The May 2008 verdict of THE HONORABLE MR SIMON BROWN QC, in the HIGH COURT OF JUSTICE, QUEEN’S BENCH DIVISION, Birmingham District Registry, in the case between Rankine and a gaggle of credit bandits, clearly demonstrates the reasons why:
a] the credit bandits want every consumer credit agreement to be electronically “signed”
b] technical arguments pertaining to the Consumer Credit Act are unreliable
c] arguing that the unsigned photocopy of the alleged agreement is not enforcable is not the silver bullet many of us believe it to be
d] running up credit card accounts with no intention of effecting payment is highly dishonourable and will almost certainly backfire, even if the court has no power to order repayment
Paragraph [26] of the judgment of Sir Andrew Morritt V-C in Wilson v First County Trust Ltd [2001] EWCA Civ 633 COURT OF APPEAL, CIVIL DIVISION, after Penelope Wilson appealed with permission of Judge Hull QC from his decision, sitting in the Kingston upon Thames County Court at Epsom on 24 September 1999, refusing her application for a declaration that the credit agreement which she had entered with the defendant, First County Trust Ltd, on 22 January 1999, was void and unenforceable:
“In effect, the creditor—by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms—must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid.”
LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd – 2003] All ER (D) 187 (Jul) paragraph [29]:
“The court’s powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court ‘shall not make’ an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court’s power to make an enforcement order.”
Francis Bennion is the draftsman of the Consumer Credit Act 1974 and a very well respected Barrister who specialises in Consumer Law. On his own website he stated:
“As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97. Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.”
Extracts from The Consumer Credit Act 1974
PART I DIRECTOR GENERAL OF FAIR TRADING
1.—(1) It is the duty of the Director General of Fair Trading (” the Director “)—
a) to administer the licensing system set up by this Act,
b) to exercise the adjudicating functions conferred on him by this Act in relation to the issue, renewal, variation, suspension and revocation of licences, and other matters,
c) generally to superintend the working and enforcement of this Act, and regulations made under it, and
d) where necessary or expedient, himself to take steps to enforce this Act, and regulations so made.
(2) It is the duty of the Director, so far as appears to him to be practicable and having regard both to the national interest and the interests of persons carrying on businesses to which this Act applies and their customers, to keep under review and from time to time advise the Secretary of State about—
a) social and commercial developments in the United Kingdom and elsewhere relating to the provision of credit or bailment or (in Scotland) hiring of goods to individuals, and related activities; and
b) the working and enforcement of this Act and orders and regulations made under it.
PART II CREDIT AGREEMENTS, HIRE AGREEMENTS AND LINKED TRANSACTIONS
8.—(1) A personal credit agreement is an agreement between an individual (” the debtor “) and any other person (” the creditor”) by which the creditor provides the debtor with credit of any amount. (2) A consumer credit agreement is a personal credit agreement by which the creditor provides the debtor with credit not exceeding £5,000.
(3) A consumer credit agreement is a regulated agreement within the meaning of this Act if it is not an agreement (an “ exempt agreement “) specified in or under section 16.
9.—(1) In this Act “ credit “ includes a cash loan, and any other form of financial accommodation. (2) Where credit is provided otherwise than in sterling it shall be treated for the purposes of this Act as provided in sterling of an equivalent amount. (3) Without prejudice to the generality of subsection (1), the person by whom goods are bailed or (in Scotland) hired to an individual under a hire-purchase agreement shall be taken to provide him with fixed-sum credit to finance the transaction of an amount equal to the total price of the goods less the aggregate of the deposit (if any) and the total charge for credit. (4) For the purposes of this Act, an item entering into the total charge for credit shall not be treated as credit even though time is allowed for its payment.
PART VIII SECURITY
General
105.—(1) Any security provided in relation to a regulated agreement shall be expressed in writing.
(2) Regulations may prescribe the form and content of documents (” security instruments “) to be made in compliance with subsection (1).
(3) Regulations under subsection (2) may in particular— (a) require specified information to be included in the prescribed manner in documents, and other specified material to be excluded; (b) contain requirements to ensure that specified information is clearly brought to the attention of the surety, and that one part of a document is not given insufficient or excessive prominence compared with another.
(4) A security instrument is not properly executed unless (a) a document in the prescribed form, itself containing all the prescribed terms and conforming to regulations under subsection (2), is signed in the prescribed manner by or on behalf of the surety, and (b) the document embodies all the terms of the security, other than implied terms, and © the document, when presented or sent for the purpose of being signed by or on behalf of the surety, is in such state that its terms are readily legible, and (d) when the document is presented or sent for the purpose of being signed by or on behalf of the surety there is also presented or sent a copy of the document.
(5) A security instrument is not properly executed unless (a) where the security is provided after, or at the time when, the regulated agreement is made, a copy of the executed agreement, together with a copy of any other document referred to in it, is given to the surety at the time the security is provided, or (b) where the security is provided before the regulated agreement is made, a copy of the executed agreement, together with a copy of any other document referred to in it, is given to the surety within seven days after the regulated agreement is made.
(6) Subsection (1) does not apply to a security provided by the debtor or hirer.
(7) If—(a) in contravention of subsection (1) a security is not expressed in writing, or
(b) a security instrument is improperly executed, the security, so far as provided in relation to a regulated agreement, is enforceable against the surety on an order of the court only.
(8) If an application for an order under subsection (7) is dismissed (except on technical grounds only) section 106 (ineffective securities) shall apply to the security.
(9) Regulations under section 60(1) shall include provision requiring documents embodying regulated agreements also to embody any security provided in relation to a regulated agreement by the debtor or hirer.
110.—(1) The creditor or owner under a regulated agreement, within the prescribed period after receiving a request in writing to that effect from the debtor or hirer and payment of a fee of 15 new pence, shall give the debtor or hirer a copy of any security instrument executed in relation to the agreement after the making of the agreement.
(2) Subsection (1) does not apply to— (a) a non-commercial agreement, or (b) an agreement under which no sum is, or will or may become, payable by the debtor or hirer, or © a request made less than one month after a previous request under subsection (1) relating to the same agreement was complied with.
(3) If the creditor or owner under an agreement fails to comply with subsection (1)— (a) he is not entitled, while the default continues, to enforce the security (so far as provided in relation to the agreement); and (b) if the default continues for one month he commits an offence.
Negotiable instruments
123.—(1) A creditor or owner shall not take a negotiable instrument, other than a bank note or cheque, in discharge of any sum payable— (a) by the debtor or hirer under a regulated agreement, or (b) by any person as surety in relation to the agreement.
(2) The creditor or owner shall not negotiate a cheque taken by him in discharge of a sum payable as mentioned in subsection (1) except to a banker (within the meaning of the Bills of Exchange Act 1882).
(3) The creditor or owner shall not take a negotiable instrument as security for the discharge of any sum payable as mentioned in subsection (1).
(4) A person takes a negotiable instrument as security for the discharge of a sum if the sum is intended to be paid in some other way, and the negotiable instrument is to be presented for payment only if the sum is not paid in that way.
125.—(4) Nothing in this Act affects the rights of the holder in due course of any negotiable instrument.
PART IX JUDICIAL CONTROL
Enforcement of certain regulated agreements and securities
127.—(1) In the case of an application for an enforcement order under— (a) section 65(1) (improperly executed agreements), or (b) section 105(7)(a) or (b) (improperly executed security instruments), or © section 111(2) (failure to serve copy of notice on surety), or
(d) section 124(1) or (2) (taking of negotiable instrument in contravention of section 123), the court shall dismiss the application if, but (subject to subsections (3) and (4)) only if, it considers it just to do so having regard to—
(i) prejudice caused to any person by the contravention in question, and the degree of culpability for it; and
(ii) the powers conferred on the court by subsection (2) and sections 135 and 136.
(2) If it appears to the court just to do so, it may in an enforcement order reduce or discharge any sum payable by the debtor or hirer, or any surety, so as to compensate him for prejudice suffered as a result of the contravention in question.
(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).
(4) The court shall not make an enforcement order under section 65(1) in the case of a cancellable agreement if— (a) a provision of section 62 or 63 was not complied with, and the creditor or owner did not give a copy of the executed agreement, and of any other document referred to in it, to the debt or or hirer before the commencement of the proceedings in which the order is sought, or (b) section 64(1) was not complied with.
POINTS TO NOTE ON BILLS OF SALE
Applicable law: the Bills of Sale Act 1878 and the Bills of Sale Act (1878) Amendment Act 1882.
Definition: in s.4 of the Bills of Sale Act 1878, includes- “bills of sale, assignment, transfers, declarations of trust without transfer or receipts for purchase moneys of goods, and other assurances of personal chattels, and also powers of attorney, authorities, or licences to take possession of personal chattels of security for any debt, and also any agreement, whether intended or not to be followed by the execution of any other instrument, by which a right in equity to any personal chattels, or to any charge or security thereon, shall be transferred.”
It is a very wide definition, encompassing most documents which transfer a right to personal goods as security, but possession does not pass to the lender.
This raises an issue that even an ordinary consumer credit agreement, which is secured on some chattel (and is not a HP or Conditional Sale agreement), could in fact be a bill of sale….
Form, Content and Registration
Correct Form: A bill of sale is void unless in the form set out in the Schedule to the 1882 Act (see s.9) (although this form may be adapted for the sake of clarity):
This Indenture made the …… day of ……, between AB of …… of the one part, and CD of …… of the other part, witnesseth that in consideration of the sum of £…… now paid to AB by CD, the receipt of which the said AB hereby acknowledges [or whatever else the consideration may be], he the said AB doth assign unto CD, his executors, administrators and assigns, all and singular the several chattels and things specifically described in the schedule hereto annexed by way of security for the payment of the sum of £……, and interest thereon at the rate of …… per cent per annum [or whatever else may be the rate]. And the said AB doth further agree and declare that he will duly pay to the said CD the principal sum aforesaid, together with the interest then due, by equal payments of £…… on the day of ……[or whatever else may be the stipulated times or time of payment]. And the said AB doth also agree with the said CD that he will [here insert terms as to insurance, payment of rent, or otherwise, which the parties may agree to for the maintenance or defeasance of the security].
Provided always, that the chattels hereby assigned shall not be liable to seizure or to be taken possession of by the said CD for any cause other than those specified in section 7 of the Bills of Sale Act (1878) Amendment Act 1882.
In witness etc Sealed and signed by the said AB in the presence of me EF [add witness’ name, address and description]
The Schedule to the Bill of Sale: s.4 of the 1882 Act requires that all the items on which the debt is secured be set out in a Schedule at the end of the Bill of Sale, and these must be specifically described. It is void against any goods of which the debtor was not the true owner at the time of execution (s.5).
The Essential Contents of a Bill of Sale: Without which the bill is void.
1. Date of the bill
2. Names and addresses of the Parties
3. Statement of the true consideration given
4. Acknowledgement of receipt of the advance
5. An assignment by way of security of personal chattels capable of specific description
6. That it is a monetary obligation (rather than any other) that is secured
7. Statement of the sum secured, the rate of interest and the repayment instalments
8. Agreed terms for the maintenance and defeasance of the security (ie that upon payment of the principal sum plus interest, the bill shall be void)
9. A clause limiting the grounds of seizure to those set out in s.7 (these are usually set out in full)
10. Execution by the debtor
11. Attestation by a credible witness who is not a party to the bill
12. A schedule describing the secured chattels (this description must not appear within the body of the bill)
Registration Requirements: s.8 of the 1882 Act requires that
“The duly attested bill of sale must be registered within 7 days of its execution. The correct process is to file the bill with the Filing Department, Royal Courts of Justice, Strand. The lender’s copy of the bill will then have a Supreme Court Stamp, and the bill will be entered on the Register at the RCJ.”
Consumer Credit Act Requirements: In addition to the above, where the consideration is under £25,000, the CCA must be complied with.
1. There must be a consumer credit agreement which complies with the Consumer Credit (Agreements) Regulations 1989 rules (see separate handout).
2. A description of the security must be set out in the consumer credit agreement, or the bill of sale must be referred to.
3. The bill of sale must be presented to the debtor at the same time as the consumer credit agreement, and referred to within the consumer credit agreement (see CCA s.61).
4. The bill of sale (as a document referred to in the consumer credit agreement) must always be sent at the same time as the consumer credit agreement. A signed copy of the agreement must be sent to the consumer following execution (see CCA ss.62 & 63).
What to do if default is alleged
Repossession: the Creditor can only seize the secured goods for one of the five reasons set out in s.7 of the 1882 Act. The Five Grounds for Seizure (s.7):
1. Default in payments or the performance of any covenant which is (a) contained in the Bill and (b) necessary for maintaining the security.
2. Bankruptcy of the debtor or the seizure of the goods from him for rent, rates or taxes.
3. If the debtor fraudulently removes the goods from his premises.
4. If the debtor unreasonably refuses to produce his last receipt for rent, rates or taxes.
5. If execution has been levied against the goods under any judgement at law.
Consumer Credit Agreements: Where the bill of sale is part of a consumer credit agreement, the creditor must serve notice under s.87 of the CCA giving the debtor 7 days to remedy the default.
At this point, the debtor can apply to Court for a Time Order, under s.130 of the CCA, so that he can have longer than the 7 days to remedy the default. The s.7 Proviso: even where the goods have been seized, s.7 of the 1882 Act provides that where any of the five grounds has been relied on, the debtor may apply to the High Court, within 5 days of any seizure. If the judge is satisfied that the debtor can take some step to remove the basis of the ground (eg by payment of arrears etc), he may order that that the creditor be restrained from removing or selling the goods, or make any order as may seem just.
For further information: see Halsbury’s Laws on Bills of Sale.
Jason Freeman,
Barrister,
Office of Fair Trading,
Jason.freeman@oft.gsi.gov.uk.
Bills of Sale Act 1878:
An Act to consolidate and amend the Law for preventing Frauds upon Creditors by secret Bills of Sale of Personal Chattels.
3 Application of Act
This Act shall apply to every bill of sale executed on or after the first day of January one thousand eight hundred and seventy-nine (whether the same be absolute, or subject or not subject to any trust) whereby the holder or grantee has power, either with or without notice, and either immediately or at any future time, to seize or take possession of any personal chattels comprised in or made subject to such bill of sale.
4 Interpretation of terms
In this Act the following words and expressions shall have the meanings in this section assigned to them respectively, unless there be something in the subject or context repugnant to such construction; (that is to say),
- The expression “bill of sale” shall include bills of sale, assignments, transfers, declarations of trust without transfer, inventories of goods with receipt thereto attached, or receipts for purchase moneys of goods, and other assurances of personal chattels, and also powers of attorney, authorities, or licenses to take possession of personal chattels as security for any debt, and also any agreement, whether intended or not to be followed by the execution of any other instrument, by which a right in equity to any personal chattels, or to any charge or security thereon, shall be conferred, but shall not include the following documents; that is to say, assignments for the benefit of the creditors of the person making or giving the same, marriage settlements, transfers or assignments of any ship or vessel or any share thereof, transfers of goods in the ordinary course of business of any trade or calling, bills of sale of goods in foreign parts or at sea, bills of lading, India warrants, warehouse-keepers’ certificates, warrants or orders for the delivery of goods, or any other documents used in the ordinary course of business as proof of the possession or control of goods, or authorising or purporting to authorise, either by indorsement or by delivery, the possessor of such document to transfer or receive goods thereby represented:
- The expression “personal chattels” shall mean goods, furniture, and other articles capable of complete transfer by delivery, and (when separately assigned or charged) fixtures and growing crops, but shall not include chattel interests in real estate, nor fixtures (except trade machinery as hereinafter defined), when assigned together with a freehold or leasehold interest in any land or building to which they are affixed, nor growing crops when assigned together with any interest in the land on which they grow, nor shares or interests in the stock, funds, or securities of any government, or in the capital or property of incorporated or joint stock companies, nor choses in action, nor any stock or produce upon any farm or lands which by virtue of any covenant or agreement or of the custom of the country ought not to be removed from any farm where the same are at the time of making or giving of such bill of sale:
- Personal chattels shall be deemed to be in the “apparent possession” of the person making or giving a bill of sale, so long as they remain or are in or upon any house, mill, warehouse, building, works, yard, land, or other premises occupied by him, or are used and enjoyed by him in any place whatsoever, notwithstanding that formal possession thereof may have been taken by or given to any other person:
- “Prescribed” means prescribed by rules made under the provisions of this Act.
8 Avoidance of unregistered bill of sale in certain cases X1
Every bill of sale to which this Act applies shall be duly attested and shall be registered under this Act, within seven days after the making or giving thereof, and shall set forth the consideration for which such bill of sale was given, otherwise such bill of sale, as against all trustees or assignees of the estate of the person whose chattels, or any of them, are comprised in such bill of sale under the law relating to bankruptcy or liquidation, or under any assignment for the benefit of the creditors of such person, and also as against all sheriffs officers and other persons seizing any chattels comprised in such bill of sale, in the execution of any process of any court authorising the seizure of the chattels of the person by whom or of whose chattels such bill has been made, and also as against every person on whose behalf such process shall have been issued, shall be deemed fraudulent and void so far as regards the property in or right to the possession of any chattels comprised in such bill of sale which, at or after the time of filing the petition for bankruptcy or liquidation, or of the execution of such assignment, or of executing such process (as the case may be), and after the expiration of such seven days are in the possession or apparent possession of the person making such bill of sale (or of any person against whom the process has issued under or in the execution of which such bill has been made or given, as the case may be).
From Bouviers:
CHECK, contracts. A written order or request, addressed to a bank or persons carrying on the banking business, and drawn upon them by a party having money in their hands, requesting them to pay on presentment to a person therein named or to bearer, a named sum of money.
2. It is said that checks are uniformly payable to bearer Chit. on Bills, 411; but that is not so in practice in the United States. they are generally payable to bearer, but sometimes they are payable to order.
3. Checks are negotiable instruments, as bills of exchange; though, strictly speaking, they are due before payment has been demanded, in which respect they differ from promissory notes and bills of exchange payable on a particular day. 7 T. R. 430.
4. The differences between a common check and a bill of exchange, are, first, that a check may be taken after it is overdue, and still the holder is not subject to the equities which may exist between the drawer and the party from whom he receives it; in the case of bills of exchange, the holder is subject to such equity. 3 John. Cas. 5, 9; 9 B. & Cr. 388. Secondly, the drawer of a bill of exchange is liable only on the condition that it be presented in due time, and, if it be dishonored, that he has had notice; but such is not the case with a check, no delay will excuse the drawer of it, unless he has suffered some loss or injury on that account, and then only pro tanto. 3 Kent, Com. 104 n. 5th ed.; 8 John. Cas. 2; Story, Prom. Notes, 492.
5. There is a kind of check known by the name of memorandum checks; these are given in general with an understanding that they are not to be presented at the bank on which they are drawn for payment; and, as between the parties, they have no other effect than an IOU, or common due bill; but third persons who become the holders of them, for a valuable consideration, without notice, have all the rights which the holders of ordinary checks can lawfully claim. Story, Prom. Notes, 499.
6. Giving a creditor a check on a bank does not constitute payment of a debt. 1 Hall, 56, 78; 7 S. & R. 116; 2 Pick. 204; 4 John. 296. See 3 Rand. 481. But a tender was held good when made by a check contained in a letter, requesting a receipt in return, which the plaintiff sent back, demanding a larger sum, without objecting to the nature of the tender. 3 Bouv. Inst. n. 2436.
7. A check delivered by a testator in his lifetime to a person as a gift, and not presented till after his death, was considered as a part of his will, and allowed to be proved as such. 3 Curt. Ecc. R. 650. Vide, generally,4 John. R. 304; 7 John. R. 26; 2 Ves. jr. 111; Yelv. 4, b, note; 7 Serg. & Rawle, 116; 3 John. Cas. 5, 259; 6 Wend. R. 445; 2 N. & M. 251; 1 Blackf. R. 104; 1 Litt. R. 194; 2 Litt. R. 299; 6 Cowen, R. 484; 4 Har. & J. 276; 13 Wend. R. 133; 10 Wend. R. 304; 7 Har. & J. 381; 1 Hall, R. 78; 15 Mass. R. 74; 4 Yerg. R. 210; 9 S. & R. 125; 2 Story, R. 502; 4 Whart. R. 252.
CHECK BOOK, commerce. One kept by persons who have accounts in bank, in which are printed blank forms of checks, or orders upon the bank to pay money.
Bills of Sale Act (1878) Amendment Act 1882:
7 Bill of sale with power to seize except in certain events to be void
Personal chattels assigned under a bill of sale shall not be liable to be seized or taken possession of by the grantee for any other than the following causes:—
(1)If the grantor shall make default in payment of the sum or sums of money thereby secured at the time therein provided for payment, or in the performance of any covenant or agreement contained in the bill of sale and necessary for maintaining the security;
(2)If the grantor shall become bankrupt, or suffer the said goods or any of them to be distrained for rent, rates, or taxes;
(3)If the grantor shall fraudulently either remove or suffer the said goods, or any of them, to be removed from the premises;
(4)If the grantor shall not, without reasonable excuse, upon demand in writing by the grantee, produce to him his last receipts for rent, rates, and taxes;
(5)If execution shall have been levied against the goods of the grantor under any judgment at law:
Provided that the grantor may within five days from the seizure or taking possession of any chattels on account of any of the above-mentioned causes, apply to the High Court, or to a judge thereof in chambers, and such court or judge, if satisfied that by payment of money or otherwise the said cause of seizure no longer exists, may restrain the grantee from removing or selling the said chattels, or may make such other order as may seem just.
[F17A Defaults under consumer credit agreements
(1)Paragraph (1) of section 7 of this Act does not apply to a default relating to a bill of sale given by way of security for the payment of money under a regulated agreement to which section 87(1) of the M1Consumer Credit Act 1974 applies—
(a)unless the restriction imposed by section 88(2) of that Act has ceased to apply to the bill of sale; or
(b)if, by virtue of section 89 of that Act, the default is to be treated as not having occurred.
(2)Where paragraph (1) of section 7 of this Act does apply in relation to a bill of sale such as is mentioned in subsection (1) of this section, the proviso to that section shall have effect with the substitution of “county court” for “High Court”.]
Annotations:
Amendments (Textual)
F1S. 7A added by Consumer Credit Act 1974 (c. 39, SIF 60), s. 192(4), Sch. 4 Pt. I para. 1
8 Bill of sale to be void unless attested and registered
Every bill of sale shall be duly attested, and shall be registered under the principal Act within seven clear days after the execution thereof, or if it is executed in any place out of England then within seven clear days after the time at which it would in the ordinary course of post arrive in England if posted immediately after the execution thereof; and shall truly set forth the consideration for which it was given; otherwise such bill of sale shall be void in respect of the personal chattels comprised therein.
9 Form of bill of sale
A bill of sale made or given by way of security for the payment of money by the grantor thereof shall be void unless made in accordance with the form in the schedule to this Act annexed.
10 Attestation
The execution of every bill of sale by the grantor shall be attested by one or more credible witness or witnesses, not being a party or parties thereto . . . . . . F1
Annotations:
Amendments (Textual)
F1Words repealed by Statute Law Revision Act 1898 (c. 22)
15 Repeal of part of Bills of Sale Act, 1878
. . . . . . F1 all . . . . . . F1 enactments contained in the principal Act which are inconsistent with this Act are repealed . . . . . . F1
Annotations:
Amendments (Textual)
F1Words repealed by Statute Law Revision Act 1898 (c. 22)
16 Inspection of registered bills of sale
. . . F1 any person shall be entitled at all reasonable times to search the register, on payment of a fee of [F25p], or such other fee as may be prescribed, and subject to such regulations as may be prescribed, and shall be entitled at all reasonable times to inspect, examine, and make extracts from any and every registered bill of sale without being required to make a written application, or to specify any particulars in reference thereto, upon payment of [F25p] for each bill of sale inspected, and such payment shall be made by a judicature stamp: Provided that the said extracts shall be limited to the dates of execution, registration, renewal of registration, and satisfaction, to the names, addresses, and occupations of the parties, to the amount of the consideration, and to any further prescribed particulars.
Annotations:
Amendments (Textual)
F1Words repealed by Statute Law Revision Act 1898 (c. 22)
F2Word substituted by virtue of Decimal Currency Act 1969 (c. 19), s. 10(1)
Queen’s Bench Division guidance on Bills of Sale:
12.4 Bills of Sale Acts 1878 and 1882 and the Industrial and Provident Societies Act 1967 (RSC O.95):
12.4.1 Every bill of sale and absolute bill of sale to which the Act of 1878 applies must be registered under s.8 of that Act, within 7 clear days of its making, and, under s.11 of the Act of 1878, the registration of a bill of sale must be renewed at least once every 5 years. The register for the purpose of the Bills of Sale Acts contains the particulars of registered bills of sale and an alphabetical index of the names of the grantors, and is kept in the Action Department in Room E10.
12.4.2 An application to register a bill of sale which is made within the prescribed time should be made by filing in Room E17 the original bill of sale and any document annexed to it together with a witness statement or affidavit in form PF 179 or PF 180. An application to re-register a bill of sale which is made within the prescribed time should be made by filing in Room E17 a witness statement or affidavit in form PF 181.
12.4.3 An application to rectify;
(1) an omission to register, by extending the time for registration, or
(2) an omission or mis-statement of the name, residence or occupation of a person in the register, by correcting the registration,
must be made by witness statement or affidavit to a Master of the Queen’s Bench Division. In addition to the matters set out in forms PF 179 or PF 180, the evidence in support must also set out the particulars of the omission and state the grounds on which the application is made.
12.4.4 Where the residence of the grantor of the bill of sale or the person against whom the process is issued is outside the London bankruptcy district, or where the bill of sale describes the goods as being in a place outside that district, the Central Office will send copies of the bill of sale to the appropriate county court district judge.
12.4.5 The Master, on being satisfied that the omission or mis-statement of name, residence or occupation of a person in the register was accidental or due to inadvertence, may order the omission or mis-statement to be rectified by the insertion in the register of the correct name, residence or occupation of the person.
12.4.6 Where the Master is satisfied that the omission to register a bill of sale or a witness statement or affidavit of renewal within the prescribed time was accidental or due to inadvertence, he may extend the time for registration on such terms as he thinks fit. In order to protect any creditors who have accrued rights of property in the assets in respect of which the bill of sale was granted between the date of the bill and its actual registration, any order to extend the time for registration will normally be made ‘without prejudice’ to those creditors. The order will be drawn up in form PF 182.
12.4.7 An application for an order that a memorandum of satisfaction be written on a registered copy of a bill of sale, made without the consent of the person entitled to the benefit of the bill of sale, must be made by the issue of a Part 8 Claim Form. Where the consent of the person entitled to the benefit of the bill of sale has been obtained, the application may be made by a witness statement or affidavit containing that consent and verifying the signature on it. Form PF 183 contains precedents for the evidence and forms of consent. Where the application is made with consent, the evidence need not be served on any other person. If the Master is satisfied on the evidence, he will endorse his approval on the witness statement or affidavit (an order is not normally drawn up) and send it to Room E17 for satisfaction to be entered. If a copy of the bill of sale has been sent to a county court district judge, a notice of satisfaction will be sent to that district judge.
12.4.8 Where the consent has not been obtained, the Claim Form must be served on the person entitled to the benefit of the bill of sale and must be supported by evidence that the debt (if any) for which the bill of sale was made has been satisfied or discharged.
12.4.9 An application to restrain removal on sale of goods seized in accordance with RSC O.95 r.3 and under the proviso to s.7 of the Bills of Sale Act (1878) Amendment Act 1882 must be made by the issue of a Part 8 Claim Form for hearing before the Interim Applications Judge.
12.4.10 Under the Industrial and Provident Societies Act 1967 an application to record an instrument creating a fixed or floating charge on the assets of a registered society or to rectify any omission or mis-statement in it must be made within 14 days beginning with the date of its execution.
12.4.11 Under RSC O.95 r.5 and in accordance with s.1(5) of the Act of 1967 the court may order;
(1) that the period for making an application for recording a charge be extended, or
(2) an omission or mis-statement in such an application be rectified.
The procedure for obtaining an order as in (1) or (2) above is similar to that under s. 14 of the Bills of Sale Act 1878 and must be made by witness statement or affidavit to a Master of the Queen’s Bench Division as in paragraph 12.4.3 above and must exhibit a copy of the instrument duly authenticated in the prescribed manner together with any other particulars relating to the charge.
12.4.12 RSC O.95 r.3 refers to the assignment of book debts; the register of assignments of book debts is kept in Room E10 in the Central Office. An application for registration under s. 344 of the Insolvency Act 1986 should be made in accordance with RSC O.95 r.6(2). Parties may use form PF 186 for their evidence in support. It is helpful if the original assignment is also produced.
Bills of Sale Act 1890:
An Act to exempt certain letters of hypothecation from the operation of the Bills of Sale Act 1882. [18th August 1890]
1. Exemption of securities on imported goods from 41 & 42 Vict. c. 31 and 45 & 46 Vict. c. 43.
[F1 1.
An instrument charging or creating any security on or declaring trusts of imported goods given or executed at any time prior to their deposit in a warehouse, factory, or store, or to their being reshipped for export, or delivered to a purchaser not being the person giving or executing such instrument, shall not be deemed a bill of sale within the meaning of the Bills of Sale Acts 1878 and 1882.]
Annotations:
Amendments (Textual)
F1
S. 1 substituted by Bills of Sale Act 1891 (c. 35), s. 1
2. Savings of 46 & 47 Vict. c. 52 s. 44.
Nothing in this Act shall affect the operation of section forty-four of the Bankruptcy Act 1883 in respect of any goods comprised in any such instrument as is herein-before described, if such goods would but for this Act be goods within the meaning of sub-section three of that section.
Another judge rules against the credit bandits, but this time it was in the county court, on the grounds that MBNA had breached the Unfair Relationships Act, because it earned commission from the insurance company for the policy it had sold, without the card holder’s consent:
http://www.mailonsunday.co.uk/news/article-1217173/Judge-quashes-womans-8-000-credit-card-debt-landmark-ruling-mis-selling-payment-protection-insurance.html
2.16 Section 140B sets out the powers available to the court where it determines that the relationship is unfair to the borrower. An order made by the court may do one or more of the following:
• require the lender, or an associate or former associate, to repay (in whole or part) any sum paid by the borrower (or a surety) by virtue of the credit agreement or any related agreement
• require the lender, or an associate or former associate, to do or not to do (or to cease doing) anything specified in the order in connection with the agreement or any related agreement
• reduce or discharge any sum payable by the borrower (or a surety) by virtue of the agreement or any related agreement
• set aside (in whole or part) any duty imposed on the borrower (or a surety) by virtue of the agreement or any related agreement
• alter the terms of the agreement or any related agreement
• direct the return to a surety of any property provided by him for the purposes of a security
• direct accounts to be taken between any persons
2.17 An order may be made on an application by the borrower (or a surety) either as a stand-alone application or as part of court proceedings in relation to the credit agreement or a related agreement.
Section 140B(9) provides that if the borrower (or a surety) alleges that the credit relationship is unfair, it is for the lender to prove the contrary. In other words, the onus of proof is on the lender to show that the relationship is not unfair.
[…]
3.15 As noted above, an unfair relationship may arise by virtue of:
(a) the terms of the credit agreement (or a related agreement)
(b) the way in which the lender has exercised or enforced its rights under the agreement (or a related agreement), or
© any other thing done (or not done) by or on behalf of the lender either before or after the making of the agreement (or a related agreement).
3.16 The meaning of (a) and (b) is fairly straightforward. In the OFT’s view category © is intended to be as broad as possible, to ensure complete flexibility for the courts. It encompasses both acts and omissions, such as where the lender (or an employee, agent or associate) has failed to take certain steps which, in the interests of fairness, he might reasonably be expected to have taken.
3.17 In our view, category © would include, for example, pre-contract business practices (such as advertising) and post-contract actions not based on a right (such as demanding sums of money the consumer has not agreed to pay). Relevant omissions might include failure to provide key information in a clear and timely manner (or at all), or to disclose material facts. Category © would also encompass acts or omissions which are non-commercial.
