regulated only by the Consumer Credit Act not common law and the Act expressly forbids common law actions.

I may be corrected though.

[Guest]

Re: Stupid question time - What is the definition of Repudiation and Recission ?

I would just like to add that there is growing belief that there can never be a repudiation of a Consumer Credit Agreement (contract) since such an agreement is regulated only by the Consumer Credit Act not common law and the Act expressly forbids common law actions.

I may be corrected though.

Could you refference the source of this belief for me please. Also that the act expressly forbids common law action.

I thnk what is meant is that if there is a conflict between common law and statute then statute prevails.

Many thanks
Peter

[Amethyst]

Re: Stupid question time - What is the definition of Repudiation and Recission ?

just a pointer

Common law remedies arent available with the CCA unless provided for by the CCA.

This was the decision in the Appeal court in Arrow Global (Appellants) v Devlin (Respondent )

Also R vs Kettering Magistrates Court ex parte Motor insurers bureaux

Devlin dealt with restituiton and the doctrine of mistake, both of which were held not to be available as s170 expressly provided that only remedies within the act were available.

Common law can never defeat statute.

.............

Thanks for the explanation Peter, will need to read it a few times I think before I fully understand.

[Guest]

Re: Stupid question time - What is the definition of Repudiation and Recission ?

.............

Thanks for the explanation Peter, will need to read it a few times I think before I fully understand.

THe quote from PT reffers to breaches of statute not breches of contract.

peter

[Amethyst]

Re: Stupid question time - What is the definition of Repudiation and Recission ?

Sorry I thought we were talking about common law and the CCA 1974.

[Garlok]

Re: Stupid question time - What is the definition of Repudiation and Recission ?

Hi Ame,

You will remain confused over this issue for a long time. There are very deeply held polarised views coming in to play here. I have said and I will repeat here that if you look at just the other thread alone and read the WHOLE thing in the context that the posts are made then you will see that an argument is being put forward that is somewhat contradictory. I.E. the protections of the Statute Law do not prevail for the consumer, they are dissected to such an extent that any further discussion on CCA1974/2006 et al is irrelevant at any level. Then the argument, whether the posters concerned realise it or not have moved subltely into the minefield of Common Law - Contract always in support of their own hypotheses where they are actually arguing that the protections provided also for an injured party (remember the debtor can also be an injured party in many ways) also do not apply as they are protected by the Statute which the very same poster has already argued that the Statute does not provide protection.

When you talk to a sensible lawyer on these matters and expert contracts people like MOD managers etc, they will tell you that IN THEORY a judge at whatever level has no room to manoeuvre at all in interpretation of Statute. He must apply the Statute Law as it is written. Case law has no relevance in the event of actions brought before the courts under a Statute. Every case must stand or fall on its own merits.

However the PRACTICE of all this on a day to day basis is very different. Despite what all of the amatuer experts have said all over various forums, this was the crux of the Carey case and the reasons why it was brought in the first place. It was about rationalising the debacle that the whole thing has become, which in itself because frankly of failures of weak defences from LIPs and poor advice and misinformation (from places like this sadly) that the creditors were able very quickly to establish a track record of case law with which to hoodwink lower courts as there are some areas of very dangerous ground in Carey for creditors that they would not wish to go on.

That is the crux of the whole of these problems. Advice is being given on "one liner" extracts from various judgements out of context with the case concerned which is confusing the real fundamental issues.

regards
garlok.

[Guest]

Re: Stupid question time - What is the definition of Repudiation and Recission ?

Sorry I thought we were talking about common law and the CCA 1974.

Sorry is it a sidetrack, section 170 was mentioned this says that no sanction can be applied to a breach of statute unless it is specified in the statute itself. I mearly made the point that not all contractualy obligations are covered by statute even those that are contained in consumer credit contracts.

It my be that parts of the contract are not mentioned in the act and if so they are not subject to any sanctions by it, they will however be subject to common law

Peter

[Guest]

Re: Stupid question time - What is the definition of Repudiation and Recission ?

Hi Amy
A sregarding your initial question. I have just re read it and i do not think there are any contentious ellements in my reply the descriptions i gave seem to me at least to be sound
I know that there are diissagrements on other aspects of repudiation and the way it applies to agrements but these i purposely left out.
Granted it may be a little hard to follow but i am afraid it may be more down to my poor literary style than the complexity of the information offered.

Peter

[diddydicky]

Re: Stupid question time - What is the definition of Repudiation and Recission ?

It should also be remembered that as far as repudiation is concerned

it is not necessary for a party to actually carry out the act (failure to perform) in order to have repudiated........and that the mere imparting of a statement by one party to the other that he INTENDS not to perform is sufficient

the injured (performing) party does not have to wait for the threat to be carried out...indeed if he knows of it- he has a duty to mitigate his losses by acting swiftly

[Guest]

Re: Stupid question time - What is the definition of Repudiation and Recission ?

It should also be remembered that as far as repudiation is concerned

it is not necessary for a party to actually carry out the act (failure to perform) in order to have repudiated........and that the mere imparting of a statement by one party to the other that he INTENDS not to perform is sufficient

the injured (performing) party does not have to wait for the threat to be carried out...indeed if he knows of it- he has a duty to mitigate his losses by acting swiftly

I can see how this would apply in ordinarry contract law,particularily if one party has prespective assets that depend on the performaance of the other.

However in a credit agremrnt the liabilities are already assigned to the debtor,
I cannot see how anything said or done by the creditor can alter the obligation of the debtor to repay liabilitiesv already assigned.

peter

[diddydicky]

Re: Stupid question time - What is the definition of Repudiation and Recission ?

my response was in answer to the question as to the definition of repudiation!