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bonds and not contracts of surety, and their express terms excluded
discharge, notwithstanding that the party in whose favour they had been
issued had been found culpable of fraud by the Chinese courts in relation
to the installation of second-hand engines. Moreover, the fraud had
nothing to do with the fraudulent party's right to cancel the contracts,
since there was no suggestion that the late delivery was caused by the
nature of the engines.
The contracts were made between S and a
Chinese company (X). Pursuant to the contracts, S paid advance
instalments to X towards the purchase prices on terms that the
instalments would be refunded if the contracts were cancelled. The
guarantees secured X's obligation to refund. The ships were not delivered
on time and S claimed repayment of the instalments.
Chapter 3: Agency
principal had a proprietary interest in that bribe or any property into which
it had been converted.
employer. Y who controlled the companies with whom these charters had
been arranged was held liable to pay equitable compensation when it was
found that he had known of these corrupt relationships.
operators who had not attorned to M by acknowledging that they held the
metal on M’s behalf. Held that under s29(4) SGA 1979 the tendering of
endorsed warehouse receipts was not effective re-delivery of metal under
repurchase contracts in the absence of an attornment or acknowledgment
from the warehouse operators that they held the metal on behalf of the
purchasers.
market on the one hand and the net sale price that would have been
achieved on the other. The measure of damage constituted by s.50(2) and
(3) was designed to compensate the seller for the loss of the bargain with
the buyer by computing how much worse off the seller would be, if at the
time of the breach, he had sold the goods to a substitute buyer. The
measure constituted both a ceiling and a floor to the loss claim on the
assumption that the seller had gone out into the market and sold at the
date of breach. Movement in the market thereafter was then excluded
from the calculation on the basis that any change in the figures affected
thereby was the result of the seller's own decision to play the market. No-
one who understood the way in which the 1979 Act worked would refer to
that measure of loss as "lost profits" or "loss of anticipated profits"
1 April 2015. The PSR’s aim is to make payment systems work well for
the people and organisations that use them, and deliver greater choice,
innovation and competition. Payment systems let people pay a deposit on
a house, withdraw money from a cash machine, transfer money via
smartphone, receive salaries into bank accounts, and much more. They
are vital to the UK’s financial system and process in the region of 21
billion transactions worth around £75 trillion a year. The regulatory
powers are based on Pt 5 Financial Services (Banking Reform) Act
2013 - s49 sets out the regulator’s general duties and s50 its
competition objective, s51 its innovation objective, s52 its service-user
objective and s53 the regulatory principles. section 108 of the Financial
Services (Banking Reform) Act 2013 has been amended to give the PSR
the ability to use its powers to enable firms to gain access to payment
systems that are designated under the EU Settlement Finality Directive.
Regulations 2008. This was despite the fact that the agreement at the
time of signature might never been activated as the insurers under a legal
expenses policy she held might stipulate that she use one of their panel of
solicitors. The agreement was made when she signed at home and their
was an intention to create legal relations.
least shown that the party for whose performance it was liable, namely
the hotel, knew of the likelihood of the presence of a hazard such as
spillage, and of the danger to consumers posed by that hazard if not dealt
with promptly. The judge was justified in finding the second of those
prerequisites established, but not the first (paras 31-34).
In Siba v Devenas (Case C-573/13) [2015] Bus L.R. 291 the CJEU
confirmed that the Unfair Contract Terms Directive covered contracts
between professionals such as in this case a Lithuanian lawyer – they
came within the phrase ‘seller or supplier’ within Article 2(1)(c) of
Council Directive 93/13/EC
https://www.fca.org.uk/news/fca-confirms-tough-new-rules-for-
200bn-consumer-credit-market
One consequence of these changes are substantial repeals of provisions of
the Consumer Credit Act 1974 – including Pt III Licensing, ss43-47, 52-
54, 55A & 55B, Pt X Licensing of Ancillary Businesses
Section 140A was not concerned with whether the creditor or anyone else
was in breach of a duty; it was concerned with whether the creditor's
relationship with the debtor was unfair. The unfairness did not have to
involve a breach of duty. The rules imposed a minimum standard of
conduct applicable in a wide range of situations. Section 140A introduced
a broader test of fairness applied to the particular debtor-creditor
relationship, which could lead to the transaction being reopened as a
matter of judicial discretion. Most of the rules imposed hard-edged
requirements, whereas the question of fairness involved a large element
of forensic judgment. A wider range of considerations might be relevant to
the fairness of the relationship, including the borrower's characteristics,
their vulnerability, the extent of their knowledge and the degree to which
the creditor should have been aware of those matters. The non-disclosure
of the commissions made P's relationship with X unfair. A sufficiently
extreme inequality of knowledge and understanding was a classic source
of unfairness in any relationship between a creditor and a non-commercial
debtor. It was a question of degree. P had to have known that some
commission would be payable to intermediaries. However, commissions
could become so large that the relationship could not be regarded as fair if
the customer was kept in ignorance. The instant commissions were a long
way beyond the tipping point. Any reasonable person in P's position who
had been properly informed would be bound to question whether the
insurance represented value for money.
However the debtor still failed as the assessment of suitability of the PPI
had been carried out by a broker and the court concluded that this was
not by or on behalf of the creditor
and offered to arrange credit through and associate broker and also stated
that the buyer would need to take out a PPI policy. The judge held that
the retailer via its salesman had made a false representation that it was
necessary to purchase PPI insurance. Over 6 years later the buyer started
proceedings arguing the relationship was unfair. One issue was the
application of s56 – the judge concluded that the negotiations were
conducted on behalf of the creditor. The Court of Appeal concluded that
even though the only agreement was for the double-glazing the
negotiations re the PPI were made in relation to that principal transaction
and fell within the scope of s56(1)(c) CCA 1974 and within s56(2)
deemed to have been conducted on behalf of the creditor.
In relation to the PPI agreement however s56 did not apply - Section
140C(4)(b) of the Act provides that references to an agreement related to
a credit agreement are references to a linked transaction in relation to the
main agreement. The concept of a linked transaction is then defined by
section 19 . However, there is no reference in section 56 to the concept of
a linked transaction and so the deemed agency provisions it contains do
not apply to make the creditor responsible for negotiations conducted by a
broker in relation to such a PPI transaction.
[the other issues in this case as to the application of s140A CCA and
whether salesman acting by or on behalf of the creditor, regardless of the
operation of ss56 & 75 CCA should be treated with great caution in light
of Supreme Court decision in Plevin v Paragon Finance [2015] 1 All ER
625]
A power of sale was provided for where the borrower and become
incapable by reason of mental capacity of managing his own affairs. The
debtor argued that their had been a failure to observe OFT Guidance on
Irresponsible Lending and the Money Advice Centre Guidance on
Consumers with Mental Health Problems and Debt (2009). The Court of
Appeal ruled that the mortgagees had not acted unfairly and it would only
be in exceptional cases that the court would conclude that a mortgagee
with a power of sale which had become exercisable because of non-
payment would be treated as having acted unfairly within the terms of
s140A & B CCA 1974. In this case even allowing for treatment with
consideration in the guidance the lenders did not have to ignore the long
history of the account or the ability of the borrower to maintain it in the
future.
except Denmark — as well as Mexico, which was the first State to accede
to the Convention on 26 September 2007) will then be bound by
the Convention.
The Convention promotes trade by clarifying the rules governing
international trade disputes, where the parties involved have chosen a
competent court. In detail, the Convention provides clarity on: jurisdiction
rules, which court is competent and on the recognition and enforcement of
judgments given by courts in the countries which apply the Convention.
In practice, this will ensure that EU companies have more legal
certainty when doing business with firms outside the EU: they will
be able to trust that their choice of court to deal with a dispute will be
respected by the courts of the countries that have ratified the Convention,
and that the judgment given by the chosen court will be
recognised and enforced in the countries which apply it.
The reform of the so-called Brussels I Regulation paved the way for
the ratification of the Choice of Courts Convention. This
regulation determines which national court has jurisdiction in cross-border
cases involving EU firms and how court judgments issued in one EU
country are recognised and enforced in another. The reform of these EU-
internal rules will ensure coherence with the Convention.
http://www.hcch.net/index_en.php?act=conventions.text&cid=98
the court could use to fulfil its obligation to provide to the defendant with
the information pursuant to Article 26(2) of the Regulation.
The text of the regulation can be seen at
http://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:32012R1215&from=EN
in matters relating to tort, delict or quasi-delict, in the courts for the place
where the harmful event occurred or may occur;
The CJEU ruled that Article 5(3) Brussels I did not apply if the perpetrator
who was sued there did not himself act there. By contrast the provision
did allow jurisdiction to be established, on the basis of the place of
occurrence of damage, to hear an action for damages based on the
national law (such as unfair comparative advertising and unfair imitation
of a sign, even where the sign concerned was a Community Trade Mark)
brought against a person established in another Member State and who
36
was alleged to have committed, in that State, an act which caused or may
have caused damage within the jurisdiction of that court.
However Article 5(3) did not apply to an action for breach of a Community
Trade Mark which was governed by Regulation 40/94 Article 97(5) [now
Article 98(5) Reg 2007/2009] – here the court seised must be in “the
Member State in which the act of infringement had been committed’ –
which meant the courts of the Member State in which the defendant
actually committed the unlawful act e.g. in this case Belgium not the
courts of Germany where the harmful effects of the infringement
occurred.
Comm No 353 & Scot Law Com No 238, July 2014 – with the
exception of the recommendations re late payment. The new law is due
to come into force in August 2016. The Act also corrects certain technical
problems with the Third Parties (Rights Against Insurers) Act 2010 so that
Act can be brought into force. Key provisions are s3 replacing s18-20
Marine Insurance Act 1906 and the duty of utmost good faith with a more
modern concept of ‘fair presentation’. The insurer’s remedies for non-
disclosure are modified – the insurer will only be entitled to avoid the
policy entirely (in absence of fraud) where the breach of the duty of fair
presentation is ‘deliberate or reckless’ and where the insurer can show
that he would not have entered the contract had he known the
information or would only have done so on different terms. The remedies
are rendered more proportionate to the insured’s breach rather than total
avoidance of the policy. S14 abolishes the rule allowing avoidance on the
grounds of breach of the duty of ‘utmost good faith’. The overall effect of
the Act is to modernise and provide a greater degree of balance between
the rights of the insured and the insurer. A useful Parliamentary
explanatory note on the proposed working of the Act can be found at
http://www.publications.parliament.uk/pa/bills/cbill/2014-
2015/0155/en/15155en.pdf