Is this Halifax CCA enforceable please?

[Stressed150]

Ok, I had no idea whatsoever about any of this termination stuff, so I am ever grateful to you DD, will draft the letetr and send making sure to state they have unlawfully terminated the agreement. One other point however is that on the Default Notice they gave untill 25th July to remedy the breach, however, the termination notice is dated the 24th July, does this have any effect?

 

BTW, I have read the BOS v Mitchell case u posted here, and I find it very interesting, however, as I am still learning all the legal bits n bobs, it's helping...x

[diddydicky]

ohhhhhhhh yesssssss indeedie - it makes the cock up even more cocked up- nothing like a double whammy eh!!

 

make sure it is sent recorded

[diddydicky]

Ok, I had no idea whatsoever about any of this termination stuff, so I am ever grateful to you DD, will draft the letetr and send making sure to state they have unlawfully terminated the agreement. One other point however is that on the Default Notice they gave untill 25th July to remedy the breach, however, the termination notice is dated the 24th July, does this have any effect?

 

BTW, I have read the BOS v Mitchell case u posted here, and I find it very interesting, however, as I am still learning all the legal bits n bobs, it's helping...x

 

if you thought you got square eyes watching the telly - wait until you have been on here awhile longer!

[diddydicky]

next thing you will get is totally ignored and a letter from albion

[diddydicky]

BTW, did you get a letter attached to the DN telling you that you must pay into a bank at least 4 days before and by post 7 days before the funds would hit your account?

 

if you did make sure you keep that- even more ammo

[Stressed150]

lol.... my eyes are already goin square!!! Never recieved letter sayin g money should be in 4 days before etc..... but will be sending termination acknowledgement tommorrow......

 

So just to get ur confirmation:

 

I write to acknowledge receipt of your letter dated 24 July 2009, unlawfully terminating the agreement in relation to the above account.

I believe this agreement to have unlawfully ended as of 24th July 2009.

 

Is that enough, sent recorded del tmrw...?

[diddydicky]

i would write as in post 122

[Stressed150]

Ok, just saw post thanks DD

[vint1954]

i would advise that you now either write (far the best opition IMO) to halifax acknowledgeing receipt of their letter of unlawful termination of the agreement and accepting that the agreement is now at an end

 

alternatively you need to do some act which demonstrates that you have accepted their unlawful termination.

 

if you have not been making payments - then continuing what you were doing already is unlikely to do it.

 

IMO it is crucial to put the word unlawful before the word termination in your acceptance letter

 

there is no need for you to spell out why it is unlawful- thats for them to figure out (if indeed they spot it)

Hi Stressed,

 

DD is right. Following your TN, maybe add something along the lines of:

 

Despite the alleged account being in dispute following your failure to supply the required data as requested by myself, you issued a Default Notice under section 87 (1) of the act on the xxxxxxxxx2009, further unlawfully terminating the alleged account on the xxxxxxxxx2009 both in letters from yourself. I have confirmed acceptance of your Termination actions.

[vint1954]

Hi Stressed,

 

DD is right. Following your TN, maybe add something along the lines of:

 

Despite the alleged account being in dispute following your failure to supply the required data as requested by myself, you issued a Default Notice under section 87 (1) of the act on the xxxxxxxxx2009, further unlawfully terminating the alleged account on the xxxxxxxxx2009 both in letters from yourself. I have confirmed acceptance of your Termination actions.

Sorry DD,

 

Should have read the rest of the thread before posting.

 

Vint

[Stressed150]

Ok, just to clarify, I have written up letter as per post 122, however, DD you state in the letter, 'I accept unlawful repudiation and this agreement has therefore ended as of the date of this letter'.....

 

Does that mean to say the date of my letter, or the date Halifax sent me the Termination Notice?

[Stressed150]

Confused as Vints letter seems to suggest that agreement has terminated as of Halifax sending me the TN, however DD version indicates agreement terminated as of my date of acceptance letter..... just concerned as I dnt wnt this to have an affect on the dodgy DN, whereby they will be able to go back and rectify....

[joemay]

Confused as Vints letter seems to suggest that agreement has terminated as of Halifax sending me the TN, however DD version indicates agreement terminated as of my date of acceptance letter..... just concerned as I dnt wnt this to have an affect on the dodgy DN, whereby they will be able to go back and rectify....

 

I would have thought that you are accepting their termination from whenever that was. If you state termination from the date in your letter it makes it look that you're actually doing the termination, which is not what you want.

[lilly white]

well in lay mans terms they taken away the contract.

 

so have a read by the excellent the one and only x20

 

 

My fellow Caggers, back to the general issue ..

 

May be it was my doing or we've just hung on to this word 'termination' like Rotweillers. The thing is, at least as I see it is, that where a creditor seeks early repayment or the return of goods following service of an ineffective DN, he is by his words and conduct expressing in clear terms that he is no longer willing to perform the essential obligations he promised to provide under the credit agreement. True, these words and conduct ride on the back of the debtor's failure to perform the debtor's essential obligations. But in this event the creditor has only to follow the procedure laid out in the Act and Regulations. And the Act says unless and until he has met the requirements of the Act and the Regulations, he acquires no such entitlement. Accordingly, to withdraw from the debtor the right to pay sums due by instalments or withdraw the right to continue with possession of the goods is to withdraw in breach of the statutory code which regulates the agreement.

 

The withdrawal of the debtor's rights may in one person's parlance be the same as the creditor's termination of the agreement. Just like 'default' in the words of one person may amount to 'breach' in the words of another. Or 'repudiatory breach' in the language of lawyer A is 'renunciation' in the language of lawyer B. Let's say though, for the purpose of the stream of thinking which follows, that strictly and legally speaking, withdrawal of these rights in default (or breach) isn't a termination of the agreement and that for termination strictly so called to have occured, the creditor miut have served a notice of termination. Does that mean therefore that the creditor's withdrawal and demand for early payment and/or return of goods is something the court can waive? Something the debtor can be expected to have understood was a mistake and unintended? That it is of no consequence?

 

I've got Chitty on Contracts General Principles (26th Edition) (1991). A bit out of date but good enough on General Principles I would have thought. And I'd thought I'd open it. Always a good idea when examining the contractual relationship of parties. Interestingly, 'termination' does not have an entry of its own in the umpteen page index at the back. It says in relation to Renunciation (and if you look up Repudiatory Breach it refers to to the same page number) that:

 

A renunciation of a contract occurs when one party by words or conduct evinces an intention not to perform, or expressly declares that he is or will be unable to perform, his obligastions under the contract in some essential respect. An absolute refusal by one party to perform his side of the contract will entitle the other party to treat himself as discharged, as will also a clear and unambiguous assertion by one party that he will be unable to perform when the time for performance should arrive. Short of such an express refusal or declaration however, the test is to ascertain whether the action or actions of the party in default are such as to lead a reasonable person to conclude that he no longer intends to be bound by its provisions. The renunciation is then evidenced by conduct. Also, the party in default 'may intend in fact to fulfil (the contract) but may be determined to do so only in a manner substantially inconsistent with his obligations' [Federal Commerce & Navigation Co Limited v Molena Alpha Inc (1979)] or may refuse to perform the contract unless the other party complies with certain conditions not required by its terms. In such a case, there is little difficulty in holding that the contract has been renounced.

 

If one party evinces an intention not to perform or declares his inability to perform some but not all of his obligations under the contract, then the right of the other party to treat himself as discharged depends upon whether the non-performance of those obligations will amount to a breach of a condition of the contract or deprive him of substantially the whole benefit which it was the intention of the parties that he should obtain from the obligations of the parties under the contract then remaining unperformed.

 

The renunciation must be made quite plain. In particular where there is a genuine dispute as to the construction of a contract, the courts may be unwilling to hold that an expression of intentino by one party to carry out the contract only in accordance with his own erroneous interpretation of it amounts to a repudiation and the same is truew of a genuine mistake of fact or law.

 

The demanding of early payment is to my way of thinking the immediate withdrawal of consent to all the remaining credit provided for under the agreement. Further, that it substantially deprives the debtor of the prime benefit he was to derive under it. Such a demand constitutes a breach of the regulated agreement save where it is demanded in compliance with the Act. If the demanding of such things is not tantamount to the creditor terminating the agreement, it is, nonetheless in my opinion, the creditor's renunciation of it. in consequence and in my opinion, the debtor may fairly regard himself as discharged from the agreement.

 

Chitty has this to say:

 

Consequences of Discharge - Effect on Contract

It has become usual to speak of the exercise by one party to treat himself as discharged as a 'recission' of the contract but as Lord Porter pointed out in Heymans v Darwin limited (1942):

 

'To say that the contract is rescinded or has come to an end or ceased to exist may in individual cases convey the truth with sufficient accuracy, but the fuller expresion that ther injured party is thereby absolved from future performance of his obligations under the contract is a more exact description of the position. Strictly speaking, to say that on acceptance of the renunciation of a contract the contract is rescinded is incorrect.'

 

This statement was unanimously approved by The House of Lords in Johnson v Agnew (1980) where Lord Wilberforce emphasised that this so-called 'recission' is quite different from recission ab initio as may arise for example in cases of mistake, fraud or lack of consent. It has also become usual to speak of the contract as having been 'terminated' or 'discharged' by the breach. Again however, these expressions may be somewhat misleading for they might suggest that the contract ceases forv all purposes to exist in that event. Such an approach was indeed adopted by the Court of Appeal in Harbutt's Plastercine Limited v Wayne Tank & Pymp Co (1970) so as to prevent the party in default from relying on an expemtion clause inserted in a contract which had been 'terminated' by breach. But this case was overruled by the House of Lords in Photo Production limited v Securicor Transport limited (1980). The true position was there stated to be, where the innocent party elects to terminate the contrsct, ie to put an end to all primary obligations of both parties remaining unperformed - that (per Lord Diplock) '(a) there is substituted by implication of law for the primary obligations of the party in default which remain unperformed a secondary obligation to pay money compensation to the other party for the loss sustained by him in consequence of their non-performance in the future and (b) the unperformed primary obligations of that other party are discharged.'

 

Given Diplock's statement of the position, may be to describe the agreement as 'terminated' following the events we are describing is, to adopt the words of Lord Porter, '.. to convey the truth with sufficient accuracy.'

[vint1954]

Confused as Vints letter seems to suggest that agreement has terminated as of Halifax sending me the TN, however DD version indicates agreement terminated as of my date of acceptance letter..... just concerned as I dnt wnt this to have an affect on the dodgy DN, whereby they will be able to go back and rectify....

Hi Stressed, I was confirming earlier acceptance.

[Stressed150]

Ok, thank you for that very informative post lillywhite, and thnks joemay and Vint....

[diddydicky]

Ok, just to clarify, I have written up letter as per post 122, however, DD you state in the letter, 'I accept unlawful repudiation and this agreement has therefore ended as of the date of this letter'.....

 

Does that mean to say the date of my letter, or the date Halifax sent me the Termination Notice?

 

as they have not lawfully terminated the agreement under the cca then their letter of termination seeks to IMPOSE termination upon you which they cannot do under cca because they got the DN wrong

 

They have therefore "stepped outside" of the cca and into contract law

 

now again they cannot IMPOSE the unlawful termination upon you so if you did nothing the agreement would endure(if you wanted to)

 

whilst you cannot accept their unlawful act under cca you can certainly chose, as the aggreived party under contract law, to accept their repudiation

 

therefore the contract or agreement comes to an end at the time that YOU accept the unlawful act (the date of YOUR letter to them)

Edited July 30, 2009 by diddydicky

[Stressed150]

as they have not lawfully terminated the agreement under the cca then their letter of termination seeks to IMPOSE termination upon you which they cannot do under cca because they got the DN wrong

 

They have therefore "stepped outside" of the cca and into contract law

 

now again they cannot IMPOSE the unlawful termination upon you so if you did nothing the agreement would endure

 

whilst you cannot accept their unlawful act under cca you can certainly chose, as the aggreived party under contract law, to accept their repudiation

 

therefore the contract or agreement comes to an end at the time that YOU accept the unlawful act (the date of YOUR letter to them)

 

..... thank you

[diddydicky]

I would have thought that you are accepting their termination from whenever that was. If you state termination from the date in your letter it makes it look that you're actually doing the termination, which is not what you want.

 

sorry joemay but that is EXACTLy what i am saying- there termination "letter" can only ever terminate the agreement without your consent IF it was served after an EFFECTIVE DN

 

since they otherwise cannot unilaterally terminate the agreement then it is only when you agree to the termination that it will take effect

 

genuine arrears due at the time of termination are payable to the creditor which is why it is inadvisable to delay acceptance

[diddydicky]

well in lay mans terms they taken away the contract.

 

so have a read by the excellent the one and only x20

 

 

My fellow Caggers, back to the general issue ..

 

May be it was my doing or we've just hung on to this word 'termination' like Rotweillers. The thing is, at least as I see it is, that where a creditor seeks early repayment or the return of goods following service of an ineffective DN, he is by his words and conduct expressing in clear terms that he is no longer willing to perform the essential obligations he promised to provide under the credit agreement. True, these words and conduct ride on the back of the debtor's failure to perform the debtor's essential obligations. But in this event the creditor has only to follow the procedure laid out in the Act and Regulations. And the Act says unless and until he has met the requirements of the Act and the Regulations, he acquires no such entitlement. Accordingly, to withdraw from the debtor the right to pay sums due by instalments or withdraw the right to continue with possession of the goods is to withdraw in breach of the statutory code which regulates the agreement.

 

The withdrawal of the debtor's rights may in one person's parlance be the same as the creditor's termination of the agreement. Just like 'default' in the words of one person may amount to 'breach' in the words of another. Or 'repudiatory breach' in the language of lawyer A is 'renunciation' in the language of lawyer B. Let's say though, for the purpose of the stream of thinking which follows, that strictly and legally speaking, withdrawal of these rights in default (or breach) isn't a termination of the agreement and that for termination strictly so called to have occured, the creditor miut have served a notice of termination. Does that mean therefore that the creditor's withdrawal and demand for early payment and/or return of goods is something the court can waive? Something the debtor can be expected to have understood was a mistake and unintended? That it is of no consequence?

 

I've got Chitty on Contracts General Principles (26th Edition) (1991). A bit out of date but good enough on General Principles I would have thought. And I'd thought I'd open it. Always a good idea when examining the contractual relationship of parties. Interestingly, 'termination' does not have an entry of its own in the umpteen page index at the back. It says in relation to Renunciation (and if you look up Repudiatory Breach it refers to to the same page number) that:

 

A renunciation of a contract occurs when one party by words or conduct evinces an intention not to perform, or expressly declares that he is or will be unable to perform, his obligastions under the contract in some essential respect. An absolute refusal by one party to perform his side of the contract will entitle the other party to treat himself as discharged, as will also a clear and unambiguous assertion by one party that he will be unable to perform when the time for performance should arrive. Short of such an express refusal or declaration however, the test is to ascertain whether the action or actions of the party in default are such as to lead a reasonable person to conclude that he no longer intends to be bound by its provisions. The renunciation is then evidenced by conduct. Also, the party in default 'may intend in fact to fulfil (the contract) but may be determined to do so only in a manner substantially inconsistent with his obligations' [Federal Commerce & Navigation Co Limited v Molena Alpha Inc (1979)] or may refuse to perform the contract unless the other party complies with certain conditions not required by its terms. In such a case, there is little difficulty in holding that the contract has been renounced.

 

If one party evinces an intention not to perform or declares his inability to perform some but not all of his obligations under the contract, then the right of the other party to treat himself as discharged depends upon whether the non-performance of those obligations will amount to a breach of a condition of the contract or deprive him of substantially the whole benefit which it was the intention of the parties that he should obtain from the obligations of the parties under the contract then remaining unperformed.

 

The renunciation must be made quite plain. In particular where there is a genuine dispute as to the construction of a contract, the courts may be unwilling to hold that an expression of intentino by one party to carry out the contract only in accordance with his own erroneous interpretation of it amounts to a repudiation and the same is truew of a genuine mistake of fact or law.

 

The demanding of early payment is to my way of thinking the immediate withdrawal of consent to all the remaining credit provided for under the agreement. Further, that it substantially deprives the debtor of the prime benefit he was to derive under it. Such a demand constitutes a breach of the regulated agreement save where it is demanded in compliance with the Act. If the demanding of such things is not tantamount to the creditor terminating the agreement, it is, nonetheless in my opinion, the creditor's renunciation of it. in consequence and in my opinion, the debtor may fairly regard himself as discharged from the agreement.

 

Chitty has this to say:

 

Consequences of Discharge - Effect on Contract

It has become usual to speak of the exercise by one party to treat himself as discharged as a 'recission' of the contract but as Lord Porter pointed out in Heymans v Darwin limited (1942):

 

'To say that the contract is rescinded or has come to an end or ceased to exist may in individual cases convey the truth with sufficient accuracy, but the fuller expresion that ther injured party is thereby absolved from future performance of his obligations under the contract is a more exact description of the position. Strictly speaking, to say that on acceptance of the renunciation of a contract the contract is rescinded is incorrect.'

 

This statement was unanimously approved by The House of Lords in Johnson v Agnew (1980) where Lord Wilberforce emphasised that this so-called 'recission' is quite different from recission ab initio as may arise for example in cases of mistake, fraud or lack of consent. It has also become usual to speak of the contract as having been 'terminated' or 'discharged' by the breach. Again however, these expressions may be somewhat misleading for they might suggest that the contract ceases forv all purposes to exist in that event. Such an approach was indeed adopted by the Court of Appeal in Harbutt's Plastercine Limited v Wayne Tank & Pymp Co (1970) so as to prevent the party in default from relying on an expemtion clause inserted in a contract which had been 'terminated' by breach. But this case was overruled by the House of Lords in Photo Production limited v Securicor Transport limited (1980). The true position was there stated to be, where the innocent party elects to terminate the contrsct, ie to put an end to all primary obligations of both parties remaining unperformed - that (per Lord Diplock) '(a) there is substituted by implication of law for the primary obligations of the party in default which remain unperformed a secondary obligation to pay money compensation to the other party for the loss sustained by him in consequence of their non-performance in the future and (b) the unperformed primary obligations of that other party are discharged.'

 

Given Diplock's statement of the position, may be to describe the agreement as 'terminated' following the events we are describing is, to adopt the words of Lord Porter, '.. to convey the truth with sufficient accuracy.'

 

X20 also endorses this to be the case:-

 

In*Golden Strait Corporation v Nippon Yusen Kubishka Kaisha*[2007], Lord Bingham said:

 

'The repudiation of a contract by one party ("the repudiator"), if accepted by the other ("the injured party"), brings the contract to an end and releases both parties from their primary obligations under the contract. The injured party is thereupon entitled to recover damages against the repudiator to compensate him for such financial loss as the repudiator's breach has caused him to suffer. This is elementary law.

[joemay]

sorry joemay but that is EXACTLy what i am saying- there termination "letter" can only ever terminate the agreement without your consent IF it was served after an EFFECTIVE DN

 

since they otherwise cannot unilaterally terminate the agreement then it is only when you agree to the termination that it will take effect

 

genuine arrears due at the time of termination are payable to the creditor which is why it is inadvisable to delay acceptance

 

Hi DD,

 

I wasn't disputing what you said I was merely reponding to stressed post below, stating that he accepts their termination from the date of their letter therefore not increasing the areas amount:p

 

Ok, just to clarify, I have written up letter as per post 122, however, DD you state in the letter, 'I accept unlawful repudiation and this agreement has therefore ended as of the date of this letter'.....

 

Does that mean to say the date of my letter, or the date Halifax sent me the Termination Notice?

[diddydicky]

Hi DD,

 

I wasn't disputing what you said I was merely reponding to stressed post below, stating that he accepts their termination from the date of their letter therefore not increasing the areas amount:p

 

thanks yes, but the thing is that there could be weeks or months between the creditor sending that unlawful termination letter and the debtor "accepting" it

 

since that letter (sent by the creditor)is a breach of contract, the debtor has the option of putting up with the breach or excercising his right to regard that breach as a termination of the contract

 

the law takes the view that if he (the debtor) does NOTHING then the contract endures

 

Therefore irrespective of the date of the creditors unlawful termination letter, the contract is actually ended at the time the debtor accepts - he cannot (IMO) backdate his accceptance

Edited July 31, 2009 by diddydicky

[joemay]

thanks yes, but the thing is that there could be weeks or months between the creditor sending that unlawful termination letter and the debtor "accepting" it

 

since that letter (sent by the creditor)is a breach of contract, the debtor has the option of putting up with the breach or excercising his right to regard that breach as a termination of the contract

 

the law takes the view that if he (the debtor) does NOTHING then the contract endures

 

Therefore irrespective of the date of the creditors unlawful termination letter, the contract is actually ended at the time the debtor accepts - he cannot (IMO) backdate his accceptance

 

Yes I understand that, but I would have thought that stating you accept their termination as noted in their letter dated .... that you are confirming acceptance of when it occured. How can they then bring forward a termination date, surely both parties would have to agree with that also?

[larp]

Deleted

Edited August 2, 2009 by larp
posted in wrong place- still finding way around!

[diddydicky]

Yes I understand that, but I would have thought that stating you accept their termination as noted in their letter dated .... that you are confirming acceptance of when it occured. How can they then bring forward a termination date, surely both parties would have to agree with that also?

 

they cannot terminate the agreement without your consent, if it has not been a compliant termination

 

an unlawful repudiation letter by one party is just that - unlawful - so it he date it was written) is meaningless.

 

The contract ends Only when the injured party avails himself of the opportunity to accept the repudiation , so for instance if he immediately

stopped making payments (assuming he had previously been making them) would do it otherwise if you rely on a written acceptance then i know of no way in which you could backdate it (although i stand to be corrected)