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

[motorbiking]

So if you think something's unfair you ask the judge to be equitable, sounds a bit hit and miss.

Fortunately it doesn’t work that way.

 

[blup]

Fortunately it doesn’t work that way.

I gathered that rereading the thread. But Im still perplexed as to why two people who agree to vary a debt don’t have a contract. If the court gives me judgement for £10,000 plus £1000 interest and the debtor says I can’t afford it all so I will declare myself bankrupt unless you accept payment in instalments and forget the interest, that to me is an agree that benefits both parties.

 

[MNW67]

I gathered that rereading the thread. But Im still perplexed as to why two people who agree to vary a debt don’t have a contract. If the court gives me judgement for £10,000 plus £1000 interest and the debtor says I can’t afford it all so I will declare myself bankrupt unless you accept payment in instalments and forget the interest, that to me is an agree that benefits both parties.

I would imagine that if such a case made it all the way to the Supreme Court, the Justices would agree with you and would overturn the precedent of Foakes v Beer. Even in 1884, F v B was criticised as being too rigid. It's ruling was actually based on a case from nearly three hundred years beforehand. OMG!! Many top legal people think that in part payment cases a "practical benefit" test should be used instead, rather than having to prove new and additional consideration, and they believe that this is what the Supreme Court would decide if an applicable case came before it.

 

[blup]

I would imagine that if such a case made it all the way to the Supreme Court, the Justices would agree with you and would overturn the precedent of Foakes v Beer. Even in 1884, F v B was criticised as being too rigid. It's ruling was actually based on a case from nearly three hundred years beforehand. OMG!! Many top legal people think that in part payment cases a "practical benefit" test should be used instead, rather than having to prove new and additional consideration, and they believe that this is what the Supreme Court would decide if an applicable case came before it.

Surely a promise not to declare bankruptcy or otherwise avoid the debt is “consideration “

 

[motorbiking]

Surely a promise not to declare bankruptcy or otherwise avoid the debt is “consideration “

And of course you are correct. It is additional consideration and there have been plenty of such judgements.

It is an act based on the promise, that is to your detriment and or their benefit.

 

[blup]

The circle is slowly being squared

 

[MNW67]

Surely a promise not to declare bankruptcy or otherwise avoid the debt is “consideration “

I have yet to see any court judgment where the judges have decided that was the case. I would be very interested to see some. I am holding open the possibility that in the cases being mentioned (if they exist at all), the defendant succeeded on the grounds of estoppel rather than consideration.

Having read around the law a bit more, what it seems to come down to is that, in these type of part payment cases, consideration has been interpreted very narrowly. In these cases, consideration needs to be a "legal benefit" rather than a "practical benefit". The principle of a "bird in the hand" is a practical benefit. So, that means it would not count as consideration in these type of part payment cases.

I have to say this has turned out to be a lot more interesting than I thought it would be when I originally mooted the idea!

 

[motorbiking]

Insolvency law provides a significant shield to the owing party if he cannot afford to pay. Offering to pay a dept in part, in exchange for relief of the remaining debt instead of going bankrupt is valid consideration.

Acting on a promise to waive the rest of the debt in exchange for avoiding the shield of bankruptcy is an act to the detriment of the debtor.

Some of the links I already provided explore the case law, which establishes this.

It would be crazy for every amended agreement to need to be subject to a court order, to be binding.

 

[MNW67]

Insolvency law provides a significant shield to the owing party if he cannot afford to pay. Offering to pay a dept in part, in exchange for relief of the remaining debt instead of going bankrupt is valid consideration.

It might seem logical that in layman's terms it provides the creditor with a "benefit".

But apparently it provides the wrong kind of "benefit" to count as consideration in these cases, where the meaning of consideration has been interpreted very narrowly. "Practical benefits", such as recovering more money than you would otherwise, don't count. I know it sounds silly and many top lawyers and academics think it needs changing. But that is how the law currently stands.

 

[MNW67]

Anyway, I think the easiest way to settle this is if you can provide a couple of the many judgments which you claim have found that a threat of bankruptcy counts as consideration in cases of part payment. I would be very interested to read the judge's reasoning. Otherwise, we have probably gone as far as we can.

 

[motorbiking]

It might seem logical that in layman's terms it provides the creditor with a "benefit".

But apparently it provides the wrong kind of "benefit" to count as consideration in these cases, where the meaning of consideration has been interpreted very narrowly. "Practical benefits", such as recovering more money than you would otherwise, don't count. I know it sounds silly and many top lawyers and academics think it needs changing. But that is how the law currently stands.

Fortunately it isn’t true.

 

[motorbiking]

Anyway, I think the easiest way to settle this is if you can provide a couple of the many judgments which you claim have found that a threat of bankruptcy counts as consideration in cases of part payment. I would be very interested to read the judge's reasoning. Otherwise, we have probably gone as far as we can.

It’s already settled I’m not bothered if you disagree.

A detriment to yourself can also constitute consideration