Discussion threaad on Question regarding statute barred debt & EU/other 'laws' that come into play

[Newborn]

As I understand it, the first thing is to see which law decides both the applicable law and the jurisdiction (two different things) according to EU legislation (which also covers the different jurisdictions of England & wales, NI and Scotland):

 

For a debt contract signed before 02/04/1991 it is UK common law (whatever that is).

For a debt contract dated between 02/04/1991 and 17/12/2009 it is the Rome Convention.

For debt contracts after 17/12/2009 it is 'Rome I'.

 

See here: crippslink.com/index.php?option=com_content&view=article&catid=26%3Acdr-publications&id=805%3Arome-1-the-law-applicable-to-contracts&Itemid=537

 

This though does not include the 'consumer' aspect. As an example see:

 

If you are domiciled in Scotland - ec.europa.eu/civiljustice/applicable_law/applicable_law_sco_en.htm - (I think this is Rome convention).

 

If you are domiciled in England - http://ec.europa.eu/civiljustice/applicable_law/applicable_law_eng_en.htm - (I think this is Rome convention).

 

There is also one for each EU country on the same europa website.

 

If you look at many UK lenders' T&Cs these days they actually say that the applicable law is the law of the country the consumer has on their application form. But even that does not guarantee anything for the lender it seems.

 

Under EU law it appears that the consumer will always be sued in the country in which they are domiciled. But the consumer can sue the provider either where they live or where the provider has their base. (Remember this is consumer law designed to be on the consumer's side.)

 

As I read it, as a consumer in the EU you can gain the protection of the law that is most beneficial to you, but I am happy to be proven wrong. Especially where the law is mandatory in either: the country in which you signed the doc or the country you are being sued in.

 

As an example, if it is possible to contract out of consumer protection in Germany where you signed the contract and you are sued in the UK where you live where you can't contract out then UK law will protect you.

 

And remember that under s.13 of the Scottish Prescriptions Act 1973 the relevant parts of that Act are mandatory (can't be contracted out of). So a contract you signed when in Scotland saying it is governed by English law should still reach the buffers at the Scottish five year point - as long as you tell the DCA/courts. But be sure of your ground!

 

As one source I looked at said, a lot of this is undecided as yet! I just wish it was simpler, but then it has to be as complex as possible, otherwise how could DCAs fool the public and how could lawyers earn their extortionate fees?

[dx100uk]

??????????

 

 

if you've can prove you've been resident in Scotland for 3 mts

then send the Scottish SB letter

 

debt is gone extinguished dead.

 

dx

[Newborn]

Depends whether it is a business debt or a consumer debt.

 

If it is a business debt and both parties lived in the same region when the contract was signed and the applicable law is stated on the paperwork then the lawsuit may be brought in a jurisdiction outside of Scotland.

[rameses_qc]

As I understand it, the first thing is to see which law decides both the applicable law and the jurisdiction (two different things) according to EU legislation (which also covers the different jurisdictions of England & wales, NI and Scotland):

 

For a debt contract signed before 02/04/1991 it is UK common law (whatever that is).

For a debt contract dated between 02/04/1991 and 17/12/2009 it is the Rome Convention.

For debt contracts after 17/12/2009 it is 'Rome I'.

 

See here: crippslink.com/index.php?option=com_content&view=article&catid=26%3Acdr-publications&id=805%3Arome-1-the-law-applicable-to-contracts&Itemid=537

 

This though does not include the 'consumer' aspect. As an example see:

 

If you are domiciled in Scotland - ec.europa.eu/civiljustice/applicable_law/applicable_law_sco_en.htm - (I think this is Rome convention).

 

If you are domiciled in England - http://ec.europa.eu/civiljustice/applicable_law/applicable_law_eng_en.htm - (I think this is Rome convention).

 

There is also one for each EU country on the same europa website.

 

If you look at many UK lenders' T&Cs these days they actually say that the applicable law is the law of the country the consumer has on their application form. But even that does not guarantee anything for the lender it seems.

 

Under EU law it appears that the consumer will always be sued in the country in which they are domiciled. But the consumer can sue the provider either where they live or where the provider has their base. (Remember this is consumer law designed to be on the consumer's side.)

 

As I read it, as a consumer in the EU you can gain the protection of the law that is most beneficial to you, but I am happy to be proven wrong. Especially where the law is mandatory in either: the country in which you signed the doc or the country you are being sued in.

 

As an example, if it is possible to contract out of consumer protection in Germany where you signed the contract and you are sued in the UK where you live where you can't contract out then UK law will protect you.

 

And remember that under s.13 of the Scottish Prescriptions Act 1973 the relevant parts of that Act are mandatory (can't be contracted out of). So a contract you signed when in Scotland saying it is governed by English law should still reach the buffers at the Scottish five year point - as long as you tell the DCA/courts. But be sure of your ground!

 

As one source I looked at said, a lot of this is undecided as yet! I just wish it was simpler, but then it has to be as complex as possible, otherwise how could DCAs fool the public and how could lawyers earn their extortionate fees?

 

Hmmmm....Are you 100% sure that this doesn't apply only to commercial contracts (between businesses and not consumer and business)? English common law is law applicable to the whole country and is usually made by Judicial decision

[Newborn]

I was looking at sources like this - http://www.out-law.com/page-479

 

Near the bottom it looks into the differences between B2B and B2C dealing.

 

One of the things that I found out was that, in the absence of any other guidance, the applicable law over a contract is derived from the concept of the 'country closest to it'. And this was normally down to the party that had the 'substantial performance'. In English law it seems that party is the one that provides the service, so it would appear that in B2B cases the applicable law is where the lender is based. But in B2C cases it is the domicility of where the consumer made the contract because that is what the EU consumer protection law says.

 

When I first started digging I thought there would be a simple answer, but it seems there is not.

[Newborn]

As an extra, are you aware that when a debt is extinguished under the Scottish 1973 Act the lender cannot claim tax relief on the loss?

 

See - http://www.hmrc.gov.uk/manuals/ihtmanual/ihtm28384.htm

 

So the more of these the DCAs hold the worse for them if they don't recover! As long as they are good little boys and girls and fill in the forms correctly.

[dx100uk]

oh god FOTL twaddle

 

dx

[Newborn]

I can only go by what I read, it is just my interpretation. Please explain what you mean by twaddle. This FOTL thing seems to be quoted as an answer to anything people don't agree with but without explaining why.

[dx100uk]

freedom of the land - masons twaddle

 

magna carta and all that crap

 

FOTL twaddle

 

forget it

 

dx

[Peterbard]

I think the prevailing laws would reflect the jurisdiction of the where the creditor sought to enforce the agreement.

[Newborn]

But EU law says that jurisdiction law would be subject to any mandatory laws of the land where the consumer took out the contract. And the Scottish Prescriptions Act 1973 is mandatory law if a consumer takes out a contract when domiciled in Scotland. This does not change just because they move to England or anywhere else even if the contract states that it is subject to English law.

 

But conversely if the consumer signs the contract when domiciled in England and moves to Scotland they are covered as they have to be sued in Scotland where it would be against Scottish public policy to allow a suit after the five years had passed.

 

As I said before it is more complex than it seems.

[Peterbard]

What if the contract was signed 3 and a half miles out to see in international waters ?

 

In this case the agreement is regulated under the cca which is common to both, the only difference is the SOL, This is not a factor in the taking out of the contract.

[Newborn]

But neither party would be domiciled 'at sea'. Each would have to be domiciled somewhere and that would decide the applicable law and the jurisdiction. then it would be down to three things:

 

The date of the contract

Whether it was business to business or business to consumer

where the parties were domiciled at the contract signing

[Peterbard]

I don't think that either pieces of limitation legislation say anything about where the cause of action occurred, For the purposes of limitation it isn;t relevant. The cause of action only becomes an issue when the creditor tires to enforce and the debtor raises the statute as defense, this would be in the court hearing the case.

 

The formation of the contract may be a matter for concern if it were regulated under a different system but it isn't

[Newborn]

It isn't about what those individual pieces of legislation say. It is what EU legislation says and that seems quite clear. Where there is a consumer involved they are protected by the best of either the law where they signed the contract or where they are domiciled at the point where the law suit is brought against them.

[Peterbard]

This isn' t consumer law . I understand what you are saying and i have read the papers on harmonization throughout the member counties, but this is not the same thing. If it were the Scottish system would be to the consumer advantage anyway wouldn't it.

 

People go to different countries all the time to take advantage of their different laws, regarding tax or libel or many things, there is no treaty involving the limitation act.

[Newborn]

Not so, the cause of action under EU law only concerns non-contractual tort. The law governing a contract is determined on the date it is made. That is when the relevant mandatory laws are decided. Bear in mind that many UK credit agreements today say just that - in fact they say that the applicable law will be governed by the address on the application form (Eng&W, Scot or NI). It then does not matter where you move to or where you default.

[Peterbard]

I think that there is a mix up of various bits of legislation here.

 

The European union is and has been engaged in harmonizing all European credit laws for its 25 or so members for some time, the goal is total " harmonization" when in effect all member states will have similar consumer protection laws. This is why the various directives have been slowly making their way into the cca and banking legislation. When there is a conflict as you say the legislation that best benefits the consumer in that location wins he day.

 

This is different entirely than the question posed by this thread (as I take it) which is, what law would apply to an action bought in a Scottish court, the answer i feel is self evident.

Edited June 22, 2013 by Dodgeball

[Newborn]

The answers at 3 and 4 above show how confusing this can be. The substantive law is decided where the contract is formed within the limits of UK and EU law - so of course several bits of legislation are going to apply. But trying to apply one single response to this is the same as when a judge asks you 'why is that agreement wrong?' and you just say 'the case of Wilson sir', and are then surprised that you lost (as some have).

 

Scottish courts can decide (have jurisdiction over) cases where foreign laws also apply.

 

What would you say if the claimant's barrister showed you the agreement from this case and it says quite clearly on it that the applicable law is that of NI, or more likely that of England? It's what you signed so it must be right so NI or English statute of limitations applies not the Scots one, 'the fact you are being sued in Scotland doesn't alter that' they could say. And as we know we can't rely on judges to get us out of anything, we have to understand and do it ourselves.

[rameses_qc]

Example: You take out a loan in London, move to Glasgow and default. The Law applicable to the loan contract is English Law unless it states otherwise. If you move to Paris and default, English Law still prevails, not French Law.

[Peterbard]

Example: You take out a loan in London, move to Glasgow and default. The Law applicable to the loan contract is English Law unless it states otherwise. If you move to Paris and default, English Law still prevails, not French Law.

 

True because the agreement is still under contract. There is nothing stopping the creditor bringing the case in Scotland or applying for an enforcement order, it is just that the statute bar if mentioned in defense will prevent its issuance.

 

The contract as you say is an English/Scottish one however it is not the validity of the contract that is the problem this has been terminated it is the enforcement(action) for sums due under it.

Edited June 22, 2013 by Dodgeball

[Newborn]

Where you default has no bearing, a cause of action only applies to non-contractual tort. It all depends on the applicable law at the time the contract was formed - that is the bedrock of contract law after all. Enforcement of the sums owed can only be derived from the contract itself - otherwise trying to prove a debt is not enforceable because the contract was faulty due to missing terms would never work.

 

1. If you live in Edinburgh, take out a loan then default before moving to Swansea what then? As a consumer you have to be sued in the country you are domiciled in. Which statute of limitations applies and why? Bearing in mind that when forming the contract you are not allowed to opt out of the Scots prescriptions Act.
    
   
2. And what if you moved to Wales before defaulting?
   

 

In both cases above the contract was signed in the same place. So if consumers have to be sued in the place they are officially domiciled what would happen?

[dx100uk]

sri newborn you are wrong

 

and it bad to hi-jack a thread to keep arguing with people

 

I personally know and have helped several caggers with debts to find them written off when in court in Scotland

when the likes of Lowell/link/arrow/carter have tried

 

they were between 5 and 6 yrs old

they were all southern debts

 

they are now extinguished

 

if you have been on voters/ctax etc for three months

you are deemed as being under the 5yrs rule for Scotland

 

if these off tpic discussion posts continue

they will be moved to a thread of their own

 

 

dx

[Newborn]

I was only trying to discuss around this issue and point out what I've read on legal sites.

[Peterbard]

If you want to start a new thread on the subject I will be happy to discuss this with you further