Beneficial interest on goods under a HP Agreement.

[Peterbard]

The breach is because the debtor permitted goods to be taken.

 

It is of course in the interests of the finance company to claim the goods especially if they have a substantial value

[Peterbard]

From the finance company is point of view, they are presented with a situation where their goods are no longer with their client the fact the bailiff took them indicates financial l problem's. If this was a BOS agreement that fact alone would terminate possession.

[JustAnotherPerson]

The breach is because the debtor permitted goods to be taken.

 

There is a stark difference between the debtor saying "go ahead and seize the car" and the bailiff saying "i will seize the car", if its the latter I don't think you can stretch that to saying the debtor permitted the goods to be taken. That's like saying if you leave your back door open in the summer, you permit people to enter your property.. absurd is the word that springs to mind. Just because the car is available to seize and the bailiff does indeed seize the car, does not mean the debtor has given permission for it to be taken.

[Peterbard]

At the end of the day the goods are not with the debtor as far as the finance company is concerned that is all that is required.

 

If the debtor feels they were taken unlawfully he can claim that or even sue, that is a matter for him, this has however not been successful so far, hence the problem.

[Peterbard]

The judge in the CC injunction case that opened this can of worms needs a severe tolchocking. It seems to imho contradict Contract law and equity and give a bailiff carte blanche to take whatever they want no questions asked, square it with the finance co later.

 

Brass neck equity had nothing to do with these judgements they were made in law.

 

Given the past records of the claimantss if a judgement was made in equity the decision would have been the same.

[Leakie]

As I was confused with this going around in Circles

I went on Wikipedia,

 

What it said was:- The person or company using HP, does not own the item until the final payment has been made.

 

Initial deposit is paid Approximately 40% and the rest over an agreed period,

Once the final payment has been made the title of ownership is transferred.

 

The Hirer can make a final payment at any time, and the amount is adjusted accordingly.

but transfer of ownership will not happen until this pay6ment is made

 

 

 

If there is a breach of contract, then item can be reclaimed by the owner,

so in that case the Hirer has never owned the item.

 

 

Leakie

[Peterbard]

As I was confused with this going around in Circles

I went on Wikipedia,

 

What it said was:- The person or company using HP, does not own the item until the final payment has been made.

 

Initial deposit is paid Approximately 40% and the rest over an agreed period,

Once the final payment has been made the title of ownership is transferred.

 

The Hirer can make a final payment at any time, and the amount is adjusted accordingly.

but transfer of ownership will not happen until this pay6ment is made

 

 

 

If there is a breach of contract, then item can be reclaimed by the owner,

so in that case the Hirer has never owned the item.

 

 

Leakie

 

Nothing i going arround is circles Leakie, there are different subject being discussed.

 

The wikepedia is correct , the debtor does not have title(ownership) of the goods until that title is relinquished by the fiance company.

 

However that is not the end of the story, the bailiffs and now three lower courts say that, despite the company having title, the hirer does acquire an interest in the goods via the repayments he makes.(beneficial interest).

 

This is because in some rare cases the goods value of the car, will exceed the ammount due under the HP contract. These are cases where a large deposit has been made or the account with the company is nearly paid off.

 

The belief is that once the agreement is terminated and goods are sold there are sums available which will be passed back to the hirer.

 

Beneficial interest in another property is well known and is mainly cited under situations where money is held in trust and the beneficiary has funds which will be released on a certain occurrence or realization of a contractual term.

 

What we are attempting to do on here is examine the legal issues involved, no one can say how things wil pan out, because no one knows what the higher courts will say in the final analysis.

 

However currently the bailiffs have enough credibility (due to the failed cases) to let them take HP goods.

[Bailiff Advice]

That's like saying if you leave your back door open in the summer, you permit people to enter your property.. absurd is the word that springs to mind. Just because the car is available to seize and the bailiff does indeed seize the car, does not mean the debtor has given permission for it to be taken.

 

I think the main question that should be raised is WHY you wished to ressurect this thread. You last posted on 15th September and for reasons that are unclear chose to reopen the discussion. You have one opinion and Dodgeball has another.

 

I did mentioned quite some time that if you required answers to questions as to why the court made the decision that they did that you really should be asking the persons (or more correctly...persons) who are behind the litigation. That is where you will find your answers.

[Leakie]

I understand what you are saying ,

This will be the case, until the owner of the items disputes this with a higher court. or an owner of item then decides to challenge the EA, in court. under section 85 or what ever it is.

 

 

But in plain English the Hirer is not the owner, and this can not be pushed upon them until they make the final payment.

so the lower courts have gone against the principle of a HP agreement.

As UB has said the EA has taken a chance and won.

 

So we will have to wait until it goes Higher.

Leakie

[unclebulgaria67]

I cannot see why a finance company would not claim ownership of goods taken under control by an Enforcement Officer. It is their goods until the finance period has come to an end or it is terminated early due to the debtor defaulting on repayments.

 

As the law says, there must be reasonable belief that the debtor has some ownership of goods and can be sold, before they can be taken under control.

 

If there cannot be reasonable belief that HP goods can be sold, then they should not be taken under control. If the finance company does not claim ownership and goods are simply held to ransom without any intention to sell, then the debtor should take relevant action (part 85 ?).

 

I don't think the case has been made successfully that the one EC doing this, is actually following the law to the letter, but they are trying to make it sound like they are stretching the law, following one particular case which has not set precedent.

[JustAnotherPerson]

I think the main question that should be raised is WHY you wished to ressurect this thread. You last posted on 15th September and for reasons that are unclear chose to reopen the discussion. You have one opinion and Dodgeball has another.

 

I did mentioned quite some time that if you required answers to questions as to why the court made the decision that they did that you really should be asking the persons (or more correctly...persons) who are behind the litigation. That is where you will find your answers.

 

Are you objecting to me resurrecting the thread? The reason why I posted again was as stated, I came across dodgeball's definition of what he believes is beneficial interest from the John Kruse book and wanted his thoughts that was suggested by JK for example, bailiffs being liable for seizing goods on HP if there is a clause which gives rise to termination upon seizure, as well as JK's other opinion that goods under ROT clauses can't be seized.

 

So I don't think the reasons for me posting were unclear, I made that clear in the first sentence of my post: "Interestingly I came across what I believe to be your source on this definition of "beneficial interest" so I thought it would merit a further post".

 

Dodgeball has said he did not get his definition from that book so either coincidentally the definitions are pretty much exact, or that he received it from another source who maybe read the book, or perhaps its restated in any more modern books of JK given that the book I referred to was 2009. Either way, it just goes to show that neither JK nor Dodgeball have fully grasped that any argument on beneficial interest would result from equity law and how you should quantify an equitable/beneficial interest. There has to be a legal principle behind it all and the fact that there is no definition of beneficial interest in the TCE then the court has to work out what that definition is. Fortunately, that definition as already mentioned has been around for hundreds of years, so i'll assume the judges in the CC cases applied that definition.

 

As soon as everyone accepts that being the case, then the real discussion to take place is whether or not the debtor has an equitable interest and if so, how much of an interest does he have but I think that has already been answered in a roundabout way.

[Peterbard]

I understand what you are saying ,

This will be the case, until the owner of the items disputes this with a higher court. or an owner of item then decides to challenge the EA, in court. under section 85 or what ever it is.

 

 

But in plain English the Hirer is not the owner, and this can not be pushed upon them until they make the final payment.

so the lower courts have gone against the principle of a HP agreement.

As UB has said the EA has taken a chance and won.

 

So we will have to wait until it goes Higher.

Leakie

 

Yes and no , the finance company own the legal title to the car but the hirer owns part of the value .

 

Bit like if you sell your house, if you sell, part of the sale will go to you and the rest will go to the building society, even though, in that case you are the owner of the title, in other words they have an Interst in your property.

[Peterbard]

Are you objecting to me resurrecting the thread? The reason why I posted again was as stated, I came across dodgeball's definition of what he believes is beneficial interest from the John Kruse book and wanted his thoughts that was suggested by JK for example, bailiffs being liable for seizing goods on HP if there is a clause which gives rise to termination upon seizure, as well as JK's other opinion that goods under ROT clauses can't be seized.

 

So I don't think the reasons for me posting were unclear, I made that clear in the first sentence of my post: "Interestingly I came across what I believe to be your source on this definition of "beneficial interest" so I thought it would merit a further post".

 

Dodgeball has said he did not get his definition from that book so either coincidentally the definitions are pretty much exact, or that he received it from another source who maybe read the book, or perhaps its restated in any more modern books of JK given that the book I referred to was 2009. Either way, it just goes to show that neither JK nor Dodgeball have fully grasped that any argument on beneficial interest would result from equity law and how you should quantify an equitable/beneficial interest. There has to be a legal principle behind it all and the fact that there is no definition of beneficial interest in the TCE then the court has to work out what that definition is. Fortunately, that definition as already mentioned has been around for hundreds of years, so i'll assume the judges in the CC cases applied that definition.

 

As soon as everyone accepts that being the case, then the real discussion to take place is whether or not the debtor has an equitable interest and if so, how much of an interest does he have but I think that has already been answered in a roundabout way.

 

I did not read any definition anywhere Jap, it is obvious if yo understand the mechanisms. What is your probleml

[Bailiff Advice]

Are you objecting to me resurrecting the thread?

 

Fortunately, that definition as already mentioned has been around for hundreds of years, so i'll assume the judges in the CC cases applied that definition.

 

I'm certainly not objecting to you resurrecting the thread but what I would have expected, was for you to know whether the judge (in the recent case at least) applied the definition that you refer to. It really is that simple.

[Peterbard]

I cannot see why a finance company would not claim ownership of goods taken under control by an Enforcement Officer. It is their goods until the finance period has come to an end or it is terminated early due to the debtor defaulting on repayments.

 

As the law says, there must be reasonable belief that the debtor has some ownership of goods and can be sold, before they can be taken under control.

 

If there cannot be reasonable belief that HP goods can be sold, then they should not be taken under control. If the finance company does not claim ownership and goods are simply held to ransom without any intention to sell, then the debtor should take relevant action (part 85 ?).

 

I don't think the case has been made successfully that the one EC doing this, is actually following the law to the letter, but they are trying to make it sound like they are stretching the law, following one particular case which has not set precedent.

 

He. Law says goods can be taken if the debtor has a benificial Interst as defined in the TCE?

[Peterbard]

Jap there is no need for a description of benificial Interst, it is obviously the difference with goods value and what is owed,what is the mystery ? There is a reason why everyone but you can see this, think about it.

 

You have been reading about contract law and confused yourself on the points it is really just as simple as that.

 

If it helps and just for you as it is not really relevant to this discussion. Benificial interest is an equitable interest, basically because it does not confer title, the title is the creditors. But as you know (I am sure) equity comes to to title, as does the equity held in Hp goods.

 

Very last thing if you want to refer the quantity of equity as a percentage feel free but not knowing g the figures kinda makes it difficult.n:)

[JustAnotherPerson]

I'm certainly not objecting to you resurrecting the thread but what I would have expected, was for you to know whether the judge (in the recent case at least) applied the definition that you refer to. It really is that simple.

 

I'm making the assumption, because as we all agree the debtor has no legal interest because the HP agreements have carved this out. So if he has no legal ownership to the car or of the cars equity value by virtue of a legally binding contract (unless the option is exercised), then his only other right to those is through an equitable interest. The old English courts used to be divided into courts of law and courts of equity, and legislation combined the two and a person's legal right will always prevail except where it is unconscionable to do so which is when equity will step in i.e. an equitable interest. A contract which sets out the strict legal rights and ownership says the car belongs to the finance co. the only plausible explanation which the judge concluded was that the debtor had an equitable interest by way of the payments allowing him to rule that the car could be seized.

 

@dodgeball, beneficial interest is only mentioned once in Schedule 12 as I can see, but Schedule 12 does not explain what it actually means, its just two words so how can you say someone has a beneficial interest if there is no real definition to it?

[Peterbard]

10000 views ! Not bad for a thread no one reads

 

Looking back on how the distress for rent rules tackled the matter of HP and seizure of gods.

 

The 1908 amendments remained force right up until 2014. In regards to HP they are quite staunch, saying

 

This act does not apply to HP goods, however there is a provision in the HP act 1964, which removes this block if the goods are within the period between the default notice being issued and termination.

[AndyOrch]

Thats mostly Site Team views checking to see if your behaving

 

Andy

[Peterbard]

Thats mostly Site Team views checking to see if your behaving

 

Andy

 

Moi?

[unclebulgaria67]

He. Law says goods can be taken if the debtor has a benificial Interst as defined in the TCE?

 

Can you copy/paste or point to the legislation/clause where it states that third party owned property under a HP contract may be taken under control with a view to selling.

 

I have read schedule 12 and it does not state this explicitly.

[unclebulgaria67]

Moi?

 

Yes, chief trouble maker.

[Peterbard]

Can you copy/paste or point to the legislation/clause where it states that third party owned property under a HP contract may be taken under control with a view to selling.

 

I have read schedule 12 and it does not state this explicitly.

 

As said debtors goods are defined as "where the debtor has an Interst in goods".

Interst means benificial Interst, do you want me to copy the definition ?

[unclebulgaria67]

As said debtors goods are defined as "where the debtor has an Interst in goods".

Interst means benificial Interst, do you want me to copy the definition ?

 

I know what you are saying.

 

What i am looking for please, is where it states categorically that TCE applies to third party owned goods i.e those owned by a finance company.

 

Unless i missed it, schedule 12 only covers taking control of goods that can be sold. It does not say that they can sell third party owned goods and divide up the money afterwards.

[Peterbard]

Oh I see.

 

It turns out that these goods can be sold at or at least they have been. But appart from that , as I was told by a well known expert on bailiff matters, " it the ACT says certain goods can be seized, then they can".

 

But the issue of disposal of goods is a good one for discussion