Cap1 & CCA return

[tomterm8]

So a booklet is not good enough

 

AFAIK, the consensus is that a term can be embodied in the agreement by being in a booklet, as long as that booklet was presented to the debtor before they signed the agreement (or before the cancellation period starts.)

 

A prescribed term IMHO MUST be in the sig doc.

 

edit: anyway, I'm brain dead at the moment after writing this thing http://www.consumeractiongroup.co.uk/forum/show-post/post-1168869.html , so no more questions... today:)

[Having_A_Knightmare]

A prescribed term IMHO MUST be in the sig doc.

I would agree with that.

 

How do you prove the booklet was there or not there.

 

Bascially the creditor could just whip up some T&C and say they are the ones we give you at the time

[tomterm8]

I would agree with that.

 

How do you prove the booklet was there or not there.

 

Bascially the creditor could just whip up some T&C and say they are the ones we give you at the time

 

that's the reason any sensible legal draftsman includes a phrase along the lines of " I warrant that i have recieved and read the terms and conditions provided..." "or I have read the terms and conditions of the agreement, and agree to be bound by them..."

 

EDIT: forgot to mention that, the new 2004 regulations are much tighter, and 90% of the required information needs to be in the sig doc.

[Having_A_Knightmare]

i have recieved and read the terms and conditions provided

 

That is on most agreements /Applications.

 

Do you think if the above is on the agreement but they have not supplied the T&C after s78(1) request, they could turn around and say "well you must have read the T&C before you signed on the agreement"

[tomterm8]

That is on most agreements /Applications.

 

Do you think if the above is on the agreement but they have not supplied the T&C after s78(1) request, they could turn around and say "well you must have read the T&C before you signed on the agreement"

 

No.

[Having_A_Knightmare]

Thats good that was always a worry to me.

 

Tom whats your opinion on Section 59(1). It reads double dutch to me.

[shane5408]

That is on most agreements /Applications.

 

Do you think if the above is on the agreement but they have not supplied the T&C after s78(1) request, they could turn around and say "well you must have read the T&C before you signed on the agreement"

 

 

lol, to which your response would be prove it! remember the burden of evidence falls on creditor

[tomterm8]

Thats good that was always a worry to me.

 

Tom whats your opinion on Section 59(1). It reads double dutch to me.

 

An agreement isn't enforceable until it is executed.

 

To become fully executed, both parties must not cancel it before (a) any pre-conditions on binding both parties becomes fulfilled and (b) any cancellation period has been completed.

 

If the precondition never happens... or, the cancellation period never starts... or the debtor cancels the agreement... the document is unexecuted and therefore voidable.

 

If either party elects to void the contract, then all monies paid must be returned to the payor.

[Having_A_Knightmare]

Tom

 

excuse me if I come across a bit confused (still learning), so an application form is not classed as been properly executed.

[tomterm8]

Tom

 

excuse me if I come across a bit confused (still learning), so an application form is not classed as been properly executed.

 

An application form will almost never be properly executed, because it will contain information e.g. about your income, debts, age etc that is not properly included in a credit agreement.

 

a pre-contractual document is one where the credit agreement isn't finalised when the debtor signs it. For example, there might be a clause that says the agreement is subject to credit checks, to approval or etc.

 

While the precondition is not fulfilled, the agreement remains unexecuted.

 

They are not mutually exclusive: almost all application forms will be precontractual, until they have been approved (and all preconditions fulfilled). Once all preconditions are fulfilled, and any cancellation period finished, it will be executed. If the agreement isn't in the proper format, it will be improperly executed.

 

if an agreement is improperly executed, it remains so for the life of the agreement.

[ian1969uk]

Tom, the difficulty with these Egg agreements, then, is that they will just state that the condition was fulfilled and as they issued a card, that is their proof of this.

 

However, I'd go one step further and contest that these are void simply because (as S59 says) they purported to bind the debtor into a prospective regulated agreement.

[tomterm8]

Tom, the difficulty with these Egg agreements, then, is that they will just state that the condition was fulfilled and as they issued a card, that is their proof of this.

 

it depends what the precondition is, really, doesn't it... if the precondition was that they do a credit search they would have to prove they did it. Very difficult, since these records only show up for 6 months.

However, I'd go one step further and contest that these are void simply because (as S59 says) they purported to bind the debtor into a prospective regulated agreement.

 

I've used the argument with success, which i basically put down to the fact the opposition soliciter basically didn't know what they were talking about, and had only read the case an hour before the hearing... ( consumer credit specialists are rare and expensive beasts.)

 

I personally don't think it would get past a higher court, but you know what the higher courts are like... I might be wrong.

[shane5408]

interesting, i wasn't aware properly executed agreements take into account those prerequisite preconditions having been fufilled. I was under the impression executed meant both parties having signed the agreement, hence unexecuted / improper execution being only one party having signed.

[ian1969uk]

it depends what the precondition is, really, doesn't it... if the precondition was that they do a credit search they would have to prove they did it. Very difficult, since these records only show up for 6 months.

 

I suppose so, and the fact that a SAR has showed no record of an initial credit check, or indeed any pre-contract checks, they might be on sticky ground.

 

It's obviously one that has rattled the creditors as neither Egg nor Cahoot will even begin to discuss this issue with me.

[tomterm8]

interesting, i wasn't aware properly executed agreements take into account those prerequisite preconditions having been fufilled. I was under the impression executed meant both parties having signed the agreement, hence unexecuted / improper execution being only one party having signed.

 

Shane, it's the conjunction of specialised and general legal terms.

 

within the act, the definition of executed is:

 

“executed agreement ” means a document, signed by or on behalf of the parties, embodying the terms of a regulated agreement, or such of them as have been reduced to writing;

 

 

However, in my view no binding agreement exists or can exist while the offer is conditional, (in other words, it remains a prospective credit agreement)

 

At the moment the contract is voided, the agreement must be unexecuted, and since no binding contract exists until the preconditions are fulfilled (by s59(1) ), no regulated agreement exists since a contract inherantly requires a binding commitment on both parties.

 

All that exists is an agreement to enter an agreement, which is void by law.

 

That's just my view, I know peter's view is different.

 

 

Jeeze... I'm not sure anyone is ever going to understand this post... I must get out more.

[ncf355]

AFAIK, the consensus is that a term can be embodied in the agreement by being in a booklet, as long as that booklet was presented to the debtor before they signed the agreement (or before the cancellation period starts.)

 

A prescribed term IMHO MUST be in the sig doc.

 

edit: anyway, I'm brain dead at the moment after writing this thing http://www.consumeractiongroup.co.uk/forum/show-post/post-1168869.html , so no more questions... today:)

 

 

ALL terms of the agreement NOT just prescribed terms must be in the signature document itself, see:

 

From Wilson vs Hurstanger Ltd, COA June 2007

 

33. In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them.

 

 

 

Also

 

CCA 1974, Section 61 (1) (b) - signing of agreement

 

The document embodies all the terms of the agreement, other than implied terms

 

 

This is backed up by OFT Document 786a

[ian1969uk]

If that is the case, the OFT needs to amend it's guidance as they state clearly that some terms can be in another document as long as the agreement refers to it.

[Having_A_Knightmare]

If the agreement has not been executed properly does that make it unenforcable or can a judge decide otherwise.

[ian1969uk]

If it contains all prescribed terms and is signed by the debtor, a judge can enforce it.

[tomterm8]

ALL terms of the agreement NOT just prescribed terms must be in the signature document itself, see:

 

From Wilson vs Hurstanger Ltd, COA June 2007

 

33. In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them.

 

 

 

Also

 

CCA 1974, Section 61 (1) (b) - signing of agreement

 

The document embodies all the terms of the agreement, other than implied terms

 

 

This is backed up by OFT Document 786a

 

I'm desperatly trying to find the judgement, but I don't seem to be able to do so. I contacted paul, and got Wilson & Anor v Hurstanger Ltd [2007] EWCA Civ 299 (04 April 2007)

 

however, paragraph 33 isn't as specified.

 

This looks like an extract from a lower court judgement, because by my understanding is that the underlined part you mentioned is simply wrong.

 

"embodied" is specified in the act as:

 

189(4) A document embodies a provision if the provision is set out either in the document itself or in another document referred to in it.

 

61.

Signing of agreement.

— (1) A regulated agreement is not properly executed unless—

(a)

a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

 

(b)

the document embodies all the terms of the agreement, other than implied terms, and

 

©

the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

[Having_A_Knightmare]

So do you think he could enforce an application form with all the prescribed terms on. Or could you argue the S59(1)

[ncf355]

IMHO, an application form is pre contractual and so falls foul of S59

 

But as I said, all IMHO!

 

Come back to me in a few months and I might be able to tell you a courts opinion!

 

[tomterm8]

So do you think he could enforce an application form with all the prescribed terms on. Or could you argue the S59(1)

 

If they can prove all preconditions were met, and any cancellation period completed, then you can't argue s59(1). Otherwise, s59(1) is a winner.

[Having_A_Knightmare]

NCf

 

This is a major problem to me as well. I have had a few applications back with all the perscribed terms on.

 

I really dont know what to do for the best. Its getting frustrating.

[shane5408]

here's the full case report

Full case - Wilson v Hurstanger 2007.doc