One for the legal eagles - forcing the sale of a jointly owned house

[blup]

So, a simple way of explaining last night's discussion has just popped into my head, which should suit all sides and ensure that other posters who were reading that discussion aren't left confused.

Say you have a simple loan contract with somebody, where you are due to repay them £10,000 in five years time. But you agree between you that you will pay £6,000 immediately to settle it. That payment completely wipes out the existing debt.

But say instead you have a contract where that five years has expired, and the payment of £10,000 is due immediately, and you cannot pay. The other side might agree to accept £6,000 in full and final settlement. In this situation, however, the debt is not wiped out. You still owe the balance of £4,000. The question then is whether that £4,000 can be pursued at a later date through the courts. And that is where promissory estoppel comes in. Even though the £4,000 is legally owing, a court might decide that it is unfair to allow the other party to recover it.

@motorbiking

Nobody anywhere thinks that settlement of a debt in the circumstances you mentioned is unenforceable

 

[MNW67]

Nobody anywhere thinks that settlement of a debt in the circumstances you mentioned is unenforceable

Apart from our highest legal authority, in a case that has stood for 150 years, despite many challenges.

 

[motorbiking]

​

So, do you at least agree that where there is fresh consideration, the debt is legally wiped out. And that when there isn't any fresh consideration, the debt remains.

Collier v Wright [2007] EWCA Civ 1329, [2008] 1 WLR 643 says not necessarily.

Part payment is not fresh consideration, unless for instance it is paid early. The debt still exists legally. Even if somebody tries really hard to get the money together.

That is also incorrect. Consideration is not just about money. Securing a source of funds that would not be available during a bankruptcy is both fresh consideration and detrimental to the party making the offer. It ticks both boxes

That is why F v B is still the leading authority. It has been tested many times in the courts over the past one hundred and fifty years. Unless you can find that case about threatening bankruptcy!

see above

But it might, however, be a defence under promissory estoppel. That is where the debt still exists, but might be unenforceable. Maybe that is what your case was about.

Promissory estoppel can have an extinctive effect on the original contract obligation when it relates to the one-off payment of debt.

That is why in the securespark case they tried it on by writing to him after several years. If the debt had been legally wiped out, there would have been no point in writing to him again, as there would be no debt to chase.

I suspect they were either trying to get the set aside debt acknowledged or had not updated their records. Remember in SS case he ticked both boxes of fresh consideration and detriment to himself (estoppel)

 

[MNW67]

Promissory estoppel can have an extinctive effect on the original contract obligation when it relates to the one-off payment of debt.

Source? Was that Collier?

That is also incorrect. Consideration is not just about money. Securing a source of funds that would not be available during a bankruptcy is both fresh consideration and detrimental to the party making the offer. It ticks both boxes

Source?

see above

Source?

 

[motorbiking]

Apart from our highest legal authority, in a case that has stood for 150 years, despite many challenges.

Your understanding of consideration is flawed. You need to read Currie v Misa (1875) LR 10 Ex 153

​

 

[MNW67]

Your understanding of consideration is flawed. You need to read Currie v Misa (1875) LR 10 Ex 153

Explain your reasoning.

 

[motorbiking]

Consideration can be anything to the benefit of the creditor and or detriment to the debtor.

 

[MNW67]

Consideration can be anything to the benefit of the creditor and or detriment to the debtor.

So, the case law you promised on the bankruptcy question has failed to materialise!

Let's forget bankruptcy then. Look at the basic situation where somebody just says "this is all I can afford". Where is the consideration there.

 

[motorbiking]

So, the case law you promised on the bankruptcy question has failed to materialise!

Let's forget bankruptcy then. Look at the basic situation where somebody just says "this is all I can afford". Where is the consideration there.

You didn't read Collier v Wright [2007] EWCA Civ 1329, [2008] 1 WLR 643 ?

 

[MNW67]

You didn't read Collier v Wright [2007] EWCA Civ 1329, [2008] 1 WLR 643 ?

Yes, I read it yesterday. How is it relevant to those questions about consideration.

 

[motorbiking]

Yes, I read it yesterday. How is it relevant to those questions about consideration.

Why do you think his debt was set aside?

 

[MNW67]

Why do you think his debt was set aside?

You should really answer my questions first instead of trying to deflect.

But it seems that the statutory demand was set aside because the judge believed there was a "triable issue" in relation to the issue of "promissory estoppel". However, he agreed with me on the issue of consideration.

 

[carmanmemoranda]

Answer my questions first.

Twist and squirm is what he does.

Avoids direct questions and asks closed questions.

 

[motorbiking]

Twist and squirm is what he does.

Avoids direct questions and asks closed questions.

you're welcome to summarise your view of what we are discussing. I suspect you haven't a clue.

 

[carmanmemoranda]

you're welcome to summarise your view of what we are discussing. I suspect you haven't a clue.

I'm happy just watching MNW make you twist yourself inside and out .

He's not the 1st, he won't be the last.

But 1 thing for certain, I'm not a lawyer, nor do I pretend to be 1. I pay for the services of 1 as and when needed, and he has advised different to you on previous occasions.