Common Law - overidden by non statutory terms and conditions

[Amethyst]

Re: Common Law - overidden by non statutory terms and conditions

Yes indeed, Legal Beagles

Appropriation also stands where you have a number of cheques or DD's due on the same day (or from the same income period) say XXX,YYY & ZZZ . So you can say Pay XXX first, then YYY, then ZZZ- so that the most important one definately gets paid.

Although the banks won't let you pay XXX first if YYY is due to the bank (for loan/charges etc)

Anyway trying to keep this thread for the possibility of unfair term of offset overiding common law FROA. I think lol.

[Glenn UK]

By default any term that attempts to overturn established case law must be unfair IMHO.

Perhaps a parallel, but bizarre example, might be for the bank to enter a clause into the T&C suggesting they could imprison you if you failed to pay up.

Clearly under common law they could not do this and this would not take precedent over common law, or would it?

It would seem strange that a bank or indeed anyone could write a clause in the contract which would over ride common law. I don't even think if the two parties had negotiated the contract that the term could be upheld.

practically it would open up parties to contracts which would allow for unlawful practises to be upheld because of a contractual term and render the two parties immune from prosecution.

Am i going too far here?

[Amethyst]

Re: Common Law - overidden by non statutory terms and conditions

Perhaps a parallel, but bizarre example, might be for the bank to enter a clause into the T&C suggesting they could imprison you if you failed to pay up.

I think the consequences of not paying debt are laid out by statute, which basically overrides everything. So no they couldnt make that kind of terms as it would be against statute.

But I think i see the point you are making.

[Glenn UK]

Re: Common Law - overidden by non statutory terms and conditions

LOL

Dont think of the debt, think of a bank saying they can imprison you, it doesnt matter that there is a lawful remedy. I am suggesting that simply by writing something it doesnt make it a lawful or indeed a fair term.

If there is a pice of established common law, simply writng in a contract that you can do soemthing else does not in fact make the term lawful whether the two parties negotiatie it or not.

As someone said, you cannot sign away your rights simply by agreeing to a contract.

[Amethyst]

Re: Common Law - overidden by non statutory terms and conditions

5.3 The Seller shall have no liability to the Purchaser (other than as provided in Condition 10) in the event that the goods to be supplied under the Order infringe any intellectual property rights of a third party (including without limitation by reason of their possession, sale or use, whether alone or in association or combination with any other goods); the Seller gives no warranty that the goods to be supplied under the order will not infringe as aforesaid, and all conditions, warranties, stipulations or other statements whatsoever relating to such infringement or alleged infringement (if any), whether express or implied, by statute, at common law or otherwise howsoever, are hereby excluded.

9.3 The Seller's liability under this Condition shall be to the exclusion of all other liability to the Purchaser whether contractual, tortious or otherwise for defects in the goods or for any loss or damage to or caused by the goods, and (subject to Condition 14) all other conditions, warranties, stipulations or other statements whatsoever concerning the goods, whether express or implied, by statute, at common law or otherwise howsoever, are hereby excluded; in particular (but without limitation of the foregoing) the Seller grants no warranties regarding the fitness for purpose, performance, use, nature or merchantable quality of the goods, whether express or implied, by statute, at common law or otherwise howsoever

This kind of thing is pretty standard. Terms taking away common law and statutory rights?

[Glenn UK]

Writing them does not in itself make them valid.

bit like the signs that say that the owner of a siter takes no responsiblity for accidents howsoever caused edit Or bit like terms allowing the bank to charge you for bouncing a DD etc!!!

Glenn

[Amethyst]

Re: Common Law - overidden by non statutory terms and conditions

Indeed.

However I guess the question we need a definitive answer to is 'can a term in a contract that is not a statutory term overwrite common law and if that term is not a core term of the contract could it be assessed for fairness under the UTCCR on that basis ?'

[Glenn UK]

Re: Common Law - overidden by non statutory terms and conditions

i know a barriester who does contract law for a living ill see if i can contact him and see what he thinks.

Maybe not definitive but he does work for major coroporate entities so should have sdome idea.

Glenn

[StoneLaughter]

The way I see it KIND OF agrees with the statement made by Glenn_UK above:

By default any term that attempts to overturn established case law must be unfair IMHO.

HOWEVER

If Party (a) negotiates and agrees a contract with party (b) and signs it (i.e. agrees to it) and then subsequently attempts litigation against (b) on the grounds of such a term being unfair, I think the balance of Judgement would sway against them (notice I'm not saying they'd definitely lose - just that it would not be a point in their favour that the contract was fully negotiated and agreed). A Judge would almost be BOUND to take into account that negotiation; the offer, consideration and acceptance of a term, BEFORE he judged for the claimant.

I think that this could be one instance where (because the contract is not illegal in nature*) an agreement COULD have more sway over a result than Case Law. UNLESS OF COURSE - unless of course there is Case Law where this very issue has been tested and Case Law won out...

*Of course, if a term in a contract obliged a party to commit an illegal (criminal) act, then no court would uphold that term - the rest of the contract could theoretically stand as long as it was legal.

[Glenn UK]

Re: Common Law - overidden by non statutory terms and conditions

LOL @ SL

As an engineer when trying to find soltuions to problems i often think of extreme conditons which may help to point to a solution, not saying the law work sint he same way, but i do have to raise the point about somehting which is established law cannot be given away by signing a contract.

Its difficuilt for me to think of good example, ine are quite clumsy but perhpas illustrate the point.

How about this then and bear weith me on this please.

A bank has terms and conditions which have an unlawful term but are signed by the account holder and ultimately the bank executes the contract for their part.

The consumer disputes the term and ultimately it is found unlawful (i.e. its a penalty [i know they are not generally penalites this is only for agument sake])

Would the court hold that the T&C should hold sway over the term allowing the bank to impose a penalty?

I think not, the consumer cannot sign away thier rights, businesses can generally or at least are considered in a less favourable light than consumers by the law and understandably so.

However, in this case the common law would be upheld if the term were penal i think.

For the contract term to be upheld would have to establish new case law and overturn the previous case law and etsablsihed histroy.

JMHO

Glenn

Glenn

I

[StoneLaughter]

Re: Common Law - overidden by non statutory terms and conditions

You keep jumping back to the bank example - I believe it to be a poor example simply because party (a) has no part in the formation of the contract - they either sign it as it stands or they go elsewhere (as evidenced by the banks closing customers' accounts when they complain about charges - you don't like our terms, you can F*** off). Plus of course I didn't say that party (a) would lose - merely that the fact they agreed the term knowingly would prejudice the strength of their case.

[Glenn UK]

Re: Common Law - overidden by non statutory terms and conditions

The reason its worth jumping back to the bank example is because it is a term which a consumer 'agreed' and which could have been penal and is likely to be deemed unfair.

The point also follows that contracts between businesses and consumers are regulated by the UTCCR which essentially weights the contract in the favour of the consumer allegedly.

So unless the question relates to contracts between 2 consumers and not a consumer and a business then the bank situation is IMHO a reasonable basis upon which to base an argument.

It would also hold valid between two parties who had freely entered into a contract and then a term had been deemed penal, such as in the Dunlop Vs New Road Garage.

Where a term was found to be penal it was not held to be valid by the court. I am sure that this is still the case even where the two parties agreeing a contract are businesses and this would hold true whoever was making the contract.

Its worth considering that when contracts are drawn up the legal substance of a particular term is often 'hidden' in the sense that its only when a dispute arises that a judgement is made which determines the precise substance of a contract.

So what on the face of it may appear to be a valid term my subsequently be deemed unfair/unlawful whoever the parties are and whatever bargaining power they are deemed to have.

[StoneLaughter]

Re: Common Law - overidden by non statutory terms and conditions

OK - been mulling this over for a few days.

We have two separate issues here. One - penal terms under UT(C)A and UTCCR - and yes you're right that a term which two people agreed to and subsequently worked to would only be ASSESSED for penaltyism once a dispute arose; as per the Banks/OFT case - which means that it is not penal until it has been disputed and ruled so in the Courts and that ruling remains unchallenged or unsuccessfully challenged.

Secondly we have terms which are challenged as otherwise unfair; as is NOW the case in the Banks/OFT case. Again - a term can only be ruled "Non penal - but UNFAIR" once it is disputed; and in the current case it has not even been decided whether the OFT HAS THE RIGHT to dispute them. Once THAT is ruled, the OFT has to formulate a challenge to the actual "substantive issues".

As to "signing rights away", there is only a bar against signing away your rights in statute, not in case law which is merely interpretation of statute. It would first have to be determined, in the case of a dispute, whether the Act upon which your legal argument was based even applied before interpretations in case law of that act could be used. Again - this is exactly the situation we have found ourselves in with the Banks who argue that the UTCCR regulations on fairness don't apply to their charging terms. Once the final decision is made by the Courts, we will then know whether Consumers have been effectively "signing away their rights", but not before.

Back to the issue that Ame was actually asking about, i.e. whether first right of appropriation is a legal right and therefore cannot be overruled by bank terms and conditions, would swing on whether the FROA is enshrined in Statute, whether it is already tested in Case Law, or whether it remains to be tested. If it is tested in Case Law, has THAT ASPECT of it, i.e. whether it is a legal right, been tested? Or some other aspect? If it is enshrined already in statute, then it CANNOT be overridden by T&Cs of a mere bank; but what does the Law actually grant in terms of FROA and to whom?

If it remains to be tested, then the terms would have to be challenged by an affected party or parties (can you say "class action"?) in order to have the legal issues determined - and you can rest assured it will go on for MUCH longer than the current OFT/Banks case will, because establishing FROA as a legal right would mean that Banks have to have a FAR more consumer-focussed, far less commercially focussed approach to their business and processes, which can only cost them money.

I hope I'm making sense here; the vague notions and concepts I have in my head are extremely difficult to simply vocalise.

Thanks

[Amethyst]

Re: Common Law - overidden by non statutory terms and conditions

Thank you for that Stoney, yes it is hard to vocalise thoughts on this issue as it seems so darn complex. We have some case law but not DIRECTLY in this situation. I'll look at closest comparisons.

Basically we need something in statute/case law interpretation of the common law right of FROA to show it is a legal right, and thus one which is being overridden by T&Cs and thus unfair. If theres no case law supporting the legal right then we have to basically, make case law.

Its a difficult one because people who use it and are turned down by using it get issues resolved in other ways so there isnt an outstanding issue to take a bank to court on. To get anything past a county court on FROA would be pretty impossible, as its an immediate need.

I have got a FROA turned down by Nationwide from someone which went through FOS and i'm awaiting the detailed documentation from that, but I don';t know on what kind of basis anyone could take it through court. Its also the norm for the amounts to be less than £100.

[Caspar]

Re: Common Law - overidden by non statutory terms and conditions

Common law can not be overidden by non statutory terms and conditions.

Is that statement correct ?

Why is it correct ?

Are banks terms and conditions, in the most part, non statutory ?

Can banks terms and conditions override common law ?

If they can't but attempt to, does that make the term unfair under UTCCR ?


Here is a quote from Nationwide which I am trying to work out the fairness of.
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Help very much appreciated.

Just read this bit. It is absolutely true. I can post a template letter if you wish and think this is still relevant, specifically relating to the aspect of debt and common law which has been used successfully by many people in the past. It does require a fair amount of background reading, but basically goes to the idea of your strawman or "legal fiction" as it is defined under common law. It gets a bit involved so I won't post unless requested to by one of the senior members of this site, but it works and certainly makes corporations stand back once they realise you know your rights under common law. It all seems a bit cranky at first, but makes sense as you read aand learn. For example, do you know the difference between legal and lawful, do you understand what is happening when you register something (a birth, a car with the DVLA etc....), the difference between a person and a human being? These are all VERY important under common law.

If you'd like more, perhaps one of the moderators / administrators can post and ask me for iit or pm me.