Cause of action/statute barred

[Peterbard]

Blows my mind. There is a lot to read but it does seem that for a breach of contract it can only be breached when and if the payment is not made on the specified time and the leeway for the request to put it right has expired.

 

However if a contract says "if you continually breach your contract we may close your account" that might be different

 

Yes it depends on the type of contract.

 

As it says in 3.8 the situation regarding contracts which have to be terminated before demand s clear. A simple failure to pay does not in of itself repudiate an agreement, the breach must be severe, then accepted by the wronged party and the agreement terminated.

 

All the contractual clause does is provide an indication of when the creditor will consider the agreement to be in repudiatory breach.

[Peterbard]

The cause of action on simple contract accrues when the wronged party is able to reclaim his damages.

 

A simple contract can be anything, someone performing a task, and then you pay for it, this is a simple contract once the task is performed the payment is due, and the cause of action commences.

 

Similarly on a loan agreement for one payment.

One payment for the creditor and one re-payment by the debtor. The creditor would be able to reclaim the money at the end of the agreement period. All the payment would be due. (full damages COA)

 

So what about credit which is re-payed by installment and is under an agreement.

The creditor has no expectation of full repayment of the agreement until the end(termination of the agreement).

So his losses on a missed payment(damages) are only the missed payment(s) themselves, (this is all that is recoverable under common law).

 

The debtor may miss several payments during the course of such an agreement, and yet no demand for full repayment may be made and the account may continue right to fruition or until one or other party closes it.

 

The idea that the COA will somehow start and stop on every breach is as someone else said frankly silly(and contrary to the SOL), not only for the common sense reason, but because the full damages due would not be reclaimable as the contract would still be in force.(the contract saying that the balance will be due some time latter). This is the only damage incurred by the failure to meet the installment this is the only cause for any action, that is for the arrears on the account

.

(the people on here who went through the penalty charge situation with the banks will be well aware of

contractual breaches and the laws regarding unlawful penalties, but i digress)

 

So how does full repayments become due on a contract such as this ?

 

The answer is that the contract must be terminated.

All "agreement"(small a) to repay the loan under the contractual terms must be abandoned( Agreement repudiated) .

The creditor must be able to show that he will never otherwise recover his full damages whilst the agreement is in force.

 

This can be done via a term on the agreement which states, after a number of payments has been missed the creditor will consider the breach to be a repudiatory one, and will accept it by terminating the agreement.

 

Not forgetting that this "termination" clause will come under the purview of the fair terms in an agreement regulations, and it may be that a court would say that the termination of an agreement or presuming repudiatory breach after a minor violation would in fact be a contractual penalty and not lawful.

 

If there was no such term in an agreement then the creditor would have to convince a court that the number of missed payments or amount of arrears was enough to consider the agreement in serious breach..

 

In closing, the COA is not only about when a breach occurs, nor is it only about when the damages cam be reclaimed, in all cases damages must be due at the cause of action, and this is not usually the case in a single contractual breach alone.

 

I know I have said this before but this is my last post on here, thanks again for fletch, as he has made me re examine this and spend some more hours reading over material which I would never have thought of looking at.

 

I am sure that what I have written here is correct, as I have avoided the more challenging arrears of the subject but I think it does answer most commonly raised question.

Edited December 28, 2013 by Dodgeball
grammar

[charharp]

Dodge I've said this a million times and you've not answered it once because it proves you wrong beyond all doubt...

 

Its when the creditor has the option to, under the terms of the contract they have drawn up themselves, to demand full repayment. When they actually do is irrelevant

 

My previous post about an overdraft limitations running from last activity on the account is making more and more sense to me. A creditor can withdraw an overdraft any time they want so it's not going to determine limitations because they are free to do this whenever they want. So limitations is deferred to last payment in or out of the account or last written acknowledgement. If you're going to reply please answer the point in bold or otherwise it will be see as another foolish ploy to turn a blind eye to anything that proves you to be incorrect.

[fletch70]

Charharp

Sorry but on the other thread you seem to contradict yourself in that you say in my case you think it is from the date they demanded the repayment of the unarranged overdraft. That is sometime after the last credit.

Looking at it from another perspective, say I had a few hundred thousand in an account with the bank and in another account with the same branch I owed £1000 on an arranged OD. Because I had so much money going through one account the bank kept that OD up and running but I never used the account. Then after 7 years I took all my money out , you seem to be suggesting that the £1000 would be SB

[AndyOrch]

Keep this civil ...irrelevant posts removed.

[Peterbard]

 

Its when the creditor has the option to, under the terms of the contract they have drawn up themselves, to demand full repayment. When they actually do is irrelevant

 

 

I suppose I should answer this as it is a reasonable point.

 

This is correct as far as it goes, as the contractial clause will terminate the contract, of course wher no clause exists the creditor will have to prove repudiayory breach.

 

Indecently this is a million miles away from your initial contention which assumed COA on there last missed payment, so we are moving in the right direction.

 

As for overdrafts, how exactly would anyone know if the facility had been withdrawn if no notification was sent ?

Edited December 30, 2013 by Dodgeball
spel

[charharp]

Charharp

Sorry but on the other thread you seem to contradict yourself in that you say in my case you think it is from the date they demanded the repayment of the unarranged overdraft. That is sometime after the last credit.

Looking at it from another perspective, say I had a few hundred thousand in an account with the bank and in another account with the same branch I owed £1000 on an arranged OD. Because I had so much money going through one account the bank kept that OD up and running but I never used the account. Then after 7 years I took all my money out , you seem to be suggesting that the £1000 would be SB

 

Demanding repayment of unarranged overdraft and it not being payed would in my eyes definitely begin limitations, I am speculating with my reasoning that it would run from last activity on the account but I think it makes sense. Anyhow what would the difference be, 1 month? The main point is I don't think it runs from when they recall it, although you may need a court hearing to get that proved which I don't have the energy for.

 

I think the £1,000 probably would be statute barred, however I have seen many T&C's state that the will close an overdraft if the account is inactive for 12 months. So worst case scenario is limitations would run from 12 months of inactivity because in the rules it says they can demand repayment at this point.

 

Why has my reply to Brig's post been blocked?

[charharp]

I suppose I should answer this as it is a reasonable point.

 

This is correct as far as it goes, as the contractial clause will terminate the contract, of course wher no clause exists the creditor will have to prove repudiayory breach.

 

Indecently this is a million miles away from your initial contention which assumed COA on there last missed payment, so we are moving in the right direction.

 

As for overdrafts, how exactly would anyone know if the facility had been withdrawn if no notification was sent ?

 

Dodge that is nonsense. The creditor first has the option to demand payment when you miss one payment so how is it a million miles away when it's the same point. You clearly have lost track.

 

Again....it's when they have the option to so it doesn't matter when they recall the overdraft.

[Peterbard]

Dodge that is nonsense. The creditor first has the option to demand payment when you miss one payment so how is it a million miles away when it's the same point. You clearly have lost track.

 

Again....it's when they have the option to so it doesn't matter when they recall the overdraft.

 

It seems pointless me re posting case law and statute already present on this threads, as it does the functions of simple contract law.

So I will leave you with your misconceptions

[ims21]

Final warning to all on this thread where the cap fits.

 

There will be no further posts which contain personal abuse, insults or other material designed to incite a flame war.

 

I draw your attention to 3.5 of the site rules here

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?9-Forum-rules.-Please-read-these-before-posting

 

Any such posts will simply be removed and moderation will almost certainly follow.

[fletch70]

Hi Charharp

Well in my case there was some time difference between last payment in and demand. Whatever the time difference it could be trouble as once proceedings are issued then the clock stops.

 

I think having the option to recall and having the option to start proceedings are two very different things IMHO. In my experience any OD or credit account can be recalled/cancelled at any time

 

I know a couple of posts were removed because they did not add to the discussion. One was from the Brig and another was my reply

[fletch70]

Thank you IMS. We get passionate and defensive all at the same time if that makes sense. I would rather not be moderated again

[ims21]

Thank you IMS. We get passionate and defensive all at the same time if that makes sense. I would rather not be moderated again

 

Sensible mature discussion - Yes

 

Childish personal abuse - No

 

It really is that simple.

[charharp]

Dodgeballs quotings of prehistoric cases do invite sarcasm.

[ims21]

Dodgeballs quotings of prehistoric cases do invite sarcasm.

 

As I've said....discussion yes.....personal insults no.

 

Bear in mind that some people might find the topic of this thread interesting so I don't think it is too much to ask to keep it on topic.

 

If people cannot post without being insulting then they had best not post.

 

Again, as I've said, it really is quite simple.

[fletch70]

The thread was started to have an open and honest discussion about when the SB clock started ticking. It has divided some people and , at least for me , made me really think about it.

One thing I have learnt is that no matter how old a high court ruling is , unless it is overturned by a higher court or parliament then it still stands. If a lower court does not follow that ruling then the case is open to appeal however sometimes it is just not worth while to appeal

[Peterbard]

Dodgeballs quotings of prehistoric cases do invite sarcasm.

 

The problem with making a statement like this is that you really should be able to justify it with a reasoned argument.

 

Does this apply to all historic authority and case law, or just the bits quoted by me and others on here for instance, if so which bits fill you with such scorn and derision.

 

I have just spent some time on the Bailiff section on here, bailiff law is largely made up of late 18th and some 19th century common law, does this mean that this is all so much hokum,or is it just the case law which differs form your perception in this subject

[charharp]

I can't remember the details dodge but your cases didn't prove anything. BMW v Hart only strengthened my argument, the other stuff you pulled did nothing for your cause.

[Peterbard]

I can't remember the details dodge but your cases didn't prove anything. BMW v Hart only strengthened my argument, the other stuff you pulled did nothing for your cause.

 

I see the case in question must have made a great impression on you, if you cannot bring it to mind.

 

BMW was quite recent if my memory serves, which argument in particular does it strengthen and how.

[Peterbard]

I see the case in question must have made a great impression on you, if you cannot bring it to mind.

 

BMW was quite recent if my memory serves, which argument in particular does it strengthen and how.

 

Just to jog your memory. BMW vs Hart was an appeal which held that the termination clause on a contract delayed the cause of action away from the contractual breach in an agreement.

 

Was this your "argument" ?

Edited December 30, 2013 by Dodgeball
spell

[Peterbard]

[charharp]

BMW couldn't claim the money until the agreement had been terminated. Very unusual case, judge said so. Was initially ruled barred than overturned. Loans a and credit card agreements state they can demand full repayment after one missed payment.

[fletch70]

The fact it was overturned shows to my mind that the law evolves. If bmw hadn't appealed this discussion would be premature.

If as you say they can demand full payment after 1 missed payment that would need to be written into the contract and if,as in my cap 1 contract it says under normal circumstances we will give you 30 days that would be 2 months after last payment.

Of course if you take the stance that it is from the time court action can be brought that would add another 14+service days to the argument.

As i have said before i am not entirely convinced by. dodgeballs argument that termination has to actually

take place

[Mike_hawk]

The fact it was overturned shows to my mind that the law evolves. If bmw hadn't appealed this discussion would be premature.

If as you say they can demand full payment after 1 missed payment that would need to be written into the contract and if,as in my cap 1 contract it says under normal circumstances we will give you 30 days that would be 2 months after last payment.

Of course if you take the stance that it is from the time court action can be brought that would add another 14+service days to the argument.

As i have said before i am not entirely convinced by. dodgeballs argument that termination has to actually

take place

 

Try concomitant

[fletch70]

But i am convinced it is a legal minefield and i would prefer not to have to use it as a defence unless forced.