Invalid Default Notices

[colin21958]

Out of interest the amount of damages for UR how much is that generally? exactly the same as arrears or is that taking the amber fluid?

 

Pumpytums

 

It could be argued that there are NO direct damages, in fact if the UR means you are relieved from paying the balance you actually gain by it! However, the fact that they generally continue to trash your credit file even though they have terminated the agreement means that you can claim damages under the Data Protection Act as they no longer have your permission to record and share your data (this permission only endures for the life of the agreement). And the amount for such damages according to previous case law could be up to £10,000 in todays terms... and you DON'T have to prove actual damages to credit!

[diddydicky]

DD - that's a very helpful summary of the situation.

 

I would just add one point - that the debtor is likely to be "unsophisticated" and not aware of legal terms/concepts such as "unlawful rescission". It is very likely, therefore, that his actions will be heavily influenced by the information given to him by the creditor. If the creditor tells him that its actions were completely lawful (honest guv!) and this is backed up by the usual barrage of legal-looking recovery letters, the debtor may agree to any repayment plan on offer if he can.

 

But he then learns of UR years later. He looks at his DN and finds it is faulty and that s87(1)(b) and © were therefore not available to the creditor at termination. He realises that he was only lawfully obliged to pay the arrears at termination, but he's since paid a lot more than that.

 

If the debtor then decides to invoke CCA by confronting the creditor, but the creditor says "sorry, you did not accept my unlawful rescission and under contract law your subsequent payments cause the agreement to endure even though I terminated it", he is immediately placed at a disadvantage because (a) how on earth will he understand the meaning of this unless he is "sophisticated" and (b) why was this not made clear to him at the outset?

 

I therefore think that it is perfectly reasonable for the debtor to state that he has uncovered the UR after "taking advice" and that he feels he was misled by the creditor into entering into a repayment plan when the regulating statute (CCA) clearly shows that the creditor may not seek sums unpaid. Therefore the debtor can reasonably state that he didn't know his lawful rights at the time (because the creditor hid them from him) and so he now seeks from the creditor the balance between arrears at termination and the total paid since.

 

The fact remains that it was the creditor that made the mistake in the first place and then subsequently hid his mistake from the debtor (deliberately or not), removing his lawful entitlement to (a) remedy the breach and (b) to lawfully rely on s87(1)(b) and © where s88 is breached by the creditor.

 

The OC can't have his cake and eat it. He can't lawfully end an agreement without full compliance with s88 and then expect the debtor to overlook his actions and comply with any old repayment plan he comes up with.

 

Just a thought (or two...).

 

LA

 

 

i understand fully the scenario you have described and imagine it would be quite common

 

alas, i fear that the courts would rule that the DN itself gave advice as to its importance and the need to seek advice if the recipient did not understand its meaning and therefore i think that the plea would fall on deaf ears.

[diddydicky]

OK here is a scenario,

 

1. A creditor issues a invalid default notice, for some reason the debtor for some reason never receives it.

 

2. The account is terminated, the debtor due to their interest in wanting to work things out makes token payments unaware of the DN or its implications.

 

3. The Creditor issues proceedings and the debtor receives advice that the Creditor had in fact unlawfully rescinded the agreement after receiving a copy of the DN.

 

When in front of the judge the judge says "the account was unlawfully rescinded?? Mr Debitor how did you accept this?" The Debitor replies "I have now stopped making payments Sir". The Judge asks "well you made token payments after the UR please explain", "well I was unaware of the Unlawful recession both due to the DN that I never received and the fact as a layman I didn't understand the need for a DN. I just wished to do the right thing. However I now fully accept the UR."

 

The point is acceptance, has the debtor accepted the UR yes they have late but they accepted it. As is been said their needs to be a change. If the debtor stopped paying full-stop it would be very difficult to prove UR as they stopped before UR and after up to Court.

 

Failing that could this simply be a "Mistake of Law" the debtor was under the mistake that he had to pay the debt.

 

 

Discuss??

 

 

Pumpytums

 

 

i am afraid to say that the debtor would be "on to a loser" in most cases if the creditors computer records showed that a DN was issued on a certian date. (which would be discovered by SAR- so best NEVER to admit not receiving a DN until you have this information)

 

most records will show the remedy date - or alternatively what you want is a copy (it will be reconstructed) that will state something like "within 14 days" so that you can then challenge its validity rather than admit that it was never received

 

If you state that you never received a DN then how can you state with any certainty that it was invalid and led to an unlawful repudiation?

 

if the creditor signs a statement swearing that it was posted to the debtors last known address( and this was correct) then i am afraid the judge is more likely than not to take the view that you did in fact receive it.

 

this may sound unfair but the court will generally accept- on the foregoing evidence from the creditor- that the DN was indeed served

 

by the same token of course- a debtor may often produce a copy of an acceptance of a UR written to the creditor and ask it to accept that it would have been delivered even if the creditor denies receiving it !!

 

 

once you have established from the SAR that a DN was posted then it might be more productive to demand proof of its validity than to deny receiving it

[diddydicky]

Out of interest the amount of damages for UR how much is that generally? exactly the same as arrears or is that taking the amber fluid?

 

Pumpytums

 

i would have said that in most cases it will be unlikely (given that the debtor may have just had a "windfall" of several thousands of pounds in terms of an unenforceable debt- that he can validate a loss

 

however a court did award £1000 damages in such a situation as a punitive figure.

 

it would not be wise to attempt to put a figure on the damages unless you can substantiate the figure- and making it the same as the amount of arrears(which the creditor will never disclose anyway) would be a bit too obvious

 

The true value as i said in an earlier post is in the THREAT that you MAY counterclaim- an actual counterclaim can have unavoidable adverse consequences

[colin21958]

i would have said that in most cases it will be unlikely (given that the debtor may have just had a "windfall" of several thousands of pounds in terms of an unenforceable debt- that he can validate a loss

 

however a court did award £1000 damages in such a situation as a punitive figure.

 

it would not be wise to attempt to put a figure on the damages unless you can substantiate the figure- and making it the same as the amount of arrears(which the creditor will never disclose anyway) would be a bit too obvious

 

The true value as i said in an earlier post is in the THREAT that you MAY counterclaim- an actual counterclaim can have unavoidable adverse consequences

 

Hi DD,

 

I think we are of the same mind on this, as you said and so did I that as the debtor has been relieved of paying the balance it would be hard to prove damages due solely to their UR of the agreement. However, if they should then try to take this further you could also use the threat of damages to credit as I mentioned in my post...

 

It could be argued that there are NO direct damages, in fact if the UR means you are relieved from paying the balance you actually gain by it! However, the fact that they generally continue to trash your credit file even though they have terminated the agreement means that you can claim damages under the Data Protection Act as they no longer have your permission to record and share your data (this permission only endures for the life of the agreement). And the amount for such damages according to previous case law could be up to £10,000 in todays terms... and you DON'T have to prove actual damages to credit!

 

Whilst in theory you COULD issue a claim for damages such as this I think it could be foolish to do so. However, you could also use threat of a claim for such damages (which have been awarded before and case law supports without having to prove specific damages) to get them to remove CRA file data...

 

Colin.

[Bigdebtor]

by the same token of course- a debtor may often produce a copy of an acceptance of a UR written to the creditor and ask it to accept that it would have been delivered even if the creditor denies receiving it !!

 

 

I found seeing the suggested letters earlier in this thread re accepting UR reminded me I had actually sent one off very similar just after the dodgy DN had been received - but the creditor must have lost it - not surprising with the volume of mail they must recieve that an occasional letter will go astray or be misfiled by them!

 

BD

[pumpytums]

Thanks very much DD,

the DN is in actual fact to do with a Overdraft it was terminated on the back of a 76(1) & 98(1) Notice, as a fixed term agreement for revolving credit. The 2 statutes used are for none-breach cases ie where the debtor has NOT breached a part of the agreement. In reading up on the applied charge it seems that it is indeed for a breach. So they have therefore terminated and demanded sums not yet due under a invalid DN or whatever they wish to call it.

 

If they had simply waited until the fixed 3 months was up all would have been good but they didn't. And thus issued a invalid DN then terminated several months latter. Unfortunately I started making token payments roughly 4 months after termination hence my previous post.

 

So the agreement would have never stretched longer than 3 months anyway.

 

Technically their are no arrears just the amount over the agreed OD.

 

This is that blooming annoying OD area that is covered but is quite complex to unravel.

 

Any comments would be appreciated.

 

Pumpytums

[diddydicky]

Thanks very much DD,

the DN is in actual fact to do with a Overdraft it was terminated on the back of a 76(1) & 98(1) Notice, as a fixed term agreement for revolving credit. The 2 statutes used are for none-breach cases ie where the debtor has NOT breached a part of the agreement. In reading up on the applied charge it seems that it is indeed for a breach. So they have therefore terminated and demanded sums not yet due under a invalid DN or whatever they wish to call it.

 

If they had simply waited until the fixed 3 months was up all would have been good but they didn't. And thus issued a invalid DN then terminated several months latter. Unfortunately I started making token payments roughly 4 months after termination hence my previous post.

 

So the agreement would have never stretched longer than 3 months anyway.

 

Technically their are no arrears just the amount over the agreed OD.

 

This is that blooming annoying OD area that is covered but is quite complex to unravel.

 

Any comments would be appreciated.

 

Pumpytums

 

 

yes, i admit that i am not very ofay with overdraft and the cca except that i recall that OD;s are repayable on demand and therefore quite different from the standard dn scenario

[DeBilde]

I received a letter today from Barclays stating I have failed to respond to their DN. However I have not received a DN.

 

How do I stand? What shall I send them to explain this?

 

Thanks

[Bigdebtor]

I would just phone them and tell them you never got the DN and can they send you a further copy please. Don't discuss anything else or agree any payments until you see the DN. If they refuse to send a further copy then send them a letter recorded delivery advising them of its non receipt and formally requesting a further copy. Let us see it once you have it so it can be checked to see if its invalid or not.

 

BD

[DeBilde]

Thanks BD, just phoned them and they are going to look into it for me.

 

I will give them 7 days and then send a letter.

[Dotty50]

I received a letter today from Barclays stating I have failed to respond to their DN. However I have not received a DN.

 

How do I stand? What shall I send them to explain this?

 

Thanks

 

Is it related to a credit card?

 

The only reason I ask is that my OH had one recently but it was from Mercers, acting on behalf of Barclaycard

[means2anend]

I received a letter today from Barclays stating I have failed to respond to their DN. However I have not received a DN.

 

How do I stand? What shall I send them to explain this?

 

Thanks

 

Match the date with your SAR...

 

I have a funny feeling that they probably NEVER sent you one in the first place and have 'learned' from us and in doing so sending you one 'another' with all the 'bit's corrected'

 

m2ae

[Lord_Alcohol]

i understand fully the scenario you have described and imagine it would be quite common

 

alas, i fear that the courts would rule that the DN itself gave advice as to its importance and the need to seek advice if the recipient did not understand its meaning and therefore i think that the plea would fall on deaf ears.

 

You've misunderstood.

 

This isn't about understanding what the DN is. It is about being aware of the implications where the DN is defective and the OC terminates. The debtor may not even be aware that the DN is defective for some time afterwards, and as such is forced into something he may prefer to avoid.

 

Either a DN complies with CCA or it doesn't. If it doesn't, and the contract is ended by the OC, it is UR. As far as I know, there are no time limits for claiming UR and CCA does not specify time limits for action by the debtor where s88 is not complied with.

 

It is bizarre to expect a lay person to know of UR on receipt of a defective DN. Equally, it is almost as bizarre to expect a lay person to be able to identify defects in the DN itself. But you seem to be saying that the debtor must in fact know about UR at the point of termination and that he must also be able to identify the defects in the DN prior to termination.

 

As far as I'm concerned, most recipients of DNs are as clueless as I was before I found CAG. I therefore can only disagree with what you say unless you have an actual argument up your sleeve...

 

LA

[diddydicky]

Either a DN complies with CCA or it doesn't. If it doesn't, and the contract is ended by the OC, it is UR.

 

totally wrong!, the creditor cannot unlawfully terminate the agreement without the consent of the debtor

 

the OC's repudiation is of absolutley no consequence unless it is accepted by the injured party.

 

Contract law is not an easy area- however what is true (IMO) is that silence, on the part of the injured party, upon knowing of an unlawful repudiation by the other party is generally taken to indicate his election to consider that the contract or agreement endures- and not the other way around

 

The injured party must indicate, by his words or deeds that he has accepted the unlawful repudiation- else the agreement endures.

 

 

As i said before, parliament put prescribed text into a DN to make the recipient aware of its importance and guidance as to where and how to seek legal advice if they were not sure of the implications of it. A debtor who , upon receipt of a DN neither knows what it means and involves nor takes legal advice to find out- will find any later plea of ignorance ignored by the court

 

the law therefore (IMO) whilst prepared to be tolerant towards LIP's in terms of their failure to construct their evidence, arguments and conduct in court in strict accordance with the rules- will nevertheless not offer the same leeway to a LIP who pleads that they did not understand the mechanics or consequences of the DN in court- which is usually many many months after the event.

 

whilst you are correct that the law sets no time limit on acceptance of UR time can often (IMO) indeed be of the essence and this will depend on the individual circumstances

[mot22]

As i said before, parliament put prescribed text into a DN to make the recipient aware of its importance and guidance as to where and how to seek legal advice if they were not sure of the implications of it.

The OFT leaflet that is required as per DN's post Oct 2008 have a list to contact for advice such as CAB, CCCS, Consumer Direct etc.. I wonder how many of those would either initially ask, or suggest you give them the details of your DN in order for them to tell you if it had been served correctly and if they would inform you about the possibility of UR if it wasn't.

 

Indeed even if you knew about UR at the time of a defective DN, most of the above help contacts would probably not know about UR and if they did would probably suggest they were not prepared to comment or get involved.

 

Perhaps some people could try it as an excercise to see what their response is !!

 

Not disagreeing with you DD at all. It just seems that the type of advice from the list on that OFT leaflet is not designed to see if the OC is ever at fault.

 

Your posts are always really helpful DD, as you have a certain "way" of putting things not to mention LA's continued take on things. Really appreciate everyones contribution..

 

What is your, or any ones, take on what Lord Aikens says, especially point (2) ?

(thx to Welshperson3 p#2686)

 

"Aikens LJ summarised the principles that apply to determine if a party has

elected to affirm a contract, as they had been set out by Lord Goff in Motor Oil

Hellas (Corinth) Refineries SA v. Shipping Corp. of India (The

Kanchenjunga) [1990] 1 Lloyd’s Rep 391, at 397- 399, as follows (at [53]):

“(1) If a contract gives a party a right to terminate upon the occurrence of

defined actions or inactions of the other party and those actions or

inactions occur, the innocent party is entitled to exercise that right. The

innocent party has to decide whether or not to do so. Its decision is, in law, an

election. (2)It is a prerequisite to the exercise of the election that the party

concerned is aware of the facts giving rise to its right and the right itself."

Edited June 23, 2010 by mot22

[diddydicky]

i think the first part of your post answers the last

 

if you are not aware of the facts giving rise and the right itself- from the contents of the DN- then clearly you must be in need of legal advice to explain it to you- if you choose not to take up that advice and remain ignorant then that is your own problem

 

whatever your personal opinion of the agencies involved- the law is not there to hold the debtors hand and will be seen as no more than hearsay tittle tattle

 

if you have 14 days after service to find out what you need to know then the law expects you to do just that and i doubt it will be too concerned with personal opinions as to the qualities or effectiveness of the organisations that are recommended to help

 

the vast majority of solicitors give half to one hour of free legal advice

 

 

the whole purpose of my posts is to help enlighten others and try to help them avoid pitfalls- since making a wrong decision- or trying to plead an unwinnable case in court can be bloody expensive if you get it wrong

 

( and can sometimes also be expensive in costs even if you get it right)

 

it is very easy for people to give advice from the sidelines- since they do not have to bear the financial burden if their advice goes tits up in court for those that acted on it

 

My aim is to try and steer folk away from some of the common pitfalls and misconceptions that can arise

 

from a new caggers point of view- it can sometimes appear that advice on the forum is a cast iron dead cert cant lose situation when in reality- in the real world and away from the perry mason world- things can be very different.

[mot22]

i think the first part of your post answers the last

 

if you are not aware of the facts giving rise and the right itself- from the contents of the DN- then clearly you must be in need of legal advice to explain it to you- if you choose not to take up that advice and remain ignorant then that is your own problem

 

whatever your personal opinion of the agencies involved- the law is not there to hold the debtors hand and will be seen as no more than hearsay tittle tattle

 

if you have 14 days after service to find out what you need to know then the law expects you to do just that and i doubt it will be too concerned with personal opinions as to the qualities or effectiveness of the organisations that are recommended to help

 

the vast majority of solicitors give half to one hour of free legal advice

 

 

the whole purpose of my posts is to help enlighten others and try to help them avoid pitfalls- since making a wrong decision- or trying to plead an unwinnable case in court can be bloody expensive if you get it wrong

 

( and can sometimes also be expensive in costs even if you get it right)

 

it is very easy for people to give advice from the sidelines- since they do not have to bear the financial burden if their advice goes tits up in court for those that acted on it

 

My aim is to try and steer folk away from some of the common pitfalls and misconceptions that can arise

 

from a new caggers point of view- it can sometimes appear that advice on the forum is a cast iron dead cert cant lose situation when in reality- in the real world and away from the perry mason world- things can be very different.

 

Thx for your thoughts DD.

I might be wrong but you may have got the wrong end of what I was trying to say and ask?

My point was that we are directed to "take advice" and that advice may well not highlight our "right" to accept UR.

 

It seems we are stuffed if we do and stuffed if we don't.

ie: we are wrong to not have sought advice but might not get the correct advice if we do seek it ?

 

I thanked you for your posts and was hoping for your thoughts on the quote from Aikins..it seemed relevant, but perhaps I'm wrong?

I understood the "aware of the ...right itself" referred to being aware of ones right to accept UR?

Many thx..

Edited June 23, 2010 by mot22

[diddydicky]

yes it is relevant and you are right

 

and yes- legal advice ......... problem is that the law is now so specialised that your average high street solicitor is less likely to have the answers you need

 

hence forums like these where it is quite possible for the combined experienced of those with intimate knowledge of the cca to be greater than that of the average solicitor

 

and judging by some of their successes- than those in whom the creditors place their faith

[Lord_Alcohol]

Either a DN complies with CCA or it doesn't. If it doesn't, and the contract is ended by the OC, it is UR.

 

totally wrong!, the creditor cannot unlawfully terminate the agreement without the consent of the debtor

 

Er...really? I was under the impression that the OC commits UR and the debtor accepts his UR. The UR is already committed!

 

the OC's repudiation is of absolutley no consequence unless it is accepted by the injured party.

 

Certainly. Whether it's 3 year's later, to me, makes little or no difference.

 

Contract law is not an easy area- however what is true (IMO) is that silence, on the part of the injured party, upon knowing of an unlawful repudiation by the other party is generally taken to indicate his election to consider that the contract or agreement endures- and not the other way around

 

Possibly. But this still requires the debtor to have knowledge of his options under contract law. My view is that it is unlikely he will have this.

 

The injured party must indicate, by his words or deeds that he has accepted the unlawful repudiation- else the agreement endures.

 

Yes, but I see nothing wrong with that event happening at the point in which the debtor learns of the intricacies of UR and also realises that the OC had made a mistake with the DN. That could be some time after UR.

 

As i said before, parliament put prescribed text into a DN to make the recipient aware of its importance and guidance as to where and how to seek legal advice if they were not sure of the implications of it. A debtor who , upon receipt of a DN neither knows what it means and involves nor takes legal advice to find out- will find any later plea of ignorance ignored by the court

 

Well, a debtor who has a DN in his sweaty palms is probably unlikely to pay to see a solicitor or even have sufficient time available to discuss with CAB. I would imagine that many such debtors will discuss with the OC or DCA, who may very well not paint the true picture to the debtor.

 

the law therefore (IMO) whilst prepared to be tolerant towards LIP's in terms of their failure to construct their evidence, arguments and conduct in court in strict accordance with the rules- will nevertheless not offer the same leeway to a LIP who pleads that they did not understand the mechanics or consequences of the DN in court- which is usually many many months after the event.

 

whilst you are correct that the law sets no time limit on acceptance of UR time can often (IMO) indeed be of the essence and this will depend on the individual circumstances

 

Well, this isn't my point. The meaning of the DN is quite clear. What is not clear to the debtor is that (a) the DN may contain defects which he is unaware of and (b) if it does, and the OC commits UR, he will be unaware of it (or his rights under contract law).

 

You say that there is sufficient warning in the DN and the wording is clear, but the DN does not state that acceptance of UR is available to the debtor where we, the OC, cock it up. The debtor needs to be very well informed to make the decisions that need to be made. My view is that he won't be, and it is unreasonable to suggest that he is.

 

LA

[means2anend]

Either a DN complies with CCA or it doesn't. If it doesn't, and the contract is ended by the OC, it is UR.

 

totally wrong!, the creditor cannot unlawfully terminate the agreement without the consent of the debtor

 

the OC's repudiation is of absolutley no consequence unless it is accepted by the injured party.

 

Contract law is not an easy area- however what is true (IMO) is that silence, on the part of the injured party, upon knowing of an unlawful repudiation by the other party is generally taken to indicate his election to consider that the contract or agreement endures- and not the other way around

 

The injured party must indicate, by his words or deeds that he has accepted the unlawful repudiation- else the agreement endures.

 

 

As i said before, parliament put prescribed text into a DN to make the recipient aware of its importance and guidance as to where and how to seek legal advice if they were not sure of the implications of it. A debtor who , upon receipt of a DN neither knows what it means and involves nor takes legal advice to find out- will find any later plea of ignorance ignored by the court

 

the law therefore (IMO) whilst prepared to be tolerant towards LIP's in terms of their failure to construct their evidence, arguments and conduct in court in strict accordance with the rules- will nevertheless not offer the same leeway to a LIP who pleads that they did not understand the mechanics or consequences of the DN in court- which is usually many many months after the event.

 

whilst you are correct that the law sets no time limit on acceptance of UR time can often (IMO) indeed be of the essence and this will depend on the individual circumstances

 

 

AGREED

 

Silence at Common Law at least, can never without more constitute an acceptance in contract nor mislead anyone into entering into a contract.There has to be some positive act the extent of the act irrelevant to constitute an acceptance where silence is concerned.

 

DISAGREE

 

Knowledge without more is insufficient to convey acceptance.This would cause injustice to the debtor.

 

So Silence and Knowledge that there has been an unlawful repudiation would then result in an acceptance letter of that repudiation...otherwise the absurd situation would arise that the debtor must not have knowledge that a u/l repudiation has occurred in order not to be found culpable..but then how can send a letter of accepting that repudiation if he did not have the knowledge...

 

m2ae

Edited June 24, 2010 by means2anend

[diddydicky]

If the creditor serves valid DN and the debtor fails to remedy within the specified time then the creditor may lawfully terminate/claim immediate repayment of sums not yet due

 

if the creditor serves an invalid DN-(or none at all- but instead shows by words or deeds that he intends to no longer perform under the agreement) - he is indicating to the performing party that he intends s not to perform under the agreement

he may well do so- then again he may just be making an empty threat !!

 

however, until the debtor ACCEPTS the unlawful act (or the threat of it) by the creditor- then the creditors actions ALONE do not terminate the contract

 

Firstly- it would need to be established that the non performance of the creditor was in respect of a major benefit of the agreement to the debtor- since it could be ruled a de minimus non performance- secondly,

 

i think we can all agree that removing the benefit from the debtor to be able to repay in monthly payments of his choosing is clearly a (the) major benefit to the debor.

 

However- as i said before- if the debtor stays silent- then the creditors unlawful actions will not terminate the agreement- nor will (in general terms) the debtors silence be taken to be an acceptance of the unlawful repudiation

 

(for instance- the debtor could be away on holiday or could be working away from home and never see the creditors DN- the suggestion that in such circumstances- the debtors silence on the matter was an acceptance of the unlawful repudiation- would be a nonsence)

 

the agreement would endure in these circumstances and it would be for the debtor to sue the other party for breach of contract.

 

We just have to agree to disagree on the rest since the argument is now circular

[means2anend]

The OFT leaflet that is required as per DN's post Oct 2008 have a list to contact for advice such as CAB, CCCS, Consumer Direct etc.. I wonder how many of those would either initially ask, or suggest you give them the details of your DN in order for them to tell you if it had been served correctly and if they would inform you about the possibility of UR if it wasn't.

 

Indeed even if you knew about UR at the time of a defective DN, most of the above help contacts would probably not know about UR and if they did would probably suggest they were not prepared to comment or get involved.

 

Perhaps some people could try it as an excercise to see what their response is !!

 

Not disagreeing with you DD at all. It just seems that the type of advice from the list on that OFT leaflet is not designed to see if the OC is ever at fault.

 

Your posts are always really helpful DD, as you have a certain "way" of putting things not to mention LA's continued take on things. Really appreciate everyones contribution..

 

What is your, or any ones, take on what Lord Aikens says, especially point (2) ?

(thx to Welshperson3 p#2686)

 

"Aikens LJ summarised the principles that apply to determine if a party has

elected to affirm a contract, as they had been set out by Lord Goff in Motor Oil

Hellas (Corinth) Refineries SA v. Shipping Corp. of India (The

Kanchenjunga) [1990] 1 Lloyd’s Rep 391, at 397- 399, as follows (at [53]):

“(1) If a contract gives a party a right to terminate upon the occurrence of

defined actions or inactions of the other party and those actions or

inactions occur, the innocent party is entitled to exercise that right. The

innocent party has to decide whether or not to do so. Its decision is, in law, an

election. (2)It is a prerequisite to the exercise of the election that the party

concerned is aware of the facts giving rise to its right and the right itself."

 

As you can see from Lord Aikens awareness of the facts and awareness of

the right itself are pre-requisites to the EXERCISE of those rights

 

m2ae

[diddydicky]

AGREED

 

Silence at Common Law at least, can never without more constitute an acceptance in contract nor mislead anyone into entering into a contract.There has to be some positive act the extent of the act irrelevant to constitute an acceptance where silence is concerned.

 

DISAGREE

 

Knowledge without more is insufficient to convey acceptance.This would cause injustice to the debtor.

 

So Silence and Knowledge that there has been an unlawful repudiation would then result in an acceptance letter of that repudiation...otherwise the absurd situation would arise that the debtor must not have knowledge that a u/l repudiation has occurred in order not to be found culpable..but then how can send a letter of accepting that repudiation if he did not have the knowledge...

 

m2ae

 

 

thanks M2ae

 

the reference to not "having the knowledge " which i answered above was in respect of not having the knowlegde of the law regarding the UR and not simply not having the knowldege that the other party had UR'd!!

 

 

you are right in that clearly you cannot be expeced to respond to a UR if you did not know about it

 

however, there would come a point at which you did become aware of it BEFORE court action (in 99.9% of cases) and it is at the time that it came to your attention that you should make an election

 

you may well have not received a DN, but the UR would come to your notice when the creditor send demands for you to pay the full balance, or that he was terminating the agreement- or when debt collectors started to contact you.

 

in a rare case (perhaps due to moving home) where a creditor got a case to court (or even obtained a ccj) without the knowledge of the debtor then CLEARLY it would not be difficult to correct that situation

 

(although if the debtor had done a "moonlight flit"- he might find things getting a sj set aside since he would have an obligation to let his creditors know of his new address)

[means2anend]

Also there is NO TIME LIMITATIONS regarding countdown to awareness in Lord Aikens speech...Probably to cater for individual cases

 

m2ae

Edited June 24, 2010 by means2anend
'probably to cater for individual cases