Why is no one claiming the contractual rate of interest???

[hagenuk]

I really don't think it does.

 

Contracts simply do not work that way. Why do you imagine that your contract with the bank is symmetrical? It is not. There is no provision in the contract for you to receive anything other than the stated rate of interest on any credit balance.

 

Contracts have rights and correlative obligations for both parties. These rights and obligations differ for each party. Mutuality of contract simply identifies the rule that where one party fails to adhere to a contractual obligation, the other party need not fulfil their correlative obligation.

 

Mutuality of contract is the reciprocal understanding or agreement between parties that is a requirement in the creation of a legally enforceable contract. It means that an obligation must rest on each party to do or permit to be done something in consideration of the act or promise of the other

 

In Bank contracts, the Bank has a right to impose interest at the unauthorised rate. This is what we agree to when we enter into the contract. There is no right in the contract for us to receive interest at anything other than the published rate on credit balances. Any right to interest must be found under the common law.

 

These claims are not based on contract. Contractual rights and obligations may set the background, but there is no remedy in contract for the consumer in relation to bank charges and therefore no contractual right to claim interest at the rate charged to you by the bank.

[Glenn UK]

Hagen

 

Do you not think the UTCCR has a bearing since the contract clearly favours the bank in the situation where the customer removes money without prior permission and yet the bank has done the same?

 

Clearly the contract never envisaged this situation otherwise it would presumably have included a term for the consumer to charge a rate for that loan of money.

 

Its also a moot point that the term allowing the removal of money on the breach of contract is also a penalty charge, it doesn't mean however that a court would support the application of the relevant term in the consumers favour.

 

 

Glenn

[newbody]

Following on contracts barons legal dictionary defines one as

 

Contract A promise, or set of promises, for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty. 1 Williston, Contracts §1 (4th ed. 1990). The essentials of a valid contract are "parties competent to contract, a proper subject-matter, consideration, mutuality of agreement, and mutuality of obligation," 286 N.W. 844, 846; "a transaction involving two or more individuals whereby each becomes obligated to the other, with reciprocal rights to demand performance of what is promised by each respectively."

 

So yes we agreed to the contracts terms and conditions and expected the banks to charge us no more than was just in administering our defaults in the contract

 

but as they have broke that promise made to us to act lawfuly under english common law then they are lacking in their performance and as such we have reciprocal rights to charge them interest at the same rate

 

If we had envisaged that The banks who we have confidence and trust in to use our money for investment or other profit making ventures (angle to try and prove fiduciary relationship) for their own gain paying us a proportion of this in interest for the authorised use of our money until we require it back (made by withdrawl weather by cheque DD SO or cash) then we would have looked at wanting terms entered into the contract for such a breech by them

[hagenuk]

Hagen

 

Do you not think the UTCCR has a bearing since the contract clearly favours the bank in the situation where the customer removes money without prior permission and yet the bank has done the same?

 

Clearly the contract never envisaged this situation otherwise it would presumably have included a term for the consumer to charge a rate for that loan of money.

 

Its also a moot point that the term allowing the removal of money on the breach of contract is also a penalty charge, it doesn't mean however that a court would support the application of the relevant term in the consumers favour.

 

 

Glenn

 

 

Glenn

 

I do not believe that we do "loan" the bank money and neither do I believe that you will get a judge to agree with you on that point.

 

The banks are entitled to levy a charge for our breach of contract and therfore they do not remove it without permission, they simply remove too much. It is the level of that charge that leads us to be able to recover it.

I believe that the banks know that these charges are unlawful and further, that they have known for a long time.

 

However, none of this means that we are in any way entitled to claim contractual rights that were never ours in the first place.

[hagenuk]

Following on contracts barons legal dictionary defines one as

 

Contract A promise, or set of promises, for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty. 1 Williston, Contracts §1 (4th ed. 1990). The essentials of a valid contract are "parties competent to contract, a proper subject-matter, consideration, mutuality of agreement, and mutuality of obligation," 286 N.W. 844, 846; "a transaction involving two or more individuals whereby each becomes obligated to the other, with reciprocal rights to demand performance of what is promised by each respectively."

 

They may well be reciprocal, but they are not identical - if this were the case then you would be under an obligation to provide your bank with the same services that they offer you, such as clearing facilities, a cheque book, the ability to borrow money etc.

 

but as they have broke that promise made to us to act lawfuly under english common law then they are lacking in their performance and as such we have reciprocal rights to charge them interest at the same rate

 

How do you come to this conclusion?

[newbody]

Quote:

Originally Posted by newbody

but as they have broke that promise made to us to act lawfuly under english common law then they are lacking in their performance and as such we have reciprocal rights to charge them interest at the same rate

 

How do you come to this conclusion?

 

 

from abbeys terms and conditions

 

25 Governing law

 

These Conditions are governed by the law of the country in the UK (i.e. England and Wales, Scotland or Northern Ireland) where you opened your account.

 

they are saying their terms are governed by the law of the land in this case English law which their charges are in breech of thus as i see it making them in breech of the contract which is a set of promises which each party agrees to abide by

 

As for the bank borrowing money from me they do and every person who uses a bank where else do they get it from to invest and carry out their operations as needed it is on an act of faith and trust that we lend them our money on the belief they will return it to us upon our request

 

if the bank were to ask me for additional services cheque book etc then i am sure i would be happy to provide it to them so long as they met my requist criteria if they didnt then i might be able to point them to a competitor who would be more than willing to help them out

 

Silly side thought so if the thought is that the banks have overcharged us on the charges agreed and it is not considered unauthorised borrowing then wouldnt that then make the money taken from us theft.

Though they would claim it was by accident would it not then move this into the field of criminal fraud as someone somewhere whould have to be answerable for the figure to which was choosen by the banks to charge and thus knowing what the true cost is and charging an excessivley over inflated price be open to accusations of obtaing money by deception and by obtaining money by fraudulent means or if more than one person is priviy to the costing and administrating of the costs of transactions and they have kept quiet to the real cost would that not then bring it into a conspiricey to obtain by fraud

[hagenuk]

No, you misunderstand me, where specifically are the "reciprocal rights to charge them interest at the same rate" that you state above?

 

There simply are not any, you do not have those rights in your contract with your bank.

 

The point you are missing is that the charges are not proven to be unlawful, we state that they are unlawful and indeed we base our claims on that assertion and the fact that all cases are settled prior to any hearings would tend to support that assertion, but thus far no ruling has been made and therefore the charges cannot be said to be unlawful.

 

At least, not yet.

 

As for you not lending them money - that comment was in reference to the charges - the fact they take £30 in charges (irrespective of whether or not they are lawfully entitled too) is not you lending them £30 - and even if it were, there is no provision in your contract with your bank for you to charge them any interest for this or any other sum.

 

Finally, you should remember that it is your breach of contract that leads to the levying of charges. The bank do not breach the contract, you do.

 

I don't know if you have read my post on page 75, post # 1489 but you should read it as there is too much jingoistic zeal with regard to the claiming of and the justification for the claiming of ever higher rates of interest where I believe no such justification exists.

[Glenn UK]

Glenn

 

I do not believe that we do "loan" the bank money and neither do I believe that you will get a judge to agree with you on that point.

 

The banks are entitled to levy a charge for our breach of contract and therefore they do not remove it without permission, they simply remove too much. It is the level of that charge that leads us to be able to recover it.

I believe that the banks know that these charges are unlawful and further, that they have known for a long time.

 

However, none of this means that we are in any way entitled to claim contractual rights that were never ours in the first place.

 

I never said we loan them the money, only that if we did there would be a term in the contract to allow for that, and they don't loan us the money either. We breach our contract and take money form them we are not entitled to. its a criminal offence for example to write cheques knowing you don't have the money to support them.

 

Regarding the semantics over the removal of the money from our accounts and whether its with permission.

 

Since the charges are unlawful and their contracts specifically say they will act in accordance with the law the removal of the money cannot be by consent since it falls outside of the scope of the contract.

 

RE getting the court to award contractual interest i think you are right in effect, however, i do think that its entirely feasible that they will award compound interest and beyond the 8%, but thats JMHO

 

Glenn

[Guest bong]

just one point Glenn, the contracts don't say they will act in accordance with the law, they say they are governed by the law of 'whichever' country which means you have recourse to those laws to settle any disputes arising out of the contract.

[Glenn UK]

Bong you are of course correct, so does it change the effect, ie if the charges is unlawful can is the removal of money now be by consent even though the contract could be kniwingly written to inlcude an unlawful term?

[hagenuk]

Because the charges are not unlawful.

 

At least, not according to the banks, they claim they are lawful and have been all along.

 

As I stated just a few posts ago, the charges are not proven to be unlawful, we state that they are unlawful and indeed we base our claims on that assertion and the fact that all cases are settled prior to any hearings would tend to support that assertion, but thus far no ruling has been made and therefore the charges cannot be said to be unlawful.

 

At least, not yet.

[Guest bong]

this isn't a problem if you can get the court to rule on the charges and then award the interest. if you allow the charges part to be settled first though, then this isnt a possibility. therefore all attempts to partition the claim must be rejected.

[Glenn UK]

Because the charges are not unlawful.

 

At least, not according to the banks, they claim they are lawful and have been all along.

 

As I stated just a few posts ago, the charges are not proven to be unlawful, we state that they are unlawful and indeed we base our claims on that assertion and the fact that all cases are settled prior to any hearings would tend to support that assertion, but thus far no ruling has been made and therefore the charges cannot be said to be unlawful.

 

At least, not yet.

 

Agreed, however since a court hasnt ruled either way then its as legititmate to argue they are as they are not :grin:

[tim2718281]

O.K, to get back on subject then guys: What do you feel after 1647 posts is the strongest argument for contractual interest?

 

 

The strongest argument is that the contract entitles the customer to it.

 

In the Mindzai and Lucid v Lloyds thread, you can see the wording of their claim; the contract had associated Terms and Conditions, which stated the interest rates payable on unauthorised withdrawals from the account.

 

The argument was:

 

1) As there was nothing in the Ts&Cs restricting the term to withdrawals by the customer, it also applied to withdrawals by the bank.

 

2) The customer had not authorised the bank to make the unlawful withdrawals.

 

Incidentally, Lloyds have now changed the wording of their Ts&Cs.

 

Tim

[tim2718281]

Glenn

 

I do not believe that we do "loan" the bank money and neither do I believe that you will get a judge to agree with you on that point.

 

 

Well, some bank accounts pay interest. I think that custmers with such accounts are lending the banks money.

 

And I think those accounts are essentially the same as those that do not pay interest; so I think with those we are lending the banks money, too.

 

Tim

[Guest bong]

for it to be a loan there would need to be an expectation of them repaying the money at some point.

[tim2718281]

Because the charges are not unlawful.

 

At least, not according to the banks, they claim they are lawful and have been all along.

 

 

In the context of interest rates, that's a red herring: if the charges are not unlawful, the claim for their return will fail, and the question of interest rates on the charges will not arise.

 

Therefore any discussion of interest rates must assume that the charges are unlawful.

 

Tim

[tim2718281]

for it to be a loan there would need to be an expectation of them repaying the money at some point.

 

Eh? When I put money in my bank account, I certainly expect to withdraw it at some point.

 

Tim

[Guest bong]

yes but aren't we talking about the money they've had in charges?

[newbody]

I agree it was my breech that caused these charges to be levied and as such agree that as i had insufficent funds in my account and as such borrowed the banks maoney without permission it was entitled to charge me it's unauthorised rate Hence why in my specific claim i have not gone to claim back any interest levied by the bank in regards these breeches weather it was incurred by my drawing on the account or by the banks drawing on it in regards their charges

 

My belief is that the charges the Bank levied on me whilist ridiculous were to cover staffing and administration and as such i was prepaired to swallow the cost of them But scince being pointed in direction of this site and recent media coverage and reading of threads and external links it is my contention that the charges were not just

And as such i wish for it to be rectified and as such recompensed for my loss of use of that money.

Now as wistleblower showed the other night the banks have people working within them that figure out what the cost of every act and action will cost the bank so it knows it's costing

So if the charges are true and just then the banks would just call that employee or a sworn statement from that employee in to prove the charges are lawful and not payout as they have done

The excuse of cost efficentcey doesn't wash as they have sent solicitors and barristers to some hearings only to settle rather than divulge the costs

 

I agree that in the contract their is no provision that says if we the bank borrow your money without authorisation then you can claim XX% interest from us. But then again who expects a bank to take money it is not entitled to also

 

The new 1999 UTCCR introduce an important additional criterion for assessing whether contract term is unfair to consumers. Incidentally, it does not effect, or refer to, the Unfair Contract Terms Act 1972 which means that estate agents (along with all other traders and suppliers) must

ensure their contracts and terms of business comply with both the 1972 Act and the new 1999 UTCCR.

 

The most critical new Sections of the UTCCR read:

 

“A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under

the contract, to the detriment of the consumer.

 

“A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

 

“Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a

pre-formulated standard contract.”

 

Therefore as i wasnt able to negotiate my contract in person that to me would make the contract unfair and the fact that there is no recipitory action in the contract for breeches by the bank would make its terms unfair

 

Now for the life of me i cant remember at this minute where i read it but i did read that if a contract or condition is unfair then the most favourable option to the claimant shall be used I will edit and insert it when i find it

 

 

 

So therefore as the bank has took money in excess of what it was entitled to i want this money back and i wish to be recompensed for the loss/use of it

 

Thus meaning i start court action seeking restitution

 

The law of restitution is concerned with the award of a generic group of remedies which arise by operation of law and which have one common function, namely to deprive the defendant of a gain rather than to compensate the claimant for loss suffered

 

The award of such restitutionary remedies to the claimant can be justified on the ground that, where the defendant has obtained a benifit at the claimants expense, justice demands that this should be restored to the claimant Moses Vs Macferlan (1760)

 

 

From this you can then delve into the different type of restitionary remedies available Which my understanding of them is to remove any enrichment the defendant may have obtained by the benifit it gained at the claimants expense.

 

which there are many different thoughts on the best way forward the general reasoning behind the usage of the banks own rates as this is what is stated in black and white from the bank.

Due to the fact that you did not authorise them to take the excess amount of money in charges this would deem that that the unauthorised rate would be the one to claim for but depending on what form of restitutionary remedy you are following this may be hard to justify and the authorised borrowing rate maybe easier to argue but these are points that thoose of us who are trying to argue for this Additional money are trying to sort out now

 

End of the day no in the contract it doesnt say you are entitled to this rate

But in the contract it doesnt say we will only let you have XXX of your balance back a day unless you give us XX amount of notice

It also doesnt say in the contract that we as your bank may take money from you that we are not entitled to and if you find us out we will give you 8% statatory interest on it if you file at court

 

At the end of the day if nobody was prepared to challange the banks actions we wouldnt all be here now claiming back our charges in the first place and it is only by open disscussion and debates and people prepared to take a risk and use the arguments that we can push the boundries of what we can and cannot claim back from the banks

 

 

As for the claiming of compound interest in general it hasnt been ruled out as an option in common law or even small claims

 

 

But the supreme court act 1981 does not specifically exclude the award of compound interest in respect of common law claims Rather it recognizes that the court can award simple interest for such claims The equitable jurisdiction to award compound interest is still available in appropriate cases.

In two very strong disseting judgements Lords Goff and Woolf rejected the arguments of the majority They asserted that scince the policy of the law of restitution was to remove benifits from the defendant compound interest should available in respect of all restitutionary claims regardless of wheather they arise at law or in equity This argument can be illustrated by the following example

In the straightforward case where the claimant pays money to the defendant by mistake and the defendant is liable to repay that money, the liability arises from the moment the money is recieved by the defendant who has the use of it and so should pay the claimant for the value of that benifit This was accepted by all the judges in the case The difficulty relates to the valuation of this benifit. If the defendant was to borrow an equivilent amount of money from a financial instituiton he or she would be liable to pay compound interest to that institution It follows that the defendant has saved that amount of money and so this is the value of benifit which the defendant should restore to the claimant, in addition to the value of the money which the defendant recieved in the first place .

If it could be shown that had the defendant borrowed the equivilent amount of money the institution would only have paid simple interest it would be appropriate for the interest awarded to the claimant to be simple rather than compounded. Usually however the interest in commercial transactions will be compounded interest.

 

 

 

So it is at the judges discretion based on your arguments for why you should get it though most will opt for the 8% as it is the easier option

 

At the end of the day it is down to the banks on weather they wish to continue paying out and how much they want to pay out for to stop the pay outs all they need do is disclose the true costs if they dont want to do that then we will continue pursuing them and pushing for what we can get until they are prepared to enter a court room to prove the legality of their charges

 

 

 

To the borrowing money from me i didnt mean that they borrowed it from me in the sense of the charges but that in every instance of someone using a bank weather it is a kids savings account to a high yield investment account every time we pay money in to the bank we are loaning them money to trade and invest as they see fit

[tim2718281]

yes but aren't we talking about the money they've had in charges?

 

No. Newbody had said "As for the bank borrowing money from me they do and every person who uses a bank where else do they get it from to invest and carry out their operations as needed it is on an act of faith and trust that we lend them our money on the belief they will return it to us upon our request."

 

Tim

[Guest bong]

sorry, I should've checked what you were talking about before I jumped in

[newbody]

Sorry Bong for the additional confusion

 

i was having a toungue in cheeck moment refering to where hagenuk had said in a post refering to mine that i would have to give the banks similar facalities as they gave me that we in a way do lend banks money

[Guest bong]

probably a silly idea, but I've been wondering what the banks would say if we wrote saying that -

 

in accordance with the UTCCR 1999, I am hereby putting you on notice that with effect from today, if the bank makes a withdrawal from my account that is proven in a court of law?/deemed? to be contrary to the laws of this country (unlawful?), I will demand that the bank pays me interest on those monies at the same rate as I, the customer, am bound to pay the bank if I make an unauthorised withdrawal.

 

Something like that anyway. how would they respond I wonder, because they say their charges are lawful so it shouldnt worry them unduly:p

[Glenn UK]

Bong

 

You should see that phoenix has amended his contract with the bank and he has offered to provide the info for those who wish to try it.

 

He has said he will charge them for time/leters i think and he has actually done it successfully.

 

I'll see if i can find the info it isnt on the board i think he pm's it to those who ask.

 

Glenn