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JustAnotherPerson

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  1. well it's either a contract of sale or it's not. If you are saying part of the agreement is a contract of sale then the HP agreement would effectively be two agreements, one contract of sale and the ther something else. I'm sure you can see where I'm leading to with this which is why you avoided the question. It's a part hire agreement, part sale and he sale only kicks in at the end of the hire period.
  2. Interesting that you say HP agreements contain a contract of sale. If part of the HP agreement is a contract of sale, what is the rest of the agreement?
  3. Scenario B is a contract of sale and you claim that HP is a contract of sale so surely the debtor in a HP agreement is a co-owner too because hes contributed to the purchase price has he not? If so, why is the BI different specifically for HP but not in other instances of contracts of sale?
  4. Of course cars don't appreciate unless they are rare collectors items, they almost always depreciate. Because of the interest charges added to HP agreements the car is almost never worth more than what is owed and the car will depreciate faster than the amounts being paid off. I have never seen a car depreciate slower than the amount owed, simply because the car would be required to be kept in top condition and that doesn't happen generally. You also have to take into account those who have poor credit and therefore the total price is much higher than what its actually worth. For those reasons, the car would have to have a positive equity value to stand any chance of it being able to pay off the agreement with some money left over. The only instance I guess that the car might depreciate slower than the payments is 0% interest is added subject to the make and model of the car. But anyway, your definition of BI would have to apply to not just HP agreements but all other cases when bailiffs seize goods where a debtor has a BI and that's the issue because you have tailored the definition of BI to apply to HP agreements only but not taken into account circumstances where there is no HP agreement.
  5. The issue with your definition of beneficial interest Dodgeball is that it is flawed and only works in certain circumstances. Compare the following two scenarios: SCENARIO A Debtor enters into HP agreement for £10,000, debtor owes TP sums and uses bailiffs to recover the sums. Bailiff seizes car which has a positive equity of £500 and a win for the bailiff. SCENARIO B A & B agree to buy a car to use together. B gives A £4,000 towards the purchase price which is £10,000 and A then purchases the car. B gets into debt related issues which results in the bailiff seizing the car and the car then sells for £12,000. Applying your definition the equity value of the car is £2,000 (being the difference between the initial value and its current value) and despite B initially advancing £4,000 he is down by £2,000 and can only claim the equity value. The above definition does not work because it can only be applied in certain circumstances for it to work but in others it will not. However, the correct approach (which the courts have devised) to quantification would be that the debtor's beneficial interest is a % of the value of the goods based on his direct contributions: SCENARIO A Car is worth £10,000 and debtor has already paid £5,000 of the total price which is 50%. Car is now worth £10,500 so the debtors interest would then be £5,250 e.g. 50% of the total current value. SCENARIO B In this scenario, B has contributed 40% of the purchase price. B's interest overall would therefore be £4,800 based on the car being worth £12,000. You will see that the correct approach doesn't benefit bailiffs because the debtor's interest is is much lower and will likely leave a debt owing to the finance company, so I understand why bailiffs are arguing that the BI is the equity value but it just doesn't work across the board. It would mean the courts would have to come up with several definitions of BI for the purposes of the TCE and I doubt very much that is what parliament intended.
  6. I'm making the assumption, because as we all agree the debtor has no legal interest because the HP agreements have carved this out. So if he has no legal ownership to the car or of the cars equity value by virtue of a legally binding contract (unless the option is exercised), then his only other right to those is through an equitable interest. The old English courts used to be divided into courts of law and courts of equity, and legislation combined the two and a person's legal right will always prevail except where it is unconscionable to do so which is when equity will step in i.e. an equitable interest. A contract which sets out the strict legal rights and ownership says the car belongs to the finance co. the only plausible explanation which the judge concluded was that the debtor had an equitable interest by way of the payments allowing him to rule that the car could be seized. @dodgeball, beneficial interest is only mentioned once in Schedule 12 as I can see, but Schedule 12 does not explain what it actually means, its just two words so how can you say someone has a beneficial interest if there is no real definition to it?
  7. Are you objecting to me resurrecting the thread? The reason why I posted again was as stated, I came across dodgeball's definition of what he believes is beneficial interest from the John Kruse book and wanted his thoughts that was suggested by JK for example, bailiffs being liable for seizing goods on HP if there is a clause which gives rise to termination upon seizure, as well as JK's other opinion that goods under ROT clauses can't be seized. So I don't think the reasons for me posting were unclear, I made that clear in the first sentence of my post: "Interestingly I came across what I believe to be your source on this definition of "beneficial interest" so I thought it would merit a further post". Dodgeball has said he did not get his definition from that book so either coincidentally the definitions are pretty much exact, or that he received it from another source who maybe read the book, or perhaps its restated in any more modern books of JK given that the book I referred to was 2009. Either way, it just goes to show that neither JK nor Dodgeball have fully grasped that any argument on beneficial interest would result from equity law and how you should quantify an equitable/beneficial interest. There has to be a legal principle behind it all and the fact that there is no definition of beneficial interest in the TCE then the court has to work out what that definition is. Fortunately, that definition as already mentioned has been around for hundreds of years, so i'll assume the judges in the CC cases applied that definition. As soon as everyone accepts that being the case, then the real discussion to take place is whether or not the debtor has an equitable interest and if so, how much of an interest does he have but I think that has already been answered in a roundabout way.
  8. There is a stark difference between the debtor saying "go ahead and seize the car" and the bailiff saying "i will seize the car", if its the latter I don't think you can stretch that to saying the debtor permitted the goods to be taken. That's like saying if you leave your back door open in the summer, you permit people to enter your property.. absurd is the word that springs to mind. Just because the car is available to seize and the bailiff does indeed seize the car, does not mean the debtor has given permission for it to be taken.
  9. Yes I do remember you saying that, which is quite funny because I also remember you saying that equity has no part in this yet you have just cited one of the equitable maxims, substance over form. No need to reply to that though, I already know what you will say.. equity plays no part.
  10. Interesting to see how you've skipped over my reference on Halbury's, I'll assume that you think it is wrong I don't get what you mean about HP and an agreement that goes with it.. makes no sense to me but each to their own. What does this mean, I dont understand what you are saying? I've just read para. 66 you mention, whilst the bailiff might not be liable for damages under the Schedule, that does not prevent the debtor from bringing a clause under another cause of action.
  11. Reference above is Halsbury's Laws (for those that don't know link here), I think that is pretty much what Denning said back in '62, but Halsbury's can't possibly be right though, its an unworkable procedure There is also reference to the word bailment yet again
  12. Consumer hire agreements do not allow clauses for the hirer to purchase the goods. A hire-purchase however, allows the hirer to purchase the goods at the end of the hire period, simple enough for you? If the agreement was a contract of sale as you keep saying then why is it not called a conditional sale? Surely the definition below fits to your argument does it not? "Conditional Sale means an agreement for the sale of goods or land under which the purchase price or part of it is payable by instalments, and the property in the goods or land is to remain in the seller (notwithstanding that the buyer is to be in possession of the goods or land) until such conditions as to the payment of instalments or otherwise as may be specified in the agreement are fulfilled;" That's because a HP is goods which are bailed for a period of time, as set out in the CCA. Again, two different types of agreements, one a contract of conditional sale, and the other of hire.
  13. Not sure your logic flows there, regardless of any vested possession you might say, the car is in the hands of the bailiff. If the creditors wants a repossession order to deliver up the car how is the debtor going to do that? And then you are also making the assumption that the debtor has paid 1/3 of the total price. You are also forgetting the general rule that I've explained before, parties cannot benefit from their own breach so why would a court transfer title to the debtor if they are the breaching party? That just wouldn't make sense to me, unless you have another reason why it is just and reasonable to do so? The whole purpose of the section enables the court to transfer title to the debtor and I can only see one reason why that might be the case, if the debtor has a cause of action against the creditor where they are seeking an enforcement order the judge may instead transfer title to the debtor. I can't see how X judge will agree that the debtor is in breach so will transfer title to them anyway and disregard the contractual provisions that says title is to remain with the creditor. The alternative would be if the creditor is asking the court to transfer title to the debtor but there would be no point in that because there is usually a clause which allows for this. They can either terminate and transfer title or they can terminate and ask for the car to be returned.
  14. Can't remember if I posted this but another useful Denning quote from Bridge v Campbell Discount Co. 1962 on definition of hire purchase agreements: I think that answers your question on whether HP payments count towards the purchase.. and they do not. Rental payments for the period of 36 months for example, after that the debto can return it if they wish. Under your principles, the debtor does not have a choice despite the contract giving them one. Section 9 is titled, Meaning of Credit e.g. the definition of credit under the CCA, not the definition of hire purchase so you need to stop combining the two together. 189 defines HP as bailed goods, yet section 9 as you say calls it a fixed sum loan, everyone has understood what section 9 means since its inception but not for bailiffs.. how convenient. If HP wasn't menitoned under section 9 then it wouldn't be regulated by the CCA, you are just clutching onto the fact it says fixed sum loan.
  15. As for s.133, who is making the possession order application here? Debtor owes money to TP, TP obtains CCJ for debt owed & uses bailiffs to recover debt, then bailiff seizes the car. I don't see any application for a possession order in that chain of events, do you? Only the finance company can bring a possession order, but can't do that if the car has already been seized. TP can't bring an application because they are not party to the contract. So how does s.133 come into play as I am confused?
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