can we have a new section in the forum for links to claims with contractual interest

[millymollymoo]

I agree:D

 

Milly X:)

[millymollymoo]

Has anyone claimed contractual interest from Goldfish...apart from me that is:) Cannot see anything on any goldfish links!!!

 

MillyX:)

[millymollymoo]

Ooh I wondered why, thanks bill:)

 

Milly X

[millymollymoo]

Hi Bong, your addition to the template is very good:) I note you have added this term'consumer contract legislation,' does mutality and repricocacy, excuse the spelling!!! not give a clear enough argument anymore .. What about fairness and balance? as this also goes hand in hand with advantageous terms to the banks and not the consumer.

Milly X:)

[millymollymoo]

I think your hard work and obvious reading up bong is excellent:D and I understand what you are saying now. I am contemplating challenging goldfish if it gets that far as to a hearing, because the terms of contract are indeed unfair to the consumer and besides they have made a booboo with me and asserted the term by saying that when I signed my agreement it did not allow for me to claim Contractual Interest it is their righ t

 

I have requested my CCA, however have seen their T &C's and they are incorrect as this is not stated, so they are telling porky pies:rolleyes: So their statement to me is extremely unfair and I am prepared to challenge this in court. I have drafted points I will use, however this is rough and really only makes sense to me as to pointers in which to produce in court!!!

 

I also beleive that the fairness and balance argument can be used as the T& C's that we agreed to anyway were deemed unfair as it had no clause to include our rights to redress if they made mistakes. Well mine dont!

 

Whichever way you look at it they would of been wrong to include an exclusion to our rights to claim redress that is unfair , and also the fact that no clause is included is unfair as it is advantageous to them and unfair to us.!!!

 

They need to change their t & C to include mutuality and reciprocy. i.E If we make a mistake, you can claim back this mistake with the same rate of interest that has been applied. LIKE NEVER HEY!!!

 

Confusing hey!! :)

 

Milly X

[millymollymoo]

Bong incase I do not make sense!

 

your quote:

 

I also don't think there is any implied term in the contract. I read in one extract from case law, that "the court will only imply terms which must necessarily have been in the contemplation of the parties in making the contract". Now, I don't know if that has to mean both parties or just one of them. Where the contract is ambiguous and says something like "interest will be charged at the authorised/unauthorised rate on unauthorised balances or transactions" I believe it could be argued that this applies both ways - ie to the bank and the customer, but I think most contracts specify that this is the bank's right to charge interest and not vice versa. Saying that a contract is silent on the matter doesn't necessarily imply a term that we think it is fair to add.

--------------------

 

exactly this is deemed unfair as there is no redress for the consumer ans part of the unfair contracts legilisation is this:

 

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term

Am I reading that right or have I got myself confused.

Milly X

 

 

Milly X

[millymollymoo]

Hey bong, you say what you like do not worry about good books!!!That is just how I see it, others may have different views and not agree with me or you at all and that is entirely up to them.

 

Wheres the others when you need them:rolleyes:

 

Personally, no I think the letter you have one does cover everything in your explanation. Well done bong

 

Milly X

[millymollymoo]

I detect a change in air!!!

 

Hopefully all this will make it easier for people to claim their contractual interest as currently it seems very hazy and confusing

 

Eargerly awaiting Vamps new sheets and Moo's template letters!!

 

Hi

bong needs crediting not me as she has taken the time to produce the help we are all needing, as in the template letters. Check the thread and you will see. I was just ading a opinion. Good luck claiming though:)

 

Milly X

[millymollymoo]

Bong adding on to your bits . I cannot keep away from M & R!!!

I believe this rate to be justified under the principle of mutuality and reciprocity implied within the meaning of the consumer contract legislation, which provides that where a contract has not been individually negotiated, the party dealing with the consumer cannot insert advantageous terms into contracts where there is no comparable term in favour of the consumer

say shut up and I will:D

Milly X

[millymollymoo]

How about this Milly -

 

This interest is claimed on the basis of consumer contract legislation, which provides that where a contract has not been individually negotiated, the party dealing with the consumer cannot insert advantageous terms into contracts where there is no comparable term in favour of the consumer. Therefore the contract term which permits the bank to charge interest on unauthorised transactions at the rate of x% is deemed to be unfair, unless there is a mutual or reciprocal term permitting the customer to apply the same rate of interest on any unauthorised withdrawals from the customer's account by the bank. For the avoidance of any doubt, my agreement to the bank's terms and conditions does not constitute authorisation to the bank to apply penalty charges (and interest thereon) to my account, or to profit in an unlawful manner out of my account breaches, and these withdrawals are therefore considered to be unauthorised.

 

 

Let me know what you think...

 

 

Wow bong , brilliant way of putting the argument across:) , soz been busy with my two year old and missed this, he says he's got 'chicken flu' I had to laugh:-) , he's got toncillitis at the mo, cold cough etc and he heard me and O/H talking about bird flu then chicken pox that is going around his pre school an his assumption is that he has 'chicken flu'

 

They do make you laugh:D

 

 

Milly X

[millymollymoo]

Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts

 

Annex

 

TERMS REFERRED TO IN ARTICLE 3 (3)

 

1. Terms which have the object or effect of:

 

(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation

Hi

Could this bit above in red be related to using against penalty charges in my argument???

Milly X

[millymollymoo]

Bong

 

I'm preparing my POC for two more Abbey claims, did you manage to find any case law relating to unjust enrichment?

 

Or indeed has anyone else, that could relate to our claims or circumstances?

 

I am going to have a look but thought id ask./

 

BTW Bong your suggested POC re interest is looking good, i have printed it out and will fiddle with it to fit my case and can post it back here if anyone thinks it worthwhile (I don't to be honest) and will obviously post it in My own threads.

 

Glenn

 

Hi Glenn have something called the law of restitution; It names acase that might help clarify what you are asking.

 

The law of restitution is the law of gains-based recovery. It is to be contrasted with the law of compensation, which is the law of loss-based recovery. Obligations to make restitution and obligations to pay compensation are each a type of legal response to events in the real world. When a court orders restitution it orders the defendant to give up his gains to the claimant. When a court orders compensation it orders the defendant to compensate the claimant for his loss.

Restitution, like other legal responses, can be triggered by any one of a variety of causative events. These are events in the real world which trigger a legal response. Broadly speaking, an obligation to make restitution can be triggered by two different types of causative event:

1. Wrongs
   
2. Unjust enrichment

It is arguable that other types of causative event can also trigger an obligation to make restitution, but the above two are by far the most important. They will be considered in turn. It should be pointed out at this stage that the following analysis is based on English law. However, it is largely an analysis of principle rather than case law and therefore should have considerable relevance for most common law systems.

Contents

 

• 1 (1) Restitution for wrongs
• 2 (2) Restitution to reverse unjust enrichment
• 3 (3) Theological Meaning
• 4 References
  
• 5 See also

//

(1) Restitution for wrongs

 

Imagine that A commits a wrong against B and B sues in respect of that wrong. A will certainly be liable to pay compensation to B. If B seeks compensation then the court award will be measured by reference to the loss that B has suffered as a result of A’s wrongful act. However, in certain circumstances it will be open to B to seek restitution rather than compensation. It will be in his interest to do so if the profit that A made by his wrongful act is greater than the loss suffered by B.

Whether or not a claimant can seek restitution for a wrong depends to a large extent on the particular wrong in question. For example, in English law, restitution for breach of fiduciary duty is widely available but restitution for breach of contract is fairly exceptional. The wrong could be of any one of the following types:

1. A statutory tort
   
2. A common law tort
   
3. An equitable wrong
   
4. A breach of contract

Notice that (1)-(4) are all causative events (see above). The law responds to each of them by imposing an obligation to pay compensatory damages. Restitution for wrongs is the subject which deals with the issue of when exactly the law also responds by imposing an obligation to make restitution.

Example. In Attorney-General v Blake [2001] 1 AC 268, an English court found itself faced with the following claim. The defendant had made a profit somewhere in the region of £60,000 as a direct result of breaching his contract with the claimant. The claimant was undoubtedly entitled to claim compensatory damages but had suffered little or no identifiable loss. It therefore decided to seek restitution for the wrong of breach of contract. The claimant won the case and the defendant was ordered to pay over his profits to the claimant. However, the court was careful to point out that the normal legal response to a breach of contract is to award compensation. An order to make restitution was said to be available only in exceptional circumstances.

 

(2) Restitution to reverse unjust enrichment

 

go here

Unjust enrichment - Wikipedia, the free encyclopedia

 

Milly X

[millymollymoo]

Glenn, yes that sounds even better than what I found. Oh these banks do not know what will hit them !

 

By the way I am going off line to have a little bit more nosing around the Internet to see more on this and I am wondering if I should change all that text to a link . Let us know and I will change it later.

 

Milly X

[millymollymoo]

Help me I have found this index in pdf and I think it has everything we need, but do not know the title of this publication.

 

I have provided the link http://www.hartpub.co.uk/pdf/1841133345.pdf

 

Milly X

 

Found it now!!!

 

Books

[millymollymoo]

Milly i just found somehting about 'disgorgement' which is interesting and may be relvant at least as a concept.

 

See here CJO - Abstract

 

GLenn

 

 

Hi Glenn right I think you are on to the right path here

 

Have a read here as it discusses disgorgement claims for the profits of wrongdoings and quotes that ' a person shall not be permitted to gain profits from his wrongdoing' also that a person may be entitled to treat the contract as discharged by this breach and bring a claim for the value of money or other benefits conferred by a victim upon the perpetrator; are recoverable in order to avoid the Unjust Enrichment of the perpetrator.

 

http://llr.lls.edu/volumes/v36-issue2/mccamus.pdf

 

As you are the finder of this very useful information concerning disgorgement,perhaps you could discuss with a Mod and see their views as I think you may have something good here .

 

By the way what docs are you using to prove Unjust Enrichment?

 

Milly X

[millymollymoo]

Bong/Milly

 

Sorry haven't been online much, busy weekend.

 

That was my problem Milly, i didn't have any case law references for unjust enrichment when i went to my allocation hearing.

 

If i did my claim might have included all contractual interest instead of a lesser rate.

 

Still i have quite a bit of reading to do before going further, the stuff i found, the stuff you guys have linked/found plus some other reading.

 

Ill have a look over the next few days and keep my eye on this thread in case anything else comes up.

 

Glenn

 

 

Hi Glenn:)

 

I'm looking too!!! Make sure you post up any case relevant i will too {once or if found!!!}. I have been reading so much lately me heads splitting!!

 

Milly X