Cause of action/statute barred

[charharp]

Thanks mike.

 

My point is that if conditions can be personal it blows the idea that there's an industry standard out of the water.

 

The only thing this comment shows is your lack of common sense.

[caro]

Provide one that goes against it.

 

Please prove to me that there are industry standard t&c's because like mike hawk, mine are all different.

[Mike_hawk]

OMG!!!! It's the same argument that has been proved wrong a million times on this thread!!! ITS NOT WHEN THEY MAKE THE DEMAND ITS WHEN THEY HAVE THE OPTION TO!!!!!!

 

 

 

You do realise you're arguing with an extract of Santanders T's & C's??

[Guest]

....., this can only be post termination.

 

 

This is what was illustrated in BMW, the rest is just particulars of the case. The point is that the COA does not just run from the breach it has to run from when the creditor is able to action the recovery of the sums due under the contract(am I repeating myself)

 

This is all there is to it

 

incorrect, as per my posts.

[caro]

The only thing this comment shows is your lack of common sense.

 

Comments like this don't help. Let's keep to the topic and only make sensible posts that add to the discussion.

[Peterbard]

Yes it is for the creditor to decide when the breach is significant enough to be considered repudiatory, he then has to send the statutory notice before he terminates this is when the COA starts.

 

It has to be because if it were any earlier the creditor would not get six years to enforce(this is the earliest point that he can demand payment)

[Peterbard]

incorrect, as per my posts.

 

Sorry why, please bear with me there is a lot of posts on here now.

[fletch70]

There is a post on here where Dodge puts together two bits of relevant legislation. LA 1980 and CCA s87 (i think)

This made sense and appears to be the only really relevant piece of law that has been quoted.

I really do hate having to agree with people, i even have to agree with some of the site team occasionally

[caro]

Irrelevant to limitations. Personal variety will be in regards to interest rates ect. I'd say you was clutching at straws but it would be an insult to people who clutch at straws.

 

Are you saying that it's only t&c's in relation to limitations are the same?

[Peterbard]

in bmw, clause 12 wasn't held as in breach as such, hence the reliance on the notice as cause. and, in that case it was said that a notice may not be a determining factor, depends on each case. ie, if there is no deemed breach, then yes a notice/demand could be regarded as the cause

 

Do you mean this one ?

 

A cause of action requires a breach of contract I am afraid, there has to be something to base the action on. The other factor is that the creditor has to be able to make the action, both are elements of the COA.

[Peterbard]

There is a post on here where Dodge puts together two bits of relevant legislation. LA 1980 and CCA s87 (i think)

This made sense and appears to be the only really relevant piece of law that has been quoted.

I really do hate having to agree with people, i even have to agree with some of the site team occasionally

 

Thats OK you will get over it

[Guest]

Sorry why, please bear with me there is a lot of posts on here now.

 

 

generally, cause of action runs from the breach imo. if there's no prior breach, then yes otherwise from any notice etc that is unsatisfied. see my posts for eg.

Edited December 10, 2013 by Ford

[Guest]

Do you mean this one ?

 

A cause of action requires a breach of contract I am afraid,

 

precisely, hence #341 etc

re a regulated matter where a dn would be applicable, the dn is not the cause of action. the breach is. time runs from the cause.

ps, don't be afraid

Edited December 11, 2013 by Ford

[Peterbard]

just posing a q re this;

'the expression 'cause of action' means the factual situation stated by the plaintiff which, if substantiated, entitles him to a remedy against the defendant. if, when analysed, it discloses a breach of contract, it accrues when that breach occurs, from which moment time begins to run against the plantiff. the fact that actual damage is not suffered by him until some date later than the breach (eg the dn?) does not extend the time within which he must sue'

 

Yes this is out of context. It refers to consequences of breach.

 

If breach of contract does not have an immediate effect then the COA cannot be delayed it must run from the actual breach. Perhaps a defaulted loan payment which means that the creditor later cannot buy a hat, the COA runs from the default not from the wardrobe failure.

[Guest]

Yes this is out of context. It refers to consequences of breach.

 

If breach of contract does not have an immediate effect then the COA cannot be delayed it must run from the actual breach. ....

 

its not out of context! it refers to/explains Cause of action and limitation in contract. cause runs from the breach, and cannot be delayed by issuing a dn say 5 years later. can you really see a court allowing a dn issued eg 5 years later to extend the time to 11years?

a dn is different to a cause of action. a dn is re relief, not cause.

Edited December 11, 2013 by Ford

[Peterbard]

yes, cause runs from the breach, and cannot be delayed by issuing a dn 5 years later. can you really see a court allowing a dn issued 5 years later to extend the time?

a dn is different to a cause of action. a dn is re relief, not cause.

 

When an agreement is breached(payment missed) a creditor cannot enforce, because the agreement is still in place, so if his six years started to run from that point how much time would he actually have ?

 

He must be able to demand payment, A DN is a statutory information notice.

[Guest]

relief v cause. the relief (enforcement) comes after the dn (if applicable). the cause comes before s87 ie 'by reason of any breach' (as you yourself agree, the breach is the cause). time runs from the cause of action, not from any subsequent dn.

if s87 n/a or no breach prior, then any subsequent unsatisfied notice/demand becomes a breach/cause, hence the cause then. eg where terms say can call in with demand for full payment, if not paid then cause.

that prior quote is Cheshire, Fifoot and is entirely relevant, and sums it up.

Edited December 11, 2013 by Ford

[Mike_hawk]

 

He must be able to demand payment, A DN is a statutory information notice.

 

 

But is it [dn] a requirement which effects upon accrual of cause or is it subordinate to an express term? Where is the settled law that confirms this?

[sequenci]

That backs up the procedural bar argument completely.

[Peterbard]

Keeping in mind the last paragraph of the previous post have a look at the requirement of the CCA 1974

 

87 Need for default notice.

 

(1)Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

 

(a)to terminate the agreement, or

 

(b)to demand earlier payment of any sum, or

 

My emphasis

 

There is his as mentioned earlier

[Peterbard]

But is it [dn] a requirement which effects upon accrual of cause or is it subordinate to an express term? Where is the settled law that confirms this?

 

 

A Dn will always be a requirement irrespective of what is in the contract, contracting out of the act is forbidden section 173

[Peterbard]

Perhaps if I put the two sections next to each other

 

the sol

3)Where a demand in writing for repayment of the debt under a contract of loan to which this section applies is made by or on behalf of the creditor (or, where there are joint creditors, by or on behalf of any one of them) section 5 of this Act shall thereupon apply as if the cause of action to recover the debt had accrued on the date on which the demand was made.

 

The CCA

 

87 Need for default notice.

 

(1)Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

 

(a)to terminate the agreement, or

 

(b)to demand earlier payment of any sum, or

 

And also this

[Peterbard]

The SOL itself does not talk about breach(5-6) it just refers to the different kinds of contract. The reason being that the COA on a simple contract would be when it terminates, this is when payment become due and the creditor can demand it.

 

Earlier demand upon breach would depend on earlier termination of contract, which as said countless times by many learned sources will demand on the issuance of a DN on a regulated agreement.

 

This also why open ended agreement have there own section , because they do not terminate, the total due has to be on demand, the act itself says that the cause of action will be moved up until the point of demand, so I do not really see the cause of any argument.

 

Again the requirements of the CCA a DN would have to be met fist.

 

Hastily edit this post, this is not to say that the breach is not needed, it is because if the debtor paid the loan on termination(due date) their would be no COA.

Edited December 11, 2013 by Dodgeball

[sequenci]

A Dn will always be a requirement irrespective of what is in the contract, contracting out of the act is forbidden section 173

 

Absolutely.

 

The more I'm reading, though, the more I'm starting to believe that the actual default notice and the whole 14 days thing doesn't matter. The point in which the default notice can be served due to the contractual breach on part of the debtor is when the time will start to run - as the creditor is entitled to sue for the full monies owing - save for the procedural matter of the sending of the statutory default notice + the requisite 14 days. This is pretty much what Guest and Lloyd in the ‘Encyclopedia of Consumer Credit Law’, Sweet and Maxwell, states at 2-088.

[Peterbard]

Absolutely.

 

The more I'm reading, though, the more I'm starting to believe that the actual default notice and the whole 14 days thing doesn't matter. The point in which the default notice can be served due to the contractual breach on part of the debtor is when the time will start to run - as the creditor is entitled to sue for the full monies owing - save for the procedural matter of the sending of the statutory default notice + the requisite 14 days. This is pretty much what Guest and Lloyd in the ‘Encyclopedia of Consumer Credit Law’, Sweet and Maxwell, states at 2-088.

 

I don't agree, the default notice does not demand repayment of the total debt, it demands payment of the contractual breach (the arrears), the demand for repayment of the debt comes after the 14 days and only if the DN is not paid.

 

This is the position expressed in the piece from practical law earlier, a demand for payment would be merely procedural under normal circumstances this is shown in the case law quoted, because the demand for payment is actionable from the completion of the contract, this is not the case on a regulated loan the requirements of the CCA delay this and give the debtor chance to remedy.

 

Basically as said the COA can only run from termination of the contract and a CCA contract cannot be terminated until a DN has been issued.