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Builders merchant personal guarantee - small claims court action made (Scotland)


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Builders merchant "Credit Account Application Form" had no terms and conditions printed on it or attached to it

but stated "by signing this agreement you are agreeing to accept the terms and conditions of ************,

a copy of which is available on request".

I did not suspect there to be any onerous conditions and certainly not a personal guarantee clause,

so I did not request a copy of the terms and conditions.

It would now appear that under their clause headed "Financial Condition" the following wording appears.

"If the company becomes insolvent or goes into liquidation, insofar as I am a director of a limited company.,

I hereby personally guarantee performance of all the Applicant company's obligations to ************ against all and any losses incurred by them.

I further acknowledge and have had notice that such a guarantee and indemnity obligations will be enforceable against me in my individual capacity".

The builders merchant have now raised a small claims action against me for the repayment of £2500,

do I have any defence ?

Please note that the law of Scotland applies.

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Thread moved to the appropriate forum......

 

Hi dgt700 and welcome to CAG....

 

Perhaps if you could expand on the debt...how it occurred....have you signed as a director of a limited company and acting Guarantor?

 

Regards

 

Andy

We could do with some help from you.

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Hi Andy

I signed a credit account application form for a builders merchant in the capacity of a sole director of a limited company.

Unfortunately the company went into liquidation last year.

There were no terms and conditions available to me at the time of signing

therefore I was not aware of one of their conditions appertaining to a personal guarantee.

I also did not receive notice that such a guarantee and indemnity obligations would be enforceable against me in my individual capacity.

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I would think if you didn't see the T&C before signing you have a very good case.

 

 

dx

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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Okay lets deal with the claim.

 

Take a read of the following...its not ideally suited to your claim but if you could respond to the points that are applicable in your case...then we have the details of the claim.

Copy and post your responses here....

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.-**UPDATED-December-2014**(1-Viewing)-nbsp

 

Regards

 

Andy

We could do with some help from you.

PLEASE HELP US TO KEEP THIS SITE RUNNING EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHER

 

Have we helped you ...?         Please Donate button to the Consumer Action Group - The National Consumer Service

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  • 6 months later...

Thread is 7 months old skintandfat

We could do with some help from you.

PLEASE HELP US TO KEEP THIS SITE RUNNING EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHER

 

Have we helped you ...?         Please Donate button to the Consumer Action Group - The National Consumer Service

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This gentleman's situation (although 7 months' old), was operating a Ltd Company as a Director.

A limited company has refuge from bankruptcy where he has what is called a legal personality (his legal Ltd Company): Company Act 2006.

He also has his individual personality (as non legal company) for which his personal assets cannot be taken were he to go bankrupt.

By legal personality it means incorporation as though he were a company insofar as his Ltd Company would be liable for any 'company' assets were an insolvency to occur.

On the other hand, he could also have argued that the terms of contract were not incorporated into the contract at common law: as per Denning's ratio in Shoe Lane (1967).

A sole trader is a company that is not recognised as having a legal personality so is not incorporated.

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