Are bank charges penalties?

[Perseus]

Quite! lol

[Aequitas]

There are far too many posts for me to reply to them all individually, so I shall restrict myself to some general observations, not in any particular order of importance.

 

 

1. I am not and never have been a bank employee.
   
2. I believe too many people are making too much money. I believe that too many people are making too much money out of money. I believe that bank charges are a rip off.
   
3. I have every sympathy for those who have suffered high bank charges.
   
4. It is not true that banks can charge what they like. They set out their charges. They include in their conditions the right to increase their charges. The Unfair Terms in Consumer Contracts Regulations allow this.
   
5. Banks manipulate things so that they can make charges, but they can only do this if you run your account in such a way as to let them.
   
6. Banks are not what they were.
   
7. I started this thread to make the very narrow legal point that bank charges are not penalties. I did not seem to get that point across. The purpose of my last post was to try and explain why I think the law is as it is. In the latter case I over-simplified and generalised. It was not intended to be an essay to impress a tutor. The analogies may not hold up to close scrutiny; they were only put in to try and make a point.
   
8. I am looking at the question purely as a lawyer and try to explain the law as I see it. Just because I maintain that the law is on the bank's side does not mean that I am on the bank's side.
   
9. There is a cloud of confusion surrounding the word “penalty”. I am using it in the precise legal sense of a fixed payment to be made by way of compensation for a breach of contract which exceeds the loss occasioned by the breach suffered by the party claiming it. It is also important to remember that calling something a penalty, even in a contract, does not make it a penalty if it is in fact not a penalty. An excessive charge made for a service is not a penalty. Finally, and just for the record, a payment to be made arising from a breach of contract is not a penalty if it is a genuine pre-estimate of loss.
   
10. The notion of a penalty in the strict legal sense is inextricably linked to a breach of contract. If there is no breach of contract there can be no penalty. Any payment made under a contract that is made otherwise than following a breach of contract cannot be a penalty. I remain to be convinced that any of the circumstances which give rise to a bank charge is a breach of contract.
    
11. What some of you seem to be doing is arguing that you have been charged a penalty (which of course I would argue is an excessive charge for a service) therefore there is a breach of contract. It should be the other way round: there has been a breach of contract, the charge to be made is excessive, therefore it is a penalty.
    

[Aequitas]

I do hope whatsaname does work for the banks or firm of solicitors because with that sort of competition we ain't got no worries

 

I feel I need to reply to this post since it questions my competence.

 

I have conceded that I am not a mercantile lawyer. My opinion is that of a lawyer competent in his own field and is based on such mercantile law as I know, which is not a lot. It is entirely possible that there is a raft of relevant law of which I am entirely ignorant.

 

Since you are a lawyer perhaps you will refute my (legal) points one by one quoting your authorities. If you persuade me to your point of view I shall concede gracefully. If you fail to do so I shall not resort to observations on your competence since I do not know you.

[Perseus]

Recent T&C's from Lloyds TSB account...

(reference your item 10 above!)

 

9. Your Account

9.1 We provide you with your Card so that you can operate your Account more conveniently. The Card itself does not give you an automatic overdraft or any other form of credit. We will be entitled, under the terms of the account, to charge interest at our standard rate for unauthorised overdrafts and to debit that interest and any resulting bank charges from your Account.

9.2 If you do use your Card to create an overdraft we have not agreed or to exceed an agreed overdraft limit, you will have broken the terms of the Account and you must repay the unagreed amount immediately.

 

It therefore confirms that a 'breach of contract' can occurr does it not?

[Rooster-UK]

You have stated that you don't live in this country. It may well be that your understanding of the law is correct in your own country.

In the UK, the basis of Common Law is contained in the following Bill of Rights.......

 

 

BILL OF RIGHTS

 

[1689]

 

An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown

 

Whereas the Lords Spiritual and Temporal and Commons assembled at Westminster, lawfully, fully and freely representing all the estates of the people of this realm, did upon the thirteenth day of February in the year of our Lord one thousand six hundred eighty-eight [old style date] present unto their Majesties, then called and known by the names and style of William and Mary, prince and princess of Orange, being present in their proper persons, a certain declaration in writing made by the said Lords and Commons in the words following, viz.:

• Whereas the late King James the Second, by the assistance of divers evil counsellors, judges and ministers employed by him, did endeavour to subvert and extirpate the Protestant religion and the laws and liberties of this kingdom;
  
• By assuming and exercising a power of dispensing with and suspending of laws and the execution of laws without consent of Parliament; By committing and prosecuting divers worthy prelates for humbly petitioning to be excused from concurring to the said assumed power;
  
• By issuing and causing to be executed a commission under the great seal for erecting a court called the Court of Commissioners for Ecclesiastical Causes;
  
• By levying money for and to the use of the Crown by pretence of prerogative for other time and in other manner than the same was granted by Parliament;
  
• By raising and keeping a standing army within this kingdom in time of peace without consent of Parliament, and quartering soldiers contrary to law;
  
• By causing several good subjects being Protestants to be disarmed at the same time when papists were both armed and employed contrary to law;
  
• By violating the freedom of election of members to serve in Parliament;
  
• By prosecutions in the Court of King's Bench for matters and causes cognizable only in Parliament, and by divers other arbitrary and illegal courses;
  
• And whereas of late years partial corrupt and unqualified persons have been returned and served on juries in trials, and particularly divers jurors in trials for high treason which were not freeholders;
  
• And excessive bail hath been required of persons committed in criminal cases to elude the benefit of the laws made for the liberty of the subjects;
  
• And excessive fines have been imposed;
  
• And illegal and cruel punishments inflicted;
  
• And several grants and promises made of fines and forfeitures before any conviction or judgment against the persons upon whom the same were to be levied;
  
• All which are utterly and directly contrary to the known laws and statutes and freedom of this realm;

And whereas the said late King James the Second having abdicated the government and the throne being thereby vacant, his Highness the prince of Orange (whom it hath pleased Almighty God to make the glorious instrument of delivering this kingdom from popery and arbitrary power) did (by the advice of the Lords Spiritual and Temporal and divers principal persons of the Commons) cause letters to be written to the Lords Spiritual and Temporal being Protestants, and other letters to the several counties, cities, universities, boroughs and cinque ports, for the choosing of such persons to represent them as were of right to be sent to Parliament, to meet and sit at Westminster upon the two and twentieth day of January in this year one thousand six hundred eighty and eight [old style date], in order to such an establishment as that their religion, laws and liberties might not again be in danger of being subverted, upon which letters elections having been accordingly made;

And thereupon the said Lords Spiritual and Temporal and Commons, pursuant to their respective letters and elections, being now assembled in a full and free representative of this nation, taking into their most serious consideration the best means for attaining the ends aforesaid, do in the first place (as their ancestors in like case have usually done) for the vindicating and asserting their ancient rights and liberties declare:

• That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal;
  
• That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal;
  
• That the commission for erecting the late Court of Commissioners for Ecclesiastical Causes, and all other commissions and courts of like nature, are illegal and pernicious;
  
• That levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal;
  
• That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal;
  
• That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law;
  
• That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;
  
• That election of members of Parliament ought to be free;
  
• That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament;
  
• That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;
  
• That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders;
  
• That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void;
  
• And that for redress of all grievances, and for the amending, strengthening and preserving of the laws, Parliaments ought to be held frequently.

And they do claim, demand and insist upon all and singular the premises as their undoubted rights and liberties, and that no declarations, judgments, doings or proceedings to the prejudice of the people in any of the said premises ought in any wise to be drawn hereafter into consequence or example; to which demand of their rights they are particularly encouraged by the declaration of his Highness the prince of Orange as being the only means for obtaining a full redress and remedy therein.

Having therefore an entire confidence that his said Highness the prince of Orange will perfect the deliverance so far advanced by him, and will still preserve them from the violation of their rights which they have here asserted, and from all other attempts upon their religion, rights and liberties, the said Lords Spiritual and Temporal and Commons assembled at Westminster do resolve that William and Mary, prince and princess of Orange, be and be declared king and queen of England, France and Ireland and the dominions thereunto belonging, to hold the crown and royal dignity of the said kingdoms and dominions to them, the said prince and princess, during their lives and the life of the survivor to them, and that the sole and full exercise of the regal power be only in and executed by the said prince of Orange in the names of the said prince and princess during their joint lives, and after their deceases the said crown and royal dignity of the same kingdoms and dominions to be to the heirs of the body of the said princess, and for default of such issue to the Princess Anne of Denmark and the heirs of her body, and for default of such issue to the heirs of the body of the said prince of Orange. And the Lords Spiritual and Temporal and Commons do pray the said prince and princess to accept the same accordingly.

And that the oaths hereafter mentioned be taken by all persons of whom the oaths have allegiance and supremacy might be required by law, instead of them; and that the said oaths of allegiance and supremacy be abrogated.

"I, A.B., do sincerely promise and swear that I will be faithful and bear true allegiance to their Majesties King William and Queen Mary. So help me God."

"I, A.B., do swear that I do from my heart abhor, detest and abjure as impious and heretical this damnable doctrine and position, that princes excommunicated or deprived by the Pope or any authority of the see of Rome may be deposed or murdered by their subjects or any other whatsoever. And I do declare that no foreign prince, person, prelate, state or potentate hath or ought to have any jurisdiction, power, superiority, pre-eminence or authority, ecclesiastical or spiritual, within this realm. So help me God."

Upon which their said Majesties did accept the crown and royal dignity of the kingdoms of England, France and Ireland, and the dominions thereunto belonging, according to the resolution and desire of the said Lords and Commons contained in the said declaration.

And thereupon their Majesties were pleased that the said Lords Spiritual and Temporal and Commons, being the two Houses of Parliament, should continue to sit, and with their Majesties' royal concurrence make effectual provision for the settlement of the religion, laws and liberties of this kingdom, so that the same for the future might not be in danger again of being subverted, to which the said Lords Spiritual and Temporal and Commons did agree, and proceed to act accordingly.

Now in pursuance of the premises the said Lords Spiritual and Temporal and Commons in Parliament assembled, for the ratifying, confirming and establishing the said declaration and the articles, clauses, matters and things therein contained by the force of law made in due form by authority of Parliament, do pray that it may be declared and enacted that all and singular the rights and liberties asserted and claimed in the said declaration are the true, ancient and indubitable rights and liberties of the people of this kingdom, and so shall be esteemed, allowed, adjudged, deemed and taken to be; and that all and every the particulars aforesaid shall be firmly and strictly holden and observed as they are expressed in the said declaration, and all officers and ministers whatsoever shall serve their Majesties and their successors according to the same in all time to come.

And the said Lords Spiritual and Temporal and Commons, seriously considering how it hath pleased Almighty God in his marvellous providence and merciful goodness to this nation to provide and preserve their said Majesties' royal persons most happily to reign over us upon the throne of their ancestors, for which they render unto him from the bottom of their hearts their humblest thanks and praises, do truly, firmly, assuredly and in the sincerity of their hearts think, and do hereby recognize, acknowledge and declare, that King James the Second having abdicated the government, and their Majesties having accepted the crown and royal dignity as aforesaid, their said Majesties did become, were, are and of right ought to be by the laws of this realm our sovereign liege lord and lady, king and queen of England, France and Ireland and the dominions thereunto belonging, in and to whose princely persons the royal state, crown and dignity of the said realms with all honours, styles, titles, regalities, prerogatives, powers, jurisdictions and authorities to the same belonging and appertaining are most fully, rightfully and entirely invested and incorporated, united and annexed. And for preventing all questions and divisions in this realm by reason of any pretended titles to the crown, and for preserving a certainty in the succession thereof, in and upon which the unity, peace, tranquility and safety of this nation doth under God wholly consist and depend, the said Lords Spiritual and Temporal and Commons do beseech their Majesties that it may be enacted, established and declared, that the crown and regal government of the said kingdoms and dominions, with all and singular the premises thereunto belonging and appertaining, shall be and continue to their said Majesties and the survivor of them during their lives and the life of the survivor of them, and that the entire, perfect and full exercise of the regal power and government be only in and executed by his Majesty in the names of both their Majesties during their joint lives; and after their deceases the said crown and premises shall be and remain to the heirs of the body of her Majesty, and for default of such issue to her Royal Highness the Princess Anne of Denmark and the heirs of the body of his said Majesty; and thereunto the said Lords Spiritual and Temporal and Commons do in the name of all the people aforesaid most humbly and faithfully submit themselves, their heirs and posterities for ever, and do faithfully promise that they will stand to, maintain and defend their said Majesties, and also the limitation and succession of the crown herein specified and contained, to the utmost of their powers with their lives and estates against all persons whatsoever that shall attempt anything to the contrary.

And whereas it hath been found by experience that it is inconsistent with the safety and welfare of this Protestant kingdom to be governed by a popish prince, or by any king or queen marrying a papist, the said Lords Spiritual and Temporal and Commons do further pray that it may be enacted, that all and every person and persons that is, are or shall be reconciled to or shall hold communion with the see or Church of Rome, or shall profess the popish religion, or shall marry a papist, shall be excluded and be for ever incapable to inherit, possess or enjoy the crown and government of this realm and Ireland and the dominions thereunto belonging or any part of the same, or to have, use or exercise any regal power, authority or jurisdiction within the same; and in all and every such case or cases the people of these realms shall be and are hereby absolved of their allegiance; and the said crown and government shall from time to time descend to and be enjoyed by such person or persons being Protestants as should have inherited and enjoyed the same in case the said person or persons so reconciled, holding communion or professing or marrying as aforesaid were naturally dead; and that every king and queen of this realm who at any time hereafter shall come to and succeed in the imperial crown of this kingdom shall on the first day of the meeting of the first Parliament next after his or her coming to the crown, sitting in his or her throne in the House of Peers in the presence of the Lords and Commons therein assembled, or at his or her coronation before such person or persons who shall administer the coronation oath to him or her at the time of his or her taking the said oath (which shall first happen), make, subscribe and audibly repeat the declaration mentioned in the statute made in the thirtieth year of the reign of King Charles the Second entitled, An Act for the more effectual preserving the king's person and government by disabling papists from sitting in either House of Parliament. But if it shall happen that such king or queen upon his or her succession to the crown of this realm shall be under the age of twelve years, then every such king or queen shall make, subscribe and audibly repeat the same declaration at his or her coronation or the first day of the meeting of the first Parliament as aforesaid which shall first happen after such king or queen shall have attained the said age of twelve years.

All which their Majesties are contented and pleased shall be declared, enacted and established by authority of this present Parliament, and shall stand, remain and be the law of this realm for ever; and the same are by their said Majesties, by and with the advice and consent of the Lords Spiritual and Temporal and Commons in Parliament assembled and by the authority of the same, declared, enacted and established accordingly.

II. And be it further declared and enacted by the authority aforesaid, that from and after this present session of Parliament no dispensation by non obstante of or to any statute or any part thereof shall be allowed, but that the same shall be held void and of no effect, except a dispensation be allowed of in such statute, and except in such cases as shall be specially provided for by one or more bill or bills to be passed during this present session of Parliament.

III. Provided that no charter or grant or pardon granted before the three and twentieth day of October in the year of our Lord one thousand six hundred eighty-nine [old style date] shall be any ways impeached or invalidated by this Act, but that the same shall be and remain of the same force and effect in law and no other than as if this Act had never been made.

 

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

Now please stop worrying the newbies.

[Rooster-UK]

See also.......

 

The History of the Common Law of England by Matthew Hale 1713

 

I. Concerning the Distribution of the Law of England into Common Law, and Statute Law. And First, concerning the Statute Law, or Acts of Parliament

 

The Laws of England may aptly enough be divided into two Kinds, viz. Lex Scripta, the written Law: and Lex non Scripta, the unwritten Law: For although (as shall be shewn hereafter) all the Laws of this Kingdom have some Monuments or Memorials thereof in Writing, yet all of them have not their Original in Writing; for some of those Laws have obtain'd their Force by immemorial Usage or Custom, and such Laws are properly call'd Leges non Scriptae, or unwritten Laws or Customs.

Those Laws therefore, that I call Leges Scriptae, or written Laws, are such as are usually called Statute Laws, or Acts of Parliament, which are originally reduced into Writing before they are enacted, or receive any binding Power, every such Law being in the first Instance formally drawn up in Writing, and made, as it were, a Tripartite lndenture, between the King, the Lords and the Commons; for without the concurrent Consent of all those Three Parts of the Legislature, no such Law is, or can be made: But the Kings of this Realm, with the Advice and Consent of both Houses of Parliament, have Power to make New Laws, or to alter, repeal, or enforce the Old. And this has been done in all Succession of Ages.

Now, Statute Laws, or Acts of Parliament, are of Two Kinds, viz. First, Those Statutes which were made before Time of Memory; and, Secondly, Those Statutes which were made within or since Time of Memory; wherein observe, That according to a juridical Account and legal Signification, Time within Memory is the Time of Limitation in a Writ of Right; which by the Statute of Westminster 1. cap. 38. was settled, and reduced to the Beginning of the Reign of King Richard I or Ex prima Coronatione Regis Richardi Primi, who began his Reign the 6th of July 1189, and was crown'd the 3d of September following: So that whatsoever was before that Time, is before Time of Memory; and what is since that Time, is, in a legal Sense, said to be within or since the Time of Memory.

And therefore it is, that those Statutes or Acts of Parliament that were made before the Beginning of the Reign of King Richard I and have not since been repealed or altered, either by contrary Usage, or by subsequent Acts of Parliament, are now accounted Part of the Lex non Scripta, being as it were incorporated thereinto, and become a Part of the Common Law; and in Truth, such Statutes are not now pleadable as Acts of Parliament, (because what is before Time of Memory is supposed without a Beginning, or at least such a Beginning as the Law takes Notice of) but they obtain their Strength by meer immemorial Usage or Custom.

And doubtless, many of those Things that now obtain as Common Law, had their Original by Parliamentary Acts or Constitutions, made in Writing by the King, Lords and Commons; though those Acts are now either not extant, or if extant, were made before Time of Memory; and the Evidence of the Truth hereof will easily appear, for that in many of those old Acts of Parliament that were made before Time of Memory, and are yet extant, we many find many of those Laws enacted which now obtain merely as Common Law, or the General Custom of the Realm: And were the rest of those Laws extant, probably the Footsteps of the Original Institution of many more Laws that now obtain meerly as Common Law, or Customary Laws, by immemorial Usage, would appear to have been at first Statute Laws, or Acts of Parliament.

Those ancient Acts of Parliament which are ranged under the Head of Leges non Scriptae, or Customary Laws, as being made before Time of Memory, are to be considered under Two Periods: Viz. First, Such as were made before the coming in of King William I commonly called, The Conqueror; or, Secondly, Such as intervened between his coming in, and the Beginning of the Reign of Richard I which is the legal Limitation of Time of Memory.

The former Sort of these Laws are mentioned by our ancient Historians, especially by Brompton, and are now collected into one Volume by William Lambard, Esq; in his Tractatus de priscis Anglorum Legibus, being a Collection of the Laws of the Kings, Ina, Alfred, Edward, Athelstane, Edmond, Edgar, Ethelred, Canutus, and of Edward te Confessor; which last Body of Laws, compiled by Edward the Confessor, as they were more full and perfect than the rest, and better accommodated to the then State of Things, so they were such whereof the English were always very zealous, as being the great Rule and Standard of their Rights and Liberties: Whereof more hereafter.

The second Sort are those Edicts, Acts of Parliament, or Laws, that were made after the coming in of King William, commonly named, The Conqueror, and before the beginning of the Reign of King Richard I and more especially are those which follow; whereof I shall make but a brief Remembrance here, because it will be necessary in the Sequel of this Discourse (it may be more than once) to resume the Mention of them; and besides, Mr Selden, in his Book called, Janus Anglorum, has given a full Account of those Laws; so that at present it will be sufficient for me, briefly to collect the Heads or Divisions of them, under the Reigns of those several Kings wherein they were made, viz.

First, The Laws of King William I. These consisted in a great Measure of the Repetition of the Laws of King Edward the Confessor, and of the enforcing them by his own Authority, and the Assent of Parliament, at the Request of the English; and some new Laws were added by himself with the like Assent of Parliament, relating to Military Tenures, and the Preservation of the publick Peace of the Kingdom; all which are mention'd by Mr Lambert, in the Tractate before-mentioned, but more fully by Mr Selden, in his Collections and Observations upon Eadmerus.

Secondly, We find little of new Laws after this, till the Time of King Henry I, who besides the Confirmation of the Laws of the Confessor, and of King William I brought in a new Volume of Laws, which to this Day are extant, and called the Laws of King Henry I. The entire Collection of these is entered in the Red Book of the Exchequer, and from thence are transcribed and published by the Care of Sir Roger Twisden, in the latter End of Mr Lambart's Book before-mention'd; what the Success of those Laws were in the Time of King Steven, and King Henry 2 we shall see hereafter: But they did not much obtain in England, and are now for the most Part become wholly obsolete, and in Effect quite antiquated.

Thirdly, The next considerable Body of Acts of Parliament, were those made under the Reign of King Henry 2 commonly called, The Constitiutions of Clarendon; what they were, appears best in Hoveden and Mat. Paris, under the years of that King. We have little Memory else of any considerable Laws enacted in this King's Time, except his Assizes, and such Laws as related to the Forests; which were afterwards improv'd under the Reign of King Richard I. But of this hereafter, more at large.

And this shall serve for a short Instance of those Statutes, or Acts of Parliament, that were made before Time of Memnory; whereof, as we have no Authentical Records, but only Transcripts, either in our ancient Historians, or other Books and Manuscripts; so they being Things done before Time of Memory, obtain at this Day no further than as by Usage and Custom they are, as it were, engrafted into the Body of the Common Law, and made a Part thereof.

And now I come to those Leges Scriptae, or Acts of Parliament, which were made since or within the Time of Memory, viz. Since the Beginning of the Reign of Richard I and those I shall divide into Two General Heads, viz. Those we usually call the Old Statutes, and those we usually call the New or later Statutes: And because I would prefix some certain Time or Boundary between them, I shall call those the Old Statutes which end with the Reign of King Edward 2 and those I shall call the New or later Statutes which begin with the Reign of King Edward 3 and so are derived through a Succession of Kings and Queens down to this Day, by a continued and orderly Series.

Touching these later Sort I shall say nothing, for they all keep an orderly and regular Series of Time, and are extant upon Record, either in the Parliament Rolls, or in the Statute Rolls of King Edward 3 and those Kings that follow: For excepting some few years in the Beginning of K. Edward 3. i.e. 2, 3, 7, 8 & 9 Edw. 3. all the Parliament Rolls that ever were since that Time have been preserved, and are extant; and, for the most Part, the Petitions upon which the Acts were drawn up, or the very Acts themselves.

Now therefore touching the elder Acts of Parliament, viz. Those that were made between the First Year of the Reign of K. Richard I and the last year of K. Edward 2 we have little extant in any authentical History; and nothing in any authentical Record touching Acts made in the Time of K. Rich. I unless we take in those Constitutions and Assizes mentioned by Hoveden as aforesaid.

Neither is there any great Evidence, what Acts of Parliament pass'd in the Time of King John, tho' doubtless many there were both in his Time, and in the Time of K. Rich. I. But there is no Record extant of them, and the English Histories of those Times give us but little Account of those Laws; only Matthew Paris gives us an Historical Account of the Magna Charta, and Charta de Foresta, granted by King John at Running Mead the 15th of June, in the Seventeenth Year of his Reign.

And it seems, that the Concession of these Charters was in a Parliamentary Way; you may see the Transcripts of both Charters verbatim in Mat. Paris, and in the Red Book of the Exchequer. There were seven Pair of these Charters sent to some of the Great Monasteries under the Seal of King John, one Part whereof sent to the Abby of Tewkesbury I have seen under the Seal of that King; the Substance thereof differs something from the Magna Charta, and Charta de Foresta, granted by King Henry 3 but not very much, as may appear by comparing them.

But tho' these Charters of King John seem to have been passed in a kind of Parliament, yet it was in a Time of great Confusion between that King and his Nobles; and therefore they obtained not a full Settlement till the Time of King Henry 3 when the Substance of them was enacted by a full and solemn Parliament.

I therefore come down to the Times of those succeeding Kings, Henry 3. Edw. I. and Edw. 2. and the Statutes made in the Times of those Kings, I call the Old Statutes; partly because many of them were made but in Affirmance of the Common Law; and partly because the rest of them, that made a Change in the Common Law, are yet so ancient, that they now seem to have been as it were a Part of the Common Law, especially considering the many Expositions that have been made of them in the several Successions of Times, whereby as they became the great Subject of Judicial Resolutions and Decisions; so those Expositions and Decisions, together also with those old Statutes themselves, are as it were incorporated into the very Common Law, and become a Part of it.

In the Times of those three Kings last mentioned, as likewise in the Times of their Predecessors, there were doubtless many more Acts of Parliament made than are now extant of Record, or otherwise, which might be a Means of the Change of the Common Law in the Times of those Kings from what it was before, tho' all the Records of Memorials of those Acts of Parliament introducing such a Change, are not at this Day extant: But of those that are extant, I shall give you a brief Account, not intending a large or accurate Treatise touching that matter.

The Reign of Henry 3 was a troublesome Time, in respect of the Differences between him and his Barons, which were not composed till his 51st year, after the Battle of Evesham. In his Time there were many Parliaments, but we have only one Summons of Parliament extant of Record in his Reign, viz. 49 Henry 3. and we have but few of those many Acts of Parliament that passed in his Time, viz. The great Charter, and Charta de Foresta, in the Ninth year of his Reign, which were doubtless pass'd in Parliament; the Statute of Merton, in the 20th year of his Reign; the Statute of Marlbridge, in the 52d year. and the Dictum sive Edictum de Kenelworth, about the same Time; and some few other old Acts.

In the Time of K. Edw. I. there are many more Acts of Parliament extant than in the Time of K. Henry 3. Yet doubtless, in this King's Time, there were many more Statutes made than are now extant: Those that are now extant, are commonly bound together in the old Book of Magna Charta. By those Statutes, great Alterations and Amendments were made in the Common Law; and by those that are now extant, we may reasonably guess, that there were considerable Alterations and Amendments made by those that are not extant, which possibly may be the real, tho' sudden Means of the great Advance and Alteration of the Laws of England in this King's Reign, over what they were in the Time of his Predecessors.

The first Summons of Parliament that I remember extant of Record in this King's Time, is 23 Edw. I, tho' doubtless there were many more before this, the Records whereof are either lost or mislaid: For many Parliaments were held by this King before that Time, and many of the Acts pass'd in those Parliaments are still extant; as, the Statutes of Westminster I, in the 3d of Edw. I. The Statutes of Gloucester, 6 Edw. I. The Statutes of Westminster 2, and of Winton, 13 Edw. I. The Statutes of Westminster 3, and of Quo Warranto, 18 Edw. I. And divers others in other years, which I shall have Occasion to mention hereafter.

In the Time of K. Edw. 2, many Parliaments were held, and many Laws were enacted; but we have few Acts of Parliament of his Reign extant, especially of Record.

And now, because I intend to give some short Account of some general Observations touching Parliaments, and of Acts of Parliament pass'd in the Times of those three Princes, viz. Henry 3. Edw. I. and Edw. 2. because they are of greatest Antiquity, and therefore the Circumstances that atended them most liable to be worn out by Process of Time, I will here mention some Particulars relating to them to preserve their Memory, and which may also be useful to be known in relation to other Things.

We are therefore to know, That there are these several Kinds of Records of Things done in Parliament, or especially relating thereto, viz. I. The Summons to Parliament. 2. The Rolls of Parliament. 3. Bundles of Petitions in Parliament. 4. The Statutes, or Acts of Parliament themselves. And, 5. The Brevia de Parliamento, which for the most part were such as issued for the Wages of Knights and Burgesses; but with these I shall not meddle.

First, as to the Summons to Parliament. These Summons to Parliament are not all entred of Record in the Times of Henry 3 and Edw. I. none being extant of Record in the Time of Hen. 3. but that of 49 Hen. 3. and none in the Time of Edw. I. till the 23 Edw. I. But after that year, they are for the most part extant of Record, viz. In Dorso Claius' Rotulorum, in the Backside of the Close Rolls.

Secondly, As to the Rolls of Parliament, viz. The Entry of the several Petitions, Answers and Transactions in Parliament. Those are generally and successively extant of Record in the Tower, from 4 Edw. 3. downward till the End of the Reign of Edw. 4. Excepting only those Parliaments that intervened between the 1st and the 4th, and between the 6th and the 11th, of Edw. 3.

But of those Rolls in the Times of Hen. 3. and Edw. I. and Edw. 2. many are lost and few extant; also, of the Time of Henry 3. I have not seen any Parliament Roll; and all that I ever saw of the Time of Edw. I. was one Roll of Parliament in the Receipt of the Exchequer of 18 Edw. I. and those Proceedings and Remembrances which are in the Liber placitor' Parliamenti in the Tower, beginning, as I remember, with the 20th year of Edw. I. and ending with the Parliament of Carlisle, 35 Edw. I and not continued between those years with any constant Series; but including some Remembrances of some Parliaments in the Time of Edw. I. and others in the Time of Edw. 2.

In the Time of Edw. 2. besides the Rotulus Ordinationum, of the Lords Ordoners, about 7 Edw. 2. we have little more than the Parliament Rolls of 7 & 8 Edw. 2. and what others are interspersed in the Parliament Book of Edw. I. above mentioned, and, as I remember, some short Remembrances of Things done in Parliament in the 19 Edw. 3.

Thirdly, As to the Bundles of Petitions in Parliament. They were for the most part Petitions of private Persons, and are commonly endorsed with Remissions to the several Courts where they were properly determinable. There are many of those Bundles of Petitions, some in the Times of Edw. I. and Edw. 2 and more in the Times of Edw. 3. and the Kings that succeeded him.

Fourthly, The Statutes, or Acts of Parliament themselves. These seem, as if in the Time of Edw. I. they were drawn up into the Form of a Law in the first Instance, and so assented to by both Houses, and the King, as may appear by the very Observation of the Contexture and Fabrick of the Statutes of those Times. But from near the Beginning of the Reign of Edw. 3. till very near the End of Hen. 6. they were not in the first Instance drawn up in the Form of Acts of Parliament; but the Petition and the Answer were entred in the Parliament Rolls, and out of both, by Advice of the Judges, and others of the King's Council, the Act was drawn up conformable to the Petition and Answer, and the Act itself for the most part entred in a Roll, called, The Statute Roll, and the Tenor thereof affixed to Proclamation Writs, directed to the several Sheriffs to proclaim it as a Law in their respective Counties.

But because sometimes Difficulties and Troubles arose, by this extracting of the Statute out of the Petition and Answer; about the latter End of Hen. 6. and Beginning of Edward 4. they took a Course to reduce 'em, even in the first Instance, into the full and compleat Form of Acts of Parliament, which was prosecuted (or Entred) commonly in this Form: Item quaedam Petitio exhibita fuit in hoc Parliamento forman actus in se continens, &c. and abating that Stile, the Method still continues much the same, namely; That the entire Act is drawn up in Form, and so comes to the King for his assent.

The ancient Method of passing Acts of Parliament being thus declared, I shall now give an Account touching those Acts of Parliament that are at this Day extant of the Times of Henry 3. Edw. I. and Edw. 2. and they are of two Sorts, viz. Some of them are extant of Record; others are extant in ancient Books and Memorials, but none of Record. And those which are extant of Record, are either Recorded in the proper and natural Roll, viz. the Statute Roll: or they are entred in some other Roll, especially in the Close Rolls and Patent Rolls, or in both. Those that are extant, but not of Record, are such as tho' they have no Record extant of them, but possibly the same is lost; yet they are preserved in ancient Books and Monuments. and in all Times have had the Reputation and Authority of Acts of Parliament.

For an Act of Parliament made within Time of Memory, loses not its being so, because not extant of Record, especially if it be a general Act of Parliament. For of general Acts of Parliament, the Courts of Common Law are to take Notice without pleading of them; and such acts shall never be put to be tried by the Record, upon an Issue of Nul tiel Record. but it shall be tried by the Court, who, if there be any Difficulty or Uncertainty touching it or the right Pleading of it, are to use for their Information ancient Copies, Transcripts, Books, Pleadings and Memorials to inform themselves, but not to admit the same to be put in Issue by a Plea of Niul tiel Record.

For, as shall be shewn hereafter, there are very many old Statutes which are admitted and obtain as such, tho' there be no Record at this Day extant thereof, nor yet any other written Evidence of the same, but what is in a manner only Traditional, as namely, Ancient and Modern Books of Pleadings, and the common receiv'd Opinion and Reputation, and the Approbation of the Judges Learned in the Laws: For the Judges and Courts of Justice are, ex Officio, (bound) to take Notice of publick Acts of Parliament, and whether they are truly pleaded or not, and therefore they are the Triers of them. But it is otherwise of private Acts of Parliament, for they may be put in Issue, and tried by the Record upon Nul tiel Record pleaded, unless they are produced exemplified, as was done in the Prince's Cafe in my Lord Coke's 8th Rep. and therefore the Averment of Nul tiel Record was refused in that Case.

The old Statutes or Acts of Parliament that are of Record, as is before said, are entred either upon the proper Statute Roll, or some other Roll in Chancery.

The first Statute Roll which we have, is in the Tower, and begins with Magna Charta, and ends with Edw. 3. and is called Magnus Rotulus Statutor'. There are five other Statute Rolls in that Office, of the Times of Richard 2. Henry 4. Hen. 5. Hen. 6. and Edw. 4.

I shall now give a Scheme of those ancient Statutes of the Times of Henry 3. Edw. I. and Edw. 2. that are recorded in the first of those Rolls or elsewhere, to the best of my Remembrance, and according to those Memorials I have long had by me, viz.

Magna Charta. Magno Rot. Stat. membr. 40. & Rot. Cartar. 28 E. I and membr. 16.

Charta de Foresta. Mag. Rot. Stat. membr. 19 & Rot. Cartar. 28 E. I membr. 26.

Stat. de Gloucestre. Mag. Rot. Stat. memb. 47.

Westm. 2. Rot. Mag. Stat. membr. 47.

Westm. 3. Rot. Clauso, 18 E. I. membr. 6. Dorso.

Winton. Rot. Mag. Stat. memb. 41. Rot. Clauso, 8 E. 3. memb.

6. Dorso. Pars. 2. Rot. Clauso, 5 R. 2. membr. 13. Rot. Paten. 25 E. I. membr. 13.

De Mercatoribus. Mag. Rot. Stat. Membr. 47. In Dorso.

De Religiosis. Mag. Rot. Stat. membr. 47.

Articuli Cleri. Mag. Rot. Stat. membr. 34. Dorso 2 Pars. Pat. E. I. 2. membr. 34. 2 Pars. Pat. 2 E. 3. membr. 15.

De hiis qui ponendi sunt in Assisis. Mag. Rot. Stat. membr. 41.

De Finibus levatis. Mag. Rot. Stat. membr. 37.

De defensione Juris liberi Parliam. Lib. Parl. E. I. fo. 32.

Stat. Eborum. Mag. Rot. Stat. membr. 32.

De conjunctis infeofatis. Mag. Rot. Stat. membr. 34.

De Escaetoribus. Mag. Rot. Stat. membr. 35. Dorso, & Rot. Claus. 29 E. I. membr. 14. Dorso.

Stat. de Lincolne. Mag. Rot. Stat. membr. 32.

Stat. de Priscis. Rot. Mag. Stat. membr. 33. In Schedula de libertatibus perquirendis, vel Rot. Claus. 27 E. I. membr. 24.

Stat. de Acton Burnel. Rot. Mag. Stat. membr. 46. Dorso, & Rot. Claus. II. E. I. membr. 2.

Juramentum Vicecomit. Rot. Mag. Stat. membr. 34. Dorso, & Rot. Claus. 5 E. 2. membr. 23.

Articuli Stat. Gloucestriae. Rot. Claus. 2 E. 2. Pars. 2. membr. 8.

De Pistoribus & Braciatoribus. 2 Pars, Claus. vel Pat. 2 R 2. membr. 29.

De asportatis Religiosor. Mag. Rot. Stat. membr. 33.

Westm. 4. De Vicecomitibus & Viridi caera. Rot. Mag. Stat. membr. 33. In Dorso.

Confirmationes Chartarum. Mag. Rot. Stat. membr. 28.

De Terris Templariorum. Mag. Rot. Stat. membr. 31. in Dorso, & Claus. 17 E. 2. membr. 4.

Litera patens super prisis bonorum Cleri. Rot. Mag. Stat. membr. 33. In Dorso.

De Forma mittendi extractas ad Scaccar. Rot. Mag. Stat. membr. 36. & membr. 30. In Dorso.

Statutum de Scaccar. Mag. Rot. Stat.

Statutum de Rutland. Rot Claus. 12 E. 1.

Ordinatio Forestae. Mag. Rot. Stat. membr. 30. & Rot. Claus. 17 E. 2. Pars 2. membr. 3.

According to a strict Inquiry made about 30 years since, these were all the old Statutes of the Times of Hen. 3. Edw. I. and Edw. 2. that were then to be found of Record; what other Statutes have been found since, I know not.

The Ordinance called Butler's, for the Heir to punish Waste in the Life of the Ancestor, tho' it be of Record in the Parliament Book of Edw. I yet it never was a Statute, nor never so received, but only some Constitution of the King's Council or Lords in Parliament, and which never obtain'd the Strength or Force of an Act of Parliament.

Now those Statutes that ensue, tho' most of 'em are unquestionable Acts of Parliament, yet are not of Record that I know of, but only their Memorials preserved in ancient Printed and Manuscript Books of Statutes; yet they are at this Day for the most part generally accepted and taken as Acts of Parliament, tho' some of 'em are now antiquated and of little Use, viz.

The Statutes of Merton, Marlbridge, Westm. I. Explanatio Statuti Gloucestriae, De Champertio, De visu Frankplegii, De pane & Cervisia, Articuli Inquisitionis super Stat. de Winton, Circumspecte agatis, De districtione Scaccarii, De Conspirationibus, De vocatis ad Warrant. Statut. de Carliol, De Prerogativa Regis, De modo faciendi Homag. De Wardis & Releivis Dies Communes in Banco. Stat. de Bigamis, Dies Communes in Banco in casu consimili. Stat. Hiberniae, De quo Warranto, De Essoin calumpniand. Judicium collistrigii, De Frangentibus Prisonar'. De malefactoribus in Parcis, De Consultationibus, De Officio Coronatoris, De Protectionibus, Sententia lata super Chartas, Modus levandi Fines. Statut. de Gavelet, De Militibus, De Vasto, De anno Bissextili, De appellatis, De Extenta Manerii, Compositio Mensearum vel Computatio Mensarum. Stat. de Quo Warranto, Ordinatio de Inquisitionibus, Ordinatio de Foresta, De admensura Terre, De dimissione Denarior. Statut. de Quo Warranto novum, Ne Rector prosternat arbores in Caemeterio, Consuetudines & Assisa de Foresta, Compositio de Ponderibus, De Tallagio, De visu Terrae & servitio Regis, Compositio ulnarum & particarum, De Terris amortizandis, Dictum de Kenelworth, &c.

From whence we may collect these Two observations, viz.

First, That altho' the Record itself be not extant, yet general Statutes made within Time of Memory, namely, since 1 Richardi Primi, do not lose their Strength, if any authentical Memorials thereof are in Books, and seconded with a general receiv'd Tradition attesting and approving the same.

Secondly, That many Records, even of Acts of Parliament, have in long Process of Time been lost, and possibly the Things themselves forgotten at this Day, which yet in or near the Times wherein they were made, might cause many of those authoritative Alterations in some Things touching the Proceedings and Decisions in Law: The Original Cause of which Change being otherwise at this Day hid and unknown to us; and indeed, Histories (and Annals) give us an Account of the Suffrages of many Parliaments, whereof we at this Time have none, or few Footsteps extant in Records or Acts of Parliament. The Instance of the great Parliament at Oxford, about 40th of Henry 3, may, among many others of like Nature, be a concurrent Evidence of this: For tho' we have Mention made in our Histories of many Constitutions made in the said Parliament at Oxford, and which occasioned much Trouble in the Kingdom, yet we have no Monuments of Record concerning that Parliament, or what those Constitutions were.

And thus much shall serve touching those Old Statutes or Leges Scriptae, or Acts of Parliament made in the Times of those three Kings, Henry 3. Edw. I. and Edw. 2. Those that follow in the Times of Edw. 3. and the succeeding Kings, are drawn down in a continued Series of Time, and are extant of Record in the Parliament Rolls, and in the Statute Rolls, without any remarkable Omission, and therefore I shall say nothing of them.

[Aequitas]

Hello Rooster

 

Whilst I do not live in the UK, I did practise as a lawyer there for over 30 years.

 

Thank you for quoting the Bill of Rights, but I have in fact read it. Whilst it may be one of the cornerstones of the British constitution, I do not think it is quite right to say that it contains the foundations of the common law.

 

Reading the Bill of Rights, one thing that jars is its virulent anti-Catholic tone. I note in particular the following:

 

all and every person and persons that is, are or shall be reconciled to or shall hold communion with the see or Church of Rome, or shall profess the popish religion, or shall marry a papist, shall be excluded and be for ever incapable to inherit, possess or enjoy the crown and government of this realm and Ireland and the dominions thereunto belonging or any part of the same, or to have, use or exercise any regal power, authority or jurisdiction within the same

 

According to that Tony Blair (married to a Catholic) should not be prime minister and Ian Duncan Smith (a Catholic) could never have been prime minister.

[calvi36]

Am bored now Aequitas. Your posts are constantly contradictory! BTW I am a practising Pope and have been doing it for over 30 years in this country!

[Bookworm]

1. What some of you seem to be doing is arguing that you have been charged a penalty (which of course I would argue is an excessive charge for a service) therefore there is a breach of contract. It should be the other way round: there has been a breach of contract, the charge to be made is excessive, therefore it is a penalty.

 

That bolded part is exactly what we argue, not the way you have set it out in the first part of your sentence. The cornerstone of our legal argument used is Dunlop Pneumatic Tyre Co. Ltd. v. New Garage and Motor Co. Ltd.[1915] A.C. 79, and in particular that "The essence of a penalty is a payment of money stipulated as in terrorem of the offending part", and " It will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greater loss that could conceivably be proved to have followed from the breach."

The T&Cs of each bank, until recently (and since they can not be applied retroactively, the new terms should not concern us at this stage), clearly stated that a customer was not allowed to go over their limit, was only allowed to use clear funds, etc... And that if they did go over their limit, the bank would levy a charge, the amount of which bore no relation to the transgression, and seemed to be purely there to generate a profit for the bank. (which in itself is a big no-no, as as you rightly point out, it should be a genuine pre-estimate of loss) The banks' response, in most cases, has been to say "yes, it IS a genuine pre-estimate of our loss", but so far, when challenged to show any figures to back their assertions, they have caved in and paid out in full, hardly the actions of an innocent and injured party.

Yes, of course, they use the "uneconomical to defend" response, which you have touched upon earlier. Where this argument might have looked plausible in the early stages of the campaign, when you consider that some of our wins include a £35.000 chap, and that the running total runs in their millions, you have to ask yourself whether that is really such a plausible reason. Personally, I don't think so.

The flaw in the judgment that you have read is that the judge didn't read the correct T&Cs. He read the current & newly updated ones. The ones where LTSB have removed any reference to "charges" and "unauthorised", and call it a service instead. Furthermore, when he asked Kev whether he felt that he had breached his contract, (but in a more convoluted manner), Kev, as far as I can tell thoroughly confused by then, answered "no" instead of "yes", and ta-dah: no breach of contract, fees are for a service, therefore not a penalty, and a whole case built on the fact that the charges are levied following a breach of contract, are not a genuine pre-estimate of loss, and therefore are a penalty, collapsed. :-|

[JonCris]

Aequitas

 

Why do you claim the banks charges are lawful? Even the banks don't believe that rubbish otherwise reclaiming bank charges would have fallen at the 1st hurdle.

 

As an experienced lawyer you must know that the higher courts have recognised for a century that some businesses will try & hide such charges by wording their contracts accordingly & as a result have been defeated on many occasions.

 

Also you perception of what or how debt is incurred gives, I would respectively suggest an insight into your general thinking about debtors.

 

Its' through mismanagement, not counting the pennies. feckless etc: Rubbish!

 

I have yet to meet a debtor who has found themselves in their situation because they took on debt with no intention of paying it back. They all think they will manage.

 

Most people default through divorce, sickness, redundency or some other event which is beyond their control & it is these people who are the hardest hit when the money dries up.

 

Yet rather than try to help the banks in their greed make matters worse by levying their charges against them causing them to spiral into debt which often when analysed is found to be mainly made up of penalty charges.

 

Even though it's 'illegal' under the 2002 Social Security Act the banks literally take the food out of their mouths when they take their benefits

[Perseus]

Recent T&C's from Lloyds TSB account...

(reference your item 10 above!)

 

9. Your Account

9.1 We provide you with your Card so that you can operate your Account more conveniently. The Card itself does not give you an automatic overdraft or any other form of credit. We will be entitled, under the terms of the account, to charge interest at our standard rate for unauthorised overdrafts and to debit that interest and any resulting bank charges from your Account.

9.2 If you do use your Card to create an overdraft we have not agreed or to exceed an agreed overdraft limit, you will have broken the terms of the Account and you must repay the unagreed amount immediately.

 

It therefore confirms that a 'breach of contract' can occurr does it not?

Any informed comments Aequitas?

Given your elloquent choice of username, I would ask you to rethink your application of equity and fairness in the subject matters you discuss!

[setmefree]

There are far too many posts for me to reply to them all individually, so I shall restrict myself to some general observations, not in any particular order of importance.

 

1. I am not and never have been a bank employee.(fair enough)
   
   
2. I believe too many people are making too much money. I believe that too many people are making too much money out of money. I believe that bank charges are a rip off.(i agree with the bank bit)
   
3. I have every sympathy for those who have suffered high bank charges.(unlike Bailiff's who relish the fact)
   
   
4. It is not true that banks can charge what they like.(as calvi36 will confirm they have with me) They set out their charges.(not regarding my loan account they didn't) They include in their conditions the right to increase their charges. The Unfair Terms in Consumer Contracts Regulations allow this.
   
5. Banks manipulate things so that they can make charges, but they can only do this if you run your account in such a way as to let them.(nah i think you will find they av mest up my account big time)
   
   
6. Banks are not what they were.(true they used to be human)
   
   
7. I started this thread to make the very narrow legal point that bank charges are not penalties.(if a road is not built in it's time period then penalties are applied to the contractor,the same applies to a bank account,if monies is not there for DD etc then a penalty is imposed)I did not seem to get that point across. The purpose of my last post was to try and explain why I think the law is as it is. In the latter case I over-simplified and generalised. It was not intended to be an essay to impress a tutor. The analogies may not hold up to close scrutiny; they were only put in to try and make a point.
   
8. I am looking at the question purely as a lawyer and try to explain the law as I see it. Just because I maintain that the law is on the bank's side(it hasn't been proven yet who's side the law is on) does not mean that I am on the bank's side.
   
9. There is a cloud of confusion surrounding the word “penalty”. I am using it in the precise legal sense of a fixed payment to be made by way of compensation for a breach of contract which exceeds the loss occasioned by the breach suffered by the party claiming it. It is also important to remember that calling something a penalty, even in a contract, does not make it a penalty if it is in fact not a penalty.(ah i see just like a fixed penalty fine regarding a driving offence etc etc) An excessive charge made for a service is not a penalty. Finally, and just for the record, a payment to be made arising from a breach of contract is not a penalty if it is a genuine pre-estimate of loss.
   
10. The notion of a penalty in the strict legal sense is inextricably linked to a breach of contract. If there is no breach of contract there can be no penalty.(i havn't got a contract with the police yet they still gave me a fixed penalty fine) Any payment made under a contract that is made otherwise than following a breach of contract cannot be a penalty. I remain to be convinced that any of the circumstances which give rise to a bank charge is a breach of contract.
    
11. What some of you seem to be doing is arguing that you have been charged a penalty (which of course I would argue is an excessive charge for a service) therefore there is a breach of contract. It should be the other way round: there has been a breach of contract, the charge to be made is excessive, therefore it is a penalty.

 

that's my view:D

[Perseus]

I say, we doth protest too much me thinks! lol

Next...

I'm sorry, but there's more holes in your arguement Aequitas, than a collander seiving flour! :o :-|

[calvi36]

Bless you my sons perseus and setmefree +

[Perseus]

Whomever doth tip my scales, I thank thee verily!

[Aequitas]

I feel like someone who has gone to a chrysanthemum show and said how lovely all the exhibits are but made the mistake of mentioning that, actually, he quite likes dahlias too.

 

 

Hey! I'm on your side!

 

 

When I made my first post it was with the very specific purpose of suggesting that concentrating on insisting that bank charges are penalties is not the best way forward to get bank charges reduced, and, with that end in view, explained why I did not think bank charges were penalties. I thought it might lead to an interesting discussion, but have been rather taken aback by the reaction. I have been accused, amongst other things, of being incompetent, a troll, unsympathetic, a bank employee and (the unkindest cut of all) holier than thou.

 

 

In retrospect, given the reaction, I readily concede that I was unwise to veer from the narrow legal point. On re-reading what I wrote I can see that much of it is open to interpretation. But what you are tending to do is home in on my digressions and attempt to disprove general assertions by citing specific instances.

 

 

I post on a few sites where I give legal advice in the areas in which I do know what I am talking about. I have found that some people are quite capable of persuading themselves that the law is what they think it should be, rather than what it actually is.

 

 

Let me give an instance. One poster was annoyed that the right of way over his land was being used for deliveries. He had a look at his title and found that the right of way was granted for the benefit of “the owners and occupiers for the time being” of the neighbouring property. He said that since people making deliveries were neither owners nor occupiers they had no business to be using the right of way. He was of course quite wrong. The wording is just a formula. Rights of way (when they are easements) attach to property and not individuals and a right of way can be used by anyone with a legitimate reason for wanting to get to a property. He saw my point when I pointed out that if his interpretation were correct no visitors could get to the neighbour's property.

 

When I started this post it was not to give legal advice in response to a specific question in an area of the law in which I have expertise, but to put forward an opinion.

 

 

So, let me start again.

 

 

Can we ban Humpty-Dumpty from this thread? When talking law, words cannot mean what you want them to mean.

 

 

Let's look at the word “penalty”.

 

 

First we can ask why do people litigate? It is generally because they have suffered a loss. If they win their case, the law allows them to recover their loss, but no more. (We need not go into the case of aggravated damages where the loser had behaved badly). So, under contract law, if you have a provision that requires one party to pay to another a specified sum in the event of a breach of contract, the party claiming it cannot do so to the extent that the sum claimed exceeds his actual loss.

 

 

It is necessary to clear up the misconception that construction contracts contain penalty clauses; they do not, even though they may give effect to what builders (and lawyers!) refer to as a “penalty clause”. What happens is this. A agrees to build something for B for $1,000,000. They agree that if it is not built by a certain date A will pay a penalty of $100,000. How is the contract drawn up? It provides for the price to be $ 900,000 and for a bonus of $100,000 to be paid if the building is completed before a certain date. The whole thing is turned round so that it involves the payment of an incentive by B rather than the payment of a penalty by A. In practical terms the effect is the same, but the law allows incentives, while it prohibits penalties.

 

 

Let's also take out of the discussion other types of penalty such as parking fines. They have no bearing on bank charges.

 

 

Another problem I am having is that some of you are using the word “penalty” to mean something like “an excessive and unjustifiable charge” and then slipping into using it in the sense of a contractual penalty. You are guilty of the fallacy of equivocation.

 

 

Two important points are these:

 

 

First: whilst a contractual penalty is a sum that exceeds the loss suffered, it is not necessarily always the case that being paid a sum that exceeds your loss is unreasonable. But the law is clear; the test is whether the amount you claim exceeds your loss.

 

 

Second: whilst there is a whole range of legal protection available, excessive and unjustifiable charges can sometimes be claimed where you have agreed to pay them.

 

 

Let's look at bank charges. I think they are of two kinds.

 

 

The first is where the bank provides a service that can be identified, for example making a payment.

 

 

The second is where the bank makes a charge when something happens, for example you exceed your overdraft limit. Is it legitimate to make a flat rate charge if you exceed your overdraft limit?

 

 

What are possible levels of bank charges?

 

 

1. Zero
   
2. The cost to the bank of providing the service
   
3. The cost to the bank of providing the service plus a reasonable profit
   
4. Excessive and unjustifiable
   

 

If you want 1. then you are saying that the services that banks provide should be met out of the profits they make elsewhere. A perfectly reasonable position, but it is rather like suggesting that bakers should sell éclairs at a loss because they make a good profit on doughnuts.

 

 

If you want 2. then your position is not that different. It is like saying that bakers should break even on éclairs.

 

 

If you think 3. is reasonable then are going to be differences of opinion as to what is reasonable.

 

 

None of us thinks it should be 4.

 

 

We now come to the question of if and when a breach of contract occurs in dealings with a bank. I think that to determine if a particular action by the customer is a breach of contract it is necessary to look at the contract as a whole. I do not think it is clear cut that exceeding your overdraft limit is a breach of contract. There is an argument that if the bank allows you to go over your limit it is waiving the breach, if there is one; whether it is to the bank's advantage to let you is not relevant. I am curious to know whether people think that banks should prevent overdraft limits being exceeded. They do not allow it here in Spain – if there is no money in your account the bills do not get paid.

 

 

We now come to the crux – are bank charges penalties? Well, we are all agreed that for there to be a contractual penalty there has to be a breach of contract. I personally feel that most, if not all, instances of bank charges fall at this hurdle. But what if I am wrong? Then you have to show that the charge is a penalty. As the judge in the Lloyds Bank case suggested, showing what the real cost of a charge is is going to be beyond the resources of most litigants.

 

 

Whether I am right or not, the indisputable fact is this:

 

 

THERE IS NO JUDICIAL DECISION ON WHETHER BANK CHARGES ARE PENALTIES

 

With respect, this discussion is too negative. There is too much anger (undoubtedly justified) and it is stopping people thinking the whole thing through properly.

[setmefree]

.

It is necessary to clear up the misconception that construction contracts contain penalty clauses; they do not, even though they may give effect to what builders (and lawyers!) refer to as a “penalty clause”. What happens is this. A agrees to build something for B for $1,000,000. They agree that if it is not built by a certain date A will pay a penalty of $100,000. How is the contract drawn up? It provides for the price to be $ 900,000 and for a bonus of $100,000 to be paid if the building is completed before a certain date. The whole thing is turned round so that it involves the payment of an incentive by B rather than the payment of a penalty by A. In practical terms the effect is the same, but the law allows incentives, while it prohibits penalties.

.

 

Ref Wembley Stadium

Earlier this month, the Football Association announced the FA Cup Final would be played at Cardiff's Millennium Stadium after Multiplex could not guarantee that the £757 million, 90,000-seater stadium would be ready for May 13.

England's two World Cup warm-up friendly matches - against Hungary on May 30 and Jamaica on June 3 - will now be played at Old Trafford.

The FA had previously allowed Multiplex to move the completion deadline several times. The original autumn 2005 handover date was pushed back to Jan 31 2006 and then March 31.

Multiplex is expected to lose more than £100m on building the stadium and it is understood the Australian company will be penalised £1 million-a-week for over-running the deadline.

 

We are not picking on you,we are just stating our views

[setmefree]

Whether I am right or not, the indisputable fact is this:

 

 

THERE IS NO JUDICIAL DECISION ON WHETHER BANK CHARGES ARE PENALTIES(TRUE..AND THERE IS NO FINAL JUDICIAL DECISION TO STATE THAT BANK CHARGES ARE NOT PENALTIES)

.

 

Also if the Banks are so confident about their methods then why is it taking the judge so long to make a decision ????

[calvi36]

"If you want 1. then you are saying that the services that banks provide should be met out of the profits they make elsewhere. A perfectly reasonable position, but it is rather like suggesting that bakers should sell éclairs at a loss because they make a good profit on doughnuts."

 

What planet are you on. There is case law regarding penalty charges. Your analogies once again do not make any sense. If the banks charges were a true reflection of their actual costs regarding unpaid DD etc then we would not be claiming. The banks have deliberately hidden the actual cost. It is unlawful to make a profit on a penalty charge, it's simple. If the banks openly disclosed their true costs then the floodgates would open, not that they are water tight at the moment. Ask yourself this, why have the banks not gone to court to have a precedent set? Why have they refused to disclose their actual costs to parliamentary committee? They are not stupid, they know fine well that what they are doing is unlawful.

So to you matey, you enjoy your life in Spain sipping sangria while those of us that have been taken for every penny by the banks will continue to fight for our LAWFUL rights. You weren't a lawyer for a DCA or maybe even a mortgage company were you?

[setmefree]

BBC - Search results for bank charge

 

have a look at these:)

[calvi36]

aequitas, please read this Illegal charges by banks claim

 

 

BBC - Search results for bank charge is the link. Consider yourself educated in a new area of law to yourself. Pope OUT!

[jansus]

I feel like someone who has gone to a chrysanthemum show and said how lovely all the exhibits are but made the mistake of mentioning that, actually, he quite likes dahlias too.

 

 

Hey! I'm on your side!

 

 

When I made my first post it was with the very specific purpose of suggesting that concentrating on insisting that bank charges are penalties is not the best way forward to get bank charges reduced, and, with that end in view, explained why I did not think bank charges were penalties. I thought it might lead to an interesting discussion, but have been rather taken aback by the reaction. I have been accused, amongst other things, of being incompetent, a troll, unsympathetic, a bank employee and (the unkindest cut of all) holier than thou.

 

I think the reason you have had some heated replies (not at all unususal for this site) is that comments such as those above are taken as a critisism of the way the site is advising people. The fact is that the banks have every opportunity to put the same arguments as you in court - they have experienced legal departments and obviously huge financial resources - but have chosen not to.Why?

Why are they employing solicitors to intimidate people but not appearing in court?

If these charges as you say are not penalties then the banks could have crushed the argument immediately. They fact that this site has been so successful and is growing all the time is surely evidence that we are trying to move forward and get the charges reduced .The method/wording on this site has worked so far - so why start questioning it now?

 

I think you will find on many other threads that the majority of people would be quite happy to claim accept charges if they were fair and reasonable - and if this is the ruling in the future - from which ever organisation sees fit - then this will all end.

 

 

jansus

[setmefree]

jansus well done for a good post

 

Aequitas some of your remarks have obviously upset the apple cart,the main issue is that Banks are showing no compassion for the vunerable people, and they seem to forget it's us normal people through years of hard graft have put the Banks where they are now.

 

in my opinion they have now sunk lower than a snakes testicles on the desert sand.

[calvi36]

a snake's testicles are internal numbnutz lol, meant jokingly as am an expert in snakes gonads, not!

[setmefree]

ok ok lower than the labour party:p