'Embody' & the CCA

[charitynjw]

Refer http://www.francisbennion.com/pdfs/f...espondence.pdf

(Francis Bennion being the draftsman of the CCA 1974)

"There has to be a document (document A) which is in the prescribed form. Document A has to comply with two further requirements. (1) Document A must itself contain all the prescribed terms. (2) Document A has to embody all the express terms, whether prescribed or not. As a matter of simple English, document A cannot be said to embody a term unless either the term is contained in document A itself or is contained in another document (document B) which is both referred to in, and physically attached to, document A."

[Bill-K]

Re: 'Embody' & the CCA

Excellent bit of 'gophering,' Chaz. I lurved the cake analogy - as did Mr B, it appears !!!

[charitynjw]

Re: 'Embody' & the CCA

& bump this for further comments

[Bill-K]

Re: 'Embody' & the CCA

I think it might deserve 'stickying' in the CCA section, myself.

[charitynjw]

Re: 'Embody' & the CCA

Thanks, Bill.

I'm not too sure, though, what weight this would have in court.

Judges can interpret Parliamentary intention, & CCA s189 (subsection 4) defines 'embodies' as

(4) A document embodies a provision if the provision is set out either in the document itself or in another document referred to in it.

It remains silent on whether the referred document must be attached to the signature document.

How much mileage do you think there would be in using this?

[labman]

Re: 'Embody' & the CCA

As it appears Parliament have misinterpreted Mr Bennion's intent, it's a shame Mr Bennion has not written in and pointed this out.

It appears to me that his intent was that any other document 'embodied' should be attached, as in stapled to the other document.

[SpringerSpaniel]

Re: 'Embody' & the CCA

It can be used in court and referred to in a skeleton argument as 'travaux preparatoire' which can be used to aid and guide in correct statutory interpretation. It is persuasive but not binding in itself.

[Curlyben]

Re: 'Embody' & the CCA

There's a couple of other things to take into account.
What exactly is a document, ie can it be a number of separate sheets.
Also how good are the defences arguments with reference to these terms.

TBH there are better and more clearer ways ways to approach CCA then mere semantics.
As we have seen in a number of cases, mainly Carey Vs HSHC and Rankine Vs Amex and others

[charitynjw]

Re: 'Embody' & the CCA

Hi Cb,

"Mere semantics"?

I understand that the current trend for the Judiciary is a purposive approach.

"The first step is always to find out and set down the exact wording of a doubtful
enactment, stripping it of unnecessary words. Then the opposing constructions of
the enactment which need to be put forward by either side are worked out. The
construction favoured by the client needs to be supported by all relevant
interpretative criteria. These consist of (1) rules of interpretation; (2) principles
derived from legal policy; (3) presumptions based on the nature of legislation;
and (4) linguistic canons of construction.)"

From an article on Nesssi by Dr Kay Goodall, currently of the University of Stirling
https://dspace.stir.ac.uk/bitstream/...rticle%202.pdf

http://www.law.stir.ac.uk/kay.goodall.php

Dr Goodall recently was called to give evidence to a Scottish Justice Commitee
http://news.bbc.co.uk/democracylive/...00/9589655.stm

[Bill-K]

Re: 'Embody' & the CCA

Your thoroughness is impressive, as always, Chaz - and is matched only by your wicked sense of humour. I was forced to read the entire document entitled "Citings of NESSSI in Scotland" - looking for a reference to April 1st !!!

[labman]

Re: 'Embody' & the CCA

Surely Francis Bennion is losing credibility with his NESSI method, when, on his own admission if quotations in this thread are to be believed, his own wording has been misinterpreted in the true meaning of 'embodied' in the CCA.

[mystery1]

Re: 'Embody' & the CCA

http://www.bailii.org/ew/cases/EWHC/QB/2009/3417.html

Executed and unexecuted agreements
7. "Executed agreement" is defined under si 89 (1) as being "a document, signed by or on behalf of the parties, embodying the terms of a regulated agreement, or such of them as have been reduced to writing." An "unexecuted agreement" is defined as "a document embodying the terms of a prospective regulated agreement, or such of them as it is intended to reduce to writing." By si 89(4) "A document embodies a provision if the provision is set out either in the document itself or in another document referred to in it."

Agreed Principles
173 The parties in Carey have helpfully agreed the following principles. The fourth one was added by Mr Uff, with their agreement. No other party takes issue with them. The OFT has formulated the matter in a slightly different way but accepts these principles are close to its position.
(1) It is not sufficient for the piece of paper signed by the debtor merely to cross-refer to the Prescribed Terms without a copy of those terms being supplied to the debtor at the point of signature;

181. I should add that I was referred by Mrs Thompson to si89 (4) which defines the term "embody" and is set out in paragraph 7 above. I did not think that this assisted the analysis. "Embody" means contain or incorporate by reference. Terms other than Prescribed Terms may be (merely) incorporated by reference as opposed to contained in the executed agreement. In the assumed facts the relevant provisions were referred to on the signature page. But this did not prevent them from being "contained" within the document signed by the debtor. That is because they were not set out in "another document" referred to in the signed document. On the analysis above, the terms were not in "another document" at all but in the same document as the signature page. On the assumed facts they were as much contained in the signed document as if the signature page said had that the debtor agreed to be bound by the terms "overleaf' and the relevant terms were set out on the reverse.



M1

[charitynjw]

Re: 'Embody' & the CCA

http://www.bailii.org/ew/cases/EWHC/QB/2009/3417.html

Executed and unexecuted agreements
7. "Executed agreement" is defined under si 89 (1) as being "a document, signed by or on behalf of the parties, embodying the terms of a regulated agreement, or such of them as have been reduced to writing." An "unexecuted agreement" is defined as "a document embodying the terms of a prospective regulated agreement, or such of them as it is intended to reduce to writing." By si 89(4) "A document embodies a provision if the provision is set out either in the document itself or in another document referred to in it."

Agreed Principles
173 The parties in Carey have helpfully agreed the following principles. The fourth one was added by Mr Uff, with their agreement. No other party takes issue with them. The OFT has formulated the matter in a slightly different way but accepts these principles are close to its position.
(1) It is not sufficient for the piece of paper signed by the debtor merely to cross-refer to the Prescribed Terms without a copy of those terms being supplied to the debtor at the point of signature;

181. I should add that I was referred by Mrs Thompson to si89 (4) which defines the term "embody" and is set out in paragraph 7 above. I did not think that this assisted the analysis. "Embody" means contain or incorporate by reference. Terms other than Prescribed Terms may be (merely) incorporated by reference as opposed to contained in the executed agreement. In the assumed facts the relevant provisions were referred to on the signature page. But this did not prevent them from being "contained" within the document signed by the debtor. That is because they were not set out in "another document" referred to in the signed document. On the analysis above, the terms were not in "another document" at all but in the same document as the signature page. On the assumed facts they were as much contained in the signed document as if the signature page said had that the debtor agreed to be bound by the terms "overleaf' and the relevant terms were set out on the reverse.



M1

Also from 'Carey'

onesevenseven; sorry, keyboard not working properly

(2) The form (referred to as "a signature page" in the WS from Alan Burden dated 3 December 2009) would have been produced with Ms Carey's details already on, for her to sign once her application, already made, had been approved;

(3) At the same time as the form was produced electronically, the relevant terms and conditions (including the Prescribed Terms and information) would have been printed off and physically attached to the form by a staple;

1. I would add only these further observations:
   (1) If the terms page later became detached, this would not alter the analysis which is of the position at the time the executed agreement is made;
   (2) The word "attach" connotes to me some physical attachment which is obviously how HSBC used it in the assumed facts given. The word might conceivably be used in some other way, for example to denote terms supplied as part of the package, lying separate but with page numbering sequential to a page 1 on the form; that may well be sufficient but this is hypothetical territory and I see no need to do more than rule on the question by reference to the assumed facts, with reasons, and against the background of agreed principles. This I have done;
   
   The analysis here was referring to the HSBC document, which was attached
   

[labman]

Re: 'Embody' & the CCA

There is a very clear conflict between what Bennion intended it to mean and how it has actually appeared in the final document.

As Springer Spaniel said about, this conflict could be used in a defence as a 'travaux preparatoire' - French for preparatory work.

The preparatory work has clearly been misinterpreted. Carey provides good case law for what was actually intended.