brerach of contract

brerach of contract

dsfn	3/24/2008 8:27:56 PM
My credit card company (HBOS) has just lowered my credit limit from 4600 to 4400 after I applied for an increase. They gave me no notice at all that they were going to do this. So I found that from being 41 pounds in credit I am now 179 pounds over my limit. So I Emailed them to say - in effect - thank you very much, that is a breach of contract, our contract is now null and void and I owe you nothing. Am I right?



Larry	3/24/2008 11:34:41 PM
In article <9eeb9b12-e99e-41f8-921c-98d1c2df7b12@h11g2000prf.googlegroups.com>, dsfn <bernard.weir@googlemail.com> wrote: My credit card company (HBOS) has just lowered my credit limit from 4600 to 4400 after I applied for an increase. They gave me no notice at all that they were going to do this. So I found that from being 41 pounds in credit I am now 179 pounds over my limit. So I Emailed them to say - in effect - thank you very much, that is a breach of contract, our contract is now null and void and I owe you nothing. Am I right? No.



richard	3/24/2008 11:18:14 PM
On Mon, 24 Mar 2008 20:27:56 -0700 (PDT), dsfn <bernard.weir@googlemail.com> wrote: My credit card company (HBOS) has just lowered my credit limit from 4600 to 4400 after I applied for an increase. They gave me no notice at all that they were going to do this. So I found that from being 41 pounds in credit I am now 179 pounds over my limit. So I Emailed them to say - in effect - thank you very much, that is a breach of contract, our contract is now null and void and I owe you nothing. Am I right? Not bloody likely matey. You attempted to increase your limit so that you would not go over the limit with your next spending bilge. You already owe them nearly the limit so you are still obligated and under the contract. The company will not increase your limit unless they see some effort by you to reduce your debt, not increase it. What they can not do is charge you or penalize you for the amount over the limit that they created. You need to manage your money better. Get a grip and learn not to spend so damn much. I haven't had a credit card in 10 years and don't want one. I use check cashing cards. So if the money ain't in my account, I don't go out and buy something anyway.



"David L. Martel"	3/25/2008 8:16:03 AM
Bernard, You have a written contract with the company, so what element of it has been breached? I'm unfamiliat with this company (NBOS) but suspect that they hasve the contractual right to set your credit limit, so read the contract. Assuming for the moment that the contract has been breached, why doesn't the company get to collect the debt that you owe? Is there something in the contract that forgives the debt? Failing to pay your bills on time may affect your credit with other companies. So end your business with this company. Send them the complete amount that you owe. That will teach them about your fiscal abilities. Good luck, Dave M.



Deadrat	3/25/2008 3:17:13 PM
dsfn <bernard.weir@googlemail.com> wrote in news:9eeb9b12-e99e-41f8-921c- 98d1c2df7b12@h11g2000prf.googlegroups.com: My credit card company (HBOS) has just lowered my credit limit from 4600 to 4400 after I applied for an increase. They gave me no notice at all that they were going to do this. So I found that from being 41 pounds in credit I am now 179 pounds over my limit. Read your credit card agreement. It usually says that you agree that they can do anything they want any time they want. So I Emailed them to say - in effect - thank you very much, that is a breach of contract, our contract is now null and void and I owe you nothing. Am I right? Even if they are in breach over the credit limit, you still owe them the money for what you charged. Probably in the severability clause in your agreement.



dsfn	3/25/2008 8:53:11 PM
On Mar 25, 7:16=A0pm, "David L. Martel" <marte...@earthlink.net> wrote: Bernard, =A0 =A0You have a written contract with the company, so what element of it= has been breached? I'm unfamiliat with this company (NBOS) but suspect that th= ey hasve the contractual right to set your credit limit, so read the contract= .. =A0 =A0Assuming for the moment that the contract has been breached, why do= esn't the company get to collect the debt that you owe? Is there something in th= e contract that forgives the debt? =A0 =A0Failing to pay your bills on time may affect your credit with other= companies. So end your business with this company. Send them the complete amount that you owe. That will teach them about your fiscal abilities. Good luck, Dave M. Thanks Dave also deadrat. I should just mention that I understand that the terms of the contract I entered into with HBOS card services allow them to change certain things but only after giving notice. Here no notice was given. On the 18th march when I applied for an increase it stood at 4600 and I few days later it had been reduced to 4400. Not only did they not give me the required 30 days notice but they didn't even bother to tell me about it. I have had an account with the Halifax for the past 18 years andI have never been overdrawn once or ever incurred a penalty payment. My average current account balance over the past 2 years has been about 2000 pounds and I have taken out home contents insurance with them as well. I guess this has something to do with the difficulties they are having at the moment due to irresponsible lending. It may be they have liquidity problems. What clause might have Breached? That's what I have been hoping to find out. I find myself suddenly in the red after always being so careful never to miss a payment. There was 40 pounds available and that was suddenly withdrawn. That is the main breach - withdrawal of credit facilities without notice. If I paid a yearly fee then it would be much simpler for me but the offer to provide me with credit is given for nothing and the only consideration I am asked for is to pay whatever interest Even though I signed a written contract is due. The question is do I, or any non annual fee paying credit card holder, have a contract at all?



Deadrat	3/26/2008 4:39:01 AM
dsfn <bernard.weir@googlemail.com> wrote in news:30b0f140-ba9a-4832-8c12-21341bc99fd9@c19g2000prf.googlegroups.com: On Mar 25, 7:16pm, "David L. Martel" <marte...@earthlink.net> wrote: has ey . esn't e Thanks Dave also deadrat. I should just mention that I understand that the terms of the contract I entered into with HBOS card services allow them to change certain things but only after giving notice. Here no notice was given. On the 18th march when I applied for an increase it stood at 4600 and I few days later it had been reduced to 4400. Not only did they not give me the required 30 days notice but they didn't even bother to tell me about it. It's hard to say without seeing the cardholder agreement. Mine says that they can change any of the terms at any time. I have had an account with the Halifax for the past 18 years andI have never been overdrawn once or ever incurred a penalty payment. My average current account balance over the past 2 years has been about 2000 pounds and I have taken out home contents insurance with them as well. I guess this has something to do with the difficulties they are having at the moment due to irresponsible lending. It may be they have liquidity problems. In the States, the direct liquidity problem is with investment banks, which don't offer credit cards. What clause might have Breached? That's what I have been hoping to find out. I find myself suddenly in the red after always being so careful never to miss a payment. There was 40 pounds available and that was suddenly withdrawn. That is the main breach - withdrawal of credit facilities without notice. If I paid a yearly fee then it would be much simpler for me but the offer to provide me with credit is given for nothing and the only consideration I am asked for is to pay whatever interest Even though I signed a written contract is due. In the States, the banks essentially wrote the laws, which can be summed up in one sentence: the bank always wins. The question is do I, or any non annual fee paying credit card holder, have a contract at all? Sure. You agree to pay them, and they agree to pay the merchants on your behalf. It's probably a one-sided contract, but it's probably a contract. If your agreement really says that they must notify you within 30 days of credit limit changes and they didn't, and if you've been a really good customer forever, why not try politely climbing customer service ladder and ask them to waive the fees?



"David L. Martel"	3/26/2008 8:51:59 AM
dsfn, Thanks Dave also deadrat. I should just mention that I understand that the terms of the contract I entered into with HBOS card services allow them to change certain things but only after giving notice. Here no notice was given. This is interesting if true. Have you raised this issue with them? What did they say? On the 18th march when I applied for an increase it stood at 4600 and I few days later it had been reduced to 4400. Not only did they not give me the required 30 days notice but they didn't even bother to tell me about it. I find myself suddenly in the red after always being so careful never to miss a payment. This is confusing nonsense. How are you suddenly in the red? You still owe the same amount that you did last month only te ability to borrow more has changed. Or are they trying to collect some "overdrawn fee" because your debt exceeds the new credit limit?. My impression is that you have lost the ability to borrow 40 pounds, that you had previously. The question is do I, or any non annual fee paying credit card holder, have a contract at all? Yes, it's a contract. So the question is did they breach the contract by failing to give sufficient notice and how have you been damaged by this change in credit status? I take it that you are going to continue paying your monthly bill. Good luck, Dave M.



"McGyver"	3/26/2008 10:33:05 PM
"dsfn" <bernard.weir@googlemail.com> wrote in message news:9eeb9b12-e99e-41f8-921c-98d1c2df7b12@h11g2000prf.googlegroups.com... My credit card company (HBOS) has just lowered my credit limit from 4600 to 4400 after I applied for an increase. They gave me no notice at all that they were going to do this. So I found that from being 41 pounds in credit I am now 179 pounds over my limit. So I Emailed them to say - in effect - thank you very much, that is a breach of contract, our contract is now null and void and I owe you nothing. Am I right? I have read the posts of the others and your subsequent post. Contract law is my specialty. I'll try to clear up your misunderstandings in an academic way, meaning that I know about U.S. law, which might not be the same as the law in your country, and therefore the answer is of academic value only. First, this is a contract interpretation question. Almost all contract dispute questions are answered by the contract itself, not by the law of contracts. Even in cases where the law clearly states a rule, the parties usually have the right to change that rule by mutual agreement in the contract. Contract interpretation questions can only be answered by reading the contract. Deadrat, Martel and I have not seen this contract. It doesn't suffice to tell us what you think the contract says or means or what you think you were signing up for. I don't trust clients or even other attorneys to read a contract and report the contents to me. I must personally see the entire contract before I am confident that I can interpret its meaning. You have told us that notice is required concerning any change in credit limit, but that doesn't tell me what other clauses might negate or limit that requirement. Such as a clause that says: (a) "Everything that we say we are to do are statements of our intentions, not contractual covenants," (b) "If we fail to perform any of our obligations, all you can do is cancel your account but you still owe all past charges," (c) "Notice will be provided by posting the change on our website which you are responsible for reading", (d) "No breach by the company counts as a breach if it is cured within ten days of written notice of the breach from customer", or (e) whatever. I am willing to assume that the company's contract form was drafted by an expert lawyer. That would lead to the assumption that there is no way in the world that the contract is drafted so sloppily that a breach of contract by the company could result in loss of the right to collect from you all accrued debts for credit card charges. Until I see the actual contract, I will stick with this assumption about the contents. But to directly answer your question, IF: (a) the contract says and means that notice of a change is required, (b) no other clause has any bearing on the matter, and (c) the limit was changed without advance notice, then here is what your rights are: If the breach is minor, you have the right to sue for any damages you have suffered because of their failure to give you notice of the change (or to arbitrate the matter if the contract requires you to arbitrate rather than sue). If the breach is material, then you have the right to rescind the contract and also sue (or arbitrate) for damages. If you rescind the contract in response to a material breach, you have no obligation to perform any covenants under the contract, but in order to rescind the contract and escape any obligation to perform your part of the bargain, you must tender restitution of any benefits you have received under the contract. So the first question would be whether the breach was material. Unless the parties change this rule in the contract, the rule is: (a) a breach is material if the obligation was a vital part of the contract in the minds of the parties, (b) a breach is not material if it is readily curable and the breaching party is willing and able to cure it when notified of the breach, and (c) a breach is not material unless the non-breaching party promptly notifies the breaching party of the decision to rescind the contract. I don't see how a delay in notification of the change in limits can be a material breach under that rule because of the ability to cure the breach. But assuming that it is a material breach, that still leaves the rescinding party with an obligation to tender return of all benefits received. That would include all outstanding debt, obviously. And the right to rescind is a bit meaningless anyway because the customer always has the right to cancel a credit card contract even if there has been no material breach. If you disagree, thinking you should have the right to rescind the contract and not pay your outstanding balance, your only good approach would be to take the contract to a business transaction lawyer in your jurisdiction and find out. It would not be wise to simply cancel the contract, refuse to pay the outstanding debt, and then defend the company's lawsuit by claiming that you have no obligation to pay anything because of the company's breach. That plan would result in learning the law too late. This answer must not be relied on as legal advice for the reasons posted here: http://mcgyverdisclaimer.blogspot.com . And I am not your attorney. McGyver



dsfn	3/27/2008 7:54:24 PM
On Mar 27, 5:33=A0am, "McGyver" <Greyp...@msn.com> wrote: "dsfn" <bernard.w...@googlemail.com> wrote in message news:9eeb9b12-e99e-41f8-921c-98d1c2df7b12@h11g2000prf.googlegroups.com... I have read the posts of the others and your subsequent post. =A0Contract = law is my specialty. =A0I'll try to clear up your misunderstandings in an acad= emic way, meaning that I know about U.S. law, which might not be the same as th= e law in your country, and therefore the answer is of academic value only. First, this is a contract interpretation question. =A0Almost all contract dispute questions are answered by the contract itself, not by the law of contracts. =A0Even in cases where the law clearly states a rule, the parti= es usually have the right to change that rule by mutual agreement in the contract. =A0Contract interpretation questions can only be answered by rea= ding the contract. Deadrat, Martel and I have not seen this contract. =A0It doesn't suffice t= o tell us what you think the contract says or means or what you think you we= re signing up for. =A0I don't trust clients or even other attorneys to read a= contract and report the contents to me. =A0I must personally see the entir= e contract before I am confident that I can interpret its meaning. You have told us that notice is required concerning any change in credit limit, but that doesn't tell me what other clauses might negate or limit that requirement. =A0Such as a clause that says: (a) "Everything that we s= ay we are to do are statements of our intentions, not contractual covenants,"= (b) =A0"If we fail to perform any of our obligations, all you can do is ca= ncel your account but you still owe all past charges," (c) "Notice will be provided by posting the change on our website which you are responsible fo= r reading", (d) "No breach by the company counts as a breach if it is cured within ten days of written notice of the breach from customer", or (e) whatever. I am willing to assume that the company's contract form was drafted by an expert lawyer. =A0That would lead to the assumption that there is no way i= n the world that the contract is drafted so sloppily that a breach of contra= ct by the company could result in loss of the right to collect from you all accrued debts for credit card charges. =A0Until I see the actual contract,= I will stick with this assumption about the contents. But to directly answer your question, IF: (a) the contract says and means that notice of a change is required, (b) no other clause has any bearing o= n the matter, and (c) the limit was changed without advance notice, then her= e is what your rights are: If the breach is minor, you have the right to sue= for any damages you have suffered because of their failure to give you notice of the change (or to arbitrate the matter if the contract requires you to arbitrate rather than sue). =A0If the breach is material, then you = have the right to rescind the contract and also sue (or arbitrate) for damages.= If you rescind the contract in response to a material breach, you have no obligation to perform any covenants under the contract, but in order to rescind the contract and escape any obligation to perform your part of the= bargain, you must tender restitution of any benefits you have received und= er the contract. So the first question would be whether the breach was material. =A0Unless = the parties change this rule in the contract, the rule is: (a) a breach is material if the obligation was a vital part of the contract in the minds o= f the parties, (b) a breach is not material if it is readily curable and the= breaching party is willing and able to cure it when notified of the breach= , and (c) a breach is not material unless the non-breaching party promptly notifies the breaching party of the decision to rescind the contract. I don't see how a delay in notification of the change in limits can be a material breach under that rule because of the ability to cure the breach.= But assuming that it is a material breach, that still leaves the rescindin= g party with an obligation to tender return of all benefits received. =A0Tha= t would include all outstanding debt, obviously. And the right to rescind is a bit meaningless anyway because the customer always has the right to cancel a credit card contract even if there has be= en no material breach. If you disagree, thinking you should have the right to rescind the contrac= t and not pay your outstanding balance, your only good approach would be to take the contract to a business transaction lawyer in your jurisdiction an= d find out. =A0It would not be wise to simply cancel the contract, refuse to= pay the outstanding debt, and then defend the company's lawsuit by claiming th= at you have no obligation to pay anything because of the company's breach. That plan would result in learning the law too late. This answer must not be relied on as legal advice for the reasons posted here: =A0http://mcgyverdisclaimer.blogspot.com. =A0And I am not your attor= ney. McGyver Thank you for taking so much trouble to throw so light on this matter. I accept that I havn't got a leg to stand on if I were to stop my payments. I do have a minor qualification in Law which I gained some 30 years ago so it will take me some time to take it all in but once again thanks a lot.

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