What constitutes a debt?

[count orlok]

Most of us are lucky enough to receive gifts a least a couple of times a year (birthdays and Christmas), and these gifts come in many forms. It may be money such as cash, or a credit into a bank account. it may be a card that looks very much like a credit card (these have largely replaced the old vouchers one used to get) that can be used to pay for good or services (like a credit card), or it may be a gift delivered by the postman or a courier.

What is it that constitutes whether the money, goods or services you have received are a gift or need to be paid for? It can't be just a signature as one often has to sign for things such as deliveries to prove that they have arrived.

Say you ordered a telly, then changed your mind and changed the order, later on the supplier says you cannot have the telly you ordered because your credit limit was too low, but they sent you the one you originally ordered and canceled anyway, they also invoiced you for the it. You never signed any agreement for this telly, is it a gift?

Edited June 20, 2009 by count orlok
Tittle was supposed to read what constitues a gift?

[cerberusalert]

I draw your attention to section 127 (3) Consumer Credit Act 1974 which states

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

This is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 the agreement cannot be enforced.

 

Wilson v First County Trust Ltd [2001] EWCA Civ 633, Sir Andrew Morritt, Vice Chancellor said:

The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid

[count orlok]

thought so, my mum often gives me a voluntary disposition or gift

[raydetinu]

No its not a gift, and its not yours, but it is not up to you to return however they can come and get it, however if they dont!

[cerberusalert]

Unsolicited Goods and Services Act 1971

 

A consumer has rights under the Unsolicited Goods and Services Act 1971 ("the 1971 Act"). This Act confers the recipient of the goods with the right to:

 

 

 

"Use, deal with or dispose of {the goods} as if they were an unconditional gift to him, and any right of the sender to the goods shall be extinguished."

 

 

 

Unfortunately, these rights do not apply to a business that receives unsolicited goods and it was reasonable for you to believe that the goods were sent for business or trade purposes. Therefore, businesses must rely on general contractual principles. Delivery of goods can amount to an offer. Silence cannot be deemed as acceptance. But beware - conduct can. Therefore, if you retain and use the goods outside the specified trial period, you may be deemed in law to have accepted them.

 

Colemans-CTTS Solicitors - Articles - Unsolicited Goods

[Kraken1]

Assuming we are talking about something happening now, they s127(3) does not apply, as this section has been repealed and the value of Wilson is debatable because of this.

 

The unsolicited goods act point is a good one however.

 

Also, if it is a matter between family members then some 'gifts' are automatically classed as gifts in the absence of any other intention whereas others are by default considered to be loans. For example money given to a wife by the husband is considered a gift, but money given to a brother isn't. Or something. Can't remember which way it actually works though, or even if this is still good law, but I'm sure someone can earn a rep point for finding out.