Elephant in the room

[cardiac arrest]

Re: Elephant in the room

Just harking back to the debate about s78 and so on...As i see it, the debtor is teasing the creditor with a CCA request , to see if they have the right documents.

If they have, then usually a course of action would follow..ie arrange a payment profile maybe (unless there is something else).

If the CCA request produces something questionable, then the debtor sniffs an 'opportunity' (if that is the right word). Like..well if they haven't even got the s78 stuff...etc

Paul alludes to having something more concrete...and of course the debtor can usually remember things from when they applied. But being aware (now) of what is important and what may be irrelevant may cause the debtor to try and think back at what he/she did or saw or had back then, more so if a s78 has failed to convince.

Then the pathway is, what did I receive, what did I sign etc etc...so a s78 actually acts as a catalyst for further enquiry in many respects. Rightly so too, because, as again has mentioned, you'll need more than a s78 non compliance if you are to defend. On a positive note,a DCA or OC that admits or reveals a s78 failure, may think twice about enforcing..and if they do not, then a debtor can be reassured I would think that s127 requirements are not compliant either.

Armed with that, why would you pay..it's like saying 'I dare you'..and if they do not dare, then I guess you can feel a little more comfortable..particularly if you know PT's were missing, or an agreement wasn't signed etc.

cat and mouse really..

[cardiac arrest]

Re: Elephant in the room

Just digressing a bit...does a contract need to have a determinate contracted period, ie not be open ended ?

I ask this in the context of those who have entered into a reduced payment period on outstanding balances on debts. I know of some cases where a notional payment of £1 per month has been 'arranged' and continued for in excess of 6 years...with no apparent end date....

This might be nonsense in 'rolling credit agreements', but thought I might ask the question anyway, not least because isn't one the prescribed terms that a repayment period is stated ?

[cardiac arrest]

Re: Elephant in the room

yeah i never could understand those who try to argue that by not saying something you could be bound contractually, as acceptance must be communicated and if you are silent how can you communicate?

tacit - One of its early meanings was "wordless, noiseless," from Latin tacere, "be silent."

Tacit refers to something done or made in silence, as in a tacit agreement. A tacit understanding is manifested by the fact that no contradiction or objection is made and is thus inferred from the situation and the circumstances.

[gravytrain]

Re: Elephant in the room

It does apply - that was why I cited the Commencement Order.

Your absolutely right.
I was vaguely aware of this legislation but had not read it.

However only as far as the commencement of the legislation you stated, I am correct as far as the requirements for the formation of a contract with the driver of the vehicle, and any action taken will still depend on proof of this, no matter who it is against.

[CleverClogs (RIP)]

Re: Elephant in the room

It does apply - that was why I cited the Commencement Order.

[gravytrain]

Re: Elephant in the room

Sorry just read the new regulations, you are correct, however as you say not yet relevant.

[gravytrain]

Re: Elephant in the room

Having fixed your post to read what I supposed you meant, I'd agree with you - the driver is indeed not required to declare or prove his identity.

However, the registered keeper of the vehicle will have to - link - as soon as the Commencement Order for s56 and Schedule 4 of the quaintly named Protection of Freedoms Act 2012 applies.

My post did not require fixing but thanks anyway.

There is no requirement for the registered keeper to be involved in this, I presume we are discussing a private car park not a fixed penalty council or public parking facility.

Only the driver would be involved in this contract as he would be the only one who could read the notice.

The actions and statute you quote are irrelevant in this scenario.

[CleverClogs (RIP)]

Re: Elephant in the room

The driver is under no legal obligation to divulge his or her identity.

Having fixed your post to read what I supposed you meant, I'd agree with you - the driver is indeed not required to declare or prove his identity.

However, the registered keeper of the vehicle had to - link - after the Commencement Order for s56 and Schedule 4 applied that addled law from 1 October 2012 - link.

[gravytrain]

Re: Elephant in the room

What a diverse thread this is. like it

[gravytrain]

Re: Elephant in the room

If the land owner made the terms of the contract clear at the point of acceptance IE the point where you drive into the land, then that may well be the case, however you cannot accept terms which are not part of the offer

Yes and another problem for them is that there must be acceptance of the offer. This means that it must be made with the driver of the car at the time.
If they have no means of identifying who the driver was, they cannot prove acceptance, there is therefore no contract.
The driver is under no legal prerogative to divulge his or her identity.

[Paul.]

Re: Elephant in the room

How legible must the terms be?

depends, they at least need to be at the point of entrance to the land otherwise you would have little hope of recovering any monies under the contract

[CleverClogs (RIP)]

Re: Elephant in the room

If the land owner made the terms of the contract clear at the point of acceptance IE the point where you drive into the land, then that may well be the case, however you cannot accept terms which are not part of the offer

How legible must the terms be?

[Paul.]

Re: Elephant in the room

But would you agree - or not - that a motor-car driver who had parked his vehicle on private land had tacitly entered into a contract with the land owner or with the agents of the land owner to pay a specified sum of money in exchange for being permitted to leave the motor-car on that land for an hour or two?

If the land owner made the terms of the contract clear at the point of acceptance IE the point where you drive into the land, then that may well be the case, however you cannot accept terms which are not part of the offer

[CleverClogs (RIP)]

Re: Elephant in the room

yeah i never could understand those who try to argue that by not saying something you could be bound contractually, as acceptance must be communicated and if you are silent how can you communicate?

But would you agree - or not - that a motor-car driver who had parked his vehicle on private land had tacitly entered into a contract with the land owner or with the agents of the land owner to pay a specified sum of money in exchange for being permitted to leave the motor-car on that land for an hour or two?

[gravytrain]

Re: Elephant in the room

Indeed

I suppose you could try it.

Reduce your mortgage payments by half, then if the failed to take action immediately you could say that they acquiesced to your reduced payment and were estopped from enforcing.

Unfortunately they may point out that legally your actual documented contractual obligation, somewhat outweighed any perceived acquiesced one.