Hi Aequitas, great debate by the way. "Two contracts" you say; I am not sure as to whether you could argue that "there are really two contracts here" although I admit it is a colourful suggestion. There are often many segments and parties to a contract but if formed in one continuous document it is one contract binding all the signatories to it - surely! In an attempt to square the circle in which we are going around, may I (using principle and not case law) pose this question: If the landlord failed in any of his obligations to the contract we discuss, could the guarantor legally sue in his own right for any damage caused to him as a signatory to the contract (privity of contract)? If the answer is yes - then I rest my case! If you believe the answer is no - then this interesting and enjoyable legal sparring goes on - on principle alone! No pain no gain

Hi Aequitas, we are going to have to agree to differ with regard as to whether consideration exists in the context which we discuss or infact is even necessary. If you could point me to some authority to support your views I will gladly consider that position and the relevance to the issue which we discuss. I do not consider the citing of an alleged County Court ruling to be of any value to the matter in hand. As you will no doubt be aware such rulings are binding on nobody, not even on the 'ruling' County Court. My position is simply this, consideration in the contract we discuss did exist and furthermore did pass. It is not a requirement for that consideration to pass to the guarantor in the context we debate. Staying with Latin (although it is not as widely used these days in my opinion rightly so), the principles often laid down in latin are deep rooted in our case law and provide an excellent foundation of doctrines. I am, as you are aware, working on the unshakable premise that in this case consideration did exist and did move thus the contract is lawful. I submit for your consideration the following latin principles 1. ex nodo pacto non oritur actio - no action arises out of a bare (in the sense of no consideration) pact. 2. res ipsa loquitur - the things speak for themselves - in laymans terms it is blindingly obvious. 3. de minimis non curat lex - the law takes no account of matters of minor or trifling importance - let's concentrate on the real issues in the case. 4. juris et de jure - of the law and from the law - an assumption that may not be rebutted, it is absolute so please do not argue it. 5. volenti non fit injuria - no injury is done to one who consents (perhaps not applicable as such in the matter we debate but the principle is sound if read in conjuction with 6. below). 6. consensus ad idem - the intention of the parties. One of the overriding objectives of the CPR is - fiat justitia ruat caelum - let justice be done even though the heavens should fall. Were your position with regard to the guarantor to hold any water then presumably the innocent party who acted to his own detriment i.e. the landlord would be left, as you would have it, with no remedy against the guarantor - notwithstanding that the Court would conclude, using the reasonable man test, that he (the guarantor) knew or ought to have known exactly the type of warranty that was expected of him and to which he readily lent his name. Of course were it me (in the shoes of the landlord) I would have considered inter alia bringing a suit against the guarantor in contract and/or in the tort of deceit. In the tort of deceit when a person is deceived into entering a contract all damage that flows from that deceit is recoverable in law including damages for loss of chance. As I started by stating earlier in this thread, my intention was to attempt to save the guarantor from unnecessary disappointment and costs. One can never be sure when one will encounter an opponent who is versed in law and litigation. Litigation can often, even at County Court level, be very expensive and should be avoided at all 'cost' unless of course you are sure beyond expensive doubt that your arguements must prevail. Many a person has lost a great deal, including on occasions their wealth and home, on such trivial civil disputes as 'garden fence dispute' litigation. Little joke: Morally angry client marches into solicitors office and demands to know how much the solicitors charges are. The solicitor states he charges £500 to answer 3 questions. The potential client says "don't you think £500 is a bit expensive?" Solicitor replies "yes I do, now what's your third question?" !!!! ignorantia legis neminem excusat Kind regards No pain no gain

Hi Aequitas The latin understanding of your forum name apparently translates to justice/fairness/equity. With regard to the above, I await your reply.

Slow down Tiger, yes the wine was fine thank you, however that was two days ago! Little 'puzzle' for you; Recently I guarantored my daughter for a loan. There was no deed of agreement between me and her bank other than a simple completion of the guarantor section of the contract. Perhaps you might enlighten us as to where the consideration in this 'contract' was? Your move. NPNG

Hi Cat, sorry for the delay with promised docs but had a very late night!! If I were me I would sack myself, but alas I can't afford to! Back to the serious stuff. I hope what I have produced for you will give you some guidance. Always bear in mind that one day a judge may be reading (between the lines) everything written in regard to disputes which they are trying. From my experience they get very bored and sometimes annoyed with unnecessary piffle. CLARITY, BREVITY AND SIMPLICITY ARE THE ORDER OF THE DAY, or as I like to refer to it PSYCHOLOGICAL WARFARE!!! Again always bear in mind that he who asserts must prove. Never do any more or less than is necessary to get your case home. In your case there was a breach/s of contract and that person/s is liable full stop. NPNG CAT 1.doc CAT 2.doc CAT 3.doc

Hi Aequitas, great to have a fertile mind engaged. I note that in your reproduction of my post you leave out the last weighty words of the paragraph which for your convenience I repeat; "Moral arguments weigh very lightly on the scales of Justice". I respectfully fail to see that you have raised anything other than a moral argument. Further, you appear at best to place more than significant reliance on the need for 'consideration' to exist, I again respectfully suggest that you are wrong. This is not a contract of complication and as such although I believe as previously stated consideration does exist it is not necessary in all circumstances. I believe you may be confusing this contract with one of a sale of goods, land etc. My starting point for entering this thread was to attempt to avoid the unnecessary disappointment and costs to the party concerned - that remains my objective. I submit for your consideration that the 'common law' rule, or 'principle' as you might prefer, demands that the parties to a contract act in 'good faith'. When that principle has been met the next consideration is merely, in this type of contract, what was the intention of the parties? All other matters fall behind these considerations in my humble view. I believe, were you to trawl through the authorities relating to the above, you would be forced to conclude that when there is a clear intention of the parties concerned to enter into a legal relationship that in itself has been and would be deemed to be a consideration - free standing - in the circumstances we debate. Due to an unexpected but welcome dinner engagement I must sadly leave you here. Kindest regards, No pain no gain

Hi Cat, must keep this short as I posted reply on wrong thread silly me!! Cat, your letter before action is generally very good you should post it for the benefit of other Caggers. If you would not be too offended I will post my version of the letters that I would write at this juncture using my first hand experience of such matters. As I said in my wrongly posted post(!) I have back to back appointments throughout the day but will do some drafting during my breaks and will post after tea. Must rush. Regards NPNG

Hi fbnts (Tom), due to time constraints I have recently decided that I cannot engage in any new threads. However, I hate to see people like your sister about to engage in potentially costly court proceedings, which in my humble view, are doomed to failure! The reasons are as follows; 1. The guarantee whether made as a deed or in contract is, in my view, valid, enforceable and totally legal. 2. With regard to consideration, the consideration was the passing of the valuable right of the tenant to move into the property upon guarantee by your sister of all of the obligations included in the agreement. In this area i.e as guarantor - your sister is, in law, placing herself in the shoes of the tenant. As simple and uncomplicated - when witnessed by her signature -as that. 3. There was clearly an intention by your sister and the landlord to enter into a legal and contractual relationship. 4. The agent acting on behalf of the landlord owed no duty of care to your sister, his duty in law did not extend beyond that of his client/landlord. 5. Assuming, as I do, that your sister is of the age of legal capacity to enter a contract (Minor's Contracts Act 1987) the contract is good in law. Further I am sure your sister is of sound mind and in this regard I point you to the Mental Capacity Act 2005 section 1(4) which states "A person is not to be treated as unable to make a decision merely because he makes an unwise decision." The upshot of the above is that I would be very reluctant to engage in costly Court proceedings. Your application to set aside, as far as I can see, shows no realistic possibility of success although the Court is duty bound to hear it, ultimately almost certainly to your sister's cost. Your sister, as you say, is not in a position to pay the sums owed and as such would only be ordered to pay the amount she could afford. Any negligence on the part of the agent in regard to your sister's lack of ability to fulfil her guarantor obligations leave a right of action to the landlord against his agent and in my view no redress to your sister. I regret having to be so blunt but law is a factual and pragmatic subject which does not lend itself kindly to emotional involvement. As I have stated before on this forum "moral arguments weigh very lightly on the scales of justice."!! Best of Luck. No pain no gain

Hi Cat, thanks for PM:D Yes of course I would be only too happy to run my beady legal eye over your Letter Before Action. As you know I have recently returned to the day job and as such do not have as much time to CAG as in past weeks. However I have always felt that your thread has abundant potential to develop areas that would help not only you but many Caggers, for that reason (but especially for you) I will stay with this thread to the bitter (sweet;)) end!! I am currently approaching the end of a long civil dispute with an international blue chip company reresented by internationally renowned litigation executives who recently in Court described me, to the amusment of the Judge, as "an unorthodox nightmare in motion who twists the rules to his own advantage" - what a compliment!! I tell you this not to impress you but hopefully to give you some comfort should, as is possible, your matter proceed to litigation. I will re-read your whole thread to bring myself back up to speed. Always nice to hear from you, let battle commence:D!! Regards NPNG

Hi site team member, sorry, didn't realise could or would be breaking site terms. Never would I have answered a PM in anything other than open forum. I for one fully understand the mechanics and aim of the site/forum. I assumed that PMs posted through your server were monitored for the benefit of all including the recipient. In addition to my 'alleged' legal understanding I perhaps should declare that I am technophobic! Ah well, one degree at a time!! Regards, No pain no gain ______________________________________________________ Churchill once said that "..you realise the problem with democracy when you spend five minutes with the average voter" I would hope that this forum does not suppress free speech - that would be a sad day indeed!

cheers callumsgran, the little pepole do matter!! Fight The Good fight!! No pain no gain

Hi all, as some of you will know my foot is out of plaster as of today, so back to the day job from tomorrow. Will not have much time to spend Cagging. Will log in every few days. If you need my help PM me. Best of luck, No pain no gain

Hi all, as some of you will know my foot is out of plaster from today, so back to the day job from tomorrow. Will not have much time to spend Cagging. Will log in every few days. If you need my help PM me. Best of luck, No pain no gain

Hi all, as some of you will know my foot is out of plaster as of today, so back to the day job from tomorrow. Will not have much time to spend Cagging. Will log in every few days. If you need my help PM me. Best of luck, No pain no gain